The Issue Whether Respondent, the Department of Juvenile Justice (the Department or Respondent), provided Petitioner, the County of Volusia (Volusia County or Petitioner), a point of entry to challenge the Department's 2008-2009 reconciliation regarding Volusia County and the Department's shared costs for secure detention care for juveniles.
Findings Of Fact The State of Florida is responsible for providing detention care to juveniles. Volusia County and the Department have a joint obligation to contribute to the financial support of juvenile detention care pursuant to section 985.686(1), Florida Statutes.1/ Volusia County is a political subdivision of the State of Florida and is mandated by section 985.686(3) to pay the costs of providing detention care for juveniles only for the period of time prior to final court disposition, exclusive of certain costs as set forth in the statute. The State of Florida is responsible for all other costs of secure juvenile detention. The Department is responsible for administering the cost-sharing requirements. Any difference between the estimated costs and actual costs paid by Petitioner shall be reconciled by Respondent at the end of each fiscal year pursuant to section 985.686(5). The administrative rules enacted by the Department provide that a county is to be given a credit for any overpayment. Volusia County paid $3,739,325 in twelve monthly payments of $311,610.38 based on the Department's fiscal year 2008-2009 Secure Detention Cost Share Estimate. On or about December 7, 2009, the Department issued its Annual Reconciliation for fiscal year 2008-2009, which set forth Volusia County’s FY 2008-2009 share of the year-end cost of secure detention, and assigned Petitioner a credit for overpayment in the amount of $111,040.17. On invoice number 201002-64, dated January 5, 2010, Respondent provided Volusia County a credit of $111,040.17, designated as “FY 08-09 Reconciliation.” The Department has adopted the administrative law judge’s Recommended Order entered in DOAH Case No. 10-1893 (consolidated with seven other cases), Miami-Dade County, et al. v. Department of Juvenile Justice, Case No. 10-1893, et seq. (Fla. DOAH Aug. 22, 2012)(Miami-Dade Recommended Order), as set forth in Okaloosa County v. Department of Juvenile Justice, 131 So. 3d 818, 819 (Fla. 1st DCA 2014), which required the Department to provide an annual reconciliation that reflected each county’s actual costs. For FY 2008-2009, the actual cost per day for secure detention for a juvenile was $220.81. For FY 2008-2009, Volusia County’s total pre- dispositional days were 8,679. For FY 2008-2009, Volusia County’s actual costs were $1,916,409.90. For FY 2008-2009, Volusia County overpaid the Department $1,822,915.10. Volusia County is substantially affected by the reassessment of its actual costs of detention for FY 2008-2009. For fiscal year 2008-2009, Volusia County is owed an additional credit of $1,711,874.93 for overpayment. Volusia County filed its Amended Petition for Administrative Hearing on April 16, 2013, challenging the FY 2008-2009 annual reconciliation and seeking a refund for its overpayment. Volusia County’s substantial interest is of a type and nature for which the undersigned has jurisdiction in that it will determine Volusia County’s actual cost of secure detention care for FY 2008-2009 and determine whether Volusia County is entitled to a credit.2/ Volusia County was not a party to DOAH Case No. 10- 1893 resulting in the Miami-Dade Recommended Order or Okaloosa County v. Department of Juvenile Justice, 131 So. 3d 818, 819 (Fla. 1st DCA 2014), referenced in Finding of Fact 10, above. In this case, the Department’s response to request number one of Volusia County’s Second Request for Admissions admitted “that Volusia County was not provided a point of entry into proceedings as required under section 28-106.111 of the Florida Administrative Code to challenge the fiscal year 2008- 2009 annual reconciliation.” See Exh. P-5, pp. 6-9. The Department’s response to Volusia County’s request number two of Volusia County’s Second Request for Admissions admitted “that Volusia County was not provided a clear point of entry to challenge the fiscal year 2008-2009 annual reconciliation pursuant to Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978) cert. denied, 368 So. 2d 1374 (Fla 1979).” See Exh. P-5, pp. 6- 9. At no time has the Department attempted to seek relief from its admission that Volusia County was not provided a point of entry to challenge the FY 2008-2009 reconciliation. Based upon the Department’s admission, it is found as a matter of fact that Volusia County was not provided with a point of entry to challenge the FY 2008-2009 reconciliation. As Volusia County was not provided with a point of entry to challenge the FY 2008-2009 reconciliation, Count I of Volusia County’s Amended Petition challenging the Department's FY 2008-2009 reconciliation was timely filed.
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 finding that the Department failed to provide Volusia County with a point of entry to challenge the Department's 2008-2009 reconciliation regarding Volusia County and the Department's shared costs for secure detention care for juveniles, and further providing that the Department shall, without undue delay, provide a revised assessment to Volusia County stating that for FY 2008-2009: Volusia County’s actual costs of providing predisposition secure juvenile detention care for fiscal year 2008-2009 were $1,916,409.90; Volusia County overpaid the Department $1,822,915.10; and, Volusia County is owed an additional credit of $1,711,874.93 for overpayment. DONE AND ENTERED this 29th day of October, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of October, 2014.
Findings Of Fact Petitioner, William F. Reid, is currently and has been at all times pertinent to the issues herein, an inmate at UCI, having been committed to the custody of the DOC for an offense committed prior to July 1, 1978. At the time of filing of the Petition, he was in administrative confinement at UCI but, at the time of the hearing, had been released and was not in that status. Petitioner concedes that even during the period of his administrative confinement, he was awarded basic gain time as provided for since he was committed prior to July 1, 1978. However, due to the fact that he was unable to work while in administrative confinement, he did not receive any incentive gain time during that period. Work opportunities for inmates in administrative confinement status are extremely limited. This is because of the security and manpower problems involved in providing adequate supervision of this category of inmate during a work detail. Rule 33-3.081, Florida Administrative Code, allows the placing of an inmate in administrative confinement then disciplinary or criminal charges are pending against him and his presence in the general prison population would present a danger to himself, to others, or to the security and order of the institution. It is also authorized when an investigation is pending and the inmate's presence in the prison population might tend to interfere with that investigation. If, for medical reasons, an inmate's remaining in the prison population would create a health or safety risk, administrative confinement is also authorized. Another reason justifying administrative confinement is when the inmate is alleged to have committed misconduct and there is concern that because of that, his safety is at risk. The rule does not provide any maximum length of time for administrative confinement and the reason for this is that the investigations supporting it are of varying complexity and take differing lengths of time. Petitioner and the other inmates who testified on his behalf all of whom have been in administrative confinement in the past, all denied that they had received the required informal hearing called for under the rule. At best, they were told by the officer placing them in administrative confinement generally why this action was being taken. However, they contend they were never given any opportunity to submit anything to a senior official or a classification officer and they are of the opinion that at no time was there an emergency situation involved. The impression that the inmates have is that a corrections officer can have an inmate confined or released for any reason whether there is adequate justification or basis for the action. Clifford Towbridge has been an inmate at UCI since December, 1983. When he was placed in administrative confinement he was advised of this fact by a corrections officer who told him to pack his things and who put him in administrative confinement status without telling him why. He contends he got no hearing but was ultimately told he was being confined because a confidential informant advised that his life was in danger. Approximately two to three weeks later, he was released when he signed a paper indicating that his life was not in danger. At no time was he told who had made the allegation against him and he was not given a hearing either before confinement or before release. Curtis Mangram had an experience with administrative confinement at his prior incarceration at Belle Glade Correctional Institution. At that time he was given no hearing nor was he brought before a review board. When he left administrative confinement at Belle Glade he was assigned to UCI and remained clean until August 4, 1984 when he was placed in administrative confinement there. It appears that his name was mentioned in connection with the rape of a prisoner and he was placed in administrative confinement for several weeks pending investigation of that incident. One day after his release he was again placed in administrative confinement for possession of contraband wine. He was given no hearing prior to being placed into administrative confinement nor was he initially given a reason for this action. However, he wrote several letters to officials within the DOC to determine why this action was taken. The first response he got indicated he was being placed in for evaluation but regardless of the reason, he is sure he was not given a hearing. On neither occasion of his being placed in administrative confinement, in his opinion, was there any emergency reason for precipitous action. From first hand and from what he has seen and heard, it is his opinion that prisoners are placed in administrative confinement solely on the uncorroborated allegations of other prisoners and when this happens, there is no hearing prior to she placement nor within a timely period thereafter. As was stated previously, the witness was placed in administrative confinement on August 4 and was released on August 28. At that time he was told the reason for him having been placed in administrative confinement (the alleged rape) was resolved. The following day, August 29, he was placed back in administrative confinement and was told by a corrections officer that the action was being taken because Lt. Dixon, an investigator, wanted him back in. Later on, Officer Ward, Dixon's assistant, read him his rights and asked him some questions after which the witness was returned to administrative confinement. The witness admits that he had the wine which he subsequently found out was the basis for his second administrative confinement but he was never punished for the wine nor was he ever charged with the rape. He was in administrative confinement for a total of four months at UCI and had he been punished for the unlawful possession of the wine, it is his opinion he would have been placed in disciplinary confinement for fifteen or thirty days, a period much shorter than the entire period of his administrative confinement. Inmate Edwin Paul has been placed in administrative confinement for investigative reasons twelve or thirteen times during the two and a half years he has been an inmate at UCI. He relates that when he is placed there, the corrections officer comes up to him and tells him to pack his things but never gives him a reason for this action. The response to his inquiry is always that someone will tell him. It is his experience that at UCI, regardless of what the rule requires, no review is done and the inmate is not told anything until he files a grievance. That generally takes approximately ninety days to resolve and during this time, the inmate is in administrative confinement earning no incentive gain time. According to Paul, his requests for information as to the reason for his status are met with various answers such as "you're a menace," "none of your business," or "I don't know." It is his opinion that administrative confinement can be imposed on an inmate at the whim of a correctional officer. He contends that in all of his periods of administrative confinement either no charges were preferred against him, or he was found not guilty of the allegation that was laid, but during all that period, he has not received any gain time that he would have earned had he not been placed in administrative confinement. This has affected his status in that had he not been placed in administrative confinement, his sentence would have been up after forty months confinement. Because of his inability to earn gain time, he is not serving the fiftieth month of his period of confinement. Petitioner was placed in administrative confinement on March 17, 1985. He was not then nor has he since that time been given an informal hearing by a correctional officer, he states. He claims he was placed in administrative confinement by a corrections officer - and was not given an opportunity to sign anything regarding this action. On this occasion he was in for two and a half months. In a prior period of administrative confinement, he claims he was not told why he was there officially. Only through the information given him by a friendly corrections officer two weeks after the fact was he advised why he was incarcerated. Never has a senior corrections officer ever held a hearing with him, he states, nor has he ever been told how long the investigation on which his administrative confinement status is based will take. He has not seen any investigative report nor has he even been given any assistance in finding out the reason for his status. Even a personal interview with the superintendent of UCI has not changed this process, he says. Reid and the other inmates who testified on his behalf all contend that the implementation of the rule regarding administrative confinement creates great stress for them because of, (1) the loss of incentive gain time, (2) the inability to get appropriate exercise, and (3) the impact that the status has on the ability to receive visitors, and all agree that being afforded a hearing or being told why the administrative confinement action was being taken would tend to reduce that stress. Petitioner admitted that he does not have much of a problem with the rule except for the fact that it does not put any time limit on the length of the investigation. His complaint is primarily with the way the rule is followed by UCI. Mr. Tabah, the classification specialist at UCI, related that there is no formal board hearing when inmates are placed in administrative confinement. The inmates' case is reviewed by the chief correctional officer and this review is termed a hearing. This action, however, is itself reviewed by the classification team within 72 hours of the hearing. At the inmates' hearing, a form DC4-318 is prepared by the chief correctional officer on which the reason for the administrative confinement action is listed. The bottom half of this form is subsequently filled out by the classification team during its review as to its concurrence or non-concurrence and the team's recommendation for action. The inmate is given a copy of this review and has an opportunity to make comment thereon. Both the recommendation of the team and the comments of the inmate, if any, are referred to the superintendent. Every inmate in administrative confinement is reviewed weekly. Each inmate is usually advised of the reason for his being placed in administrative confinement either at the time or immediately thereafter. Only in emergency cases can the inmate be placed in administrative confinement without review/hearing by the chief correctional officer. In that case, the hearing is held within forty-eight hours. Review of the files on both Mangram and Towbridge reveal that, as to Towbridge, the inmate was advised by the corrections officer placing him in administrative confinement on February 13, 1985 as to the reason therefor. The chief corrections officer approved the actions of the corrections officer thereafter and the following day, the classification team reviewed the action and furnished the inmate with a copy of their recommendation. As to Mangram, the records reflect that he was placed in administrative confinement on August 18, 1984. An informal hearing was held that same day and the action was reviewed by senior corrections officer Bryant at 4:00 P.M. the same day. Mr. Mangram was retained in administrative confinement because of the belief that the safety of the institution required it. It was felt that Mangram was a potentially violent inmate who posed a clear danger to others. As to Mr. Paul, the file reflects that the two times he was in administrative confinement he was advised of the reasons and given a hearing. As to Petitioner, the record reflects that on January 24, 1985 he was placed in administrative confinement and given the reasons therefor by corrections officer Brown. The reviewing corrections officer supervisor Bryant concurred.
