06/13/2000 Audit I ,
RECEIVED
Mayor Shirley Freeman
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AUDIT REPORT OF
CERTAIN COURT REPORTING
- REVENUES & EXPENDITURES
June 13, 2000
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Prepared by:
Internal Audit Department
Clerk of the Circuit Court
Danny L. Kolhage, Clerk
Monroe County, Florida
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BRANCH OFFICE CLERK OF THE CIRCUIT COURT BRANCH OFFICE
3117 OVERSEAS HIGHWAY MONROE COUNTY, 88820 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050 500 WHITEHEAD STREET PLANTATION KEY, FLORIDA 33070
TEL. (305) 289-6027 KEY WEST, FLORIDA 33040 TEL. (305) 852-7145
TEL. (305) 292-3550
June 13, 2000
The Honorable Danny L. Kolhage
Clerk of the Circuit Court
Re: Audit Report of Certain Court Reporting Revenues and Expenditures
Dear Mr. Kolhage:
The Clerk's Internal Audit Department has completed an audit of certain court reporting
revenues and expenditures. The scope of this audit included the review of activities associated
with court reporting and the use of freelance court reporting firms. The audit objectives were
to determine the degree of compliance with management's established procedures, evaluate the
completeness and effectiveness of those procedures, evaluate compliance with statutory
requirements, appraise the effectiveness and efficiency of operations and whether the results
accomplish the goal of securing economy in expenditure of county funds.
We would like to thank the Chief Judge, the Court Administrator and the Court Reporting
Department for their cooperation and time while conducting the audit.
The 16th Circuit's Plan for Court Reporting Services was implemented on June 30, 1995.
This plan involved using court employees to provide court reporting services, both criminal
and civil using a pool of reporters. As frequently happens with new programs implemented,
changes were made as workload pressures were experienced. The Sixteenth Circuit
discontinued reporting civil hearings effective November 1, 1998. In so ordering, the Chief
Judge, in amendment to Administrative Order 2.039, noted that civil reporting by employee
court reporters had unduly burdened the circuit's limited court reporting resources, that costs
had outweighed collected revenues, and the market had become more competitive.
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Our audit revealed that Court Administration should address management oversight issues such
as segregation of duties; the approval and selection process on freelance coverage,
communication issues, employees doing business with their own agency and adherence to
Guidelines issued by the Florida Supreme Court Office of the State Courts Administrator.
Reporter assignment, work hours (including overtime hours), workload, and productivity must
be monitored closely under the pooling system. The effectiveness of internal controls can be
enhanced greatly by managerial monitoring to control costs.
The audit report and audit were completed with the assistance of Patrick Blaney, CPA.
The accompanying audit report is provided for your information. Additional copies of the
report will be provided upon your request.
Sincerely,
Sandra L. Mathena, CPA, CFE
Director of Internal Audit
cc: Honorable Mark H. Jones, Chief Judge 16th Judicial Circuit
Honorable Kirk Zuelch, State Attorney
Board of County Commissioners (5)
James Roberts, County Administrator
Jim Hendrick, County Attorney
Marva Green, External Auditor
AUDIT REPORT OF
CERTAIN COURT REPORTING
REVENUES & EXPENDITURES
TABLE OF CONTENTS
Page
I. SCOPE AND OBJECTIVES 1
II. METHODOLOGY 1
III. BACKGROUND 4
IV. CONCLUSIONS 5
V. AUDIT FINDINGS
A.Florida Keys Reporting, Inc.
1. Unnecessary expenditures for criminal depositions 8
2. Misleading invoices submitted 9
3. Monroe County employees subcontracting for Florida Keys Reporting 11
4. Multiple invoices submitted for the same work 12
5. Noncompliance with state contract 13
B. Former Court Reporting Manager
l.a Working second jobs on Monroe County time - leave not taken 14
1.b Working second jobs on Monroe County time - ambiguous work status 15
2. Personal work performed on the job 16
3. Private court reporters hired to cover criminal proceedings 17
4. Employee civil reporting continued after Amendment 98-1 18
5. Employees doing business with their own governmental agencies 19
6. Financial disclosure for employees with $1,000+ purchasing authority 20
7. Time keeping for part-time employees 21
8. Missing Circuit Court property 22
9. Monroe County phone number in private business advertisements 23
10. Unlawful travel reimbursements 24
C.Guidelines and Policy Considerations
1. Selecting temporary court reporting help 25
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2. Electronic recorder operators 26
3. Reconsideration of employee court reporters 28
VI. EXHIBITS
A.Administrative Order 2.039 A
B.Amendment 98-1 to Administrative Order 2.039 B
C.Agreement between the State of Florida Office of the Attorney General and
Florida Keys Reporting, Inc. C
D.FKR Invoices & Court Reporter Acknowledgment Form D
E. Double Compensation to Full-Time Employees E
F. Florida Supreme Court Office of the State Courts Administrator -
Guidelines and Policy Considerations For the Development of
Circuit Plans for Court Reporting Services F
AUDIT REPORT OF
CERTAIN COURT REPORTING
REVENUES & EXPENDITURES
I. SCOPE AND OBJECTIVES
A. At the request of the Monroe County Clerk of the Circuit Court, the Internal Audit
Department has completed an audit of certain court reporting revenues and
expenditures. The scope of this audit included the review of activities associated with
court reporting and the use of freelance court reporting firms.
B. The audit objectives were to determine the degree of compliance with management's
established procedures, evaluate the completeness and effectiveness of those
' procedures, evaluate compliance with statutory requirements and appraise the
effectiveness and efficiency of operations.
