12-001122RU Teamsters Local Union No. 2011 vs. Department Of Corrections Status: Closed DOAH Final Order on Wednesday, July 25, 2012.

Summary: Temporary directive requiring probation officers to request supervisor approval on case-by-case basis to incur travel expenses for certain field visits is not a rule; it is an internal management memorandum.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TEAMSTERS LOCAL UNION NO. 2011 , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1122RU

)

DEPARTMENT OF CORRECTIONS , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on June 6, 2012, in Tallahassee, Florida, before Administrative

Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Holly E. Van Horsten, Esquire

Philli ps, Richard and Rind, P.A.

Suite 283

9360 Southwest 72nd Street

Miami, Florida 33173

For Respondent: Thomas Barnhart, Esquire

Lynette Norr, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Talla hassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent ' s temporary

directive, which requires probation officers to request and

obtain supervisor approval on a case - by - case basis before

incurring travel expenses for cert ain field visits, meets the

definition of a " rule " in section 120.52(16), Florida Statutes

(2011), 1/ which should have been promulgated as such.

PRELIMINARY STATEMENT

On March 27, 2012, the Teamsters Local Union No. 2011

(Petitioner) filed a Petition for R ule Challenge Pursuant to

Section 120.56, Florida Statutes (Petition). Invoking section

120.56(4), the Petition alleged that certain statements by the

Department of Corrections (Respondent), communicated in a

telephone conference call and then memorialize d in a memorandum

and a letter dated March 2, 2012, meet the definition of a " rule "

in section 120.52(16) and should have been promulgated pursuant

to section 120.54. The statements at issue allegedly changed the

process to be followed by probation office rs with regard to

making certain field visits to monitor offenders under their

supervision.

A telephonic pre - hearing conference was conducted on

April 2, 2012. Good cause was shown for scheduling the final

hearing outside of the 30 - day window following as signment, and

the hearing was set for May 14, 2012. On May 1, 2012, Respondent

filed a motion for continuance, which was opposed by Petitioner.

Respondent requested a short delay to accommodate a surgery and

post - surgical recovery for its counsel of reco rd , who was

representing Respondent in discovery and pre - hearing preparation

and who would represent Respondent at the final hearing; although

Respondent also had a co - counsel of record, co - counsel was out of

state and would not return until May 16, 2012. A continuance was

granted for good cause shown, and the final hearing was

rescheduled for June 6, 2012.

On May 25, 2012, Respondent filed a Motion for Summary Final

Order, which was denied. On June 1, 2012, Respondent filed a

Motion for Entry of Prote ctive Order with respect to a document

expected to be an exhibit. After argument on the motion at the

outset of the final hearing, the motion was granted , and a

Protective Order was entered on June 6, 2012. 2/

The parties offered Joint Exhibits 1 through 1 0, which were

admitted in evidence subject to rulings on any post - hearing

objections to specific deposition testimony or deposition

exhibits in Joint Exhibits 5 through 9. 3/

Petitioner presented the testimony of Kimberly Schultz, a

probation officer speci alist; and Jeff Edmiston, administrative

coordinator for Petitioner. Petitioner offered Exhibits 1

through 5, which were admitted in evidence without objection.

Respondent presented the testimony of Jenny Nimer, assistant

secretary for Respondent ' s Office of Community Corrections

(Community Corrections) . Respondent offered Exhibits 1

through 3, which were admitted in evidence without objection.

The one - volume Transcript of the final hearing was filed on

June 25, 2012. Both parties timely filed proposed f inal orders

by the deadline of July 5, 2012, and both have been considered in

the preparation of this Final Order.

FINDING S OF FACT

1. Respondent is the state agency with " supervisory and

protective care, custody, and control of the inmates, buildings,

g rounds, and property, and all other matters pertaining to

[specified correctional facilities and programs] for the

imprisonment, correction, and rehabilitation of adult

offenders[.] " § 945.025(1), Fla. Stat. (setting forth

Respondent ' s jurisdiction). By far, Respondent ' s resources,

including personnel, are primarily devoted to Respondent ' s

responsibilities over correctional facilities and programs.

There are approximately 17,000 certified officers on the

correctional institution side.

2. Respondent als o is the state agency responsible for

supervising offenders who are granted conditional release from

incarceration or who are granted parole by the Parole Commission

(ch apter 947 , Florida Statutes ), as well as the state agency

responsible for supervising p robationers placed on probation (or

in community control, known commonly as house arrest) by a court

(ch apter 948 , Florida Statutes ). Collectively, persons who have

been conditionally released, parolees, and probationers will be

referred to as " offenders. " A relatively small percentage of

Respondent ' s resources, including personnel, are devoted to the

supervision of offenders. There are approximately 2,100

certified parole and probation officers providing community

supervision.

3. Organizationally, Resp ondent ' s supervisory functions

fall under the umbrella of Community Corrections. The

supervision of offenders statewide is divided into a northern and

southern region, each covering ten of the state ' s 20 judicial

circuits. Each region is headed by a regi onal director, who

oversees the supervision of offenders within the region ' s ten

judicial circuits. Each of the 20 judicial circuits has a

circuit administrator. Each circuit also used to have a deputy

circuit administrator, but that position was elimina ted in 2009.

Reporting to the circuit administrators are probation

supervisors, who supervise and coordinate the activities of

individual probation officers and probation officer specialists.

