The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to existing Florida Administrative Code rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017, (the "Challenged Rules"), adopted by the Department of Juvenile Justice (Department). At issue is whether some or all of the challenged rules constitute an invalid exercise of delegated legislative authority as defined by section 120.52(8), Florida Statutes. The challengers allege the rules are invalid on three grounds: The rules modify the dividing line between county and state responsibility for the costs of secure juvenile detention from "final court disposition" to "commitment"; The rules fail to implement the requirement that the counties are only responsible for the "actual costs" of secure juvenile detention for the period of time prior to final court disposition; The rules inappropriately utilize an appropriations bill to modify the amount Petitioners are required to pay for predisposition costs under section 985.686, Florida Statutes.
Findings Of Fact The Parties Respondent, the Department, is the state agency responsible for administering the cost sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. Petitioners and Intervenors are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost sharing requirements of section 985.686. Petitioners and Intervenors are substantially affected by the application of Florida Administrative Code Rules 63G- 1.010 through 63G-1.018. (Joint Pre-hearing Stipulation). As such, the Challengers have standing to initiate this proceeding. The Implementing Statute and the Challenged Rules The statutory process governing the shared county and state responsibility for secure juvenile detention was adopted in 2004, but did not go into effect until 2005.4/ On July 16, 2006, the Department promulgated rules 63G- 1.002, 63G-1.004, 63G-1.007, and 63G-l.008, among others, which set forth definitions and formulated procedures for calculating the shared costs of juvenile detention between the State of Florida and the various counties (Old Rules). The Old Rules were repealed as of July 6, 2010, and, in their place, the Department adopted the Challenged Rules 63G- 1.0ll, 63G-1.013, 63G-1.016, and 63G-1.017. The Challenged Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care "for juveniles for the period of time prior to final court disposition." § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of "its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition," based on "the prior use of secure detention for juveniles who are residents of that county, as calculated by the department." § 985.686(5), Fla. Stat. (emphasis added). Section 985.686(1) requires non-fiscally constrained counties and Respondent to share the costs of "financial support" for "detention care" for juveniles who are held in detention centers operated by Respondent. Section 985.686(3) requires Petitioners to pay the costs of detention care "for the period of time" prior to final court disposition (predisposition care). Respondent must pay the costs of detention care on or after final court disposition (post-disposition care). Detention care is defined in section 985.686(2)(a) to mean secure detention. Secure detention is defined in section 985.03(18)(a), for the purposes of chapter 985, to include custody "pending" adjudication or disposition as well as custody "pending" placement. Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, "[a]ny difference between the estimated costs and actual costs shall be reconciled. . . " Id. The Challenged Rules Among the relevant changes made in the Challenged Rules, the Department replaced the definition of "final court disposition" in rule 63G-1.002 with a definition for "commitment" in rule 63G-1.011. Specifically, Old Rule 63G- 1.002, states that "final court disposition" means "the date the court enters a disposition for the subject referral." This definition was replaced by rule 63G-1.011 with a definition of "commitment," which "means the final court disposition of a juvenile delinquency charge through an order placing a youth in the custody of the department for placement in a residential or non-residential program. Commitment to the department is in lieu of a disposition of probation." Rule 63G-1.011(8) includes a definition for "Pre- commitment" that was not included in prior rule 63G-1.002. "Pre-commitment" means "those days a youth is detained in a detention center prior to being committed to the department." The newly-defined terms are incorporated in the challenged rules governing calculation of the estimated funding (63G-1.013); monthly reporting (63G-1.016); and in the calculation of days for the annual reconciliation (63G-1.017). In rule 63G-1.013(b) the Counties' estimated funding is determined by, "[t]he total number of pre-commitment service days in secure detention," which include "all days up to but not including the date of commitment to the department." The rule also requires that counties pay a portion of "the total pre- commitment service days for all counties for the same time period to arrive at each county's percentage of the total." Challenged Rule 63G-1.016 requires the Department to generate a monthly web-based utilization report to provide each county's "actual usage" for the previous service month. The report includes information on each youth including the "commitment disposition date, if available." In Challenged Rule 63G-1.017, "commitment disposition date" is used to determine the counties' actual costs. The Department's previous rule 63G-1.002 acknowledged that a "final court disposition" might result in several alternative dispositions of a delinquency charge, which, in addition to commitment, could include probation or dismissal of a charge. The challengers contend that under the new rules the counties are responsible for all "Pre-commitment" detention costs regardless of whether the costs accrue after a court enters a final disposition in the case that does not involve commitment of a youth to the custody of the Department for placement in a residential or non-residential program. Commitment is a subset of final court disposition, according to the challengers, since there are other types of dispositions other than commitment. By adopting the current definition of "commitment" in rule 63G-1.011, the challengers contend that the Department has impermissibly restricted and narrowed the term "final court disposition" in violation of the implementing statute. Navigating the Juvenile Justice System In order to determine the validity of the Challenged Rules it is necessary to understand how juveniles accused of committing a delinquent act are processed in Florida. Without objection, the final hearing testimony of the Honorable Anthony H. Johnson in DOAH Case No. 10-1893, et al., was received in evidence. Judge Johnson is the Circuit Administrative Judge of the Juvenile Division, Ninth Judicial Circuit. Judge Johnson explained the sequence of events that occurs after a juvenile has been arrested and accused of delinquency: Okay, we’ll begin by the arrest of the juvenile. And the juvenile is then taken to the JAC, the Joint Assessment Center, where a decision is made whether to keep the juvenile in detention or to release the juvenile. That decision is based upon something called the DRAI, the Detention Risk Assessment Instrument. How that works probably is not important for the purpose of this except to know that some juveniles are released, and some remain detained. The juveniles that are [sic] remained detained will appear the following day or within 24 hours before a circuit judge, and it would be the duty judge, the emergency duty judge on the weekends, or a juvenile delinquency judge if it’s regular court day. At that time the judge will determine whether the juvenile should be released or continue to be retained. That’s also based upon the DRAI. If the juvenile is detained, he or she will remain for up to 21 days pending their adjudicatory hearing. Everything in juvenile has a different name. We would call that a trial in any other circumstance. Now the 21 days is a statutory time limit: however, it’s possible in some cases that that 21 days would be extended. If there is a continuance by any party, and for good cause shown, the judge can decide to keep the juvenile detained past 21 days. That’s relatively unusual. It’s usually resolved, one way or the other, in 21 days. After the trial is conducted, if the juvenile is found not guilty, of course he or she is released. If they’re found guilty, then a decision is made about whether or not they should remain detained pending the disposition in the case. The disposition—there needs to be time between the adjudication and the disposition so that a pre-disposition report can be prepared. It’s really the Department of Juvenile Justice that decides whether or not the child will be committed. We pretend that it’s the judge, but it’s not really. And that decision is made—is announced in the pre-disposition report. If the child is committed at the disposition hearing, the judge will order the child committed to the Department. Now, one or two things will happen then. Well, maybe one of three things. If the child scores detention--let me not say scores. If it’s a level eight or above, then the child will remain detained. If it’s not that, the child will be released and told to go home on home detention awaiting placement. Here’s where things get, I think, probably for your purposes, a bit complex. Let’s say at the disposition, the child--the recommendation of the Department is not that the child be committed, but that the child be placed on probation. Then the child goes into the community. The disposition has then been held, and the child’s on probation. If the child violates probation, then the child comes back into the system, and then you sort of start this process again, on the violation of probation. If the child is found to have violated his or her probation, then you go back to the process where the Department makes a recommendation. Could be commitment, it could be something else. The child may be detained during that time period. Often what will happen is the misconduct of the child will be handled in a more informal manner by the court. The court may decide instead of going through the VOP hearing, violation of probation, I’m going to handle this by holding the child in contempt for disobeying the court’s order to go to school, to not use drugs, or whatever the violation was. In that case, the child may be detained for contempt, for a period of 5 days for the first offense, or 15 days for a subsequent offense. Based upon the testimony of Judge Johnson, as well as reference to the applicable statutory provisions,5/ the following flowchart maps the "throughput" of accused juvenile delinquents in Florida's juvenile justice system from the time of arrest until their release from the system: Court Appearance (within 24 hrs.) Trial (adjudication hearing) Guilty Verdict Not Guilty Verdict (Release) Max 21 days Pretrial Detention Joint Assessment Center (D.R.A.I.)