II. METHODOLOGY
A. The following individuals were interviewed during the audit to obtain information
about the court reporting function:
1. Court Administrator
2. Administrative Assistant III
3. Court Reporter Manager
4. Official Employee Court Reporters
5. Former Court Reporting Manager
6. Former Employee Court Reporters
7. Former Scopist
8. Owner of National Reporting Service
9. Owner of Laws Reporting, Inc.
10. Owner of Florida Keys Reporting, Inc.
11. Atkinson Baker, Inc. Customer Service
12. Owner of All Keys Reporting
13. Owner of Associated Court Reporters of Monroe County, Inc.
14. Owner of All Florida Reporting, Inc.
15. Palm Beach County Court Reporter Manager
16. Labor Attorney
B. The Internal Audit Department reviewed the following documents:
1. Florida Supreme Court Order No. 85,055 - In Re: Florida Rules of Judicial
Administration - Court Reporting
2. Rule 2.070 Court Reporting
3. Sixteenth Judicial Circuit Administrative Order 2.039
4. Amendments to Administrative Order 2.039
5. Court Reporter Policy and Procedures
6. Office of the State Courts Administrator - Guidelines and Policy Considerations
for the Development of Circuit Plans for Court Reporting Services
7. Section 112.313, Florida Statutes: Standards of conduct for public officers,
employees of agencies, and local government attorneys
8. Section 112.3185 (2), Florida Statutes: Contractual Services
9. Agreement between the State of Florida Office of the Attorney General and Florida
Keys Reporting, Inc.
10. Section 27.34 (2), Florida Statutes: Salaries and other related costs of State
Attorneys' Offices; limitations
11. Section 287.059 (13), Florida Statutes: Procurement of personal property and
services
12. Monroe County payments to freelance court reporters
13. Checks paid to court reporters and former employees by private court reporting
firms
14. Bank statements
15. State warrants
16. Employee personnel files
17. Time sheets
18. Court reporter correspondence
19. Travel vouchers
20. Transcripts of depositions and court proceedings
21. Certificates of nonappearance
22. Court dockets
23. Acknowledgments of Court Reporter's Appearance.
C. The Internal Audit staff completed the following procedures:
1. Reviewed invoices paid to outside court reporting firms from fiscal year October
1995 to September 1999.
2. Determined whether the court reporter indicated on the invoice was the one who
actually completed the work. Spot checked depositions for private court reporting
work completed by county employees, and examined those employees' time sheets.
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3. Obtained amounts paid to county employees from the court reporting firms, and
checked time sheets to verify that comp time or vacation time was used.
4. Obtained amounts paid to county employees by the State Attorney's Office.
5. Prepared a schedule of all county employee payments from outside court reporting
firms, or attorneys. Indicated if work was completed during county work hours,
and if vacation or comp time was used. Indicated if work was civil or criminal.
6. Reviewed Form 3's on file. The Court Reporter Policy and Procedures states:
"Transcripts and Depositions for Court Appointed, Public Defender & State: After
reporting one of the above fill out Form-3 and submit to the Managing Court
Reporter by the 5th of each month."
7. Reviewed civil depositions filed with the Clerk's Office from October 1995 to
September 1999. Spot checked for depositions completed by county employees and
verified time sheets when necessary.
8. Reviewed Suncom records for Monroe County extension 3489. Documented the
former Court Reporting Manager's advertising using Monroe County telephone
number 292-3489.
9. Discussed results of the latest physical inventory of Court Reporting with Finance
Department.
10. Searched for Circuit Court's computer disks used by the former Court Reporting
Manager.
11. Secured Circuit Court's computer used by the former Court Reporting Manager.
12. Compared payments to private court reporting firms by fiscal year. Researched
fluctuations and large payments to same vendor.
13. Obtained memos on procedures for assigning work to private firms.
14. Acquired documentation of employee court reporters' work completed while
lengthy criminal proceedings were reported by private court reporting firms.
15. Procured Palm Beach County's court reporting policies and procedures.
16. Reviewed employee daily logs of court appearances._
17. Examined time records to verify hours spent in court each month.
18. Reviewed appeal orders and transcripts prepared.
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III. BACKGROUND
A. The 16th Circuit's Plan for Court Reporting Services
In Order No. 85,055 In Re: Florida Rules of Judicial Administration -- Court Reporting
the Florida Supreme Court directed the chief judge of each judicial circuit to develop a
plan for court reporting services provided at public expense. This included all criminal,
juvenile, and other proceedings as required. Each circuit was to develop a plan for
court reporting services after consideration of guidelines issued by the Office of the
State Courts Administrator. Administrative Order 2.039 implemented the Sixteenth
Judicial Circuit Court Reporting Plan on June 30, 1995. This plan involved using court
employees to provide court reporting services. The Sixteenth Circuit's plan was the
only one in the state to allow court employees to cover civil proceedings. See Exhibit A
- Administrative Order 2.039.
B. Billing for Civil Proceedings'
The Sixteenth Circuit developed a procedure to bill the users of these services, because
such coverage is not statutorily required to be provided at public expense. The
employee court reporters recorded time attending civil proceedings on their Monroe
County time sheets, and Monroe County billed their attendance to the private attorneys.
The employee court reporters prepared any civil transcripts ordered on their own time,
and billed the private attorneys in their own names, not as court employees.
C. Cessation of Civil Reporting
The Sixteenth Circuit discontinued reporting civil hearings effective November 1, 1998,
by amendment to Administrative Order 2.039. The amendment noted that civil
reporting by employee court reporters had unduly burdened the circuit's limited court
reporting resources, that costs had outweighed collected revenues, and that the market
had become more competitive. See Exhibit B - Amendment 98-1 to Administrative
Order 2.039.