4. Offenders are assigned to certified probation officers

and probation officer specialists, who directly carry out the

supervisory functions. See § 948.01(1)(a) , Fla. Stat . (an

offender on probation or community control is to be supervised by

an officer meeting the qualifications in section 943.13 , Fla.

Stat. ). A probation officer specialist is a probation officer

with a certain level of experience to whom the offenders with the

most serious criminal records are assigned. Unless otherwise

specified, the term probation officer will be used , in the broad

sense, to i nclude both probation officers and the more

experienced probation officer specialists.

5. In carrying out its community supervisory functions,

Respondent ' s goals are all of the following: to ensure

compliance with the conditions of supervision imposed by the

court or by the Parole Commission; to ensure public safety; to

foster rehabilitation of the offender; and to reduce or eliminate

future victimization.

6. Probationers may be placed on probation , in lieu of

incarceration , or as part of a split sentenc e that includes

incarceration followed by probation. §§ 948.011 and 948.012.

The starting place for supervision of a probationer is the

court ' s order of supervision, which specifies the terms and

conditions of probation. Respondent is charged with prepa ring a

form order of supervision for the courts to use. § 948.01(1)(b).

The form order prepared by Respondent and used by the courts

reflects the standard conditions of probation which may be

imposed by the courts, enumerated in section 948.03. The form

order also provides options for the court to exercise its

authority and discretion to impose special terms and conditions.

See , e.g. , §§ 948.031 through 948.039.

7. The standard conditions of probation that may be imposed

by a court in its order of sup ervision are broadly worded and

general in nature and include the following:

(a) Report to the probation and parole

supervisors as directed.

(b) Permit such supervisors to visit him in

his or her home or elsewhere.

(c) Work faithfully at suitable empl oyment

insofar as possible.

(d) Remain within a specified place.

(e) Live without violating the law.

8. The statutes and standard terms of probation do not

dictate or specify how, precisely, Respondent is to carry out its

supervisory function in mo nitoring offenders to serve the goal of

ensuring compliance with these terms. The concept of

" supervision " is not quantified, such as by specifying how often

an offender must report to his or her probation officer or

whether and how often probation office rs may or will visit an

offender in his or her home or elsewhere. A court ' s order of

supervision could theoretically provide a condition specifying

that a probationer must go to his or her probation officer ' s

office twice a month or five times a month. H owever, the one

sample order of supervision entered in evidence in this case did

not impose any such terms quantifying the number of office visits

or other visits that the unidentified probationer had to make

with his or her probation officer.

9. With r espect to " supervision, " section 948.12 provides a

distinction for violent offenders who are on probation following

incarceration by providing that these offenders " shall be

provided intensive supervision by experienced probation

officers. " However, just as the statutes do not purport to

specify or quantify what is meant by " supervision, " there is no

statutory specification for what is meant by " intensive

supervision. "

10. Respondent has had, apparently as far back as 2002,

internal procedures in place t o provide detailed processes for

probation officers to follow in carrying out their duty to

supervise offenders assigned to them. These procedures are

published in a 41 - page document called Procedure 302.303, which

Respondent considers a " restricted acces s " document for internal

use only.

11. One subject addressed in Procedure 302.303 is an

offender classification system. The current classification

system was designed in - house and then validated by the Florida

State University School of Criminology. The system considers a

number of variables and is used by Respondent as a way to group

offenders in an effort to ensure that supervision is provided at

a level commensurate with the danger or risk the offender

represents to the community. This offender class ification

system, which is not promulgated as a rule, is not the subject of

Petitioner ' s challenge.

12. Procedure 302.303 also addresses the subject of

contacts expected to be made by a probation officer with

individual offenders assigned to the officer. In general terms,

Procedure 302.303 specifies minimum contacts, by type and

frequency, that probation officers are expected to make , or try

to make , for each of their assigned offenders. The types of

contacts include office visits, meaning the offender c omes into

the probation officer ' s office for a meeting; other kinds of

visits, scheduled or unscheduled, when the probation officer

travels outside the office to visit or attempt to visit the

offender in his home, in his place of employment, or another

pla ce; and field visits with third parties, when the probation

officer travels outside the office to visit or attempt to visit

the offender ' s employer, treatment provider s , famil y , neighbors,

or other third persons who might have information about the

offende r.

13. Different minimum contact requirements, by type and

frequency, are provided for each of the different offender risk

classification categories in Procedure 302.303. The minimum

contact standards are performance standards that apply to

probation off icers; without the minimum contact requirements,

some probation officers might do less than the minimum. These

minimum contact standards, which have not been promulgated as a

rule, are also not the subject of Petitioner ' s challenge.

14. Instead, Peti tioner ' s challenge is directed to a recent

temporary directive by Respondent that suspended some aspects of

the (unpromulgated) minimum contact standards in Procedure

302.303. In lieu of these minimum contact standards,

Respondent ' s directive provides tha t probation officers need to

request and receive permission of their supervisors on a case - by -

case basis to incur travel expenses for certain field visits. As

a related part of the directive, supervisors are given discretion

to approve travel expenses for any field visit if there is reason

to believe there may be a violation of a condition of supervision

or if there is reason to believe that there is a threat to public

safety.