Findings Of Fact In August 1986, petitioner was employed as a Detention Care Worker I at the Manatee Regional Juvenile Detention Center. On August 6, 1986, petitioner received a copy of HRS Pamphlet 60-1, entitled "Employee Handbook." The HRS policy concerning absences is set forth in the handbook as follows: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. On May 4, 1987, petitioner received a written reprimand for an absence without authorized leave which occurred on April 9, 1987. Petitioner was reminded that he had to call his immediate supervisor for approved leave prior to the beginning of his shift. On May 4, 1987, petitioner also received an oral reprimand for his excessive absences. By May 28, 1987, petitioner had accumulated 41 hours of leave without pay that were due to absences from work that were not approved in advance. Ms. Clark, petitioner's Shift Supervisor, held a conference with petitioner to discuss the problems he was having. As a result of the discussion with petitioner, Ms. Clark decided to retroactively grant petitioner leave with pay, or annual leave, for all of the hours of absences for which he had annual leave available. After using all of petitioner's accumulated annual leave, petitioner still had eight hours of "short time," which was treated as leave without pay. On May 29, 1987, petitioner was advised by written memorandum from John Simpson, the Assistant Superintendent of the facility, that petitioner had to personally call his shift supervisor for any future leave requested. He was also advised that such request might not be approved and that he should be prepared to report to his assigned shift. On June 12, 1987, petitioner did not go to work. He did not request leave, but his wife called to say that he would not be at work. The Manatee Juvenile Detention Center is a secured facility. Detention care workers must be present at the facility at all times and work in shifts. Due to the nature of the work, it is vital that a detention care worker notify his supervisor in advance of any proposed absence so that arrangements can be made for a substitute to take his shift. Petitioner appeared for work as scheduled at 11:00 p.m. on June 18, 1987, and worked until 7:00 a.m., June 19, 1987. He was scheduled to work again at 11:00 p.m. on June 19, 1987. He did not call, and he did not report for work. He also was scheduled to work the night of June 20th. At about 6:00 p.m. on June 20, he stopped by the facility to say that his wife was having a baby. He did not report to work that night. On June 21, petitioner called Ms. Clark at home at about 9:50 p.m. He said that he was at the hospital with his wife and baby. He indicated that his wife and baby were fine, although the baby was about five weeks premature. Petitioner testified that he asked Ms. Clark for five days off and that Ms. Clark agreed. Ms. Clark testified that petitioner asked that he be given leave for the night of June 21. Since petitioner did not have annual leave accumulated, the leave had to be without pay. A shift supervisor is not authorized to grant over one day of leave without pay. Ms. Clark was a credible witness, she clearly recalled the conversation she had with the petitioner, and her testimony is accepted. It is therefore found that petitioner was granted leave for the shift beginning at 11:00 p.m. on June 21 and ending at 7:00 a.m. on June 22, 1987. No additional leave was authorized. Petitioner was scheduled to work the shift beginning at 11:00 p.m. on June 22, 1987. He did not appear for work and did not call. Petitioner was not scheduled to work the nights of June 23 or June 24, 1987. On Thursday, June 25, 1987, petitioner was scheduled to work the 11:00 p.m. shift. He did not call and did not report to work. On Friday night, June 26, 1987, petitioner was scheduled to work. He did not call and did not report to work. On June 27, at about 5:30 p.m., petitioner called Ms. Clark to inform her that he was returning to work. Ms. Clark told petitioner that he needed to talk to Mr. Simpson. Mr. Simpson went to the facility to meet with petitioner. Petitioner did not report to work. On June 28, 1987, petitioner went to work. He was told that he had to see Mr. Simpson. Mr. Simpson gave petitioner the termination letter which advised petitioner that he had been absent from work on June 22, 25 and 26, 1987, without authorization, and that he was deemed to have resigned from his position as Detention Care Worker I effective 7:00 a.m. on June 27, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services and finding that Calvin Sloan abandoned his position as Detention Care Worker I and resigned from the Career Service. DONE AND ENTERED this 18th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. COPIES FURNISHED: Mr. Calvin Sloan 1207-25th Street East Palmetto, Florida 33561 Frederick Wilk, Esquire Department of Health and Rehabilitative Services District VI 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue The issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Scott R. Blair (Respondent Blair) was certified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) as a correctional officer, having been issued correctional certificate number 30982 on December 22, 1989. At all times material hereto, Charles A. Piazza (Respondent Piazza) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 25166 on August 11, 1988. At all times material hereto, Robert C. Singleton, Sr. (Respondent Singleton), was certified by Petitioner as a correctional officer, having been issued correctional certificate number 71355 on August 24, 1988. At all times material hereto, Thomas A. Sayed (Respondent Sayed) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 98281 on March 27, 1987. At all times material hereto, all of the Respondents were employed as correctional officers with the Martin County Sheriff's Department in the Martin County Detention Center. In or around December 1989, a new Detention Center was constructed and opened. Prior to that time, the old Detention Center, called the "stockade," was located in Indiantown approximately 19 miles from the site of the new facility. The stockade contained a commissary which was used by both inmates and correctional officers. The commissary was a separate area of the stockade, which contained a variety of snack foods, cigarettes, and sodas for the benefit of the inmates of the facility, who could purchase the items with monies maintained in their individual accounts controlled by the Detention Center. 3/ None of the inmates had unsupervised and continuous access to the commissary. Even though the commissary was for the benefit of the inmates, correctional officers from time to time would remove items from it. There existed an unwritten honor policy that any item removed by a correctional officer would have to be paid for by that officer. A container was placed in the commissary and a correctional officer would place money in the container for the item removed. If an officer was unable to pay for the item at the time of its removal, a supervising officer could approve payment at a later time. An inventory was performed on a weekly and monthly basis, with no shortage of money being reported. This honor policy was well known to and acquiesced in by the commanding officer of the stockage, Major Murphy. Respondent Singleton, who was employed at the stockade, frequently used this honor policy. He would remove items from the commissary and put money in the container for the items. At times, he would not be able to pay for an item until payday, and he was allowed to pay for the item at that time by his superior officer on duty at the time. Respondent Blair was also employed at the stockade and used this honor system. When the new facility opened in or around December 1989, the commissary structure and procedure pertaining to inmate use remained the same, but the procedure pertaining to correctional officer use was changed by Major Murphy. Although the commissary continued to be for the benefit of the inmates, no longer were the correctional officers suppose to utilize it. The container for payment by the correctional officers for items removed no longer existed. Now, the correctional officers were suppose to obtain their items from an area within the new Detention Center specifically set-aside for them, which was separate and some distance away from the commissary. This area contained coin-operated machines which contained a variety of snack foods, cigarettes and sodas. However, although there was suppose to be this new policy, no one, other than administrative personnel and high ranking correctional officers, were aware of the change. No written policy was issued for the new facility to countermand the unwritten policy used at the stockade. This nonaction resulted in no notification to the correctional officers of the new policy. Without the written policy, some correctional officers who worked at the stockade continued their practice in the new facility of removing items from the commissary even though no container existed in which the officers could pay for the items removed. In particular, at the new facility one correctional officer on the night shift had removed some items from the commissary. Being unsure as to how to pay or who to pay for the items, he waited the next morning, before going home, for the person who purchased items for the commissary, so that he could pay for the items. The commissary purchasing person worked only on the day shift. At that time, he was notified by the commissary purchasing person that he no longer could obtain items from the commissary, but she did accept his money for the items and informed the officer's superior of the incident. Then and only then did he become aware of the policy change. Major Murphy continued as the commanding officer at the new Detention Center. He too used the commissary and the honor policy. At the stockade he would order boxes of cigars through the commissary, either prepaying for them or paying for them when they came in. He continued this practice at the new facility, which was at odds with his new unwritten policy of prohibiting correctional officers from using the commissary. Everyone was aware of Major Murphy's practice. Approximately a year and a half after the new facility opened, on June 13, 1991, through an inmate informant, Major Murphy became aware of possible inmate theft of cigarettes from the commissary. The alleged theft occurred the night before on June 12, 1991, which was the usual periodic time that inmates' requests for commissary items were filled by other inmates under the supervision of correctional officers. The inmates who were assigned to fill inmate requests from the commissary were questioned by an officer assigned to the investigation by Major Murphy. Implicated by the inmates interviewed in the June 12, 1991 theft of cigarettes were themselves, other inmates and several correctional officers, including Respondents. Besides officers actually removing cigarettes, one inmate was allegedly directed by one officer to deliver some cigarettes to another room and by another officer, Respondent Piazza, to deliver some cigarettes to her. Possible officer theft was a surprising development. On the basis of only the inmates' statements, on June 13, 1991, Respondents were notified to report to Major Murphy without notifying them about the nature of the meeting. The written procedure for investigating officers was not followed. Major Murphy dictated the procedure to be followed in the investigation. Respondents Blair, Piazza and Sayed met with Major Murphy and two of his ranking officers. Major Murphy did all the talking at the meeting. He cited the theft statute, notified them of the allegation against them and instructed them to tell what they had done. Major Murphy further told the Respondents that, if they did take the cigarettes, it would be the most expensive pack of cigarettes that they had ever had. At least one of Major Murphy's ranking officers perceived this statement by Major Murphy as a threat to the Respondents. Only Respondent Blair admitted to removing, but not stealing, two packs of cigarettes after changing his story several times as to how many packs he had removed. Respondent Sayed denied taking anything but at the conclusion of the meeting requested to meet with Major Murphy privately. In that private meeting, with one of Major Murphy's ranking officers also present, Respondent Sayed admitted to removing, but not stealing, two packs of cigarettes and attempted to give Major Murphy the money for the cigarettes. Major Murphy refused to take the money. Respondent Piazza denied taking any cigarettes from the commissary. Respondent Singleton was late for the meeting because he had not received notification of it. Again, Major Murphy did all the talking. He gave Respondent Singleton the same introductory comments regarding the theft statute, what was alleged, and requested his story of what happened. When Major Murphy completed his comments, Respondent Singleton admitted that, during his night shift, he had taken, but not stolen, a pie to eat because he lacked change for the machines and had intended to pay for the pie later. Respondent Singleton also admitted that in the past he had removed snack items from the commissary but had paid the commissary purchasing person for them later. 4/ His statement pertaining to paying for the items later is found not to be credible. If he had engaged in this type of conduct, it is reasonable to assume that the commissary purchasing person would have informed him that he could no longer engage in such conduct, as she had done with the correctional officer discussed in Finding of Fact 15. Respondents were suspended from their positions that same day and subsequently terminated. Prior to the meeting with Major Murphy, there was nothing other than the statements by inmates to connect the Respondents to the theft of cigarettes from the commissary. Moreover, no inventory was performed on the commissary items. No evidence existed to show that any unauthorized items had been taken from the commissary or that Respondents had taken any items from the commissary. Even though Major Murphy found the inmates' statements, standing alone, credible to initiate an investigation against the Respondents and personally question them, he failed to find these same statements from these same inmates credible to investigate any of the other correctional officers named in the statements and question them. Furthermore, no other correctional officer named on that evening shift was disciplined by Major Murphy. One of the inmates from whom the so-called credible statements were taken testified at the hearing that, when he assisted in the new commissary, it was not uncommon for correctional officers to remove items from the commissary. 5/ At the hearing, the inmate refused to name correctional officers other than those named in his investigative statement, which included Respondents Blair, Piazza and Sayed, because he was fearful of what might happen to him at the new Detention Center at which he was now again incarcerated. Importantly, before he agreed to give a statement during the investigation in which he named officers, he was told by the investigating officer that other inmates had already given statements and named officers. The inmate's testimony at hearing is found to be credible. Regarding Respondent Piazza, this inmate was directed by Respondent Piazza to take some cigarettes to another room within the facility where other officers were located, but none of whom personally accepted or received the cigarettes. Approximately four days after the Respondents' meeting with Major Murphy, on June 17, 1991, he issued a written memo regarding correctional officers removing items from the commissary. Major Murphy indicated in the memo that through an investigation, without revealing the nature of the investigation, "apparently there was a practice of correctional employees removing items from the commissary, on all four shifts, without paying for them but that the practice would not be tolerated." Moreover, he further indicated that employees who had participated in the practice could remain anonymous and pay for the items, describing the procedure to follow, and that in the future a container would be placed in the commissary for the correctional employees who remove items to pay for them at the time they are removed. It is inferred from Major Murphy's memo that he believed, and it is found, that it was common practice for correctional officers to remove items from the commissary without paying for them as described by the Respondents. Even though other correctional officers who participated in the practice were provided an opportunity to pay for the items they had removed from the commissary, Major Murphy denied the Respondents this same opportunity. Prior to the memo of June 17, 1991, and after Major Murphy's meeting with the Respondents, another officer who was named in an inmate statement admitted to Major Murphy that he had removed a cigar from the commissary without paying for it. No disciplinary action was taken against that officer. Also, additional correctional officers were named in additional statements by one inmate. Major Murphy determined the extent of the investigation (limited only to the evening of June 12, 1991), and who would be investigated and disciplined (only Respondents and the inmates). Before issuing the memo of June 17, 1991, Major Murphy had decided not to pursue an investigation of any additional correctional officers because he believed that the disciplining of Respondents had sent a message to the other officers that the practice would not be tolerated and because he did not want to have to suspend and possibly terminate the majority of his staff. No criminal charges were recommended or filed against Respondents. The investigating officer recommended, and Major Murphy agreed, that the incident did not warrant theft charges. Respondents have not been employed as correction officers since June 13, 1991. Respondents have no prior history of disciplinary action. The inmates who stole cigarettes on the evening of June 12, 1991, were also disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding the Respondents. Placing the Respondents on probationary status for six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1994.