* Release FLORIDA’S JUVENILE JUSTICE SYSTEM Arrest Release Detention Successful V.o.P Release Max 15 days Disposition Hearing Predisposition Report Prepared by DJJ) V.o.P. Hearing Probation Conditional Release Commitment to DJJ or DCF Agency Completion of residential or non- residential rehabilitation program Committed to DJJ or DCF-Licensed Child Caring Agency but Sent Home Pending Placement Commitment to DJJ and Detained Pending Placement Contempt Other Probation * Detention Risk Assessment Instrument Consistent with Judge Johnson's testimony and section 985.433, once a juvenile has been adjudicated delinquent there are two options available to the court at the disposition hearing: commitment or probation. If the court determines to commit the juvenile, its commitment options are circumscribed by section 985.441, which provides in relevant part: 985.441 Commitment.— The court that has jurisdiction of an adjudicated delinquent child may, by an order stating the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing: Commit the child to a licensed child- caring agency willing to receive the child; however, the court may not commit the child to a jail or to a facility used primarily as a detention center or facility or shelter. Commit the child to the department at a restrictiveness level defined in s. 985.03. Such commitment must be for the purpose of exercising active control over the child, including, but not limited to, custody, care, training, monitoring for substance abuse, electronic monitoring, and treatment of the child and release of the child from residential commitment into the community in a postcommitment nonresidential conditional release program. If the child is not successful in the conditional release program, the department may use the transfer procedure under subsection (4). Commit the child to the department for placement in a program or facility for serious or habitual juvenile offenders in accordance with s. 985.47. Section 985.03(32) defines “licensed child-caring agency” as a person, society, association, or agency licensed by the Department of Children and Families to care for, receive, and board children. Thus, a child may be committed to the custody of an "agency" under the auspices of the Department of Children and Families, or committed directly to the custody of Respondent. Section 985.433 imposes additional requirements on a court which has decided to commit a juvenile offender to the custody of DJJ: If the court determines that the child should be adjudicated as having committed a delinquent act and should be committed to the department, such determination shall be in writing or on the record of the hearing. The determination shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the department, including any determination that the child was a member of a criminal gang. When a court's disposition of a juvenile delinquent is probation rather than commitment, section 985.433 applies in relevant part: If the court determines not to adjudicate and commit to the department, then the court shall determine what community-based sanctions it will impose in a probation program for the child. Community-based sanctions may include, but are not limited to, participation in substance abuse treatment, a day-treatment probation program, restitution in money or in kind, a curfew, revocation or suspension of the driver’s license of the child, community service, and appropriate educational programs as determined by the district school board. Department Implementation of its "Commitment" Definition The Juvenile Justice Information System (JJIS) is the Department's statewide information system that tracks all delinquency referrals, arrests, placements and disposition data associated with every youth arrested in Florida. Historically, information was pulled from JJIS to determine the number of days billed to the counties. Once a disposition order was entered on a delinquency petition charge, assigning a youth to probation, commitment, or other possible outcomes, the system would "stop billing" the counties as of the date of the order, and any subsequent detention days would be assigned to the State. Under the new "commitment" definition as set forth in the Challenged Rules (and as implemented by JJIS), the Department's information system only looks for a "qualifying disposition to a commitment status" or placement on conditional release. All other days are considered pre-disposition, and therefore the responsibility of the counties. This change has narrowed the types of dispositions captured by the computer coding. Although it is possible to obtain disposition dates from JJIS based on a written disposition order for dispositions such as probation or dismissal of the charge, that information is no longer used in the cost sharing system or provided to the counties unless it is a commitment disposition. However, pursuant to Juvenile Procedure rule 8.115 (which governs disposition hearings), all disposition orders must not only include the disposition of each count, but also specify the “amount of time served in secure detention before disposition.” See, Fla. R. Juv. Pr. 8.115(d)(2). Thus, the Department could readily determine the number of predisposition detention days for all court dispositions, including probation, by accessing the information contained in the disposition order. The Challenged Rules shift a greater responsibility of costs to counties, because the Department only obligates itself to pay for one type of post-disposition expense, i.e. those associated with commitment of the juvenile to the custody of the Department for placement in a residential or non-residential program. The Department assigns any other days to the counties, including utilization days occurring after a disposition has been entered assigning a juvenile to probation, or dismissing the charge. Other costs for post-disposition activities that result in secure detention, such as violation of probation, pickup orders, or contempt of court, that do not involve commitment become the responsibility of the counties. Additionally, any detention days for juveniles waiting for private placement outside of the Department, such as commitment to a licensed child caring agency, would also be counted as pre- dispositional and billed to the counties. The overall impact of the definitional change from "final court disposition" to "commitment" has been a reduction in the number of detention days assigned to the State, and an increase in the number of days assigned to the counties. This shift in days numbers in the tens of thousands. The Challenged Rules limit the state's statutory responsibility for detention costs by narrowing "final court disposition" to "commitment." The result is a shift in additional detention care costs to the counties in contravention of section 985.686. The Department attempted to defend its use of the term "commitment" as a reasonable interpretation of "final court disposition" through the testimony of its representative, Beth Davis. Ms. Davis explained that in the Department's view, probation, while a form of "disposition," is not a "final court disposition," because the "case is not closed" until the youth successfully completes probation. However, this interpretation ignores the fact that juvenile offenders committed to the Department often serve a term of probation following completion of their residential rehabilitation.6/ Under the Department's reasoning, there would be no "final court disposition" until those youths successfully completed their terms of post- commitment probation and their cases are closed. By this logic "commitment" would not accurately represent the dividing line between state and county responsibility, since "final court disposition" would not occur until successful completion of post-commitment probation. The Department's position in this regard is internally inconsistent and not supported by facts or logic. Accordingly, the Department's position that "final court disposition" does not occur until completion of probation is rejected. Under section 985.433(8), probation is one of the possible statutory outcomes of the disposition hearing, and this record does not support the Department's position that probation is any less a "final court disposition" than "commitment."7/ Also problematic to the Department's position is the situation created when a delinquent is placed on probation at the disposition hearing and subsequently violates the terms of probation. Under this scenario, the juvenile will be taken into custody8/ and brought before the court having jurisdiction. If the court determines a violation has occurred, rather than go through a formal violation of probation hearing, it may find the youth in contempt of court and order the child detained for up to five days for the first offense and up to 15 days for subsequent offenses.9/ According to Ms. Davis, the days during which the delinquent is detained for contempt of court are considered "predispositional" and therefore the financial responsibility of the counties. The above scenario highlights the unreasonableness of the Department's use of "commitment" as the line of demarcation for state and county responsibility. Under this scenario, a disposition hearing was held pursuant to section 985.433, and the court ordered a disposition of probation pursuant to 985.433(8). However, if the youth violates probation and consequently is held in contempt of court, predisposition days accrue to the detriment of the counties, notwithstanding the prior court disposition of probation. Change in Department Methodology for Determining Estimate and Reconciliation Amounts Billed to Counties. For the first two years of detention-cost sharing, the Department based a county's obligation on a per diem approach. The Department applied a methodology for billing counties their share of secure detention cost based on a "per diem rate," where each county paid an amount based on the number of their "predispositional days" times a cost per day calculated by the Department that applied to both pre and post-dispositional days. The cost per day was derived by dividing the total costs for secure detention program by the number of total utilization days. An estimate was provided based on the budgeted amount for detention, and a reconciliation was performed at the end of the year to “true-up” the amounts billed to the counties to the actual costs based on, at that time, a cost per day for the entire secure detention program. However, as a result of a challenge brought by Hillsborough County against the Department in DOAH Case No. 07- 4398, Administrative Law Judge Daniel Manry issued a Recommended Order on March 7, 2008, invalidating the Department's methodology under rule 63G-1.004, regarding the Department's process for providing estimates to the counties. Judge Manry concluded that the Department's per diem methodology conflicted with its procedures outlined in rule 63G-1.004. This rule requires that the Department determine the estimate based on the following: (2) Each County will receive a percentage computed by dividing the number of days used during the previous year by the total number of days used by all counties. The resulting percentage, when multiplied by the cost of detention care as fixed by the legislature, constitutes the county's estimated annual cost. "Cost of detention care" is defined in the Old Rules as "the cost of providing detention care as determined by the General Appropriations Act." (G.A.A.) Fla. Admin. Code R. 63G- 1.002(1). Significantly, this term was only utilized in relation to the estimate, and was not used with regard to the annual reconciliation process. Judge Manry did not make any findings or conclusions with regard to rule 63G-l.008, which governed the annual reconciliation process. Presumably, this is because the process provided in the Old Rules for the annual reconciliation is not the same as the process outlined for the estimate. Instead, rule 63G-1.008 provides only that the reconciliation statement "shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period." There was no requirement in rule 63G-1.008 that the reconciliation be based on anything within the G.A.A.; the only time the G.A.A was mentioned was with regard to the estimate. Beginning in FY 07-08, the Department began to apply a different approach that did not use a per-diem methodology, but instead calculated the percentage of each county's pre- dispositional days as compared to the other counties and multiplied that amount by the Shared Trust Fund. This methodology was applied not just to the estimate process, but also to the reconciliation process. Effective July 6, 2010, this new approach was specifically adopted by the Challenged Rules into the reconciliation process. Fla. Admin. Code R. 63G- 1.017. Impact of the New Approach on the Counties When the Department abandoned the cost per day approach it created an inequity and raised the cost to counties over that of the State for secure detention. This inequity is a result of a combination of several factors. Under the Department's revised approach, it allocates amongst the counties as a group the budgeted amount for the Shared Trust Fund as determined by the G.A.A. It assigns this amount to individual counties based on utilization numbers from the fiscal year two years prior to the current fiscal year. For example, for the estimate for FY 09-10, the utilization numbers for FY 07-08 were used. The counties are billed monthly based on this amount. As the year progresses, the Department expends amounts up to its budget authority to support the secure detention program from four funding sources,10/ regardless of whether these amounts are applied to pre- or post-dispositional expenditures. The final bill to each county is based on the annual reconciliation done at the end of the year. Under the Department's methodology adopted by the Challenged Rule 63G- l.017 in 2010, the Department allocates only the expenditures from the Shared Trust Fund amongst the counties based on a percentage of an individual counties' actual utilization numbers as compared to all other counties. However, because the Department makes no effort to expend funds from the Shared Trust Fund only for the costs of predisposition secure detention, there is no correlation between the expenditures made from this trust fund and the statutory responsibility of each county to pay its "actual costs" "for the period of time prior to final court disposition." Although counties are only authorized and obligated by the statute to pay for predispositional costs, the Shared Trust Fund, which contains the revenues from the county billings, is being used to fund both predispositional and postdispositional costs.11/ In effect, under the Challenged Rules the Department never "trues-up" the estimated amounts billed to each county with the respective county's statutory share of the actual costs as contemplated by section 985.686. The percentage of predispositional days of secure detention which are the counties' responsibility does not match the percentage of revenues allocated to the counties. This inequity establishes that the counties are in fact funding a portion of post-disposition detention days, which are the State's responsibility pursuant to statute. Indeed, on cross- examination Department witnesses specifically acknowledged that the legislature is underfunding the Department's statutory responsibility, and that the counties are subsidizing a portion of the state's share. The evidence established that for fiscal year (FY) 2007-08 alone, the counties paid $2,980,716 over the actual cost of pre-disposition days. The amount by which the counties have subsidized the state's share of detention costs in recent years is likely understated. This is because the Department began applying its definition of commitment in FY 2009-2010, rather than the statutory dividing line of "final court disposition." Because the Department does not track the dates of disposition other than for a commitment disposition, the extent of the effect of this definitional change is uncertain. However, evidence presented at hearing suggests that the effect on the costs allocated to the counties is substantial. Petitioners presented evidence of an alternative calculation of detention costs to the counties based on a cost per day methodology, similar to the methodology employed by the Department prior to the 07-08 fiscal year. For FY 08-09, Petitioners' expert calculated that the cost per day was $224, based on utilization days for both the counties and the state divided by the total expenditures for the secure detention program. For FY 09-10, this same calculation resulted in a cost per day of $255. By applying this cost-per-day figure, Petitioners' expert calculated that for FY 08-09, the non-fiscally constrained counties would be required to pay $72,507,456 as their portion of secure detention costs, as compared to the $90,859,820 the Department assessed these counties. Thus, these counties paid $18,352,364 more for detention cost sharing for 08-09 than they would have under the prior per diem methodology. Similarly, for FY 09-10, Petitioners' expert calculated that the non-fiscally constrained counties would be required to pay $80,205,660 under a cost-per-day analysis, as compared to the $85,317,526 these counties were assessed under the Department's current methodology. These counties paid $5,111,866 more for detention cost sharing for FY 09-10 than they would have under the prior per-diem methodology. In addition, because the definitional change to commitment was applied for this fiscal year, there is evidence that the dollar difference in the two methodologies is significantly understated for that fiscal year. This testimony is persuasive regarding impacts on the counties. In fact, the Department's own documents reflect that for FY 08-09, the counties had subsidized the state's portion of detention costs by $17,733,995. For FY 09-10, this number was $5,412,546. This analysis highlights the inequities in the Department's methodology, as promulgated in the Challenged Rules. For example, for FY 2008-09, the Department was paying $127 per day for their post-dispositional days, while the counties were paying $284 per day, more than double the Department's cost per day, despite the fact that a day of secure detention, whether pre- or post-dispositional, has the same actual cost. The annual reconciliation process as set forth in the Challenged Rules conflicts with section 985.686, since it results in counties being assessed more than the “actual costs” “for the period of time prior to final court disposition.” A preponderance of the evidence established that the Challenged Rules enlarge, modify and contravene chapter 985 and specifically section 985.686, Florida Statutes.