15. The challenged directives were first communicated

verbally on February 29, 2012, in a telephone conference call

between Jenny Nimer, assistant secretary of Community

Corrections, and the Community Corrections regional directors,

and then reduced to writing in the following memorandum dated

March 2, 2012, on the subject of " Reduce d Travel " (Reduced Travel

Memo) from Assistant Secretary Nimer to Community Corrections

regional directors and circuit administrators:

On 2/29/12 directives were provided for

adjustments to be made on some non - critical

supervision activities. As these dir ectives

are temporary and related to " restricted "

policy areas they were given verbally;

existing written policy will not be changed.

Our goal is to reduce the travel budget by

focusing on mission critical activities

without compromising public safety. T ravel

related to core operational duties will

continue; however all travel will be

reviewed for efficiency.

NO adjustments have been made to travel that

involves investigation of known or suspected

violations, violation proceedings/subpoenas,

investigatio ns or instruction of offenders

in correctional facilities. Adjustments are

focused on reduction of department

established minimum contact standards and

administrative duties. There is an urgent

need to reduce travel costs for the

remainder of the fiscal year; however public

safety is the utmost priority and

supervisors maintain the discretion to

approve any travel that is needed to

accomplish officer safety and protection of

the community.

For the months that adjustments are in place

(March, April, May a nd June) officers will

annotate electronic field notes for

offenders requiring field contacts during

the month, as follows: CN - - " Contact

Standard s Adjusted " . Alternative methods to

verify (and re - verify) residence and

employment during this period, inclu ding

making telephone calls to the landlord and

employer or instructing the offender to

provide bills and paychecks to show proof of

residence and employment will be utilized.

Contact codes for purposes of electronic

case notes for residence and employmen t

verification will be HV, EN, or EV and text

should indicate the alternative method

utilized for verification. Planned

Compliance Initiatives will continue;

partnerships established with local law

enforcement remain essential to enhance

surveillance and contacts made in the

community. These contacts should always be

documented in case notes.

Circuit Administrators are directed to reach

out to judiciary, state attorney and law

enforcement to ensure that they are aware of

the limited scope of this reducti on and that

contacts required to ensure offender

supervision and/or threats to public safety

will not be compromised.

Thank you for your cooperation during this

difficult time.

16. The Reduced Travel Memo was distributed to probation

officers as the mea ns by which Respondent communicated to its

probation officers that they would not be expected to comply with

all of the minimum contact requirements set forth in Procedure

302.303 between March 1, 2012, through the end of the fiscal

year, June 30, 2012. T he expectation was, at the time of the

challenged statement, that this cost - saving measure was temporary

and that the (unpromulgated) minimum contact requirements in

Procedure 302.303 would resume as of the new fiscal year

beginning July 1, 2012.

17. As o f the final hearing on June 6, 2012, Respondent ' s

expectation was unchanged. The announced temporary replacement

of minimum contact requirements based on risk category with a

procedure for supervisor review and approval of field contacts

remained just tha t -- temporary -- and the expectation was that the

minimum contact standards set forth in Procedure 302.303 would

resume for the fiscal year beginning July 1, 2012. Petitioner

hinted at, but offered no evidence to prove the notion that

Respondent did not real ly intend to resume the minimum contact

standards in the fiscal year beginning July 1, 2012. 4/

18. The Reduced Travel Memo and a March 2, 2012, letter

from Secretary Kenneth S. Tucker (Tucker Letter), represent the

challenged agency statements in that t hese two documents

memorialize the temporary directive. 5/ As explained in the Tucker

Letter:

Due to a 79 million dollar deficit, the

Department has had to make temporary

modifications to field contact requirements

in order to reduce travel expenditures by

probation officers. . . .

Our probation officers will continue to make

field contacts with sex offenders and

community control offenders in order to

closely monitor sex offender conditions

and/or house arrest requirements. Probation

officers will contin ue to monitor other

supervised offenders ' compliance with

conditions of supervision and probation er s

will still be required to meet monthly with

their probation officer at the office. In

addition, probation officers will make field

contacts in the communi ty as necessary to

investigate non - compliance or possible

violations. Probation officers will also

continue to participate with law enforcement

in Planned Compliance I nitiative (PCI ' s) in

the community. Probation officers will use

this opportunity to spe nd more time with

offenders in the office or on the telephone,

assisting with job referrals or other

resources and services needed.

19. Community Corrections undertook an analysis of its

budget in an effort to identify expenditures where cost savings

mig ht be realized to help reduce the budget deficit. The three

significant budget categories of expenditures were salaries,

leases, and expenses. There had been a hiring freeze in place

for some time already, and so an effort was made to not cut

personnel t o save salary costs. There also had been a concerted

effort to reduce lease costs by consolidating offices to

eliminate some leases. The viable short - term option to cut costs

for the remainder of the fiscal year was in the expense category,

which was pre dominately travel reimbursement. It was determined

that , over the year, Community Corrections was averaging between

$250,000 and $300,000 per month in travel reimbursement.

20. Some travel reimbursement had already been reduced

before the temporary dire ctive challenged here. For example,

Community Corrections personnel, including probation officers,

might travel to participate in training programs. However,

training had already been greatly limited. Some travel

reimbursement could not be reduced, such as reimbursing probation

officers for necessary travel for court appearances. In these

instances, efforts were made to use state cars and to encourage

carpooling , if possible.

21. Community Corrections assessed the number of field

contacts and attempt ed contacts that were being made by probation

officers to comply with Respondent ' s minimum contact standards

and the travel reimbursement associated with them (i.e., the

cont acts) . Respondent estimated that its temporary directive,

challenged here, would reduce travel costs by $150,000 per month

for each of the four months in which the directives would be in

place. In total, Respondent expected to save $600,000.