The Issue The issue in these consolidated cases is whether the Department of Juvenile Justice (the "Department") assessed Petitioners and Intervenor counties for secure juvenile detention care for fiscal year 2008-2009 in a manner consistent with the provisions of section 985.686, Florida Statutes, and Florida Administrative Code Rules 63G-1.001 through 63G-1.009.1/
Findings Of Fact Parties The Department is the state agency responsible for administering the cost-sharing requirements of section 985.686, Florida Statutes, regarding secure detention care provided for juveniles. With the exception of Intervenor Florida Association of Counties, Inc., the Petitioners and Intervenors (collectively referenced herein as the "Counties") are political subdivisions of the State of Florida. The specific counties that have petitioned or intervened in these proceedings are not "fiscally constrained" as that term is defined in section 985.686(2)(b), Florida Statutes. Each county is required by section 985.686 to contribute its actual costs for predisposition secure detention services for juveniles within its jurisdiction. The Counties are substantially affected by the Department's determinations of the number of secure detention days that are predisposition, and by the Department's allocation of those days among the Counties, an allocation that further determines each county's share of the cost for pre-disposition secure detention. The Counties are further substantially affected by the allocation method itself, which they assert is not authorized by section 985.686. Statutory and rule framework Section 985.686(1), Florida Statutes, provides that the "state and counties have a joint obligation, as provided in this section, to contribute to the financial support of the detention care provided for juveniles." Section 985.686(2)(a), defines "detention care," for purposes of this section, to mean "secure detention."2/ Section 985.03(18)(a), defines "secure detention" to mean "temporary custody of the child while the child is under the physical restriction of a detention center or facility pending adjudication, disposition, or placement." Section 985.686(3), provides in relevant part that each county "shall pay the costs of providing detention care . . . for juveniles for the period of time prior to final court disposition. The department shall develop an accounts payable system to allocate costs that are payable by the counties." In summary, section 985.686 requires each non-fiscally restrained county to pay the costs associated with secure detention during predisposition care, and the Department to pay the costs of secure detention during post-disposition care.3/ The Department is charged with developing an accounts payable system to allocate costs payable by the counties. Section 985.686(5), sets forth the general mechanism for this allocation process: Each county shall incorporate into its annual county budget sufficient funds to pay its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition. This amount shall be based upon the prior use of secure detention for juveniles who are residents of that county, as calculated by the department. Each county shall pay the estimated costs at the beginning of each month. Any difference between the estimated costs and actual costs4/ shall be reconciled at the end of the state fiscal year. Section 985.686(10), provides that the Department "may adopt rules to administer this section." Pursuant to this grant of authority, the Department promulgated Florida Administrative Code Rules 63G-1.001 through 63G-1.009, effective July 16, 2006. Rule 63G-1.004 provides the detailed method by which the Department is to calculate the counties' estimated costs: Each county's share of predisposition detention costs is based upon usage during the previous fiscal year, with the first year's estimates based upon usage during fiscal year 2004-05. Estimates will be calculated as follows: All youth served in secure detention during the relevant fiscal year as reflected in the Juvenile Justice Information System will be identified; Each placement record will be matched to the appropriate referral based upon the referral identification code. Placements associated with administrative handling, such as pick-up orders and violations of probation, will be matched to a disposition date for their corresponding statutory charge; The number of service days in secure detention is computed by including all days up to and including the date of final disposition for the subject referral. Each county will receive a percentage computed by dividing the number of days used during the previous year by the total number of days used by all counties. The resulting percentage, when multiplied by the cost of detention care as fixed by the legislature, constitutes the county's estimated annual cost. The estimated cost will be billed to the counties in monthly installments. Invoices are to be mailed on the first day of the month prior to the service period, so that an invoice for the August service period will be mailed on July 1. Rule 63G-1.008 provides the method by which the Department is to reconcile the estimated payments with the actual costs of predisposition secure detention: On or before January 31 of each year, the Department shall provide a reconciliation statement to each paying county. The statement shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period. If a county's actual usage is found to have exceeded the amount paid during the fiscal year, the county will be invoiced for the excess usage. The invoice will accompany the reconciliation statement, and shall be payable on or before April 1. If a county's actual usage was less than the estimated amounts paid during the fiscal year, the county will be credited for its excess payments. Credit will be reflected in the April billing, which is mailed on March 1, and will carry forward as necessary. Under the quoted rules, the Department determines an estimate for each county's share of predisposition secure detention costs. This estimate is provided to the counties prior to the start of the fiscal year in order to allow each county to "incorporate into its annual county budget sufficient funds" to pay for the costs of predisposition secure detention care for juveniles who reside in that county. To prepare this estimate, the Department utilizes the county's actual usage of secure detention facilities for the most recently completed fiscal year.5/ The amount of this usage is shown as that county's percentage of the total usage of predisposition secure detention care by all counties. The resulting percentage for each county is then multiplied by the "cost of detention care as fixed by the legislature" to arrive at the estimated amount due for each county. Rule 63G-1.002(1) defines "cost of detention care" as "the cost of providing detention care as determined by the General Appropriations Act." The term "cost of detention care" is used in rule 63G- 1.004, which sets forth the method of calculating estimnated costs. The term is not used in rule 63G-1.008, which addresses the annual reconcilation by which the Department purports to arrive at the "actual cost of the county's usage" for the fiscal year. The definition of "cost of detention care" references the Legislature's annual General Appropriations Act, which appropriates revenues for the operation of various state functions. An "appropriation" is "a legal authorization to make expenditures for specific purposes within the amounts authorized by law." § 216.011(1)(b), Fla. Stat. The General Appropriations Act for fiscal year 2008-2009 was House Bill 5001, codified as chapter 2008-152, Laws of Florida. Within chapter 2008-152, Specific Appropriations 1073 through 1083 set forth the appropriations for the juvenile detention program. These items included the cost of operating the secure detention centers and identified specific funding sources for the program. These funding sources were the General Revenue Fund ("General Revenue"), the Federal Grants Trust Fund, the Grants and Donations Trust Fund, and an amount identified under the Shared County/State Juvenile Detention Trust Fund ("Shared Trust Fund"). Section 985.6015(2), states that the Shared Trust Fund "is established for use as a depository for funds to be used for the costs of predisposition juvenile detention. Moneys credited to the trust fund shall consist of funds from the counties' share of the costs for predisposition juvenile detention." A total of $30,310,534 was appropriated from General Revenue to the Department for the operation of secure detention centers. This amount was intended to cover the Department's costs in providing post-disposition secure detention services, including the state's payment of the costs for detention care in fiscally constrained counties. See § 985.686(2)(b) & (4), Fla. Stat. A total of $99,583,854 was set forth as the appropriation for the Shared Trust Fund. This amount was not an "appropriation" as that term is defined by statute because it did not authorize a state agency to make expenditures for specific purposes. Rather, this number constituted the amount to be used in the preparation of the preliminary estimates that the Department provides to the counties for the purpose of budgeting their anticipated contributions toward the secure detention costs for the upcoming fiscal year. As will be discussed at length below, a refined version of this number was also improperly used by the Department as a substitute for calculating the counties' actual cost at the time of the annual reconciliation described in rule 63G-1.008. As set forth in rule 63G-1.004, the Department determines the estimate, then it notifies the counties of the estimated amount. The counties make their payments in monthly installments. Rule 63G-1.007 requires the Department to prepare a quarterly report for each county setting forth the extent of each county's actual usage. The counties receive their reports 45 days after the end of each quarter. Subsection (1) of the rule provides that the quarterly report "is to assist counties in fiscal planning and budgeting, and is not a substitute for the annual reconciliation or grounds for adjusting or withholding payment." At the end of the fiscal year, and no later than January 31, the Department must prepare an annual reconciliation statement for each county, to reconcile the difference, if any, between the estimated costs paid monthly by the county and the actual cost of the county's usage during that period. If the county's actual cost is more or less than the estimated payments made during the fiscal year, the county will be credited or debited for the difference. Fla. Admin. Code R. 63G-1.008. Because a county is billed prior to the start of the fiscal year, the Department's initial estimate obviously cannot be based on actual costs for that fiscal year. However, the amount ultimately owed by each county following the annual reconciliation should assess the county's actual costs for predisposition secure detention care during that year, in accordance with section 985.686(5). Prior DOAH litigation The Department's manner of assessing the counties for predisposition secured detention services has been the subject of five prior DOAH cases, all of them involving Hillsborough County. Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 07- 4398 (Fla. DOAH Mar. 7, 2008; Fla. Dep't of Juv. Just. June 4, 2008)("Hillsborough I") dealt with the methodology used by the Department to determine the amount that Hillsborough County owed for predisposition secure detention services for fiscal year 2007-2008. Administrative Law Judge Daniel Manry found that the Department's practice of calculating a per diem rate for service days in secure detention was inconsistent with the Department's rule 63G-1.004(2). Instead of limiting Hillsborough County's contribution to a percentage of the amount "appropriated"6/ by the Legislature to the Shared Trust Fund, the Department was including its own General Revenue appropriation in the calculation, which inflated the county's assessment. Hillsborough I at ¶ 24. Judge Manry's findings led the Department to conclude, in its Final Order, that the calculation of a "per diem" rate for the counties should be abandoned as inconsistent with rule 63G-1.004. In a companion case to Hillsborough I, Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 07-4432 (Fla. DOAH Mar. 10, 2008; Fla. Dep't of Juv. Just. June 4, 2008)("Hillsborough II"), Judge Manry dealt with Hillsborough County's challenge to the Department's determination of utilization days allocated to the county for predisposition care. In this case, Judge Manry found that the Department had failed to comply with the requirements of section 985.686(6), which provides: Each county shall pay to the department for deposit into the Shared County/State Juvenile Detention Trust Fund its share of the county's total costs for juvenile detention, based upon calculations published by the department with input from the counties. (Emphasis added). The Department had allocated 47,714 predisposition utilization days to Hillsborough County, which was reduced to 47,214 after the reconciliation process. The county argued that the correct number of predisposition days was 31,008. The Department identified 16,206 challenged days under nine categories: contempt of court; detention orders; interstate compacts; pick up orders; prosecution previously deferred; transfer from another county awaiting commitment beds; violation of after care; violation of community control; and violation of probation. Hillsborough II, ¶¶ 25-27. Judge Manry found that the Department had allowed input from the counties during the rulemaking workshops for chapter 63G-1, but had "thwarted virtually any input from the County during the annual processes of calculating assessments and reconciliation." Id. at ¶ 28. The data provided by the Department to the county each year did not include final disposition dates, making it virtually impossible for the county to audit or challenge the Department's assessments. Judge Manry also found that the absence of disposition dates deprived the trier-of-fact of a basis for resolving the dispute over the nine categories of utilization days that the Department had categorized as "predisposition." Id. at ¶ 30. Judge Manry rejected the Department's contention that the county's allegation of misclassification was a challenge to agency policy. He found that the issue of the correct disposition date was a disputed issue of fact not infused with agency policy or expertise that could be determined through conventional means of proof, including public records. Id. at ¶¶ 31-32. The Department failed to explicate "any intelligible standards that guide the exercise of agency discretion in classifying the nine challenged categories of utilization days as predisposition days." Id. at ¶ 34. Judge Manry made the following findings of significance to the instant proceeding: The trier-of-fact construes the reference to placement in Subsection 985.03(18)(a) to mean residential placement. Secure detention includes custody in a detention center for both predisposition and post-disposition care. Predisposition care occurs prior to adjudication or final disposition. Post-disposition care occurs after adjudication or disposition but prior to residential placement. Post-disposition care also includes custody in a detention center after final disposition but prior to release. Although this type of post-disposition care comprises a small proportion of total post-disposition care, references to post-disposition care in this Recommended Order include care after final disposition for: juveniles waiting for residential placement and juveniles waiting for release. (Emphasis added). Judge Manry found that "secure detention after final disposition, but before residential placement for the charge adjudicated, is post-dispositional care." Id. at ¶ 36. He recommended that the Department enter a final order assessing the county for the costs of predisposition care within the county "in accordance with this Recommended Order and meaningful input from the County." The Department adopted Judge Manry's recommendation. In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-1396 (Fla. DOAH June 