D. Florida Keys Reporting's State Contract
Florida Keys Reporting, Inc. (FKR) has held a state contract to provide court reporting
services to eligible users in the Sixteenth Circuit since July 1, 1994. The Office of the
Attorney General (OAG) has renewed this contract through June 30, 2000. The contract
obligates FKR to accept 90% of scheduled services requested, among other conditions,
and provides sanctions for noncompliance, including payments from FKR to the state as
liquidated damages. See Exhibit C - Agreement between the State of Florida Office of
the Attorney General and Florida Keys Reporting, Inc.
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IV. CONCLUSIONS
A. Monroe County and the State Attorney's Office (SAO) have paid approximately $11,000
to Florida Keys Reporting, Inc. for criminal deposition reporting and transcription work
performed by Monroe County employee court reporters. As employees, these reporters
are not eligible to receive additional compensation for criminal work.
B. Florida Keys Reporting, Inc. (FKR) submitted at least 84 invoices for work done by
court system employee court reporters. Each invoice stated: "Reporter: Jill
Middlemiss," but the forms acknowledging the reporter's appearance merely noted
"Florida Keys Reporting." FKR used employee reporters' actual names in billing
private attorneys or the State. Documentation clearly shows that Jill Middlemiss, owner
of FKR, did not perform this work. The employee reporters said that the former Court
Reporting Manager instructed them to put "Florida Keys Reporting" in the space labeled
Name of Reporter on the acknowledgment form. The Court Administrator stated that
had the form borne the employee court reporters' actual names instead of "Florida Keys
Reporting," she never would have approved the invoices for payment, because criminal
reporting was part of their job.
C. FKR's state contract obligated it to perform court reporting services, and included
liquidated damages and other sanctions for noncompliance. The former Court Reporting
Manager directed employee court reporters to take time off from their Monroe County
jobs in order to act as subcontractors of FKR. This system of employee utilization
blurred these employees' status under the Fair Labor Standards Act.
D. Outside court reporters submitted multiple invoices for the same work on three
occasions. Court Administration should implement procedures to prevent approval of
additional invoices for work already billed.
E. FKR's bid for a court reporting state contract required FKR to submit resumes for each
reporter who would perform services under the contract. The auditors were unable to
locate any document substantiating Office of the Attorney General (OAG) approval of
any of the employee court reporters working on behalf of FKR under the terms of the
state contract. FKR's noncompliance with this contractual condition, coupled with the
absence of actual names on the Acknowledgments of Court Reporters Appearance,
resulted in ineligible personnel working under this state contract.
F. The former Court Reporter Manager and some of her staff performed outside civil and
criminal work during their normal Monroe County work hours, and sometimes did not
use leave or compensatory time for this freelance work. Both Monroe County and
private concerns paid them for their time. Court Reporting performed on Monroe
County time should have been billed to the appropriate parties.
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G. Interviews with current and former court reporting employees revealed that the former
Court Reporter Manager advised them that they could complete civil transcripts on
Monroe County time if they had no other work to do. Documents available to the
internal auditors do not detail how much Monroe County time was used to complete
freelance transcripts.
H. The former Court Reporting Manager scheduled private court reporters to cover the
criminal case State vs. Overton, costing Monroe County $27,068, and to report jury
selection for State vs. Wallace, costing the County $7,060.50. Court Administration
should confirm the necessity for private contractors before approving their use.
I. Even after civil reporting by employee court reporters was discontinued by Amendment
98-1 to Administrative Order 2.039 on October 5, 1998, the former Court Reporting
Manager and employee court reporters were still reporting some trials that were not
required by law to be reported at public expense.
J. The former Court Reporting Manager was solely responsible for scheduling private
court reporting firms to cover the work load when the employee court reporters were
unavailable. The former Manager and employee court reporters also performed
freelance court reporting for some of these same court reporting firms. Section 112.313
(3), Florida Statutes, prohibits public employees from selling their services to their own
agencies.
K. The former Court Reporting Manager did not file a Statement of Financial Interests
(Form 1) with the Supervisor of Elections. Section 112.3145, Florida Statutes, required
any person having purchasing authority over $1,000 for a political subdivision to file
this form.
L. The former Court Reporting Manager tracked part-time employees' hours spent in court
only. She credited the part-time employees with additional hours at the rate of one hour
for every ten pages of transcription produced. This time keeping method was not among
Court Administration's approved policies and procedures, nor does it appear to comply
with the federal Fair Labor Standards Act. However, the former Manager stated that the
Court Administrator knew of the use of this time keeping method.
M.Monroe County Court Reporter Policy and Procedures states in part: "All reporters
records, court notes, and computer disks are the property of the Circuit Court upon their
resignation or dismissal from employment." The former Court Reporting Manager
claims that all her computer disks were taken to the old jail for storage when she
resigned. However, repeated searches by court staff and internal audit personnel have
not located her computer disks.
N. The former Court Reporting Manager used her Monroe County work telephone number
in advertisements for her private court reporting business. It is documented that the
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former Manager made appointments for freelance work during her regular Monroe
County work hours.
O. Monroe County reimbursed employees of National Reporting Service, Inc., $4,263.47
for travel expenses to cover seven civil trials that were not the legal responsibility of the
County. Accordingly, although the Court Administrator authorized these payments, we
find no statutory authority for this expenditure of public funds.