Findings Of Fact Petitioner, William Joel Keel, is an inmate at the correctional institution in Raiford, Florida. The Union Correctional Institution is a confinement facility operated by the Respondent, Department of Corrections. Section 945.091, Florida Statutes, permits the Respondent to adopt rules and regulations which modify the limits of an inmate's confinement under specified conditions. In January 1986, the figures of the statistics of the Department of Corrections reflect that there were approximately 1300 new commitment intakes per month. As the year 1986 progressed up through the months of April and May, this rate went up to approximately 1400 to 1600 per month, and in June, the figure stood at 1680 new commitment intakes; a new record. This record, however, has been broken since that time with a monthly intake of 1700. This large number of intakes created a terrible strain on the system which at the time had reached the federal standards and the state cap on inmate strength of 98 percent. These caps are placed on inmate strength as an effort to reduce the extreme safety and security problems created by inmate overcrowding. Because there was no new staff assigned to the Department of Corrections during the period of this increase, the staff/inmate ratio decreased as the hot summer months approached with the pressure that the climate imposes. Both interior and perimeter security of the various institutions within the Department of Corrections became more and more strained. The stress on staff caused an increase of absenteeism and illness. In addition, during this period of increased temperature and the concomitant stress related thereto, assaults and escapes become a greater and greater problem. In June 1986, the inmate population in the Florida prison system went up to 99 percent, a figure approved by the Florida Legislature due to a change brought about by an automated accounting system for prisoners. The achievement of the 99 percent plus prison population constituted an "emergency" due to overcrowding. As a result, it became obvious that there was a need to increase the number of inmates eligible for pre-expiration of sentence release. Consistent therewith was the need to establish a fair and objective way of placing inmates into this pre-release program that would protect the public. It was determined necessary to screen out from participation in the program certain prohibited types of inmates such as sex offenders unless they have been cleared and determined to be harmless. Up to the point of this determination, there appeared to be no substantial or valid guidelines. Another intent of the framers of this emergency rule was the desire to set up a procedure to remove inmates placed into the pre-release program from the program for cause in accordance with due process and constitutionality. It was deemed necessary to make clear within the parameters of the program and within the instructions for the program what had to be done and how it was to be accomplished. Nonetheless, the overriding consideration which constituted the "emergency" situation was the overpopulation in the prison system. As a result, the Department of Corrections in July 1986 promulgated and published its Emergency Rule 33ER 86-3 dealing with supervised community release which rule was to take effect upon being filed with the Department of State. This rule provided that all inmates who are within 90 days of their release date will be eligible for placement on supervised community release if they meet certain specified requirements. The emergency rule listed as the basis therefor, "this emergency rule is necessary to protect the health, safety and welfare of the people of the State of Florida by providing criteria that the inmates to be placed in supervised community release must meet to help assure the safety of the public." It goes on also to indicate that the rule is necessary to prescribe appropriate sanctions for inmates within the program in the event they violate the terms and conditions of the release agreement. The program provides that the initial process is for the staff within the Department of Corrections to screen all inmates within 90 days of the end of their sentence. It was envisioned as an extension of the work release program already existing. It is for that reason that only those on or eligible for work release can participate in this new program. This is consistent with the statutory mandate to include in pre-release programs only trustworthy inmates. Inmates are also screened to ensure that they have demonstrated this trustworthiness by performing well in the more restrictive work release program. Other methods of demonstrating trustworthiness and eligibility is for the inmate to invest time in self-improvement projects such as the GED Program and to have through his past practice, shown that he will return to the prison setting at night. This screening is done monthly of all inmates with a temporary release date of 120 days in the future. By so doing, this gives the staff 30 days to develop a plan for the individual inmate to ensure a stable environment for the inmate to go to. Prior to the implementation of Chapter 86-46, Laws of Florida, the statutory authority for the current program, there was no provision for the program in issue. As soon as this law was passed the legal staff within the Department of Corrections prepared the instant emergency rule as soon as possible. Had they not been able to do an emergency rule and had the regular rulemaking process been necessary, it is most likely that they would not have had established criteria and guidelines to apply to those who had to be released due to the fact that the prison population had reached the statutory cap. In fact, it was shown that state attorneys would not cooperate with the Department of Corrections and process violations of the program unless there were specific guidelines contained therein, and, since it was necessary to reduce the inmate population, it was therefore necessary to utilize the emergency role process. With that in mind, the safety of the public into which these inmates would be released was the primary concern and generated the need to ensure that only qualified and safe inmates were released. Under the new statute and the emergency rule, 1125 inmates have been released as of the date of the hearing. Approximately 750 inmates are in the program at any given time. As a result of the implementation of this program, the prison population has dropped and remained within the new 99 percent of capacity state cap. Experience with the programs so far has shown that the inmates in the program have been guilty of only minor violations such as assault on witnesses, DWI, simple assault, and larceny. And all of these offenses came up after implementation of the emergency rule. In the case of misconduct by a released inmate which does not result in immediate charges and incarceration, such as leaving the county where placed or the state, the disciplinary team from the Department of Corrections will evaluate the inmate and impose the penalty. These penalties could include removal of gain time while still remaining within the program up to removal from the program and loss of gain time. Conditions of enrollment in the program include, as to the inmate, that he (a) stay in the area where assigned; (b) refrain from the use of drugs; (c) comply with instructions given; (d) pay court costs imposed; and (e) pay a $30 a month fee to the Department of Corrections to cover administrative costs. Though the emergency rule appears to be working satisfactorily, the Department of Corrections is in the process of regular rulemaking to adopt a permanent rule identical to the emergency rule in issue here.
The Issue 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 Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
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 as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent assessed Petitioner for secure juvenile detention care for the 2007-2008 fiscal year in a manner that implements Section 985.686, Florida Statutes (2007), and Florida Administrative Code Rule 63G-1.1
Findings Of Fact Respondent is the state agency responsible for administering the cost sharing requirements in Section 985.686 for juvenile detention care. Petitioner is a non-fiscally constrained county2 subject to the statutory cost sharing requirements. The statutory requirements for funding juvenile detention in the state guide the findings in this proceeding. Subsection 985.686(1) requires Petitioner and Respondent to share the costs of "financial support" for "detention care" for juveniles who reside in Hillsborough County, Florida (the County), and are held in detention centers operated by Respondent. Subsection 985.686(3) requires Petitioner to pay the costs of detention care "for the period of time" prior to final court disposition (predisposition care). Respondent must pay the costs of detention care on or after final court disposition (post-disposition care). Detention care is defined in Subsection 985.686(2)(a) to mean secure detention. Secure detention is defined in Subsection 985.03(18)(a), for the purposes of Chapter 985, to include custody "prior to" adjudication or disposition as well as custody after adjudication but "prior to" placement.3 The term "placement" is not defined by statute or rule. However, secure detention centers are legally unavailable to circuit courts for post-disposition placement. Post-disposition care of juveniles in a secure detention center is generally limited to juveniles who are waiting for residential placement. The trier-of-fact construes the reference to placement in Subsection 985.03(18)(a) to mean residential placement. Secure detention includes custody in a detention center for both predisposition and post-disposition care. Predisposition care occurs prior to adjudication or final disposition. Post- disposition care occurs after adjudication or disposition but prior to residential placement. Post-disposition care also includes custody in a detention center after final disposition but prior to release. Although this type of post-disposition care comprises a small proportion of total post-disposition care, references to post-disposition care in this Recommended Order include care after final disposition for: juveniles waiting for residential placement and juveniles waiting for release. Juveniles are not supposed to remain in detention centers very long after final disposition while they wait for residential placement. However, juveniles with exceptional needs, such as mental health needs, may remain in