30, 2009; Fla. Dep't of Juv. Just. Sept. 17, 2009) ("Hillsborough III"), the dispute between Hillsborough County and the Department centered on 9,258 detention days that the Department had assigned to the county for which no disposition dates were available. Hillsborough III at ¶ 2. The Department took the position that it could identify disposition dates for all juveniles who had been transferred to its care and supervision, and that the "no date" cases indicated that those juveniles had not been transferred to the Department and were therefore the responsibility of the county. Id. at ¶¶ 4-5. Hillsborough County contended that any court order in a juvenile detention case is a dispositional order, after which the Department becomes responsible for the expenses related to retaining the juvenile. Id. at ¶ 5. Administrative Law Judge William F. Quattlebaum found that neither section 985.686 nor previous Final Orders suggest that fiscal responsibility for a juvenile is transferred to the Department upon the issuance of any court order. Id. at ¶ 6. He concluded that it is . . . reasonable to presume that the [Department] would have disposition information about juveniles who had been committed to [its] custody, and it is likewise reasonable to believe that, absent such information, the juveniles were not committed to the [Department's] custody. The [Department] has no responsibility for the expenses of detention related to juveniles who were not committed to the [Department]'s care and supervision. Id. at ¶ 13. However, the evidence also indicated that in some of the "no date" cases, the Department's records identified addresses of record that were facilities wherein the Department maintained offices. Id. at ¶¶ 7-8. Judge Quattlebaum recommended that the Department amend the annual reconciliation to give the Department responsibility for the disputed cases which lacked disposition dates but included Department addresses, and to give Hillsborough County responsibility for those cases with no disposition dates and no Department addresses. In its Final Order, the Department accepted the recommendation to the extent that cases lacking disposition dates were properly assigned to Hillsborough County. However, the Department concluded that "there is no legal authority to assign responsibility for detention stays based upon proximity to a Department office location," and therefore declined to amend the annual reconciliation as recommended by Judge Quattlebaum. In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-4340 (Fla. DOAH Dec. 18, 2009; Fla. Dep't of Juv. Just. Jan. 20, 2010) ("Hillsborough IV"), the issue was the Department's authority to issue multiple annual reconciliations. On January 30, 2009, the Department issued an annual reconciliation to Hillsborough County along with an invoice for a sizable credit due the county for having made estimated payments in excess of its actual costs for fiscal year 2007- 2008. The county did not object to this reconciliation statement. Hillsborough IV at ¶ 8. On February 24, 2009, the Department issued a second annual reconciliation that increased the county's assigned predisposition days and decreased the county's credit. Id. at ¶ 9. On March 18, 2009, the county sent a letter to the Department requesting clarification as to the two annual reconciliations. The Department did not respond to the letter. Id. at ¶ 10. On May 1, 2009, the county sent a second letter to the Department disputing a portion of the assigned utilization days. The Department did not respond to the letter. However, on May 14, 2009, the Department issued a third annual reconciliation to the county that again increased its assigned predisposition days and reduced its credit. Id. at ¶ 11. On June 4, 2009, the Department issued a fourth annual reconciliation. This reconciliation decreased the county's assigned predisposition days but nonetheless again reduced the county's credit. Id. at ¶ 12. On July 17, 2009, the Department finally responded to the county's May 1, 2009, letter by advising the county to file an administrative challenge to the allocation of predisposition days. Id. at ¶ 13. With these facts before him, Judge Quattlebaum reviewed section 985.686 and the Department's rules and then arrived at the following conclusions: There is no authority in either statute or rule that provides the [Department] with the authority to issue multiple annual reconciliation statements to a county. The [Department] is required by Florida Administrative Code Rule 63G-1.008 to issue an annual reconciliation statement on or before January 31 of each year. The rule clearly requires that March bills (payable in April) reflect any excess payment credit due to a county and that any additional assessment related to excess usage must be paid by a county on or before the following April 1. Absent any evidence to the contrary, the annual reconciliation statement issued pursuant to the rule is final unless successfully challenged in an administrative proceeding.... * * * 28. At the hearing, the parties suggested that the issuance of multiple annual reconciliation statements is the result of the resolution of objections filed by counties in response to the annual reconciliation statement. The resolution of such objections can result in additional costs allocated to another county. There was no evidence that counties potentially affected by resolution of another county's objections receive any notice of the objections or the potential resolution. The county whose allocated costs increase through the resolution of another county's objections apparently receives no notice until the [Department] issues another annual reconciliation statement for the same fiscal period as a previous reconciliation statement. * * * 30. Perhaps the most efficient resolution of the situation would be for the [Department] to require, as set forth at Section 120.569, Florida Statutes (2009), that protests to quarterly reports and annual reconciliations be filed with the agency. Such protests could be forwarded, where appropriate, to DOAH. Related protests could be consolidated pursuant to Florida Administrative Code Rule 28-106.108. Where the resolution of the proceedings could affect the interests of a county not a party to the proceeding, the county could be provided an opportunity to participate in the proceeding (and be precluded from later objection) pursuant to Florida Administrative Code Rule 28-106.109. As is apparent from the lengthy inset quotation, Hillsborough IV touched upon the subject of the Department's "tethering" of the counties, explained at Findings of Fact 50- 53, infra, though the validity of the practice was not directly at issue. Judge Quattlebaum addressed the due process concerns in counties' having no notice of administrative proceedings that could result in the allocation of additional costs to those counties, but did not address the underlying issue of the Department's authority to reallocate costs in the manner described. Judge Quattlebaum recommended that the Department issue a Final Order adopting the January 30, 2009, annual reconciliation for fiscal year 2007-2008. The Department adopted the recommendation and directed that "all successive reconciliations for that fiscal year shall be disregarded and expunged." In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-3546 (Fla. DOAH Feb. 26, 2010; Fla. Dep't of Juv. Just. Mar. 23, 2010) ("Hillsborough V"), the main issue was Hillsborough County's contention that the Department had unilaterally and without authority increased the counties' per diem rate for detention care. The undersigned found that the Department had abandoned the calculation of a per diem rate in light of the findings in Hillsborough I, and that the increased "per diem" rate alleged by the county was simply the result of the Department's recalculation of the counties' estimated costs in accordance with its own rule.7/ Fiscal year 2008-2009 assessments and reconciliation By letter dated June 3, 2008, the Department issued its calculation of the amounts due from each county for their estimated share of the predispositional detention costs for fiscal year 2008-2009, which would run from July 1, 2008, through June 30, 2009. As noted at Finding of Fact 19, supra, the predispositional budget was estimated at $99,583,854. The estimate was based on county utilization during the most recently completed fiscal year, 2006-2007, and the amount identified in the chapter 2008-152, Laws of Florida. The Department made the following estimates for the Counties' shares of predispositional days and costs: Days Percentage of Days Estimated Cost Miami-Dade 47,450 8.56% $8,522,140 Santa Rosa 5,213 0.94% $936,268 Alachua 10,957 1.98% $1,967,905 Orange 43,330 7.81% $7,782,177 Pinellas 32,627 5.88% $5,859,892 Escambia 15,044 2.71% $2,701,940 Hernando 2,978 0.54% $534,856 Broward 38,490 6.94% $6,912,901 City of Jacksonville8/ 28,957 5.22% $5,200,750 Bay 5,409 0.98% $971,470 Brevard 13,760 2.48% $2,471,331 Seminole 12,857 2.32% $2,309,150 Okaloosa 4,612 0.83% $828,327 Hillsborough 44,577 8.04% $8,006,142 43. The Counties incorporated the Department's estimate into their budgets and made monthly payments to the Department. By letter dated December 7, 2009, the Department issued its annual reconciliation for fiscal year 2008-2009. As noted above, the purpose of the annual reconcilation is to "reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period." The annual reconcilation set forth the following as the "Actual Predispositional Days" and the "Share of Trust Fund Expenditures" for the Counties, along with the "Difference Debit/(Credit)" between the estimated sums already paid by the Counties and the amount set forth in the annual reconciliation. Those amounts were as Days follows: Percentage of Days Share of Trust Fund Miami-Dade 38,925 11.45% $10,926,117 Santa Rosa 2,555 0.75% $717,180 Alachua 5,511 1.62% $1,546,919 Orange 25,286 7.44% $7,097,695 Pinellas 19,218 5.65% $5,394,428 Escambia 6,734 1.98% $1,890,211 Hernando 1,383 0.41% $388,203 Broward 31,339 9.22% $8,796,752 City of Jacksonville 21,246 6.25% $5,963,681 Bay 3,824 1.13% $1,073,384 Brevard 10,598 3.12% $2,974,823 Seminole 8,944 2.63% $2,510,551 Okaloosa 3,613 1.06% $1,014,157 Hillsborough 27,120 7.98% $7,612,493 The Department's letter advised the counties as follows, in relevant part: . . . Any counties that have a debit amount owed will find enclosed with this correspondence an invoice for that amount. This amount is due by March 1, 2010. A credit amount . . . means the county overpaid based on their utilization and a credit invoice is enclosed with this correspondence. (If the credit amount is larger than the amount currently being paid by the county, the credit will be applied to future invoices until the credit is applied in total.) It is critical that all credits be taken prior to June 30, 2010. . . . (emphasis added). In comparing the estimated costs with the "Share of Trust Fund Expenditures," an untutored observer might expect a correlation between the absolute number of predisposition days and the money assessed by the Department. However, it is apparent that no such correlation was present in the Department's calculations. Dade County, for example, had 8,525 fewer actual predisposition days than the Department estimated at the outset of fiscal year 2008-2009, yet was assessed $2,403,976.89 in the annual reconciliation over and above the $8,522,140 in estimated payments that the county had already made over the course of the year. (For all 67 counties, the Department had estimated 538,836 predispositional days for the fiscal year. The actual number of predispositional days was 339,885.) The correlation, rather, was between a county's percentage of the total number of predispositional days and the money assessed. Though its actual number of days was less than estimated, Dade County's percentage of predispositional days was 2.89% higher than its estmated percentage. Therefore, the Department presented Dade County with an annual reconcilation assessment of $2.4 million. The correlation between percentage of days and the final assessment was caused by the Department's practice of treating the Shared Trust Fund appropriation of $95,404,5799/ as an amount that the Department was mandated to raise from the counties regardless of whether the counties' actual predisposition days bore any relation to the estimate made before the start of the fiscal year. At the final hearing, the Department's representatives made it clear that the Department believed that the Legislature required it to collect the full Shared Trust Fund appropriation from the counties. Reductions in actual usage by the counties would have no bearing on the amount of money to be collected by the Department. The Department views its duty as allocating costs among the counties, the "actual cost" being the Legislature's appropriation to the Shared Trust Fund. Beth Davis, the Department's Director of the Office of Program Accountability, testified that if all the counties together only had one predispositional secure detention day for the entire year, that day would cost the county in question $95 million.10/ In practice, the Department treated the Shared Trust Fund "appropriation" as an account payable by the counties. In this view, the appropriation is the Department's mandate for collecting the stated amount from the counties by the end of fiscal year 2008-2009, even while acknowledging that the Shared Trust Fund number in the General Appropriations Act was no more than an estimate based on the actual usage for the most recently completed fiscal year, which in this case was 2006-2007. Because the Department felt itself bound to collect from the counties the full amount of the Shared Trust Fund appropriation, any adjustment to one county's assessment would necessarily affect the assessments for some or all of the other counties. A downward adjustment in Orange County's assessment would not effect a reduction in the absolute number of dollars collected by the Department but would shift Orange County's reduced burden proportionally onto other counties. The Department has "tethered" the counties together with the collective responsibility to pay $95,404,579 for fiscal year 2008-2009. Richard Herring is an attorney and longtime legislative employee, including 16 years as a deputy staff director to the House and Senate Appropriations Committees, and was accepted as an expert in the appropriations process. Mr. Herring was knowledgeable and persuasive as to the appropriations process and the circumstances surrounding the passage of the legislation at issue in this proceeding. Mr. Herring testified as to a "disconnect" in the way the Department treats the Shared Trust Fund program. The Shared Trust Fund appropriation is not an amount of money; rather, it is an authorization to spend money from that trust fund. Mr. Herring found that the Department mistakenly "treats appropriations almost as though it were a revenue-raising requirement." Mr. Herring could not think of any other example in which a state legislative appropriation mandates that another governmental entity such a county spend its own funds.11/ The Department allocates 100% of the Shared Trust Fund appropriation to the counties and collects that amount, even though section 985.686(5) limits the Department's collections to "actual costs." Mr. Herring clearly and correctly opined that the Appropriations Act cannot amend a substantive law on any subject other than appropriations. Therefore, the Department cannot rely on the appropriation made in chapter 2008-152, Laws of Florida, as authority for substituting the appropriated amount for the "actual costs" that the substantive statutory provision allows the Department to collect. Mr. Herring found that it is "a huge stretch to say an appropriation means that I will, no matter what, collect that amount of money." He concluded: [O]ther than this program, I'm not aware of any place in the budget where somebody takes an appropriated amount, where it's not another State agency involved, and tries to true up at the end of the year to make sure that every penny of that . . . authorization to expend, that the cash has come in to match the authorization. * * * Again, an appropriation is not an authorization