P. Documentation and interviews with court reporting employees revealed that the former
Court Reporting Manager and the Court Administrator appeared to prefer FKR when
Plantation Key coverage would require temporarily using private court reporters. The
Florida Supreme Court Office of the State Courts Administrator - Guidelines and Policy
Considerations for the Development of Circuit Plans for Court Reporting Services
(Guidelines) suggest using rotation lists to distribute such temporary work to avoid
actual or even apparent favoritism.
Q. The Guidelines include electronic recorder operators (ERO's) among its approaches for
delivering court reporting services. ERO's are used to record proceedings that typically
generate few transcripts. They cost less than stenographic court reporters, which any
Circuit using the employee approach should consider.
R. Administrative Order 2.039 established the current court reporting services plan
utilizing full-time employees on Monroe County's payroll. In fact, a combination of
County employee reporters, freelance reporters, and private court reporting firms
presently provide court reporting services. The efficiency and effectiveness of using the
employee approach to provide court reporting services should be reviewed periodically.
V. AUDIT FINDINGS
A. Florida Keys Reporting, Inc.
1. Unnecessary expenditures for criminal depositions
Findings:
Monroe County and the State Attorney's Office (SAO) have paid approximately $11,000 to
Florida Keys Reporting, Inc. for criminal deposition reporting and transcription work
performed by court system employee court reporters. As employees, these reporters are not
eligible to receive additional compensation for criminal work. There was no coordination
between Court Administration and the Key West SAO regarding the use of employee court
reporters for criminal depositions. The Key West SAO was neither apprised of the
availability of nor informed to utilize court system employees for depositions when
Administrative Order 2.039 was instituted. If the policy had been communicated to the
SAO, and the former Court Reporting Manager had scheduled them as Monroe County
employees to cover the depositions, then neither Monroe County nor the SAO would have
incurred these additional court reporting charges.
Recommendations:
1. In order to avoid such unnecessary expenditures, Court Administration should clearly
document and express the Circuit's plans and programs to all appropriate parties.
2. Employee court reporters should report criminal depositions as part of their regular
duties, and without additional compensation.
Court Administration's Response:
1. The original court reporting services plan did not specifically address the responsibility
of employee court reporters regarding depositions taken by the State Attorney's Office
(SAO). Court Administration did, however, send a copy of the plan (Administrative
Order 2.039, In re: Court Reporting Services Plan) to all appropriate officers, agencies,
and parties including the SAO at the time of its recording with the Clerk of the Court.
When the SAO entered a contract with Florida Keys Reporting, Inc. (FKR) to provide
"court reporting services", Court Administration did not receive a copy of the contract
and the SAO did not initiate communication with Court Administration regarding the
use of employee court reporters for their depositions. In retrospect, this is one aspect of
a complex and multi-faceted court reporting services plan where there should have been
better coordination between the Circuit and the SAO.
2. Administrative Order 2.039 will be amended to specifically provide that the reporting
of those criminal depositions taken by the SAO for which Monroe County has the
responsibility to pay are part of the regular duties of employee court reporters when
they are available. In addition, employee court reporters will be prohibited from
reporting these depositions, outside the scope of their employment, as private,
independent contractors.
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2. Misleading invoices submitted
Findings:
Florida Keys Reporting, Inc. (FKR) submitted at least 84 invoices for work done by court
system employee court reporters. Each invoice identified the court reporter as: "Reporter:
Jill Middlemiss," but documentation clearly shows that Jill Middlemiss, owner of FKR, did
not perform this work. The former Court Reporting Manager would attend these
depositions for FKR, or direct one of her employee court reporters to attend them. This
differed from the way FKR billed private attorneys, in that FKR used reporters' actual
names on those invoices. In billing the State, FKR alternated between using the reporters'
actual names and Jill Middlemiss' name. See Exhibit D - FKR Invoices & Court Reporter
Acknowledgment Form.
The employee court reporters would complete the Acknowledgment of Court Reporters
Appearance - Depositions, which would accompany FKR's invoices. The employee
reporters stated that their former Manager instructed them to put "Florida Keys Reporting"
in the space labeled "Name of Reporter." FKR would then pay the court system employee
the total attendance and transcription fee paid by Monroe County or the State Attorney's
Office. The Court Administrator stated that had the Acknowledgment forms borne the
employee court reporters' actual names instead of "Florida Keys Reporting," she never
would have approved the invoices for payment, because criminal reporting was part of their
job. FKR's state contract obligated it to perform court reporting services, and included
liquidated damages and other sanctions for nonperformance. Since Court Administration
accepted and approved these nonspecific invoices, the taxpayers paid FKR for reporting
work performed by Monroe County employees.
Recommendations:
1. Court Administration should compare invoice details, such as court reporter's name,
with supporting documents before approving them for payment. Vague or nonspecific
documentation should be questioned.
Court Administration's Response:
1. Court Administration never specifically instructed the former Court Reporting Manager
and Administrative Order 2.039 did not specifically provide that employee court
reporters were prohibited from attending and reporting criminal depositions under
Florida Keys Reporting, Inc.'s contract with the SAO. Clearly, there was a great deal
of confusion regarding this work.
The invoices described as "nonspecific" did not appear so at the time they were
accepted, reviewed, and approved by Court Administration. Following Court
Administration's submission of invoices for payment, another level of review takes
place in Monroe County's Finance Department. The invoices discussed herein were
also reviewed at that level apparently without notice or concern as to the
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documentation. Court Administration will continue to attentively scrutinize all invoices,
of which there are literally thousands, prior to approval for payment.