22. Respondent ' s actual experience following issuance of

the Reduced Travel Memo and Tucker L etter shows that Respondent ' s

estimates were on target. In February 2012 -- the last month

before the temporary suspension of some of the minimum contact

standards -- travel reimbursement totaled $277,000. After

switching to a procedure of case - by - case proba tion officer

request and supervisor review to approve field visits , travel

reimbursement was down to $99,000 in March 2012, a savings of

$187,000 , compared to February. In April 2012, travel

reimbursement dropped to $80,000.

23. The evidence established that the discretion afforded

probation supervisors in the Reduced Travel Memo is true

discretion vested in supervisors to review requests and act on a

case - by - case basis to approve field visits. That discretion has

been exercised on numerous occasions to authorize a field

contact. There was no evidence of any probation officer having

submitted a request to make a field visit to investigate a

possible violation of a probation condition or where there was a

public safety issue that was not approved by his o r her

supervisor. To the contrary, the evidence established that

requests are being made and leeway is being provided to probation

officers to travel , if they can articulate a reason for doing so.

However, for one or two probation officers who do not acc ept that

they must request approval and justify their travel expense on a

case - by - case basis and who simply ask for block reinstatement of

the minimum contact standards, without articulating any reason

why field visits are needed for particular offenders, those

requests have been denied.

24. As the Reduced Travel Memo and Tucker Letter suggest,

there are other tools available to probation officers besides

incurring the expense of field visits, which are often equally

effective to accomplish the goal. For example, a field visit to

an offender ' s employer is certainly one way to verify employment

and to verify the offender ' s attendance, but telephone calls may

well suffice to obtain the same information at much lower cost s .

There are also other ways to attem pt to verify residence besides

a personal home visit. An offender can be required to present

documentation, such as a utility bill, rental agreement, or pay

stub showing the offender ' s address. An offender can be made to

come in for office visits more fr equently than once a month. A

probation officer can telephone the offender frequently, and the

voice mail message or background noise may give some reason to

believe there is a need for a field visit. A probation officer

can call family members and neigh bors to check on an offender and

to verify information. A probation officer can enlist the help

of a local law enforcement officer to check on an offender. In

short, for the period of Respondent ' s urgent need to reduce

costs, probation officers have been asked to work a little harder

and more creatively from their desks, while reserving travel

expenses for field visits to the cases where they have some

reason to think a field visit is needed.

25. Petitioner presented the testimony of one probation

office r specialist, Kimberly Schultz. As a specialist, this

officer handles a case load disproportionately made up of sex

offender probationers (for whom the temporary directives did not

suspend minimum contact standards) and the next category down on

the risk scale -- maximum offenders.

26. Officer Schultz testified that she believes that public

safety is best served by the old minimum contact standards in

(unpromulgated) Policy 302.303. Officer Schultz suggested, but

failed to prove, that public safety is co mpromised by the

temporary directive. Under the temporary directive, Officer

Schultz has only requested approval once from her supervisor to

make a field contact based on a suspicion she developed that the

offender may be in violation of his probation req uirements. That

single request was approved.

27. Officer Schultz did not identify any instance in which

public safety was jeopardized because a field contact was not

allowed. Instead, Officer Schultz spoke to the increased

possibility that allowing more travel to make surprise visits to

offenders ' homes or places of employment would reveal suspicious

behavior or incorrect information. Certainly, Officer Schultz

has the experience to draw on to offer the view that , in a

general sense, increased field vis its would serve to increase the

possibility of discovering probation violations or other issues

with offenders. In an ideal situation with unlimited resources,

a probation officer following every move an offender makes could

well come to find that the off ender is not " liv[ing} without

violating the law, " as required in a standard probation

condition. However, such an ideal situation obviously does not

exist . I nstead, Respondent has taken action to manage its

limited resources. The evidence did not show that Respondent ' s

temporary directive has threatened public safety.

28. Officer Schultz attempted to suggest that , in the

single instance when she requested a field contact, she would

have discovered sooner that the offender was not living where he

said he was , if she had made the minimum field contacts under

Procedure 302.303. Her testimony did not bear that out. Officer

Schultz testified that an offender assigned to her in March 2012 ,

came in for the required office visits in March and in April, and

he filled out the required monthly reports giving his address,

telephone number, and other contact information. When the

offender came in for his May office visit, the offender was

supposed to stay for a drug test, but he left. Officer Schultz

tried to c all the offender at the number he had provided to check

to see if he had misunderstood. That is when she learned that

the phone number the offender had given her " wasn ' t a good

number. " Officer Schultz requested and was given approval to

incur travel to investigate and learned , then , that the offender

was not living where he said he was.

29. While Officer Schultz contends that , in the above

example, a field visit to verify the offender ' s address would

have identified the problem sooner, Officer Schultz admitted that

she had not previously tried to call the offender. Indeed, she

said that she never calls her offenders on their cell phones.

Thus, instead of incurring travel expense for a field visit,

Officer Schultz could have attempted to verify the of fender ' s

office report immediately in March through other ways, such as

calling the phone number provided and learning much sooner that

the offender had provided a phone number that was not good.