detention centers for a longer period of time due to the limited availability of appropriate residential placement facilities. Approximately 2,057 secure detention beds exist statewide. The operating cost for each bed is the same whether the bed is used for predisposition or post-disposition care. The operating cost for a secure detention bed may increase if the detention center exceeds capacity because of overtime expenses, temporary staffing, and other temporary costs. Although only two secure detention centers did not exceed capacity at some time during the previous year, secure detention utilization in the same year averaged approximately 89 percent of capacity. The Legislature funds the cost of juvenile detention care through an annual appropriation. Appropriations from 2002 forward have historically allocated approximately 11 percent of the cost of detention care to Respondent and approximately 89 percent to the counties. The total appropriation for the 2007-2008 fiscal year was $125,327,667. The Legislature allocated $30,860,924 to the state and $101,628,064 to the counties. Negative amounts in certain categories brought the net appropriation to $125,327,667. The Legislature pays the state's share of juvenile detention costs from general revenue. However, the "appropriation" for the counties' share of detention costs is actually an account payable. Pursuant to Subsection 985.686(6), Petitioner must make monthly payments into a state trust fund for its share of statewide predisposition detention costs. Subsection 985.686(3) requires Respondent to develop an accounts payable system to allocate to the counties the costs of secure detention for predisposition care. Pursuant to Subsection 985.686(5), Respondent administers the account payable system through a system of prospective assessment and retroactive reconciliation. Prospective assessments at the outset of a year are based on actual costs from the previous year. Subsection 985.686(5) requires Petitioner to pay the prospective assessment monthly and requires Respondent to complete an annual reconciliation at the end of the year to determine whether actual costs during the year were more or less than the prospective assessment. Sometime after the end of each fiscal year, Respondent either credits or debits Petitioner for any differences between the prospective assessment and actual costs determined in the annual reconciliation. Subsection 985.686(3) requires Petitioner to pay for the costs of secure detention in the County for the "period of time" juveniles are in predisposition care. No statute or rule expressly defines the phrase "period of time." Subsection 985.686(10) authorizes Respondent to adopt rules to administer Section 985.686. Rule 63G-1.004(1)(c) implicitly defines the statutory reference to a "period of time" in predisposition care to mean "service days." Other provisions in Rule 63G-1.004 prescribe the methodology to be used in calculating Petitioner's share of the costs for predisposition care. Respondent must first identify all juveniles in predisposition care based upon usage during the preceding fiscal year. Second, Respondent must match each placement record with the corresponding identification code. Third, Respondent must calculate the "service days" in predisposition care. Finally, Respondent must divide the number of "service days" Petitioner used for predisposition care in the County by the service days used by all counties to determine the percentage of the counties' costs for predisposition care that Petitioner owes. Petitioner disputes the methodology Respondent uses to determine the amount Petitioner owes for predisposition care in the County. However, that dispute is the subject of a companion case identified by DOAH Case No. 07-4398 and is beyond the scope of this proceeding. The dispute in this proceeding is limited to Respondent's determination of the service days that Respondent allocated to Petitioner for predisposition care in the County. The term "service days" is not defined by statute or rule. Respondent defines service days to mean "utilization" days. Utilization days are not synonymous with calendar days. Utilization days correspond more closely to the number of juveniles in secure detention. If for example, 10 juveniles utilize one detention center during any part of a day, 10 utilization days have occurred during one calendar day. A secure detention center may be utilized simultaneously by juveniles in predisposition care and juveniles in post-disposition care (dual-use occupancy). If the 10 utilization days in the preceding example were to include equal dual-use occupancy, Respondent would count five utilization days for predisposition care and five utilization days for post-disposition care. The 10 juveniles in the preceding example may not occupy a detention center for an entire calendar day. The five juveniles in predisposition care may occupy the center for only part of a calendar day and five more juveniles may receive predisposition care for the remainder of the day. In that example, Respondent would allocate 10 utilization days to Petitioner for predisposition care during that calendar day and only five utilization days to the state for a total of 15 utilization days. Respondent determined there were 709,251 utilization days for pre and post-disposition care in the state for the year in issue. Respondent allocated 579,409 utilization days to the counties' predisposition care and 129,842 utilization days to the state for post-disposition care. Respondent allocated 47,714 utilization days to Petitioner and, after reconciliation, reduced that number to 47,214. Petitioner claims the correct number of utilization days is 31,008. Respondent allegedly misallocated 16,206 utilization days for predisposition care by Petitioner. Respondent identifies the 16,206 utilization days in nine categories. The categories and corresponding number of days that Petitioner challenges are: contempt of court (327), detention order (3,005), interstate compacts (1), pick up orders (12,267), prosecution previously deferred (28), transfer from another county awaiting commitment beds (444), violation of after care (10), violation of community control (79), and violation of probation (45). Subsection 985.686(6) requires Respondent to calculate the monthly assessment against Petitioner with input from the County. Respondent allowed input from the counties during rulemaking workshops but has thwarted virtually any input from the County during the annual processes of calculating assessments and reconciliation. Respondent classifies each of the nine challenged categories as predisposition care. However, the data that Respondent provides to the County each year does not include final disposition dates. The omission of disposition dates from the information that Respondent provides to Petitioner effectively thwarts the County's ability to provide meaningful input into the calculations that Respondent performs pursuant to Subsection 985.686(6). The absence of disposition dates precludes the County from independently auditing, or challenging, the assessments that Respondent calculates pursuant to Subsection 985.686(6). The absence of disposition dates also deprives the trier-of-fact of a basis for resolving the dispute over the nine categories of utilization days that Respondent determined were predisposition care. Respondent claims the allegation of misclassification is a challenge to agency policy that is not subject to the due process requirements prescribed in Chapter 120. To the contrary, the allegation raises a disputed issue of fact over the correct disposition date, and that issue is not infused with agency policy or agency expertise. The correct disposition date can be determined through conventional means of proof, including public records. Although Respondent presumably uses that information to determine a disposition date, Respondent does not make the information available to the County. Even if a determination of the disposition date were solely a policy issue, it is not exempt from the due process requirements prescribed in Subsection 120.57(1). One of the principal purposes of a proceeding conducted pursuant to Subsection 120.57(1) (a 120.57 proceeding) is to encourage responsible agency policymaking. During this proceeding, Respondent did not explicate, by conventional methods of proof, any intelligible standards that guide the exercise of agency discretion in classifying the nine challenged categories of utilization days as predisposition days. Nor did Respondent explicate any evidential predicate to support a finding that the classification is infused with agency expertise and entitled to great deference. The only standards that Respondent articulated during the evidentiary hearing is that agency employees exercise discretion pursuant to instructions from agency management. Respondent also considers open charges against juveniles as a basis for distinguishing predisposition utilization days from post-disposition utilization days. If, for example, a juvenile is in secure detention awaiting placement after final disposition of one charge but has another open charge, Respondent classifies that utilization day as predisposition care. The trier-of-fact finds that secure detention after final disposition, but before residential placement for the charge adjudicated, is post-dispositional care. The record does not disclose how many, if any, of the 47,215 utilization days allocated to Petitioner involve open charges. Respondent did not explicate any intelligible standards to guide the exercise of agency discretion in using open charges as a basis for distinguishing predisposition utilization days from post-disposition utilization days. Nor did Respondent explicate an evidentiary basis to support a finding that the relevant classification is infused with either agency expertise or agency policy and entitled to deference. Petitioner acknowledges that some of the nine categories require final disposition before a juvenile can be placed in secure detention prior to residential placement. For example, data identification codes for offenses such as contempt of court, detention orders, pick up orders, prosecution previously deferred, violation of after care, violation of community control, and violation of probation require a final disposition. The omission of a final disposition date from the data available to Petitioner deprives Petitioner of the ability to provide input to Respondent to correct the assessments that Respondent calculates pursuant to Subsection 985.686(6).