Clerk's Response:
1. The invoices referenced above were submitted to the Finance Department after approval
by the Court Administrator. Because of their bulk, copies of transcripts were not
attached to those invoices. The Finance Department must rely on the approval of Court
Administration regarding the validity of the information on the invoices submitted for
payment.
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3. Monroe County employees subcontracting for Florida Keys Reporting
Findings:
FKR's state contract obligated it to perform court reporting services, and included
liquidated damages and other sanctions for noncompliance. The former Court Reporting
Manager directed employee court reporters to take time off from their Monroe County jobs
in order to act as subcontractors of FKR. They would then report proceedings for FKR
which Monroe County had already hired them to report. According to the U.S. Department
of Labor, treating workers concurrently as employees and independent contractors of the
same employer, involving the same work in the same workweek, is unrealistic. This system
of employee utilization appears to have blurred these employees' status under the federal
Fair Labor Standards Act.
Recommendations:
1. Court Administration should seek a legal opinion as to whether this employment
relationship complied with the conditions of the Fair Labor Standards Act.
Court Administration's Response:
1. The court reporter employees were not independent contractors for the 16th Judicial
Circuit under the arrangement described. The employees may have been working as
independent contractors for FKR performing work for the SAO for which ultimately
Monroe County was liable. However, as has been noted, this was obviously a complex
and confusing area for all parties involved and it was not clearly defined in the court
reporting plan that the employees were responsible for covering this work as time
allowed. Further, the reporting and transcription of criminal depositions for the SAO
would represent only a small fragment of the employee court reporters' overall
responsibilities. For the Court, there is no blurring of these employees' status under the
Fair Labor Standards Act (FLSA) - they are clearly employees and are not being treated
as independent contractors by the Court. As has been previously stated, the Court will
clarify the obligation of the employee reporters to report depositions for the SAO.
Clerk's Response:
1. Monroe County sometimes paid these employee court reporters directly as employees,
and indirectly through FKR as independent contractors for work done in the same
week. This appears to meet the Department of Labor's description of "unrealistic." The
former Manager's assignment of these employees to work for FKR caused these
mutually exclusive relationships.
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4. Multiple invoices submitted for the same work
Findings:
In two instances, a jury trial and a deposition, FKR billed Monroe County twice for the
same services. Both times FKR submitted two different invoices for the same work. FKR
reimbursed Monroe County for the jury trial double payment of $1,957.50. Julie Carr, a
private court reporter scopist, also submitted two different $72.00 invoices to Monroe
County for the same scoping work. Monroe County also paid both of those invoices. Good
internal control requires procedures to detect the submission of additional invoices for
work already billed. Otherwise, Monroe County may pay for the same work more than
once.
Recommendations:
1. Court Administration should implement procedures to prevent the approval of additional
invoices for work already billed.
Court Administration's Response:
1. Court Administration accepts, reviews, and approves invoices for payment for the 16th
Judicial Circuit with intense scrutiny and attention to detail. It is regrettable and
unfortunate that out of millions of dollars worth of invoices reviewed over more than
seven years, mistakes were made causing a few invoices to be paid twice. Following
Court Administration's submission of invoices for payment, another level of review
takes place in Monroe County's Finance Department. The invoices discussed herein
were also reviewed at that level. Court Administration is committed to exploring cost
effective processes that provide 100% error free invoice submission. When Court
Administration discovers errors made causing double payment, every effort is made by
court staff(with a great deal of success thus far) to collect the duplicate payment. In the
instance of the $1,957.50 double payment, the duplicate payment was discovered rather
quickly, either by the vendor, Court Administration or the Clerk's Office, since the
vendor issued a reimbursement check eight days after the duplicate payment was made.
As to the $72.00 double payment, Court Administration has requested that the Clerk
research whether the vendor reimbursed the second payment. If the vendor has not
reimbursed the $72.00, Court Administration will attempt to collect.
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5. Noncompliance with state contract
Findings:
FKR's bid for a court reporting state contract required FKR to submit resumes for each
reporter who would perform services under the contract. The contract itself further
required FKR to submit resumes for, and to obtain Office of the Attorney General (OAG)
approval of, any additional employees not listed at the date of bid opening. Contacting the
OAG revealed that FKR filed only three resumes with that office in compliance with this
condition. The auditors were unable to locate any document substantiating OAG approval
of the employee court reporters working on behalf of FKR under the terms of the state
contract. The OAG could terminate this contract for violation of any of its covenants or
agreements. FKR's noncompliance with this contractual condition, coupled with the
absence of actual names on the Acknowledgments of Court Reporters Appearance, resulted
in ineligible personnel working under this state contract.
Recommendations:
1. The State Attorney's Office should consider contacting the OAG regarding FKR's
apparent contractual noncompliance.
Court Administration's Response:
1. Court Administration has no authority or control over this contractual relationship.
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B. Former Court Reporting Manager
l.a Working second jobs on Monroe County time - leave not taken
Findings:
The former Court Reporting Manager and some of her staff performed outside civil and
criminal work during their normal Monroe County work hours, and sometimes did not take
leave or compensatory time for this freelance work. These employees were paid for this
outside work by private court reporting firms. Employees should have taken leave when
they were absent from their positions during work hours. This practice ceased at the
inception of this audit, and no longer occurs, to the best of the auditors' knowledge.
The former Manager assigned the reporters to cover freelance criminal depositions for
FKR, and recorded the deposition coverage in her calendar. She also signed employee
court reporters' time sheets as their supervisor. She should have been aware that employee
court reporters were not always taking leave to attend outside jobs, and had the employees
correct their time sheets accordingly. Instead, Monroe County paid the former Court
Reporting Manager and some employees for time that they did not work. See Exhibit E -
Double Compensation to Full-Time Employees.