Officer Schultz might have checked for a home phone number

associated with the address the offender gave; she learned when

she went there that the offender ' s cousin lived there, and the

cousin volunteered that the offender did not live there. Officer

Schultz could have required this offender, and could require al l

of her offenders, to come into the office multiple times per

month. She could have required this offender to bring in a

utility bill for his residence, whether in his name or someone

else ' s name. Had Officer Schultz tried alternative verification

means , she may have been able to contact the cousin sooner.

30. It was evident from Officer Schultz ' testimony that she

has become accustomed to operating under the guidance provided in

unpro mulgated Procedure 302.303 and d oes not like being asked

temporaril y to work harder and more creatively from her office to

find other ways to conduct surveillance and monitor offenders

that do not cost Respondent as much in travel expenses as her

travel in the field used to. It seemed that rather than trying

to replace t he field visit time with alternative investigation

techniques, Officer Schultz ha s done little to fill the gap with

constructive methods to monitor her offenders using alternative

means. Indeed, when Officer Schultz was asked how she was making

use of her new - found office time since she is spending less time

in the field, her first response was, " I ' m organizing my closed

files. "

31. Officer Schultz expressed concern that a probation

officer could be subject to discipline if he or she were to not

follow the temporary directive. However, there was no evidence

that any probation officer ha d refused to request supervisor

review and approval for a field visit, much less that discipline

resulted. Officer Shultz did not represent that she had refused

to follo w the temporary directive or that she intended to in the

few weeks remaining in the fiscal year.

32. Petitioner ' s representative testified that the

temporary directive harms its 2,100 certified probation officer

members, although the directive does not ap ply to the other

approximately 17,000 certified members who serve on the

correctional institution side of Respondent. Thus, the temporary

directive applies to only about 12 percent of Petitioner ' s

members. Nonetheless, Petitioner ' s representative asserte d that

its members are affected by the temporary directive because they

are all members of communities with a concern for public safety.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties and the subject ma tter of this

proceeding. § 120.56(4), Fla. Stat.

34. Petitioner initiated this action pursuant to section

120.56(4), which provides in pertinent part:

(a) Any person substantially affected by

an agency statement may seek an

administrative determinati on that the

statement violates s. 120.54(1)(a). The

petition shall include the text of the

statement or a description of the statement

and shall state with particularity facts

sufficient to show that the statement

constitutes a rule under s. 120.52 and th at

the agency has not adopted the statement by

the rulemaking procedure provided by

s. 120.54.

(b) The administrative law judge may

extend the hearing date beyond 30 days after

assignment of the case for good cause . . . .

If a hearing is held and the petitioner

proves the allegations of the petition, the

agency shall have the burden of proving that

rulemaking is not feasible or not practicable

under s. 120.54(1)(a).

(c) The administrative law judge may

determine whether all or part of a statement

v iolates s. 120.54(1)(a). The decision of

the administrative law judge shall constitute

a final order. The division shall transmit a

copy of the final order to the Department of

State and the committee. The Department of

State shall publish notice of the final order

in the first available issue of the Florida

Administrative Weekly.

(d) If an administrative law judge enters

a final order that all or part of an agency

statement violates s. 120.54(1)(a), the

agency must immediately discontinue all

relian ce upon the statement or any

substantially similar statement as a basis

for agency action.

* * *

(f) All proceedings to determine a

violation of s. 120.54(1)(a) shall be brought

pursuant to this subsection. A proceeding

pursuant to this subsectio n may be

consolidated with a proceeding under

subsection (3) or under any other section of

this chapter. This paragraph does not

prevent a party whose substantial interests

have been determined by an agency action from

bringing a proceeding pursuant to

s. 120.57(1)(e).

35. Petitioner has the burden to prove its standing to

bring this challenge, as well as the burden to prove that the

challenged statement constitutes a rule, as defined in section

120.52(16), that was required to be promulgated in accordan ce

with section 120.54. § 120.56(4)(a) and (b). If Petitioner

satisfies these burdens, then the burden would shift to

Respondent to prove that rulemaking is not feasible or

practicable. § 120.56(4)(b). The standard of proof is by a

preponderance of the evidence. § 120.57(1)(k).

36. As an organization seeking to represent the interests

of some of its members, Petitioner must prove that a substantial

number of its members, though not necessarily a majority, are

" substantially affected by [the challenge d] agency statement[.] " 6/

§ 120.56(4)(a); see Fla. Home Builders Ass ' n v. Dep ' t of Labor &

Emp. Sec. , 412 So. 2d 351, 353 (Fla. 1982). The " substantially

affected " test in section 120.56 is a two - part test requiring

Petitioner to establish: (1) that the agency statement will

result in a real and immediate injury - in - fact to its members; and

(2) that the asserted interest is arguably within the " zone of

interest " intended to be protected or regulated by the statutory

scheme at issue. Jacoby v. Fla. Bd. of Med. , 917 So. 2d 358, 360

(Fla. 1st DCA 2005).

37. Petitioner alleged that the temporary directive

substantially affects its members who are probation officers

because the temporary directive applies to those officers in the

performance of their job d uties, and they are subject to

discipline if they do not comply with the directive. Thus,

Petitioner argued for standing to represent the interests of

roughly 12 percent of its membership, to whom the temporary

directive applies. 7/ That small percentage arguably falls short

of a " substantial number of Petitioner ' s members " within the

meaning of Florida Home Builders .