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order assessing Petitioner for the costs of predisposition care in the County using utilization days determined in accordance with this Recommended Order and meaningful input from the County. DONE AND ENTERED this 10th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2008.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, to wit: termination of Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent has been the elected Sheriff of Alachua County, Florida, for 12 years. As such, he was, and is, a constitutional officer of the State of Florida and the chief law enforcement officer for Alachua County. Since January 1998, he has administered the Alachua County Jail. In his capacity as administrator of the jail he qualifies, strictly in his official capacity, as an "employer," pursuant to Chapter 760, Florida Statutes. Respondent Employer also may be referred to as "the Alachua County Sheriff's Office" (ACSO). Petitioner is an African-American female. At all times material, she was an employee of Respondent Employer, and "an aggrieved person," pursuant to Chapter 760, Florida Statutes. Respondent began administration of the jail in January 1998. Prior to that time, the Alachua County Board of County Commissioners operated the jail. Respondent assumed administration of the jail through a governmental interlocal agreement, subject to existing collective bargaining agreements and various other parameters encouraging continued employment of existing jail personnel. In January 1998, all current jail employees were required to complete new applications, subject to review to ensure compliance with the ACSO's employment standards. On her 1998 job application form, Petitioner answered questions concerning her physical limitations as follows: * * * Are you able to participate with or without accommodation in defensive tactics, firearms, or physical training, operation of a motor vehicle, or otherwise perform the duties set forth in the job description or task analysis related to the position for which you applied? - NO. This position may require a physical ability test. If such a test or examination is required, would you be able to take this test or examination with or without accommodation? - NO. Explain what accommodation(s) you would need to perform these tasks or take the test or examination. - LEFT BLANK. * * * The majority of former Alachua County Jail employees were hired by ACSO. Some employees who did not meet ACSO's requirements were not hired/transferred to the new employer. These were mostly employees with criminal records. It was Respondent's intent to try to retain jail employees, even if they were temporarily unable to perform their essential job functions, for up to 12 months. Petitioner, who had served as a detention officer at the jail from 1981 to 1998, was one of the employees who successfully made the transition and was hired by Respondent in January 1998. At all times material, Petitioner was a Certified Correctional Officer. Her certification only indicates that she had met minimum training requirements and the mandatory continuing professional training requirements, pursuant to Florida law. At the time of her hire/transfer in January 1998, Petitioner weighed 350 pounds and suffered from osteoarthritis and hypertension. Obesity, osteoarthritis, and hypertension have plagued Petitioner since before her hire/transfer. Also, at least since June 29, 1998, Petitioner has been unable to walk long distances. On that date, a podiatrist diagnosed her with "bone spurs" in both feet. She submitted a Health and Work Status Report to the Employer stating Petitioner should only sit 50 percent, stand 50 percent, walk 50 percent, and climb stairs 10 percent. These figures add up to more than 100 percent, and the undersigned interprets the report, in the light of Petitioner's testimony, to mean that the physician was restricting her to no more than the respective percentages of each listed activity. The June 29, 1998, report went on to say that Petitioner should not use her feet for extended periods, perform physical force restraints/combat, or stressful work. As a result, ACSO placed Petitioner on temporary restricted duty (TRD). Petitioner's testimony suggested that, at some point, she recovered from the foregoing "temporary" restrictions, and a subsequent November 26, 2002, memorandum from the Employer (see Finding of Fact 45) suggests that sometime prior to March 6, 2002, Petitioner was returned to regular duty, minus the June 29, 1998, physical restrictions. (See Findings of Fact 35-37). However, it is not clear for what period of time between June 29, 1998, and March 6, 2002, Petitioner remained on TRD. There was no requirement of a Physical Agility Test (PAT) during Petitioner's 18 years of service at the jail prior to ACSO taking over jail management, and Petitioner was not required to take and pass a PAT in order to be hired/transferred to the ACSO regime in 1998. The jail employed more than 300 detention officers. Detention officers were subject to being assigned to any area within the jail. The written Job Description for Detention Officer has, at all times material, required ". . . maintaining physical custody and control of inmates . . ." and ". . . receiving and processing inmates, enforcing disciplinary procedures for the control of inmate behavior." Nowhere does Petitioner's written job description use the word, "running," but it specifies the following "physical requirements," with or without, a PAT in place: E. PHYSICAL REQUIREMENTS Sit, stand or walk for moderate periods. Have good close, distant, color, peripheral, depth and adjusted vision. Hear at normal range or with accommodation. Speak, read, write, and understand English fluently. Lift/carry 100+ pounds. Climb, balance and reach with arms. Bend, stoop, kneel, crouch and crawl. Taste and smell. Manual dexterity. Drive a vehicle. (Emphasis supplied) The primary duties for all jail detention officers were the care, custody, and control of jail inmates and operation of the facility. These duties might, on occasion, include running or walking briskly to come to the aid of fellow officers who were "down" or to respond to inmate fights. Detention officers were also responsible for the security of the entire 300,000 square feet of jail space and the 10-acre parcel of land surrounding it. A jail detention officer's regular duties also included inspecting inmate housing areas and looking under bunks, some of which were only 16 inches off the floor, for contraband, including drugs and weapons. Detention officers had to go up and down stairs to make these inspections. During Petitioner's employment with Respondent, detention officers on TRD were often placed in the personnel office, lobby of the jail, or in central control. The lobby now only utilizes civilian personnel. (See Finding of Fact 50.) The Sheriff has a law enforcement background and mindset. When he took over the jail, he imposed additional employment standards on jail detention officers above and beyond the minimum standards established by the State of Florida. As part of his initiative to professionalize the jail, and in an effort to obtain national accreditation for the jail from the American Correctional Association, the Sheriff established minimum physical requirements for all detention officers. Over time, ACSO's training staff created a job-related physical review and designed the PAT. The PAT evolved over a period from approximately November 1999 to March 2000. It ultimately consisted of a timed course of nine tasks. The timed PAT began with Task 1: a 455-foot (reduced by July 1, 2003, to 300-foot) sprint, to the first obstacle. The "first obstacle" was the step obstacle (stepping over 17 seven-inch rope steps in sequence), then continuing on 50 feet to the next task. It is clear from her testimony that Petitioner incorrectly saw this first part (Tasks 1 and 2) as the only part of the PAT which required running. However, Task 3 of the PAT was the "Serpentine," which involved snaking around a series of cones without knocking them down. Then, the detention officer would have to "sprint approximately 85-feet to the next obstacle." Task 4 was a low crawl, followed by a sprint of approximately 155 feet to the weapon fire area and the next obstacle. Task 5 was rapid and accurate weapon fire testing, followed by a sprint approximately 40-feet to the next obstacle. Task 6 for detention officers involved climbing a set of stairs, followed by a sprint of approximately 60 feet to the next obstacle. Task 7 was another serpentine, followed by a sprint of approximately 160 feet to the next obstacle. Task 8 was a test involving dragging a 150- pound dummy and a 123-foot sprint to Task 9, which involved handcuffing. It is clear that by "sprint" the PAT intended quick, short runs at high speeds and that the PAT required many sprints. It is not clear whether the PAT intended that a stopwatch be running non-stop through the nine tasks, but it is clear that all or part of the PAT was timed and that a specific overall time had to be met by each detention officer in order to pass the PAT. Petitioner knew when she was hired/transferred in January 1998 that Respondent Employer had, or soon would have, additional and different employment standards than she had experienced for the last 18 years at the jail and that those new standards might constitute a mandatory threshold for her continued employment. As of November 2000, all detention officers, including Petitioner, were advised that they would be required to participate in the PAT and that they were being given an 18- month phase-in period before the test became a mandatory job requirement for detention officers. Petitioner was advised that she would be required to take/pass the PAT by July 1, 2003. Among other purposes, the PAT was designed to mirror some of Petitioner's daily job activities or job description requirements, such as going up and down stairs, running, and searching under bunks. Parts of the PAT addressed the readiness necessity of confronting and controlling inmates. It also included the less-likely emergency activities of crawling and shooting. At least by July 1, 2003, (and possibly earlier), Petitioner's job description was amended to reflect that the PAT was part of the essential functions of her job: IV. QUALIFICATIONS: * * * B. Experience and Training: * * * Must meet or exceed all applicable physical agility standards required by ACSO. As part of the continued departmental upgrading and phasing-in of PAT, detention officers, including Petitioner, also were required to participate in 40 hours of in-service training, which included training to successfully pass the PAT. ACSO provided