Recommendations:
1. Court Administration should not allow the practice of performing outside work on
Monroe County time.
2. Supervisors should not approve employees' time sheets that they know, or ought to
know, are incorrect.
3. Court Administration and Monroe County should pursue restitution from the court
reporter employees.
Court Administration's Response:
1. At the time in question (and to this date), the 16th Judicial Circuit had in effect a clear
prohibition against the performance of outside work by employee court reporters except
while on annual leave or compensatory leave or after regular office hours. The
instances set forth in the audit where this prohibition was apparently violated occurred
without the knowledge, consent, approval or authorization of Court Administration.
2. The 16th Judicial Circuit is committed to ensuring that employee time records are
accurate. Adherence to proper policies and procedures regarding the maintenance of
employee time sheets has been and will continue to be emphasized to both employees
and supervisors. Court Administration will closely monitor compliance.
3. Court Administration is committed to working with Monroe County in pursuing
restitution from the court reporter employees and is now in a position to do so having
received the findings which were omitted from the previous preliminary audit report.
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1.b Working second jobs on Monroe County time - ambiguous work status
Findings:
The former Court Reporting Manager assigned National Reporting Service (NRS) to report
the civil trial Hoeffer vs. AMS, Inc. The president of NRS requested the former Manager
herself to report parts of this trial. The former Manager did report parts of this civil trial,
and billed NRS for 701 pages of transcription from four different dates. She also billed an
attorney directly for 185 transcript pages, and was paid $789.25 for that work. NRS paid
her $4,206.00 for transcripts. NRS received $33,454.43 from the civil attorneys for
reporting this trial: $2,954.00 for attendance, $1,979.38 for travel, and the balance for
transcription. Interviews revealed that the former Court Reporting Manager instructed NRS
at that time to bill the attorneys directly for travel - see finding B.10.
Court Reporter Policy & Procedures permitted freelance reporting, including reporting
civil trials, "provided the freelance services do not interfere with their responsibilities to
the circuit court." The Court Reporter Policy & Procedures further required that, "Any
freelance reporting must be taken by individual reporters while on annual leave or after
regular office hours." Nothing in Administrative Order 2.039 at that time prohibited the
former Court Reporting Manager from reporting civil trials, either as an independent
contractor or as a Court employee. However, documentation does not clarify whether the
former Manager performed this work as an independent contractor or as a Court employee.
If she was an independent contractor, then she should have taken compensatory time or
leave to account for her absence from work. However, on three trial dates for which she
billed NRS (the fourth was a Saturday), she claimed to have worked eight, ten, and ten
hours on her Monroe County time sheet. As a Court employee in that case, the former
Manager would have informed Court Administration to bill the appropriate civil attorneys
for her work. She also would have shown the time worked on Saturday on her time sheet.
The former Manager chose neither authorized procedure, resulting in Monroe County
effectively subsidizing court reporting costs in a civil trial for which it had no
responsibility. If the former Manager had followed established procedures, her work at this
trial would have generated revenue for Monroe County.
Recommendations:
1. Court Administration should not allow the practice of performing outside work on
Monroe County time.
2. Court Administration and Monroe County should pursue reimbursement from the
appropriate civil attorneys.
Court Administration's Response:
1. See response to Section B.1.a. above.
2. Court Administration is committed to working with Monroe County in pursuing
restitution from the appropriate civil attorneys and is now in a position to do so having
received the findings which were omitted from the previous preliminary audit report.
15
2. Personal work performed on the job
Findings:
Interviews with court reporting employees and former employees revealed that the former
Court Reporting Manager said they could complete civil transcripts on Monroe County
time if they had no other work to do. The former Manager adjusted schedules so that all
transcripts, both criminal and civil, could be completed. Civil transcripts represented
additional compensation to the employee court reporters. Employees should not use work
hours to perform personal tasks. Documents available to the internal auditors do not detail
how much Monroe County time was used to complete freelance transcripts. As a result,
Monroe County paid some employees for time during which they did personal work.
Recommendations:
1. Supervisors should not allow employees to do personal work on Monroe County time.
Court Administration's Response:
1. In terms of almost any criminal transcription (aside from work performed under FKR's
contract with the SAO), the employee court reporters would have been completing
work well within the scope of their duties and there would have been instances when
schedules would legitimately need to be adjusted to meet time deadlines for filing
criminal transcripts. It is contrary to court policy for employees to perform personal
work while on the job. If this occurred, it did so without the knowledge, authorization
or consent of the Court Administrator.
16
3. Private court reporters hired to cover criminal proceedings
Findings:
The former Court Reporting Manager scheduled private court reporters to cover the
criminal case State v. Overton, costing Monroe County $27,068.00, and to report jury
selection for State v. Wallace, costing the County $7,060.50. According to the Supreme
Court, when the record is prepared at public expense, the Court is responsible to ensure
that reporting services are rendered efficiently and economically. Interviews and
documentation of employee court reporter assignments indicate that employees could have
reported these cases at no additional charge to Monroe County. There were other instances
reported where the former Court Reporting Manager assigned employee reporters to work
temporarily at remote locations, while a private court reporting firm covered a felony trial
at their regular duty station. Efficiency and economy require justification of expenditures
for private contractors.
Recommendations:
1. Court Administration should confirm the necessity for private contractors before
approving their use.