38. If the small percentage of Petitioner ' s membership were

deemed sufficient to meet the " substantial number " test, then

Petitioner has demonstrated a sufficient predicate for standing

in this one sense: by reason of the temporary directives,

probation officers are now required to submit a request (orally

or in writing) to their supervisors for approval on a case - by -

case basis to incur tr avel expenses for certain field visits,

based on a reason to believe there may be a violation of a

probation condition or some public safety issue. O ne could argue

that requiring state employees to submit requests for approval to

incur travel expenses, in advance, with justification for the

specific travel, is a marginal injury , if it can be called an

injury at all ; nonetheless , it is a real and immediate impact

that satisfies the first prong.

39. Ward v. Board of Trustees of the Internal Improvement

Tru st Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995), supports

the conclusion that individual probation officers are

substantially affected by the temporary directives. In Ward , an

engineer was found to have standing to challenge proposed

amendments to rule s related to constructing docks in aquatic

preserves. The court agreed that Mr. Ward was substantially

affected by the proposed amendments because they regulated the

manner in which he had to perform his job designing docks.

Similarly, in this case, Peti tioner has established that the

challenged directives apply directly to probation officers and

impose a new request and approval process for probation officers

to follow.

40. Assuming that Petitioner has sufficiently established

standing, the next burden on Petitioner is to establish that the

challenged directive meets the definition of a " rule " in section

120.52(16). Insofar as pertinent to this case, the statute

provides:

" Rule " means each agency statement of

general applicability that implements,

inte rprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum .

41. Petitioner contends that the Reduced Travel Memo is a

statement of general applicability in that it applies uniformly,

without exception or discretion in application. However,

Petitioner ' s argument ignores the fa ct that the Reduced Travel

Memo, while providing a general restriction on probation officers

incurring travel to make certain field contacts, expressly gives

each probation officer ' s supervisor the discretion to not adhere

to the travel restriction upon re quest for approval of a field

contact.

42. In Department of Highway Safety and Motor Vehicles v.

Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997), the First

District held that three policies challenged as unadopted rules

could not be considered statements of general applicability

because the evidence showed that they were only to apply under

" certain circumstances. " The court found that those three

policies " should be considered effective merely as guidelines, in

that their application was subject to the discretion of the

employee ' s supervisor[,] " and , as such, could not be considered

to have the " direct and consistent effect of law. " Id ; see also

Ag. for Health Care Admin. v. Custom Mobility, Inc. , 995 So. 2d

984, 986 (Fla. 1st DCA 2008) (finding that a formula used to

calculate Medicaid overpayments was subject to discretionary

application because the agency could choose whether or not to use

the methodology). Most recently, these principles were applied

in Coventry First, LLC , v. State, Office of Insur ance Regulation ,

38 So. 3d 200, 204 (Fla. 1st DCA 2010), to conclude that policies

and procedures of the Office of Insurance Regulation and an

examination manual provided to examiners, were not statements of

general applicability that had to be promulgated as rules. In

Coventry First , the challenged policies, procedures, and manual

addressed the process by which examiners conduct their

examinations of insurer books and records. As the court noted,

the record testimony established that the documents at iss ue were

applied on a case - by - case basis, and there was discretion to

deviate from the documents. Id. at 205. So too, in this case,

the evidence established that the challenged temporary directive,

which suspended travel for certain field contacts, was su bject to

the discretion of supervisors to apply or waive on a case - by - case

basis. Indeed, it could be said that Petitioner is actually

objecting to Respondent ' s retreat from statements of general

applicability (the minimum contact standards), which have b een

temporarily replaced by review and decision on a case - by - case

basis , t he antithesis of statements of general applicability.

43. The temporary directive also does not meet the

definition of a " rule " because it is an " internal management

memorandum. " It is difficult to imagine a more compelling case

for application of the " internal management memorandum " exclusion

from the definition of a " rule " than this case where Respondent

was trying to manage its limited resources in the face of a large

budget def icit. Respondent ' s imposition of a process requiring

its probation officers to request approval from their supervisors

before incurring travel expenses for certain field visits and

requiring probation officers to justify those travel expenses in

advance, on a case - by - case basis, is a pure management function.

By its terms, the temporary directive only applies to probation

officers and their supervisors.

44. Petitioner does not contend that the temporary

directive affects the private rights of any person. Instead,

Petitioner asserts that the temporary directive is not an

internal management memorandum " because minimum field contacts

are designed for the protection of the community. " Based solely

on that contention, Petitioner argues that the tempo rary

directive involves a " plan or procedure important to the public "

and that the challenged statements have application outside the

agency. Petitioner ' s argument does not square with appellate law

interpreting these two parts of the " internal management

memorandum " provision; Petitioner has not offered any discussion

or analysis of the case law suggesting otherwise.

45. In Department of Revenue v. Novoa , 745 So. 2d 378, 381

(Fla. 1st DCA 1999), the court considered whether the Department

of Revenue ' s po licy restricting its employees from preparing tax

returns for private parties during their non - working hours was an

" internal management memorandum. " In concluding that the policy

was an internal management memorandum, the court rejected the

contention th at the policy was a " plan or procedure important to

the public " and that the policy had application outside the

agency, holding instead as follows:

The Department ' s policy does not " affect

. . . a plan or procedure important to the

public. " Members of the general public have

no arguable interest in the restrictions an

administrative agency imposes on its own

employees. Likewise, the policy does not

apply " outside the agency. " Because the

policy applies only to employees of the

Department, no person or fi rm outside the

Department could possibly be affected by it.