to levy taxes, fees, fines. It's not an authorization to raise revenues, to collect revenues. It may provide, where there are double budgets between two agencies or within an agency, it may be authority to move money from one pot within the State treasury . . . to another. But to go out and extract money from someone who's not a State agency, who's not subject to receiving appropriation, I don't know any place else that we do that. And I can't come up with another example. Fiscal year 2008-2009 challenges In a letter to the counties dated January 26, 2010, Ms. Davis wrote as follows, in relevant part: I am writing this letter to ensure everyone understands the proper procedure for handling any challenges to the annual reconciliation data sent to you in December 2009 for FY 2008-09 and any future year's reconciliation. As a result of the State of Florida, division of Administrative Hearings (DOAH) challenge in case no. 09-4340 between Hillsborough County (Petitioner) and the Department of Juvenile Justice (Respondent), the reconciliation completed for FY 2008-09 is considered "final" and adjustments can only be made to the reconciliation using the following steps. Counties have 21 days from receipt of the reconciliation to file their challenges to the reconciliation with the Department. The Department will review the challenges and determine if any adjustments need to be made and which counties will be affected by those potential changes. All affected counties will be notified of the potential adjustments even if those counties did not submit a challenge. If challenges to the reconciliation cannot be resolved with the concurrence of all affected counties, the Department will file a request for a hearing with DOAH. Affected counties will be able to present their case regarding the adjustments at the hearing. . . . Florida Administrative Code Rule 63G-1.009 set forth the Department's dispute resolution process. It provided that the quarterly report "marks the point at which a county may take issue with the charges referenced in the report," but that such an objection was not a basis for withholding payment. All adjustments based on a county's objections to quarterly reports would be made in the annual reconciliation. Fla. Admin. Code R. 63G-1.009(1). Though the rule was silent as to counties' ability to file challenges or disputes to the annual reconciliation, the Department interpreted the rule as allowing such challenges. Twelve counties, Pasco, Sarasota, Brevard, Lee, Polk, Broward, Santa Rosa, Pinellas, St. Johns, Hillsborough, Hernando, and Miami-Dade, filed disputes using the form prescribed by the Department, providing specific reference to the disputed charges and setting forth specific charges for the Department to reconsider. The remaining counties did not file challenges to the annual reconciliation. At least some of these counties, including Orange, Alachua and Escambia, had already accepted their overpayment credit in the manner required by the Department's December 7, 2009 letter. See Finding of Fact 46, supra. The record contains letters that Ms. Davis sent to Broward, Hernando, Hillsborough, Pinellas, and Santa Rosa Counties on different dates in January and February 2010, but containing substantially the same text. The letter sent to the deputy director of Broward County's human resources department, dated February 19, 2010, is representative: The Department has received challenges to the 2008-2009 reconciliation from 12 counties, including your challenge. In keeping with the Final Order from DOAH case no. 09-4340 [Hillsborough IV] the Department is evaluating all of the challenged assessments. If the Department determines there are any adjustments that need to be made, we will attempt to reach agreement with all of the counties affected by the changes. However, if we cannot reach agreement, the Department will combine all of the challenges and request an administrative hearing from the DOAH at which all of the issues can be resolved. Because of the number of challenges involved, and time constraints in working on next year's budget, we anticipate the review process taking about 30 days. This time period exceeds the general requirement for referring challenges to DOAH for those counties that have requested an administrative review. We are asking that the counties seeking administrative review will allow the Department additional time. If after the review it is necessary to proceed with an administrative hearing, we will notify all potentially affected counties so that one final resolution can be reached in a timely manner. The Department reviewed the disputes filed by eleven of the twelve counties. In reviewing the disputes, the Department looked only at challenges to specific cases and did not consider broader policy disputes raised by the counties. Ms. Davis testified that Miami-Dade's dispute was not reviewed because Miami-Dade failed to include specific individual records. Ms. Davis stated that Miami-Dade was making a conceptual challenge not contemplated by rule 63G-1.009. Barbara Campbell, the Department's data integrity officer, testified that she reviewed every record that was disputed by a county. Ms. Campbell stated that her review for Hillsborough County alone took about a month. Hillsborough County disputed 50,528 days in 6,963 entries for the following reasons: adults in juvenile status (493 days), charges not disposed (22,495 days), invalid disposition end date (5 days), non-adjudicatory charges (2,987 days), extended period of detention (763 days), invalid zip code (352 days), invalid address (63 days), out of county (88 days), institutional address (1,560 days), escape after disposition (78 days), guardian (21,552 days), transfer after adjudication (45 days), no criminal charge (13 days), and duplicated entry (34 days). Ms. Campbell concluded that Hillsborough County should remain responsible for 45,873 of the rejected 50,528 days. Despite Ms. Campbell's conclusion, the annual reconciliation assessed Hillsborough County for only 27,120 days. This discrepancy was not explained at the hearing. Ms. Campbell testified that one of the corrections she made for Hillsborough County related to the waiting list for placement of juveniles in committed status. At that time, the waiting list was used to determine the commitment date for billing purposes, but Ms. Campbell found that the list contained commitment dates that were several days after the actual commitment dates. This error resulted in a substantial number of extra days being billed to Hillsborough County.12/ Ms. Campbell testified that this sizable error as to Hillsborough County did not prompt a review of the records of all counties to determine if the error was across the board. The Department lacked the time and manpower to perform such a review for all counties. The Department was already stretched thin in reviewing the specific challenges made by the counties. In a letter to the counties dated March 23, 2010, Ms. Davis wrote as follows, in pertinent part: The Department has concluded it [sic] analysis of challenges submitted by counties for the 2008-09 final reconciliation for detention utilization. A total of twelve counties submitted challenges. After reviewing all the data, resulting adjustments affect a total of 45 counties, ten of which are fiscally constrained. Enclosed with this letter is a document outlining the specifics regarding adjustments as they pertain to your county. For counties that filed a challenge with the Department, each type of dispute category is addressed. Counties subsequently affected by the original twelve counties' challenges are impacted by either address corrections and/or as a result of their percentage of the total utilization being changed by adjustments made. An adjustment to a county's percentage of utilization occurs when days challenged are subsequently found to be the responsibility of the State or another county. Changes made based on address corrections are listed on the enclosed disc, if applicable to your county. Each county is asked to review the adjustments and respond back to the Department indicating agreement or disagreement with the findings. If a county has issue with the proposed adjustments they will need to file a petition with the Department to initiate proceedings with the Division of Administrative Hearings pursuant to 28-106-201 [sic] Florida Administrative Code. For the few counties that have already filed a petition with the Department, still complete the attached form and return to the Department but an additional petition is not required. Responses from the counties must be postmarked by April 9, 2010. . . . Ms. Davis' March 23, 2010, letter was the first notice given to non-disputing counties by the Department that twelve counties had filed disputes to the annual reconciliation. Thus, counties that believed they had closed their ledgers on fiscal year 2008-2009 were forced to reopen their books to deal with the Department's "adjustments" to the amounts of their final annual reconciliations. Attached to the letter was a spreadsheet containing the "08-09 Pending Challenge Adjustments" containing the following information for the Counties: Adjusted Adjusted Days Percentage Share of Trust Fund Miami-Dade 38,944 11.77% $11,229,123 Santa Rosa 1,980 0.60% $570,914 Alachua 5,581 1.67% $1,589,043 Orange 27,048 8.17% $7,799,027 Pinellas 15,523 4.69% $4,475,906 Escambia 6,734 2.04% $1,941,683 Hernando 1,327 0.40% $382,628 Broward 31,231 9.44% $9,005,154 City of Jacksonville 21,300 6.44% $6,141,647 Bay 3,830 1.16% $1,104,343 Brevard 8,816 2.66% $2,542,008 Seminole 8,965 2.71% $2,584,970 Okaloosa 3,613 1.09% $1,041,773 Hillsborough 22,465 6.79% $6,477,564 72. In addition to making adjustments to the accounts of the challenging counties, the Department modified the amounts set forth in the annual reconciliation for all 38 non-fiscally constrained counties.13/ A total of 9,010 days were reclassified as post-dispositional and therefore shifted from the counties' to the Department's side of the ledger. This shift did nothing to lessen the overall burden on the counties in terms of absolute dollars because the overall amount the Department intended to collect remained $95,404,579. Of the twelve counties that challenged the annual reconciliation, five did not contest the Department's adjustment and are not parties to this proceeding: Pasco, Sarasota, Lee, Polk, and St. Johns. The record does not indicate whether these counties notified the Department that they accepted the adjustment. Four counties that challenged the annual reconciliation, and are parties to this proceeding, notified the Department that they accepted the adjustment: Pinellas, Brevard, Hillsborough, and Santa Rosa. However, because all affected counties did not accept the adjustments, the Department did not refund monies to the counties that were awarded a credit by the adjustment. In correspondence with Pinellas County's Timothy Burns, Ms. Davis stated that the credit set forth in the adjustment would not be applied to the county's account "until the final decisions from the DOAH hearing." At the hearing, Ms. Davis explained the Department's action as follows: Each county's utilization is considered a percentage of the total utilization and that percentage is multiplied by the expenditures. So if you change one number in that mathematical calculation, it has a rippling effect and will affect the other-- in this case it's 45 counties. So all of the counties had to accept those changes and agree to the modifications, those pending adjustments, if we were going to modify the reconciliation, the agency's final action. To restate, the following are the estimates, the annual reconciliation each County: amounts, and the adjustment amounts for Miami-Dade: 47,450 8.56% $8,522,140 38,925 11.45% $10,926,117 38,944 11.77% $11,229,123 Santa Rosa: 5,213 0.94% $936,268 2,555 0.75% $717,180 1,980 0.60% $570,914 Alachua: 10,957 1.98% $1,967,905 5,511 1.62% $1,546,919 5,581 1.67% $1,589,043 Orange 43,330 7.81% $7,782,177 25,286 7.44% $7,097,695 27,048 8.17% $7,799,027 Pinellas 32,627 5.88% $5,859,892 19,218 5.65% $5,394,428 15,523 4.69% $4,475,906 Escambia 15,044 2.71% $2,701,940 6,734 1.98% $1,890,211 6,734 2.04% $1,941,683 Hernando 2,978 0.54% $534,856 1,383 0.41% $388,203 1,327 0.40% $382,628 Broward 38,490 6.94% $6,912,901 31,339 9.22% $8,796,752 31,231 9.44% $9,005,154 City of Jacksonville 28,957 5.22% $5,200,750 21,246 6.25% $5,963,681 21,300 6.44% $6,141,647 Bay 5,409 0.98% $971,470 3,824 1.13% $1,073,384 3,830 1.16% $1,104,343 Brevard 13,760 2.48% $2,471,331 10,598 3.12% $2,974,823 8,816 2.66% $2,542,008 Seminole 12,857 2.32% $2,309,150 8,944 2.63% $2,510,551 8,965 2.71% $2,584,970 Okaloosa 4,612 0.83% $828,327 3,613 1.06% $1,014,157 3,613 1.09% $1,041,773 Hillsborough 44,577 8.04% $8,006,142 27,120 7.98% $7,612,493 22,465 77. Overall, the 6.79% Department $6,477,564 had estimated there would be 538,836 predisposition utilization days for all counties. The actual number of predisposition days indicated in the annual reconciliation was 339,885, some 198,951 fewer days than estimated. The number of actual days was further decreased to 330,875 in the Department's March 23, 2010, adjustment. Nonetheless, the absolute number of dollars assessed by the Department against the counties remained unchanged because the only variable in the Department's formula for ascertaining a county's "actual costs" was the county's percentage of the total number of predisposition days. The $95 million set forth in the General Appropriations Act for the Shared Trust Fund remained unchanged. Thus, even if a county's actual number of predisposition days was several thousand fewer than the Department originally estimated, the county's assessment could be higher than the estimate because that lesser number of days constituted a higher percentage of the overall number of predisposition days. The City of Jacksonville, for example, was found by the adjustment to owe $940,897 more than the original estimate despite having actual usage that was 7,657 days fewer than the original estimate. The Counties forcefully argue that Department's use of the General Appropriations Act as a substitute for calculating the counties' actual costs results in a gross disparity between the amounts per day paid by the state and those paid by the Counties for the same services at the same facilities, echoing the argument made by Hillsborough County in Hillsborough V. Robert M. Dunn, the Department's director of policy development for detention services, testified as follows: Q. But in terms of the actual cost of detention, there's no difference in the cost of a predisposition detention day and a post-disposition detention day? A. None. They receive the same services: food, clothing, supervision, mental health, medical, all of those issues. Every youth receives the same services in detention. Ms. Davis testified that the General Appropriations Act provided the Department with General Revenue sufficient to cover roughly 20% of the cost of all secure detention.14/ Ms. Davis conceded that approximately 38% of the secure detention utilization days were post-disposition days that were the Department's responsibility. She further conceded that through the Shared Trust Fund the counties are paying the 18% difference for the state's portion of secure detention. Evidence introduced at the hearing established a downward trend in the use of predisposition detention utilization since fiscal year 2005-2006, but no corresponding decrease in the amount that the counties pay for detention services. Mr. Herring, the appropriations expert, testified that as a result of the manner in which the Department allocates costs, counties pay approximately $284 per day for detention services, whereas the state pays only $127 per day. Mr. Burns, bureau director of Pinellas County's Department of Justice and Consumer Services, calculated that an average per diem rate for all detention days, predisposition and post-disposition, would be $229.56. Ms. Davis testified that if the utilization ratio and the budget ratio were the same--in other words, if the Legislature fully funded the state's share of detention services--then the per diem rates for the counties and the Department would be almost