Court Administration's Response:
1. The Court has made, and continues to make, every effort to ensure that reporting
services are rendered efficiently and economically, keeping a watchful eye on
minimizing utilization of private court reporters. The unique geographical configuration
of the 16th Judicial Circuit requires at times that court reporters be in attendance in
several different courts at all three courthouse facilities throughout the Keys
simultaneously. In addition, changes in schedule often occur: Hearings get canceled;
cases are settled or take longer than expected; emergencies arise that may require a
reporter for reporting or transcription; transcription deadlines for the 3rd District Court
of Appeals loom. All of these demands and vagaries of the system, coupled with limited
court reporting resources, require daily and sometimes hourly judgment calls as to how,
when, and where to utilize the employee reporters and when to call in outside help. It is
not an exact science. The Court Reporting Manager was and is the most knowledgeable
and experienced individual to make those calls. In terms of the court reporting costs in
question, it is relatively easy to second-guess decisions which were made at the time.
However, the Court is unable to identify an adequate factual basis upon which to
conclude that these costs were incurred needlessly or as the result of mismanagement.
Nonetheless, in order to impose even tighter control, the Court will be formally
establishing a threshold amount beyond which managers will be required to seek
approval from the Court Administrator prior to procuring goods or services.
17
4. Employee civil reporting continued after Amendment 98-1
Findings:
Even after civil reporting by employee court reporters was discontinued by Amendment to
Administrative Order 2.039 on October 5, 1998, the former Court Reporting Manager and
employee court reporters were still reporting some civil trials that were not required by law
to be reported at county expense. During the time the employee court reporters were
covering civil hearings and trials they could have been covering criminal work, thus
lowering the cost of freelance reporters used for criminal hearings and depositions.
Recommendations:
1. Court Administration should monitor managers' and employees' activities for
compliance with the Circuit's policies and procedures.
Court Administration's Response:
1. Court Administration was acutely aware that following the signing of Amendment 98-1
to the court reporting plan, there was a transition period during which time judges,
attorneys, employee reporters, and private reporters experienced a delay in ultimately
understanding, acclimating to, and strictly adhering to the new policies. The
Amendment presented a significant change in the procedure for obtaining court
reporting coverage for civil proceedings, requiring a period of adjustment for all
participants to adapt. Every effort was made not to continue cases that were ready for
hearing or trial just because an attorney may have forgotten to get a reporter and no
private reporters were available on the spur of the moment. This effort included
utilizing employee reporters as a last resort. Further, as recently as five months ago,
the court was still conducting legal research and fine-tuning the plan to clarify what
non-criminal court events should be expected to be covered by employee reporters.
However, during the transition, it was clearly the Court's expectation that the Court
Reporting Manager would still oversee the program's first priority - insure that the
circuit courts had court reporting coverage.
18
5. Employees doing business with their own governmental agencies
Findings:
The former Court Reporting Manager was solely responsible for scheduling private court
reporting firms when employee court reporters were unavailable to cover the work load.
The former Manager and employee court reporters also performed freelance court
reporting for some of these same court reporting firms. Sometimes they performed court
reporting for Monroe County as independent contractors. Section 112.313 (3), Florida
Statutes, prohibits public employees from selling their services to their own agencies.
Recommendations:
1. Court Administration should seek a legal opinion regarding whether this relationship
violates Florida Statutes.
Court Administration's Response:
1. It is the opinion of the 16th Judicial Circuit that the set of circumstances described
herein does not violate Florida Statutes. The "agency" of the employee reporters is the
State of Florida State Courts System 16th Judicial Circuit, not Monroe County and not
the State Attorney's Office. However, in an abundance of caution, the Court will seek a
legal opinion and act in accordance therewith.
19
6. Financial disclosure for employees with $1,000+ purchasing authority*
Findings:
The former Court Reporting Manager did not file a Statement of Financial Interests (Form
1) annually with the Supervisor of Elections. Section 112.3145, Florida Statutes, required
any person having purchasing authority over $1,000* for a political subdivision to file this
form. According to the Florida Commission on Ethics Guide to the Sunshine Amendment
and Code of Public Officers and Employees, conflicts of interest may occur when public
officials are in a position to make decisions that affect their personal financial interests.
* Effective June 30, 1999, Chapter 99-399, Laws of Florida, increased this threshold to
$15,000.
Recommendations:
1. Court Administration should seek a legal opinion regarding which employees must file
the Statement of Financial Interest (Form 1).
Court Administration's Response:
1. Court Administration will seek a legal opinion regarding which employees must file the
Statement of Financial Interest (Form 1). However, as noted in the Court's response to
the Finding in Section B.3, the court will be establishing a threshold amount beyond
which managers will be required to seek approval from the Court Administrator prior
to procuring any goods or services which could render this issue moot. Please note that
the threshold amount for purchasing authority as it relates to this issue was raised to
$15,000 during the 1999 legislative session (Section 287.017(1)(a), Florida Statutes).
20
7. Time keeping for part-time employees
Findings:
The former Court Reporting Manager tracked part-time employees' hours spent in court
only. She credited the part-time employees with additional hours at the rate of one hour for
every ten pages of transcription produced. However, she instructed the part-time court
reporters to put four hours each day on their time sheets. Each month, the former Manager
would notify the part-timers of their hourly balance from her second set of time records,
including any surplus or deficit of hours. These part-timers were hourly employees, which
means that they were intended to be paid a fixed rate per hour. The auditors can not
determine from the former Manager's method and existing documentation whether the
part-time employees were properly paid.
This time keeping method was not among Court Administration approved policies and
procedures, nor does it appear to comply with the federal Fair Labor Standards Act.