Id. Similarly, in this case, as Petitioner acknowledges, the

challenged temporary directive only applies to Respondent ' s

probation officers and their supervisors. The directive

specifies a pr ocedure for probation officers to request and

obtain approval from their supervisors on a case - by - case basis

before incurring certain job - related travel expenses. Just as in

Novoa , members of the general public have no arguable interest in

Respondent ' s ma nagement of its employees. Additionally, even

more clearly than in Novoa , the temporary directive at issue here

has no application outside the agency, because it only applies to

Respondent ' s employees performing their public duties as agency

employees.

46 . At most, Petitioner ' s argument is that , in a general

sense, the public at large would consider the supervision of

offenders in the community to be important. However, that does

not mean that the general public has an arguable interest in the

details of the means and methods by which Respondent manages its

resources to carry out its supervisory authority so as to make

such matters subject to public rulemaking.

47. Petitioner points to a statute providing rulemaking

authority to Respondent that require s rules on various subjects,

including the following: " The functions and duties of employees

working in the area of community corrections and the operations

of probation field and administrative offices. " § 944.09(1)(r),

Fla. Stat. However, Respondent h as adopted rules on that

subject. In particular, Florida Administrative Code Rule

33 - 302.1031(1) specifies , as follows , with respect to probation

officers:

[Correctional Probation Officers] are

appointed by the State of Florida under the

authority of the Department of Corrections

and are responsible for supervision and

control of offenders, including the

enforcement of conditions of supervision,

conducting investigations and initiating

arrest of offenders under their supervision

as appropriate with or with out warrant.

Officers will notify the sentencing or

releasing authority whenever the officer has

reasonable grounds to believe that a willful

violation of any condition of supervision

has occurred.

48. Petitioner has not contended that the myriad of details

in Procedure 302.303 -- from recordkeeping procedures to be

followed by probation officers, to strategies for officers '

initial meetings with offenders and subsequent surveillance and

investigation techniques -- should be promulgated as rules with

p ublic input. Indeed, the Legislature has made a policy judgment

that these internal procedures should not be matters for public

consumption.

49. Section 119.071(2), Florida Statutes, provides certain

public records exemptions related to agency investiga tions.

Paragraph (c) of that subsection states that the following is

exempt from the public ' s statutory and constitutional right to

access public records: " Any information revealing surveillance

techniques or procedures or personnel[.] "

50. Petitione r has acknowledged that at least portions of

Procedure 302.303 should be kept confidential and not disclosed

to the public under this provision. However, Petitioner asserts

that the details of the minimum contact requirements are not

confidential, because Procedure 302.303 contains a definition of

" surveillance " for purposes of that document that excludes actual

face - to - face contacts with offenders. Petitioner overlooks the

fact that Procedure 302.303 expressly recognizes that minimum

contact standards ar e intended to include " gathering information

from surveillance and contacts with " family members, neighbors,

treatment providers, and others. Thus, " credit " is given towards

meeting the minimum contact standards for a variety of

surveillance and investiga tion techniques that do not involve

face - to - face contact with offenders, because valuable information

can be learned other ways. Indeed, since the minimum contact

standards are performance standards, even field visits in which a

probation officer attempts to contact the offender , but is

unsuccessful -- such as a surprise visit to the offender ' s home

when he or she is not there -- count towards the probation

officer ' s minimum contact requirements under Policy 302.303.

Accepting Petitioner ' s argument would mean carving up the minimum

contact standards so that parts are confidential surveillance and

other parts are not, depending on whether face - to - face contact

with the offender is achieved.

51. Petitioner has not demonstrated, in any event, that

Respondent ' s d efinition of " surveillance " for purposes of

Procedure 302.303 is the meaning to be ascribed to the

Legislature ' s use of that term in section 119.071(2)(c).

Instead, the Legislature has shown , by its usage of the term

" surveillance " in probation laws , that surveillance is considered

the equivalent of, or at least indivisible from, supervision of

offenders. The equivalence of " surveillance " and " supervision "

is reflected in the following discussion of drug offender

probation by the Florida Supreme Court in Lawson v. State ,

969 So. 2d 222, 230 (Fla. 2007):

Chapter 948, Florida Statutes (2005), offers

a detailed statutory approach to " Probation

and Community Control. " Within this

chapter, the Legislature created a specific

scheme to address defendants who are

" chronic substance abusers, " by authorizing

trial courts to " stay and withhold the

imposition of sentence and place the

defendant on drug offender probation. "

§ 948.20, Fla. Stat. Indeed, in Jones v.

State , 813 So. 2d 22 (Fla. 2002), we

reiterated that " treatment and intensive

surveillance , rather than incarceration, is

available to defendants who qualify [for

drug offender probation] . . . .

As defined by statute, drug offender

probation is " a form of intensive

supervision which emphasizes treatment of

drug offenders in accordance with

individualized treatment plans. "

§ 948.001(4), Fla. Stat. (2005). This is

mirrored in section 948.20, which mandates

that the Department of Corrections

develop and administer a drug

offender probation program which

emp hasizes a combination of

treatment and intensive community

supervision approaches and which

includes provision of supervision of

offenders in accordance with a

specific treatment plan. The

program may include the use of

graduated sanctions consistent with

the conditions imposed by the court.