the same. Despite the fact that the counties were partially subsidizing the state's share of secure detention for juveniles, the Department nonetheless reverted $9,975,999 of unspent General Revenue funds back to the state's general revenue in fiscal year 2008-2009. Of that amount, approximately $874,000 had been appropriated for secure detention. Section 985.686(3) requires the counties to pay the costs of providing detention care for juveniles prior to final court disposition, "exclusive of the costs of any pre- adjudicatory nonmedical educational or therapeutic services and $2.5 million provided for additional medical and mental health care at the detention centers." (Emphasis added). The underscored language was added to the statute by section 11, chapter 2007-73, Laws of Florida, the appropriations implementing bill for fiscal year 2007-2008. Vickie Joan Harris, the Department's budget director, testified that the Legislature appropriated an additional $2.5 million for medical and mental health care in 2007-2008, but that no additional money has been appropriated for those services since that fiscal year. For fiscal year 2008-2009, the counties shared these costs with the Department. The Counties are correct in pointing out that the cost of a utilization "day" is the same whether it occurs predisposition or post-disposition, and their desire for a per diem basis of accounting is understandable from a fiscal planning perspective. If the Department announced a per diem rate at the start of the fiscal year, then a county could roughly calculate its year-end assessment for itself without the sticker shock that appears to accompany the annual reconciliation. However, there are two obstacles to such an accounting method, one practical, one the product of the Department's purported understanding of the term "actual cost" as used in section 985.686(5). The practical objection is that the actual cost of maintaining and operating the Department's secure detention system is not strictly related to the number of days that juveniles spend in detention facilities. Robert M. Dunn, the Department's director of policy development for detention services, testified as follows: For whatever reasons, detention population has decreased significantly over the last few years. However, we have to maintain the capability of providing adequate and proper services for 2,007 beds. In our system, we do not staff centers based on the number of beds or the number of youth who are in the center. We typically follow a critical post staffing process. We know that within center, there are certain posts that have to be manned 24/7, such as intake. We have to be able to provide staff to perform intake duty should a youth be delivered to the center for detention. We have to provide someone in our master control unit 24/7. Those people are responsible for outside communications, directing staff to where they are needed within the center, answering the phones inside the center for requests for assistance, monitoring the camera system to provide assistance. So that position, that post has to be staffed 24/7, whether we have one kid in the center or 100 kids. It's irrelevant. Mr. Dunn went on to describe many other fixed costs of operating a secure detention facility for juveniles. He also discussed the Department's ongoing efforts to identify redundant facilities and streamline the program in light of falling usage, but the point remains that the Department's actual costs do not fluctuate significantly due to usage. Simply keeping the doors open carries certain costs whether one child or 100 children come into the facility, and a pure per diem assessment approach might not cover those costs. While the evidence establishes that there is a significant degree of county subsidization of the state's share of juvenile detention costs, there is a lack of credible evidence that a pure per diem approach would capture a given county's "actual costs" in keeping with the mandate of section 985.686.15/ It is apparent that the Counties have seized on the per diem concept not merely because it was the measure used by the Department prior to Hillsborough I, but because the system used for fiscal year 2008-2009 gave the Counties no way to even roughly predict their annual expenses for predisposition secure juvenile detention. At the start of the fiscal year, a non-fiscally constrained county received an estimate of its predisposition days and its estimated portion of the Shared Trust Fund. The county made monthly payments based on those estimates. As the year progressed, it became apparent to the county that its actual usage was proving to be far less than the estimate. The annual reconciliation confirmed that the county had fewer predisposition days than the Department had estimated, which led the county to expect a refund. In defiance of that expectation, the county was presented with a bill for additional assessments. In the case of Miami-Dade and Broward Counties, the additional bill was for millions of dollars despite the fact that their actual usage was several thousand days fewer than the Department's estimate. The Counties were, not unreasonably, perplexed by this turn of events. This perceived anomaly points to the second obstacle to the Counties' proposed per diem accounting method: the Department's working definition of "actual costs" is unrelated to anything like a common understanding of the term "actual costs." It is a fiction that renders nugatory any effort by the Counties to limit their assessed contributions to the Shared Trust Fund to the money that was actually spent during the fiscal year. As to fiscal year 2008-2009, the Department simply made no effort to ascertain the counties' actual costs or, if it did, it failed to disclose them to the counties. "One of the most fundamental tenets of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the Legislature." City of Venice v. Van Dyke, 46 So. 3d 115, 116 (Fla. 1st DCA 2010), citing Reform Party of Fla. v. Black, 885 So. 2d 303, 312 (Fla. 2004). The Legislature did not define the term "actual cost" in section 985.686. "Actual cost" is not a term of art.16/ The Florida Statutes are replete with uses of the term "actual cost" that rely on the common meaning of the words and do not attempt further definition.17/ Those few sections that do provide definitions of "actual cost" indicate that the Legislature is capable of limiting that common term when appropriate to its purposes.18/ Nothing in Section 985.686 gives any indication that the Legislature intended the words "actual costs" to carry anything other than their plain and ordinary meaning. By statute, the Department is obligated to reconcile "any difference between the estimated costs and actual costs . . . at the end of the state fiscal year." § 985.686(5), Fla. Stat. By rule, this reconciliation is to be performed on a county by county basis: On or before January 31 of each year, the Department shall provide a reconciliation statement to each paying county. The statement shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period. Fla. Admin. Code R. 63G-1.008(1). Nothing in the statute or the implementing rules authorizes the Department to base its annual reconciliation on the anything other than actual costs. Section 985.686(5) speaks in terms of the individual county, not in terms of "counties" as a collective entity. Rule 63G-1.008(1) states that the Department will provide a reconciliation statement to "each paying county." That statement must reflect the difference between the estmated costs "paid by the county during the past fiscal year and the actual cost of the county's usage during that period." Like the statute, the rule speaks in terms of the individual county; the rule does not purport to authorize the Department to treat the 67 counties as a collective entity. Neither the statute nor the rule supports the rationale that the Shared Trust Fund liability of one county should in any way depend upon the costs incurred by any other county. At the end of the fiscal year, the amount collected in the Shared Trust Fund should be no more or less than the amounts of the counties' actual costs. Nothing in the statute or the implementing rules authorizes the Department to tether the counties together with the collective responsibility to pay $95,404,579 for fiscal year 2008-2009, as opposed to paying a reconciled amount based on each county's actual costs of providing predisposition secure detention services for juveniles within its jurisdiction.19/ Nothing in the statute or the implementing rules has changed in such a way as to vitiate Judge Quattlebaum's conclusion in Hillsborough IV that "the annual reconciliation statement issued pursuant to the rule is final unless successfully challenged in an administrative proceeding" pursuant to section 120.569, Florida Statutes. See Finding of Fact 37, supra. Therefore, the December 7, 2009, annual reconciliation constituted final agency action as to all counties that did not contest the reconciliation in accordance with the Department's January 26, 2010, letter. The Department did not have the statutory authority to recalculate the amounts set forth in that annual reconciliation for the 55 counties that did not file challenges.20/ As regards the parties to this proceeding, the following Counties did not contest the December 7, 2009, annual reconciliation: Alachua, Orange, Escambia, City of Jacksonville, Bay, Seminole, and Okaloosa. As to these Counties, the annual reconciliation should have constituted final agency action and spared them further involvement in litigation. The amounts set forth for these Counties in the annual reconciliation should be reinstated and their accounts reconciled on that basis, as follows: Reconciled Share of Trust Fund Alachua $1,546,919 Orange $7,097,695 Escambia $1,890,211 City of Jacksonville $5,963,681 Bay $1,073,384 Seminole $2,510,551 Okaloosa $1,014,157 105. The following Counties did contest the reconcilation pursuant to the Department's January 26, 2010, letter: Brevard, Broward, Santa Rosa, Pinellas, Hillsborough, Hernando, and Miami-Dade. By letter dated March 23, 2010, the Department informed all 67 counties that it had completed its analysis of the challenges21/ submitted by 12 counties and was instituting adjustments to the accounts of 45 counties, including 10 that were fiscally constrained. For the reasons stated above, the March 23, 2010, adjustment was effective only as to the 12 counties that challenged the annual reconciliation. Of those 12, seven are parties to this litigation. Of the seven Counties, four accepted the adjustment announced by the March 23, 2010, letter: Pinellas, Brevard, Hillsborough, and Santa Rosa.22/ As to these four Counties, the Department's March 23, 2010, adjustment letter should have ripened into final agency action without need for further litigation.23/ The amounts set forth for these counties in the adjustment letter should be reinstated and their accounts reconciled on that basis, as follows:24/ Share of Trust Fund Santa Rosa $570,914 Pinellas $4,475,906 Brevard $2,542,008 Hillsborough $6,477,564 To this point, the resolution of the amounts owed has been based on the simple principle of administrative finality as to 10 of the Counties that are parties to this proceeding: proposed agency action that is accepted, affirmatively or tacitly, by a party becomes final agency action as to that party and as to the agency upon the expiration of the time for requesting an administrative hearing. However, there remain three Counties that challenged the annual reconciliation, contested the later adjustment, and continue to assert their statutory right to be assessed only the "actual costs" associated with predisposition secure detention: Hernando, Miami-Dade, and Broward. During the course of this litigation, some of the parties asked the Department to perform an alternative calculation of the fiscal year 2008-2009 reconciled amounts. In an email dated January 12, 2011, the Department transmitted to the Counties a speadsheet that the Department titled "2008/2009 Secure Detention Cost Sharing Data Analysis," taking care to point out that the document was "not an amended or revised reconciliation."25/ Several Counties, including the three whose contributions to the Shared Trust Fund remain unresolved, have urged this tribunal to adopt this most recent analysis as the most accurate available measure of their pre-disposition detention days and actual costs of detention. In its Proposed Recommended Order, the Department also argues that it should be allowed to employ this "more accurate methodology" to amend the annual reconciliation as to all counties. Ms. Campbell, the Department's data integrity officer, testified as to several changes in programming that are reflected in the results of the January 12 analysis. The dispositive change for purposes of this order is that the analysis was performed in accordance with the Department's new rule 63G-1.011(2), which provides: "Commitment" means the final court disposition of a juvenile delinquency charge through an order placing a youth in the custody of the department for placement in a residential or non-residential program. Commitment to the department is in lieu of a disposition of probation. Ms. Campbell stated that in previous reconciliations and adjustments, the Department stopped billing the counties at the point a final disposition was given by the court. Under the new rule, the Department would continue billing the counties if the disposition did not result in the child's commitment to the Department. Florida Administrative Code Rule 63G-1.011 became effective on July 6, 2010, well after the close of fiscal year 2008-2009 and well after the Department's annual reconciliation and adjustments for that fiscal year were performed. Aside from the increased accuracy claimed by the Department, no ground has been cited for its retroactive application in this case. Further, rule 63G-1.011 has recently been found an invalid exercise of delegated legislative authority on the precise ground that its narrow definition of "commitment" is in conflict with section 985.686(5), Florida Statutes, which limits the counties' responsibility to "the period of time prior to final court disposition." Okaloosa Cnty. et al. v. Dep't of Juv. Just., Case No. 12-0891RX (Fla. DOAH July 17, 2012).26/ In other words, the Department's prior practice was more in keeping with its statutory mandate than was the "correction" enacted by rule 63G-1.011. In fairness to the Department, it should be noted that its revised definition of commitment was at least partly an outcome of Hillsborough III. In that decision, Judge Quattlebaum concluded, "The [Department] has no responsibility for the expenses of detention related to juveniles who were not committed to the [Department]'s care and supervision. Nothing in the statute or the previous Final Orders indicates otherwise." Hillsborough III at ¶ 13. On this point, however, Hillsborough III adopts the position of the Department that was not seriously challenged.27/ However, section 985.686(3) requires the county to pay "the costs of providing detention care... for the period of time prior to final court disposition." The statute does not state that "final court disposition" is equivalent to "commitment to the Department."28/ Okaloosa County provides a more comprehensive analysis statute: the Department is responsible for the expenses of all post-disposition detention, not merely detention of juveniles who are committed to the Department. The evidence in the instant case made it clear that probation is another post- disposition outcome that may result in detention, and that the Department has made a practice of charging the counties for detentions related to this disposition. Judge Anthony H. Johnson, the Circuit Administrative Judge of the Juvenile Division, Ninth Judicial Circuit, testified as to the procedures that a circuit court follows after the arrest of a juvenile charged with delinquency: Okay, we'll begin by the arrest of the juvenile. And the juvenile is then taken to the JAC, the Joint Assessment Center, where a decision is made whether to keep the juvenile in detention or to release the juvenile. That decision is based upon something called the DRAI, the