University of Florida fitness and nutrition interns and an onsite exercise room to assist jail employees in reaching physical fitness levels sufficient to timely pass the PAT. Petitioner did not avail herself of these PAT training opportunities, due, in part, to health reasons. On March 6, 2002, Petitioner provided to Respondent a letter from her general practitioner, Dr. Thompson, stating: [Petitioner] suffers from morbid obesity and has severe osteoarthritis of both knees and also suffers from hypertension. These ongoing medical problems preclude her from being able to participate in the physical agility test that is a requirement of her position as a correctional officer. . . . Petitioner could not physically train for, or perform, the PAT as of March 6, 2002. From that date on, she relied on Dr. Thompson's letter, so that her superiors would not require her to take/train for the PAT. Petitioner submitted no later reports to change Dr. Thompson's March 6, 2002, opinion, but claimed that the Employer had not placed her on TRD as a result of it. In April of 2002, Petitioner's knee was injured in a motor vehicle accident. Petitioner testified that from the April 2002 accident until she was terminated in August 2003, she was unable to stand for long periods of time; run; cook regular meals for her family; clean her house without assistance; or do any gardening or yard work. She also related that knee pain limited or ended marital intimacy. To some degree, at least, these limitations continued after her August 2003 termination. She also claimed to have been unable to attempt the PAT from April 2002 until her termination in August 2003. See infra. Petitioner testified that she could not workout at the jail gym or otherwise prepare for the PAT after her April 2002 automobile accident. Over time, in part due to her inactivity, Petitioner reached a weight in excess of 400 pounds. Petitioner continued to rely on Dr. Thompson's March 6, 2002, pre-accident letter to avoid training for, or taking, the PAT. Dr. Thompson never supplemented this letter. Respondent's published policy concerning the PAT permitted employees who were unable to do PAT for medical reasons to delay taking it, as follows: Sworn employees unable to participate in a semi-annual proficiency because of a medical condition must have their physician complete the Medical/Physician's Recommendation Form, ACSO 94-24 and the Health and Work Status Report, ACSO 96-178 and return them to the Human Resources Bureau. Sworn employees who fail to participate or demonstrate semi-annual proficiency because of a medical condition will be placed on Temporary Restricted Duty (TRD) for a period of up to twelve (12) months to rectify the deficiency. The TRD shall not exceed twelve (12) consecutive months, or a total of eighteen (18) months within a twenty-four month period. At the end of the extension period, the sworn employee will be required to complete and successfully pass any missed test(s). Sworn employees who fail to demonstrate proficiency at the end of the TRD period will be relieved . . . of sworn duty if not done so when the employee is placed on TRD. . . . [sworn employees] suspended from sworn duty shall be reassigned to non-sworn status pending administrative action. Administrative action may range from permanent non-sworn assignment with all employee pay and benefits adjusted accordingly, if a position is available, up to and including termination. (Bracketed material added for clarity.) On or about November 25, 2002, Petitioner submitted a Health and Work Status Report from Dr. Bensen, her chiropractor, which said she was: Unable to run and is to be excused from that portion of the physical agility test until further notice. On November 26, 2002, Respondent Sheriff issued a memo to Petitioner that provided, in pertinent part: RE: TEMPORARY RESTRICTED DUTY the very nature of corrections requires instantaneous response to potentially hazardous or stressful situations. This response often involves extreme physical exertion. You have provided medical information from your physician indicating that you are temporarily unable to fulfill the essential functions of your appointment as a Detention Officer. Therefore, effective immediately, you are hereby placed on Temporary Restricted Duty and directed to report to the Human Resources Bureau for assignment. You must provide the Human Resources Bureau with an updated Health and Work Status Report every 30 days, commencing with the effective date of this assignment. While on Temporary Restricted Duty, the following conditions shall apply: 1. You shall avoid physical confrontations, except when necessary to protect yourself or another person from imminent death or serious injury. * * * 5. You will not participate in any training that would involve activities contrary to the restriction indicated by your physician. * * * An assignment to Temporary Restricted Duty cannot exceed twelve months. If you are unable to return to full, unrestricted duties as a Detention Officer at that time, you will be subject to reclassification to a position within your capabilities or to termination. Petitioner concedes that Instruction 5, of the Sheriff's November 26, 2002, memo, placing her on TRD, amounted to Respondent telling her that he was following her doctor's orders and expected her to follow them, too. From November 2002, through July 2003, Petitioner submitted appropriate Health and Work Status Reports from Dr. Bensen and received approval of TRD from the Employer. The way the foregoing system worked was that at some point between the 19th and 30th of each month, Petitioner would visit Dr. Bensen and he would make out a Health and Work Status Report, certifying that she was "unable to run and is excused from that portion of the Physical Ability Test until further notice." (R-12) A few days later, Petitioner would present the foregoing Report to a superior officer, who would note on a Return to Duty Form, the date of his or her conference with Petitioner concerning Petitioner's restrictions; the date Petitioner's next Health and Work Status Report was due; and the date of Petitioner's next scheduled physician's appointment. This Return to Duty Form authorized Petitioner to be placed in TRD. (R-11) Thereafter, a Human Resources Risk Manager signed- off on the same form to approve the TRD assignment. Although the Health and Work Status Report Forms and Return to Duty Forms in evidence do not cover every month between November 26, 2002, and August 2003, or precisely dove- tail by date, the tangible items in evidence, together with the credible testimony and evidence as a whole, support findings that Petitioner's last counseling by a superior officer occurred on August 1, 2003; that her next physician's appointment was expected to be August 26, 2003; and that Petitioner was ordered to remain on TRD, effective July 30, 2003. (See Findings of Fact 56-58) While on TRD from November 2002 to August 2003, Petitioner was primarily assigned to the jail's lobby. Occasionally she was assigned to the command center. Petitioner was assigned to the lobby, partly due to her good communication skills. At the time, both locations were full duty detention officer postings. Neither location has stairs in it. Trustee inmates are not handcuffed in the lobby. Transferee-inmates may be handcuffed in the lobby. The lobby is mostly a public information outlet and an entrance and exit point for the jail facility. Currently, ACSO utilizes only civilian personnel in those areas, instead of physically restricted detention officers, because all sworn detention officers are expected to be in a state of operational readiness and to be able to respond as full-service officers. On June 10, 2003, the Employer requested an independent medical evaluation of Petitioner. Dr. Newcomer, a medical physician, evaluated Petitioner and provided the Employer with the following information on June 24, 2003: DIAGNOSIS: Morbid obesity, bilateral knee arthritis with more recent knee trauma resulting in chronic pain, hypertension in fair control. TREATMENT PLAN: Functional capacity evaluation is requested and will be set up at Rehab Solutions. When that information is available, further assessment of her specific functional abilities to compare the physical requirements of job description including physical agility test, can be more specifically addressed. Her extreme obesity and advanced degenerative arthritis in the knee will definitely limit her long term ability for weight bearing exercise and physical stress. (Emphasis supplied) On June 27, 2003, Rehab Solutions, Inc., wrote Petitioner in an attempt to schedule, for July 7, 2003, the physician-ordered functional capacity evaluation. On July 1, 2003, the PAT became mandatory for all detention officers, including Petitioner. Petitioner took Rehab Solutions a July 1, 2003, letter (Tr-142; R-10) from Dr. Bensen. As a result, Rehab Solutions elected not to perform the functional capacity evaluation of Petitioner on July 7, 2003. Dr. Bensen's letter read, in pertinent part: [Petitioner] has been seen in this office for treatment of injuries sustained in an MVA [sic. "motor vehicle accident"] which occurred on April 12, 2002. These injuries include cervicobrachial syndrome, cervical sprain-strain, knee sprain-strain, and thoracic sprain-strain . . . she has recently been able to increase both the speed as well as the distance of her walking regimen. Soft tissue injuries typically take up to 18 months to heal and [Petitioner's] rehabilitation has been complicated by her weight. any stressful assessment examination at this time is likely to re-injure that patient's knee and it is recommended that such assessment be postponed until October of this year to allow for more complete resolution of her symptoms. Since the foregoing letter from Dr. Bensen was presented to Rehab Solutions, Inc., it would seem to be suggesting, not that Petitioner could attempt the PAT in October 2003, but that Rehab Solutions, Inc., ought not to perform a functional capacity evaluation of Petitioner for Dr. Newcomer and the Employer until October 2003. It is not clear when the Employer came into possession of this letter of Dr. Bensen. On July 29, 2003, Dr. Bensen filled out a Health and Work Status Report to the effect that he had examined Petitioner on July 29, 2003; that she might return to work on July 30, 2003; and that she was "unable to run and is to be excused from that portion of the physical agility test until dated [sic.] listed below - October 2003"; and that he expected Petitioner to return for her next appointment on August 26, 2003. (R-12) This was the last