Drug offender probation status shall

include surveillance and random drug

testing , and may include those

measures normally associated with

community control, except that

specific treatment conditions and

other treatme nt approaches necessary

to monitor this population may be

ordered.

(emphasis added).

52. In the context presented, there is every reason to give

credence to the Florida Supreme Court ' s usage of the word

" surveillance " as interchangeable with " supervisio n. " The

specific details of when and how a probation officer will be

monitoring his or her offenders should not be details for public

consumption, because if those details are public information,

they are known to the offenders. Informing offenders of th e

precise number of minimum contacts expected from their probation

officers arms the offenders with too much information.

53. The public records exemption for surveillance

procedures and techniques reinforces the conclusion suggested by

Novoa , supra . The general public has no arguable interest in the

procedures adopted by Respondent that apply to its probation

officers and that detail how its probation officers carry out

their supervision of offenders.

54. Petitioner failed to prove that the challenged agency

statement meets the definition of a rule in section 120.52(16).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition for Rule Challenge Pursuant

to Section 120.56, Florida Statutes, is dismissed.

D ONE AND ORDERED this 25th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July , 2012 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Sta tutes are to the 2011 codification.

2/ The Protective Order provides that Joint Exhibit 1 is

confidential and subject to specified protection. Joint

Exhibit 1 was received in evidence under seal as a non - public

part of the record of this proceeding. In addition, it was

discovered after the hearing that Exhibit 1 to the Petition

(which had been missing from the filed Petition and which

Petitioner was allowed to supply post - hearing) actually is an

excerpt from Joint Exhibit 1. That excerpt, attached to

P etitioner ' s Notice of Filing dated June 12, 2012, also has been

placed in the sealed envelope containing Joint Exhibit 1.

3/ Respondent filed an objection, within the time allowed, to a

2006 report issued by the Office of Program Policy Analysis and

Gov ernment Accountability (OPPAGA report), which is Deposition

Exhibit 3 to the deposition of Jenny Nimer, Joint Exhibit 7.

Petitioner filed no response to the objection, although time was

allowed for responses. Respondent ' s relevancy objection to the

OPPAG A report is sustained and , therefore, Deposition Exhibit 3

to Joint Exhibit 7 has been removed from the record. It is noted

that Petitioner did not refer to the OPPAGA report in any

proposed findings of fact or conclusions of law in its proposed

final ord er.

4/ Petitioner contends that Secretary Tucker ' s letter dated

March 2, 2012 (Joint Exhibit 10), is evidence that Respondent

intends to continue the temporary directives past the end of

June 2012. However, Petitioner ' s argument is based on the

inaccura te view that the letter ' s reference to resuming field

contacts " the next fiscal year " meant that field contacts would

resume in the fiscal year beginning July 1, 2013. Instead, the

more reasonable interpretation is that the reference to the " next

fiscal y ear " was to the fiscal year immediately following the

then - current fiscal year, which would be the fiscal year

beginning July 1, 2012. Petitioner ' s interpretation skips an

entire fiscal year.

5/ Before the February 29, 2012, telephone conference, a doc ument

dated February 27, 2012, was provided to the conference

participants. The February 27 , 2012, document summarizes a

somewhat different temporary directive than the descriptions in

the two March 2, 2012 , documents (the Reduced Travel Memo and the

Tuck er letter). As indicated at the hearing, the February 27,

2012, document is not considered part of the challenged agency

statement because it was not identified as such in the Petition.

In addition, the evidence established that the Reduced Travel

Memo w as the document provided to probation officers, not the

February 27, 2012 document, and it has been the Reduced Travel

Memo that has been implemented by circuit administrators and

probation supervisors who are reviewing requests for field visits

and approv ing them on a case - by - case basis.

6/ To establish standing to represent its members under the

Florida Home Builders test, an organization such as Petitioner

must also demonstrate that the interests it seeks to protect are

germane to the organization ' s p urpose and that the type of relief

requested is appropriate for an organization to receive on behalf

of its members. Petitioner has demonstrated that it meets these

two criteria; Respondent does not contend otherwise.

7/ Petitioner ' s representative testi fied at the final hearing

that its members are substantially affected (as a layperson would

understand that requirement) because they are members of

communities concerned with public safety , just as all members of

the public. That predicate for standing w as not alleged in the

Petition; if it had been properly alleged, it would be an

insufficient predicate for standing. Although , in a general

sense, the laws vesting Respondent with supervisory authority

over offenders are designed as police power laws to p rotect the

public safety, that does not mean that all members of the public

would have standing in proceedings regarding the means by which

Respondent manages its resources to carry out that supervisory

authority. Moreover, there was no evidence of a real and

immediate injury - in - fact to members of the public generally , as

opposed to speculation and conjecture .

COPIES FURNISHED:

Ken Tucker, Secretary

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

tucker.kenneth@mail.d c.state.fl.us

Dorothy Ridgway, Deputy General Counsel

Department of Corrections

Office of the General Counsel

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

[e-mail]

Ken Plante, Coordinator

Joint Administrative Proce dures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

[e-mail]

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 3239 9

[e-mail]

Jennifer Parker, General Counsel

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

Holly E. Van Horsten, Esquire

Phillips, Richard and Rind, P.A.

Suite 283

9360 Southwest 72nd Street

Miami, Flor ida 33173

Thomas Barnhart, Esquire

Lynette Norr, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to ju dicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Di vision of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the n otice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.