Detention Risk Assessment Instrument. How that works probably is not important for the purpose of this except to know that some juveniles are released, and some remain detained. The juveniles that are . . . detained will appear the following day or within 24 hours before a circuit judge, and it would be the duty judge, the emergency duty judge on the weekends, or a juvenile delinquency judge if it's regular court day. At that time the judge will determine whether the juvenile should be released or continue to be retained. That's also based upon the DRAI. If the juvenile is detained, he or she will remain for up to 21 days pending their adjudicatory hearing. Everything in juvenile has a different name. We would call that a trial in any other circumstance. Now the 21 days is a statutory time limit: however, it's possible in some cases that that 21 days would be extended. If there is a continuance by any party, and for good cause shown, the judge can decide to keep the juvenile detained past the 21 days. That's relatively unusual. It's usually resolved, one way or the other, in 21 days. After the trial is conducted, if the juvenile is found not guilty, of course he or she is released. If they're found guilty, then a decision is made about whether or not they should remain detained pending the disposition in the case. The disposition—- there needs to be time between the adjudication and the disposition so that a pre-disposition report can be prepared. It's really the Department of Juvenile Justice that decides whether or not the child will be committed. We pretend that it's the judge, but it's not really.29/ And that decision is made—- is announced in the pre-disposition report. If the child is committed at the disposition hearing, the judge will order the child committed to the Department. Now, one or two things will happen then. Well, maybe one of three things. If the child scores detention-- let me not say scores. If it's a level eight or above, then the child will remain detained. If it's not that, the child will be released and told to go home on home detention awaiting placement. Here's where things get, I think, probably for your purposes, a bit complex. Let's say at the disposition, the child-- the recommendation of the Department is not that the child be committed, but that the child be placed on probation. Then the child goes into the community. The disposition has then been held, and the child's on probation. If the child violates probation, then the child comes back into the system, and then you sort of start this process again, on the violation of probation. If the child is found to have violated his or her probation, then you go back to the process where the Department makes a recommendation. Could be commitment, it could be something else. The child may be detained during that time period. Often what will happen is the misconduct of the child will be handled in a more informal manner by the court. The court may decide instead of going through the VOP hearing, violation of probation, I'm going to handle this by holding the child in contempt for disobeying the court's order to go to school, to not use drugs, or whatever the violation was. In that case, the child may be detained for contempt, for a period of 5 days for the first offense, or 15 days for a subsequent offense. Judge Johnson testified that "by definition, anything after the disposition hearing would be post-disposition." He went on to explain: You know, the problem here, I think, is we have a couple of different dispositions. We have one disposition that's the initial disposition. And if the child is put on probation, and then violates the probation, then you have a whole other hearing as to whether or not there was a violation of probation. And, if so, you have a whole new disposition hearing as to what the sanction ought to be for violation of probation. The probation issue was a key point of contention between the Counties and the Department. The Department does not consider itself responsible for detentions of juveniles who been given a disposition of probation. Thus, when a juvenile is picked up for a violation of probation, the Department considers that detention to be "pre-disposition" and chargeable to the county. The Counties contend, more consistently with section 985.686(3), that probation is a consequence of "final court disposition," and any subsequent detentions arising from violation of probation should be considered post-disposition and paid by the Department. Aside from the legal barriers, there are practical considerations that render the January 12, 2011, analysis unsuitable as a measure of the Counties' actual costs. Ms. Davis testified that the analysis is "a little deceiving because it only includes an analysis based on commitment." She noted that the analysis did not take into account the adjustments that had been made in light of the twelve counties' challenges to the annual reconciliation. Ms. Davis stated: "We simply ran an analysis per the request of the counties as to what the days would be based on commitment only, using our new programming that we do today. . . [W]e couldn’t submit it as a reconciliation because it's not correct. There are some address errors. We didn't fix those." Ms. Davis testified that the Department never had any intention that the January 12 analysis should be considered a reconciliation. The programming and the data set had changed since the annual reconciliation. The information in the analysis was not the same information that was analyzed in the reconciliation. Comparing the reconciliation to this analysis would be "apples to oranges" in many respects, according to Ms. Davis. Based on the foregoing, it is found that the January 12, 2011, analysis does not establish the "actual costs" of the remaining counties and is not an accurate basis for settling their final accounts for fiscal year 2008-2009. It is further found that, because the Department has never attempted to ascertain the Counties' actual costs and provided no such data to this tribunal, the record of this proceeding offers insufficient evidence to establish the actual costs for secure juvenile detention care for fiscal year 2008- 2009 for Hernando, Miami-Dade, and Broward Counties. The Department conceded that its annual reconciliation and the adjustment thereto were based on inaccurate data and included significant errors. The January 12, 2011, analysis was based on a definition of "commitment" that has since been found in derogation of section 985.686(5), Florida Statutes. None of the analyses performed by the Department went beyond the calculation of the number of detention days to the calculation of any county's actual costs of providing detention care. The Department bears the burden of providing a reconciliation to each of these three counties that reflects their actual costs of providing secure juvenile detention care. Hernando, Miami-Dade, and Broward Counties are each entitled to an accounting of their actual costs without regard to the costs of any other county.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that: Reinstates the amounts set forth in the Department's December 7, 2009, annual reconciliation letter for the following Counties: Alachua, Orange, Escambia, City of Jacksonville, Bay, Seminole, and Okaloosa; Reinstates the amounts set forth in the Department's March 23, 2010, adjustment letter for the following Counties: Pinellas, Brevard, Hillsborough, and Santa Rosa; and Provides that the Department will, without undue delay, provide a revised assessment that states the actual costs of providing predisposition secure juvenile detention care for fiscal year 2008-2009 for the following Counties: Hernando, Miami-Dade, and Broward. DONE AND ENTERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2012.
The Issue Whether Rules 33-3.0084(1)(i)1 and 33-3.005(4)(a) and (b), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck and Mike Ramadanovic, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules at issue in this proceeding. The rules at issue in this proceeding govern the treatment of inmates while in "disciplinary confinement." At the time of the formal hearing, neither of the Petitioners were in disciplinary confinement. Both Petitioners have, however, been in disciplinary confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, inmate conduct, inmate discipline and all other aspects of the operation of the prison system in Florida. C. Rules 33-3.005(4)(a) and (b), and 33-3.0084(1)(i)1, Florida Administrative Code. The Petitioners have challenged Rules 33-3.005(4)(a) and (b), and 33- 3.0084(1)(i)1, Florida Administrative Code (hereinafter referred to collectively as the "Challenged Rules"). Rule 33-3.005(4)(a) and (b), Florida Administrative Code, provides, in pertinent part: (4) . . . . Inmates in disciplinary confinement status shall not be allowed to prepare legal documents and legal mail while in that status except under the following conditions: When there is a time limitation on the filing of legal material with a court and it reasonably appears necessary for the inmate to prepare the same while in confinement status in order to get the same filed within the required time. When the inmate wishes to prepare legal material to file with a court for the purpose of testing the legality of his disciplinary confinement. The specific statutory authority for Rule 33-3.005, Florida Administrative Code, is Sections 20.315, 944.09 and 944.11, Florida Statutes. The law implemented by Rule 33-3.005, Florida Administrative Code, is Sections 944.09 and 944.11, Florida Statutes. Rule 33-3.0084(1)(i)1, Florida Administrative Code, provides, in pertinent part: 1. Legal materials shall be accessible to inmates in disciplinary confinement provided such use of legal material is for the purpose of challenging such confinement or in the event there are time restrictions on filing court papers. The specific statutory authority for Rule 33-3.0084, Florida Administrative Code, is Section 944.09, Florida Statutes. The law implemented by, Rule 33-3.0084, Florida Administrative Code, is Sections 20.315 and 944.09, Florida Statutes. Chapter 33-22, Florida Administrative Code, titled "Inmate Discipline", specifies what constitutes prohibited conduct for inmates, the procedures for determining if an inmate has violated the rules establishing prohibited conduct and the maximum punishment which may be imposed if an inmate violates the rules establishing prohibited conduct. The "Rules of Prohibited Conduct" and the maximum punishment for an infraction of these rules are contained in Rule 33-22.012, Florida Administrative Code. Among other things, an inmate who violates the Rules of Prohibited Conduct, may be placed in "disciplinary confinement" for specified periods of time. The length of time an inmate may be placed in disciplinary confinement for is not to exceed 60 days for any one infraction. "Disciplinary confinement" is defined in Rule 33-22.002(3), Florida Administrative Code, as: (3) Disciplinary Confinement -- Confinement which includes the loss of privileges normally afforded other inmates and is effected only after procedures outlined in this chapter have been fully complied with. Although the maximum term of disciplinary confinement is 60 days, it is possible for an inmate to be placed in disciplinary confinement for longer periods of time: (1) an inmate may be convicted of more than one violation of the Rules of Prohibited Conduct and be sentenced to multiple 60-day (or less) sentences to be served consecutively; (2) an inmate may commit another infraction(s) (including a violation of the Challenged Rules) while in disciplinary confinement, resulting in additional disciplinary consecutive confinement sentences; and (3) an inmate may commit an infraction soon after release from disciplinary confinement and be returned to disciplinary confinement. It is also possible for an inmate to serve less than the full term of his sentence to disciplinary confinement. Being placed in disciplinary confinement is a direct result of the actions of an inmate in failing to follow the established rules of conduct of the Respondent. At least one inmate has been in disciplinary confinement for periods of up to two and one-half years. An inmate would have to commit a minimum of fifteen infractions to be sentenced to disciplinary confinement for two and one- half years. The evidence failed to prove that the one inmate that has been in disciplinary confinement for two and one-half years was in disciplinary confinement continuously without any break. The inmate could not recall. The number of inmates in disciplinary confinement for more than one year was not proven. At best, it was proved by the Petitioners that one inmate (Charles William Bowe, Jr.) has served more than one year in disciplinary confinement. Even the evidence concerning Mr. Bowe, however, did not prove that his time in disciplinary confinement was continuous and without any break. Based upon an estimate of the Respondent, it is likely that no more than 1% of the inmate population (less than 460) is in disciplinary confinement for more than one year. Although the evidence did not prove that any inmate has actually been in disciplinary confinement for more than two and one-half years, it is not impossible that an inmate could be in disciplinary confinement for an unlimited period of time, as long as the inmate continues to commit violations of the Respondent's Rules of Prohibited Conduct. Although it may be unlikely, it is not impossible for an inmate to be in disciplinary confinement for the entire term of his sentence. The purpose for placing an inmate in disciplinary confinement and the purpose of the Challenged Rules is to attempt to correct an inmate's demonstrated negative behavior; to eliminate "privileges" inmates normally are given. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is prohibited from instituting any new litigation (other than a challenge to the decision to place the inmate in disciplinary confinement or litigation which must be instituted within a specified time period) while the inmate is in disciplinary confinement. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is generally prohibited from preparing legal documents and legal mail unless the inmate is required to meet a time limitation in an existing legal matter or the inmate intends to test the legality of his disciplinary confinement. When an inmate is placed in disciplinary confinement, all of the inmate's legal materials are confiscated and impounded. Access to an inmate's legal materials may be obtained while in disciplinary confinement pursuant to the exceptions of the Challenged Rules. At Florida State Prison, access is allowed to an inmate' legal materials if the inmate can show the necessity for those materials through: (1) a court order that requires the inmate to take some action in a pending matter; (2) any other source, i.e., a rule of the court, indicating that the inmate must meet some procedural or other requirement of the court; or (3) if the inmate indicates a desire to prepare a challenge to the legality of his disciplinary confinement. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to the inmate's legal materials is as follows: The inmate makes a request to an institutional counselor assigned responsibility for the inmate; The inmate must indicate to the institutional counselor why one of the exceptions provided in the Challenged Rules allowing access to his legal materials applies; If the institutional counselor is convinced that one of the exceptions applies, access to the inmate's legal materials is allowed. If not, no access is allowed; The procedure followed at Florida State Prison if an inmate convinces an institutional counselor that access to his legal materials should be allowed is as follows: The institutional counselor retrieves the inmate's legal materials and brings them to the inmate's cell; In some instances the institutional counselor may give the legal materials to the inmate or require the inmate to describe to the counselor, and convince the counselor of, what materials he actually needs to meet the deadline or to challenge his disciplinary confinement; and The institutional counselor, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he then must convince the counselor of what additional materials are needed. If an inmate is denied access to his legal materials or is not provided with the materials he needs, the inmate may challenge the decision of the institutional counselor by filing a grievance. Based upon the experiences of the inmates who testified in this proceeding, requests for access to an inmate's legal materials may be granted or denied, and when granted, an inmate may be given the whole file, he may be denied materials, he may be asked "is this it" and he may get only the materials he actually needs. Institutional counselors may even make more than one attempt to find the requested materials. Pursuant to Rule 33-3.0084(1)(i)1, Florida Administrative Code, an inmate may not have access to any legal materials except to the extent necessary for the inmate to meet a time limitation in an existing legal matter or if the inmate intends to test the legality of his disciplinary confinement. Access to legal materials in the library may generally be obtained by inmates. Such access is not, however, without limitation. There are limitations on the procedure which must be followed to obtain access to the library and the amount of materials which may be obtained at any one time. An inmate in disciplinary confinement is further limited as to when and how he may access library resources pursuant to the Challenged Rules. At Florida State Prison, access is allowed to library legal materials only if an inmate can show the necessity for those materials in the same manner an inmate may obtain access to his own legal materials as explained in finding of fact 26. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to library legal materials is as follows: The inmate must make a request in writing to the librarian; The inmate must indicate to the librarian why one of the exceptions to the lack of access to library legal materials applies; If the librarian is convinced that one of the exceptions applies, access to the library's legal materials is allowed. If not, no access is allowed; The librarian, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he may make additional requests. If an inmate is denied access to library legal materials or is not provided with the materials he needs, the inmate may challenge the decision by filing a grievance. Institutional counselors and librarians are not required to have legal education or training. The evidence failed to prove that any inmate has been totally denied access to the courts by the proper application of the Challenged Rules. The evidence proved that the Challenged Rules are inconvenient and aggravating to some inmates who have experienced the procedures which must be followed in order to obtain access to the inmate's legal materials or library legal materials. The procedures can be a hinderance to an inmate's pursuit of litigation to the extent that the procedures are one more step an inmate must follow that the inmate would not otherwise have to follow if he were not in disciplinary confinement. The evidence proved that, although inconvenient, some of the inmates who testified were able to pursue litigation even though they have been in disciplinary confinement at times. There was some aggravation and frustration caused those inmates who testified because of the Challenged Rules, but the evidence failed to prove that any of the inmates who testified or any other inmates were actually prevented from pursing litigation: Inmate Bowe, who has served two and one-half years of disciplinary confinement (although it was not proved whether the time was without interruption because of Inmate Bowe's memory lapse), had several court proceedings (Florida and federal) pending at the time of the formal hearing and did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the Challenged Rules; Leonard Bean, another inmate who testified, has served 140 to 150 days in disciplinary confinement for multiple infractions. Although Inmate Bean testified that his co-defendant's conviction had been reversed (in February, 1991), the evidence failed to prove that Inmate Bean's conviction would have also been reversed but for his disciplinary confinement or, more importantly, would have also been reversed but for the Challenged Rules. Although Inmate Bean was released from disciplinary confinement in May, 1991, he still had not filed for habeas corpus as of the date of the formal hearing; Jimmy Stephens, another inmate who testified, has served 240 days of disciplinary confinement for four infractions during the past two years. Although inconvenienced by the limitation on library legal material use, Inmate Stephens did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Carl Watts, another inmate who testified, served 180 days in disciplinary confinement prior to being transferred to Florida State Prison and another 60 days after arriving at Florida State Prison. Inmate Watts' testimony concerning a possible habeas corpus action failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Ramadanovic has served up to 100 days in disciplinary confinement. Although he filed two grievances dated August 22, 1990, concerning his efforts to file a brief in an appellate court proceeding, his disciplinary confinement ended August 23, 1990, and therefore, he failed to prove that he was prevented from filing a brief or any other pleading in any case pending while he was in disciplinary confinement. The evidence also failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Van Poyck failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue. As long as an inmate is in disciplinary confinement, that inmate may not file an action for federal habeas corpus. An inmate in disciplinary confinement may also not file an action for habeas corpus in the State courts until some, unspecified date, which the Respondent determines is close enough to necessitate preparation of the pleadings in order to meet the time limitations on habeas corpus in Florida.
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.
The Issue The issue in this case is whether the Petitioner is qualified to take the examination for licensure as a real estate salesperson.
Findings Of Fact On or about March 6, 1995, the Petitioner filed an application seeking to be licensed as a real estate sales person. In response to question number 9 on the application form (which inquires about the applicants's criminal history), the Petitioner answered in the affirmative and included the following explanatory details: I entered a plea of guilty to 1 count of distribution of a controlled substance on March 25, 1993, in Federal Court, before Judge Adkins. I was sentenced to 2 years in a Federal Camp. On January 23, 1992, the Petitioner was arrested and charged with two felony charges related to possession of cocaine and conspiracy to possess cocaine. On March 26, 1993, the Petitioner entered a plea of guilty to Count 2 of the indictment. Count 2 charged the Petitioner with conspiracy to possess with intent to distribute cocaine, which is a Class B felony in violation of 21 USC Section 846. On March 26, 1993, a judgment was entered in which the Petitioner was adjudged guilty of the crime described above, was sentenced to a prison term of 24 months, and was fined $15,000.00. The judgment also imposed 4 years of supervised release following release from prison. The Petitioner served 15 months in federal prison and was then transferred to a halfway house for a period of four months. The Petitioner then served the last two months of his sentence on home confinement. He was released from confinement on May 25, 1995, at which time he began a four-year period of probation. The Petitioner is presently on probation. His probation period is presently scheduled to end in May of 1999. With good behavior he may be able to obtain an earlier release from probation. Since his release from confinement the Petitioner has been making regular payments towards his $15,000.00 fine. He presently owes about $10,500.00 on the fine. Following his arrest, the Petitioner cooperated with law enforcement authorities and his cooperation led to the arrest of a number of other people on charges related to possession or distribution of cocaine. Since his release from confinement the Petitioner's primary employment has been in the carpet business. The Petitioner appears to have an earnest desire to be rehabilitated. He did not, however, present any persuasive evidence that he had achieved that goal. Notably absent from the record is any testimony from friends, relatives, neighbors, employers, or business associates regarding such matters as the Petitioner's present character and whether he is honest, truthful, and trustworthy.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application. It is further recommended that such denial be without prejudice to the Petitioner's opportunity to file a future application as such time as he may have persuasive evidence of his rehabilitation. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February 1996. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties: Proposed findings submitted by Petitioner: (None submitted.) Proposed findings submitted by Respondent: Paragraphs 1 through 10: Accepted in substance with a few additional details in the interest of clarity. Paragraph 11: Rejected as constituting argument about the quality of the evidence, rather than being a proposed finding of fact. Paragraphs 12 and 13: Rejected as a combination of subordinate and unnecessary details and argument. COPIES FURNISHED: William N. Halpern Assistant Attorney General Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Mr. Raul Bado 8490 Southwest 96th Street Miami, Florida 33156 Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether a proposed amendment to Rule 33-7.008(7), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the Challenged Rule. The Respondent stipulated that the Petitioners have standing to challenge the Challenged Rule. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rule implements Section 944.706(3), Florida Statutes, which provides: (3) The department shall advance the release date of a nonparole contract releasee by up to 30 days and shall forward to the Department of Labor and Employment Security a release assistance stipend of up to $200 for the purpose of motivating the releasee to participate in prerelease orientation, secure permanent employment, and secure permanent residence. The Department of Labor and Employment Security shall distribute the release assistance stipend to the releasee in accordance with the provisions of law and of the release contract. Violation of the terms of the contract may constitute grounds for the forfeiture of the release assistance stipend and the termination of the contract. Rule 33-7.008(7), Florida Administrative Code. Rule 33-7.008(7), Florida Administrative Code, currently provides: (7) Each facility is authorized to release a contract releasee up to 30 days prior to his sentence expiration date after the Bureau of Admission and Release has verified the expiration date as computed in accordance with instructions of the sentencing court and applicable statutes. The discharge certificate and any related documents must reflect the actual date of release. Parole releasees and inmates excluded in subsection (2) will not be eligible for a further reduction in their release date. The only modification to Rule 33-7.008(7), Florida Administrative Code, made by the Challenged Rule is to replace the terms "up to 30 days" with the terms "one day." The Transition Assistance Program. The program established by the Legislature in Section 944.706(3), Florida Statutes, is known as the Transition Assistance Program (hereinafter referred to as "TAP"). In creating the TAP, the Legislature has evidenced an intent to assist certain inmates in adjusting to their release back into the community. Indirectly, the TAP also creates an early release mechanism which has helped control inmate population. In the past the Respondent has relied on the TAP and Section 944.706(3), Florida Statutes, as a means of meeting required inmate population levels. The early release of inmates through TAP is conditioned upon their participation in the pre-release activities of the TAP, the payment of a $200.00 stipend to inmates to encourage their participation in the TAP and participate in post-release activities of the TAP. There is no requirement that inmates be released early contained in Section 944.706(3), Florida Statutes, unless an the inmate meets these conditions. Pre-release activities of the TAP includes analysis of inmates, a pre- release orientation program and paper work for referrals in the community for post-release activities. The pre-release orientation program lasts 40 hours. The $200.00 stipend is paid in part when an inmate is released, in part when the inmate reports to a community contact person and in part when the inmate returns to the community contact person. Post-release activities of the TAP included housing and employment referrals which were provided by the Florida Department of Labor and Employment Security and community-based organizations through a contract with the Respondent. Purpose For the Challenged Rule. In 1991, the Legislature did not appropriate any funds to the Respondent to carry on the TAP. No funds were authorized for the $200.00 stipend, to fund the contracts for post-release programs or to fund staff needed for the pre-release program. The Respondent, since the 1991-1992 fiscal year has only been able to provide a two-hour pre-release orientation video to inmates prior to their release. The Respondent has not been able to provide inmates with a $200.00 stipend or any post- release TAP activities. As a consequence of the Legislature's failure to fund the TAP, the Respondent has been unable to provide the means for inmates to meet the conditions for any significant early release required by Section 944.706(3), Florida Statutes. The Control Release Authority was created by Section 947.146, Florida Statutes, in 1989. The Primary purpose of the Control Release Authority is to implement a system of uniform criteria for determining the number and categories of inmates who must be released in order to maintain required prison populations. The need to rely on the TAP to maintain required prison populations was eliminated by the creation of the Control Release Authority. Based upon the inability to provide the TAP caused by loss of funding and in light of the creation the Control Release Authority, the Respondent decided to limit early release of inmates pursuant to Section 944.706(3), Florida Statutes, to one day. This decision was initially implemented by non- rule policy. This policy was declared invalid for failure to adopt the policy as a rule in accordance with Section 120.54, Florida Statutes, in a Final Order entered September 6, 1991, in Richard Charles Gaston v. Department of Corrections, DOAH Case Number 91- 3203R. The Respondent subsequently promulgated the Challenged Rule. Although it cost more to house an inmate than to release an inmate, the Respondent has no authority under Section 944.706(3), Florida Statutes, to simply release inmates early because it is cheaper. Early release pursuant to Section 944.706(3), Florida Statutes, is conditioned on participation in the TAP. If the Respondent is unable to provide the programs necessary for inmates to meet the conditions of Section 944.706(3), Florida Statutes, for early release, then the Respondent may not release inmates simply because it is cheaper than housing them. In light of the program that the Respondent is able to provide inmates (a two-hour orientation video), a one day early release is reasonable. Although the Respondent testified that any number of days could have been authorized by the Challenged Rule (up to a maximum of thirty), this testimony ignores the requirement of Section 944.706(3), Florida Statutes, that early release is conditioned on inmates receiving the programs contemplated. The testimony was merely an indication that the Respondent could select any number of days for early release from a practical- logistical basis. It does not appear, however, that such authority is granted the Respondent by Section 944.706(3), Florida Statutes.