Health and Work Status Report submitted to the Employer before Petitioner's termination on August 7, 2003. (See Finding of Fact 49.) The last Return to Duty Form before Petitioner's termination shows that Susan Wiley, on behalf of the Employer, discussed Petitioner's restrictions with her on August 1, 2003; continued Petitioner on temporary restricted duty, effective July 30, 2003; and expected Petitioner to supply a new Health and Work Status Report on September 1, 2003, from a next scheduled physician's appointment date of August 1, 2003. (R-1) (See Finding of Fact 49.) From Findings of Fact 56 and 57, it is further found that despite some discrepancy in dates between Dr. Bensen's reports and the Employer's Return to Duty Forms, Petitioner's supervisors knew on August 1, 2003, that Petitioner might be able to attempt the PAT in October 2003. However, Respondent Employer terminated Petitioner on August 7, 2003, by a memorandum of that date, stating: In July of 2000, the Alachua County Sheriff's Office established a Physical Agility Test for Detention Officers at the Department of the Jail. The test was developed to test a Detention Officer's ability to meet essential minimum physical requirements of the job. The test, notification of requirements, and trial period were implemented over a 3 year time period. This test is specifically designed to assess one's ability to perform essential functions of your position which are physical in nature. Your medical information on file with the Human Resources Bureau indicates that you are unable to perform this test either now or in the foreseeable future. Detention Officers must be able to carry out their duties in a manner which safeguards the safety and welfare of the inmate population as well as employees. I have allowed you to function in a restricted capacity with the hope that you would make some progress in your rehabilitation, however, I note that no improvement in your medical condition has been documented. Keeping in mind the safety needs of this agency as well as the requirements of the position, I must accordingly end your assignment as a Detention Officer with the Department of the Jail of the Alachua County Sheriff's Office effective as of 1700 August 7, 2003. I encourage you to contact Human Resources Bureau Chief Sherry Larson at 367-4039 to discuss your interest in other vacant positions for which you may qualify. Please note your circumstances qualify you to take advantage of ACSO's Transition Period which allows you to use up to sixty (60) days of accumulated leave (sick, annual, compensatory, special event) to transition into retirement or other non-ACSO employment. In order to take advantage of this option you must contact Human Resources at 367-4040 immediately upon receipt of this memorandum. (Emphasis supplied.) Petitioner was employed for 3.8 years between her hire/transition to ACSO in January 1998 and her termination in August 2003. Petitioner contended that she never asked for an accommodation of her disability, but clearly, she accepted TRD for as often and as long as it was provided, at least from November 26, 2002 to August 7, 2003. During her entire 22 years of service as a detention officer, Petitioner was never disciplined or evaluated as unsatisfactory for any reason. After August 7, 2003, Petitioner contacted Ms. Larson concerning continued employment with ACSO and was informed that there were two ACSO positions available. Petitioner understood these positions to be "deputy" and "detention assistant." Petitioner understood the "deputy" position to be one for "road deputy," a position which requires passing an even more rigorous PAT than the one Petitioner would have to have passed as a jail detention officer. (See Findings of Fact 24- 27.) Although the detention assistant position was not commensurate with the salary level and duties of a detention officer, Petitioner admitted to being qualified and capable of performing that job description in August 2003. Petitioner told Ms. Larson that Petitioner would get back with her, but because Petitioner did not contact Ms. Larson within two days, Ms. Larson assumed Petitioner would not be applying for either current ACSO job opening or for any future ACSO openings, so she did not continue to contact Petitioner thereafter. Petitioner claims that approximately August 20, 2003, Dr. Thompson provided medical documentation indicating that she could attempt the PAT. However, Petitioner concedes that she never provided this information to Respondent. Dr. Thompson's alleged August 20, 2003, permission slip also was not offered in evidence. (TR-201-202.) Petitioner's testimony is conflicted as to her physical limitations from July 2003 to the date of hearing. She testified that prior to her termination by Respondent, her medical condition did not prohibit her performing any of the "essential functions" of her job as a detention officer, except running. At one point, she testified that after October 2003, (the earliest date of possible PAT performance as predicted by Dr. Bensen), she was able again to perform all her household chores. She also testified that after her termination in August 2003, her medical condition, which at least until October 2003, included no prolonged walking or standing and no running, prevented her from seeking a range of jobs outside her field, such as day care provider, cashier, mail deliverer, cook, grocery bagger, waitress, and nurse's aide. Petitioner testified that she continued to be unable to do her housework, yard work and general life activities at least until the beginning of 2004. Petitioner also testified that she believed she could fulfill her detention officer job description as of the date of hearing. She testified that she could attempt the PAT (without running) as of the date of hearing, but she was not sure she could pass it. She asserted that the PAT is not a bona fide requirement of the job of detention officer. Petitioner testified that from some time post- termination to May 2004, she suffered from depression and anxiety due to loss of her job, but she provided no medical corroboration of this part of her testimony. Nonetheless, at some point, she has been able to apply for a counselor position at Alachua County Work Release; a job at the Alachua County Library; and a job at the Court Services Office. For reasons unknown, she was not hired at any of them. She was not hired by the Bradford County Sheriff's Department in 2003 because it had no vacant positions at that time. She has intentionally not applied for any correctional officer jobs. She has a college degree in business administration, but apparently has not sought employment in that field. Petitioner has lost no health benefits as a result of her termination by Respondent Employer, because she has always had health insurance through her husband's employment. She did lose salary, retirement benefits, dental plan coverage, and supplemental life insurance coverage as a result of her termination. Petitioner has agreed to pay her attorney a reasonable fee in this case.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 7th day of June, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Bill Salmon, Esquire 410 Southeast 4th Avenue, Suite A Gainesville, Florida 32601 Linda G. Bond, Esquire Allen, Norton, and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
The Issue Whether Petitioner, the spouse of an inmate of the Florida correctional system, has standing to challenge Florida Administrative Code Rule 23-21.0155, which provides that if the Commission declines to authorize the effective parole release date of an inmate referred for extraordinary review, the Commission must suspend the established presumptive parole release date until the inmate is found to be a good candidate for parole release.
Findings Of Fact On October 10, 1995, Petitioner married Anthony Ray Peek, an inmate housed in a Department of Corrections facility. Mr. Peek is serving a parole-eligible sentence pursuant to chapter 987, Florida Statutes. On September 1, 2010, Petitioner appeared and spoke at a Commission hearing convened to determine whether to authorize Mr. Peek?s presumptive parole date of September 29, 2010. By order dated September 2, 2010, the Commission decided not to authorize Mr. Peek?s presumptive parole date, and referred the case for extraordinary review pursuant to rule 23-21.0155. On November 9, 2010, the Commission entered an order by which it determined that it would not authorize an effective parole date for Mr. Peek, that his presumptive parole release date remained suspended, and established May, 2017, as the date for Mr. Peek?s next extraordinary review interview. The Commission?s action applied the standards for placing an inmate on parole established in section 947.18, Florida Statutes. In taking its action, the Commission utilized the procedures for extraordinary review established in rule 23-21.0155, which provides, in its entirety, that: 23-21.0155 Extraordinary Review Procedures. When an inmate?s case is referred for extraordinary review by the Commission, an order shall be prepared outlining the reason(s) for the Commission?s decision. The order shall be acted upon by the Commission within 60 days of the decision declining to authorize the effective parole release date. The Commission?s order shall specifically state the reasons for finding the inmate to be a poor candidate for parole release pursuant to Section 947.18, F.S., and shall identify the information relied upon in reaching this conclusion. Additionally, the order shall suspend the established presumptive parole release date until such time that the inmate is found to be a good candidate for parole release. The determination, on extraordinary review, that an inmate is not a good candidate for parole release shall have the effect of overriding his presumptive parole release date however, the inmate shall continue to receive extraordinary interviews, which shall be scheduled pursuant to Rule 23-21.013, F.A.C. If upon extraordinary review, a majority of the Commission finds the inmate to be a good candidate for parole release pursuant to Section 947.18, F.S., the Commission shall enter a written order authorizing the effective parole release date and outlining the term and conditions of parole. Specific Authority 947.002, 947.07 FS. Law Implemented 947.002, 947.07, 947.18 FS. History–New 8-1-83, Formerly 23-21.155, Amended 8-17-06. Had he been released from prison on parole, Mr. Peek would have had the opportunity to live with Petitioner. As a result of the Commission?s action, Petitioner is not able to live and cohabitate with Mr. Peek as a married couple.