However, the former Court Reporting Manager stated that the Court Administrator knew
of the use of this time keeping method. The possibility exists that Monroe County may be
liable for additional compensation to the affected part-time employees.
Recommendations:
1. Court Administration should clearly state that part-time employees' time is to be kept in
compliance with all applicable laws, rules, and regulations.
2. Court Administration should seek a legal opinion regarding whether the former Court
Reporting Manager's time keeping method for part-time court reporters complied with
the Fair Labor Standards Act.
Court Administration's Response:
1. Court Administration was not aware of any other method being utilized for time
keeping for part-time employees and did not approve nor authorize any other method. It
has always been the 16th Judicial Circuit's policy under Section 4.05, Florida State
Courts System Personnel Regulations Manual, for employees to keep an accurate record
of their hours worked. Court Administration was not advised by the Court Reporting
Manager or by any part-time employee that an alternative time keeping method was
being used. The Circuit does not now employ, nor has it employed for over a year,
part-time personnel for court reporting services.
2. Court Administration will seek a legal opinion regarding whether the former Court
Reporting Manager's time keeping method for part-time court reporters complied with
the Fair Labor Standards Act. It is highly improbable that Monroe County would be
liable for any additional compensation to the affected part-time employees since
compensation would only need to be made if any of the employees actually performed
over forty hours of court work in a workweek and could provide documentation
reflecting same.
21
8. Missing Circuit Court property
Findings:
Monroe County Court Reporter Policy and Procedures states in part: "All reporters'
records, court notes and computer disks are the property of the Circuit Court upon their
resignation or dismissal from employment." The Guidelines additionally specify that
"When court employees provide court reporting services, the county owns the record."
The former Court Reporting Manager resigned effective September 3, 1999. She claims
that all her computer disks were taken to the old jail for storage. However, despite repeated
searches by court staff and internal audit personnel, her computer disks have not been
located.
Recommendations:
1. Court Administration should develop procedures to ensure recovery of Circuit Court
property from employees before their termination.
Court Administration's Response:
1. Exit procedures, including signed receipts, are and have been in place for several years
to ensure recovery of the court's property from employees before their separation from
the agency. In this particular instance, numerous attempts were made to locate and
retrieve the disks described. A meeting was held between the Court Administrator, the
Chief Judge and the former Court Reporting Manager at which time a request for
assistance from the former Manager was made as to locating the missing disks. The
former Court Reporting Manager agreed to assist and physically escorted the Chief
Judge and Court Administrator to the last location of the disks to her knowledge,
pointing out exactly where she had placed them. The disks' disappearance remains a
mystery. The actual court reporting paper notes, however, are in the court's possession
having been left by the former Court Reporting Manager and retained in storage for
back up purposes.
22
9. Monroe County phone number in private business advertisements
Findings:
The former Court Reporting Manager used her Monroe County work telephone number in
advertisements for her private court reporting business. It is documented that the former
Court Reporter Manager made appointments for freelance work during her regular Monroe
County work day, and if she was unavailable she would send an employee court reporter to
take the job. Receiving phone calls for a private business at a Monroe County extension
opens the door to conducting private business on the taxpayers' time.
Recommendations:
1. Court Administration should prohibit employees from conducting private business
either from their public offices, or during taxpayers' time.
Court Administration's Response:
1. It has always been the policy of the 16th Judicial Circuit, albeit unwritten, to prohibit
employees from using their court work telephone number in advertisements for private
business. As well, employees have always been prohibited from conducting private
business on work time. Court Administration had no knowledge of these activities nor
approved them.
23
10. Unlawful travel reimbursements
Findings:
National Reporting Service, Inc. (NRS) reported seven civil trials between November 1997
and September 1998. The former Court Reporting Manager and, in at least one case, the
attorneys involved, scheduled NRS to report these proceedings. Monroe County
reimbursed the NRS employees $4,263.47 in travel expenses to cover these civil trials that
were not the legal responsibility of the County. Monroe County did not recover these
expenses from the parties to this civil litigation. The auditors have found no legal authority
providing that these expenses were the responsibility of Monroe County. Accordingly,
although the Court Administrator authorized these payments, they appear to be an unlawful
expenditure of public funds.
Recommendations:
1. Court Administration should exercise care when approving expense reimbursements for
outside contractors.
2. Monroe County should proceed immediately to recover these public expenditures from
the private parties involved in the litigation.
Court Administration's Response:
1. Court Administration will exercise care when approving expense reimbursements for
outside contractors.
2. Consistent with the procedures in the Court Reporting Plan (paragraph 7), it was the
Court Reporting Manager's responsibility to insure coverage for civil court hearings
and it was the historical expectation of the civil justice community that the Court would
insure these hearings would be covered by a reporter. Due to the limited number of
local freelance court reporters and private court reporting firms, the manager was given
permission to seek assistance from outside the county which necessitated guaranteeing
travel expenses. Certainly, the system would not have been well served by continuing
civil cases simply because there was no way to report them. However, there does not
appear to be any rule, statute or other provision which specifically authorizes these
travel expenses to be paid by the County. Accordingly, efforts will be made to recover
the travel expenses in question.
24
C. Guidelines and Policy Considerations
1. Selecting temporary court reporting help
Findings:
Documentation and interviews with court reporting employees revealed that the former
Court Reporting Manager and the Court Administrator appeared to prefer FKR when
Plantation Key coverage would require temporarily using private court reporters. This
could appear to be favoritism on the part of the court system. Exhibit F - Florida Supreme
Court Office of the State Courts Administrator - Guidelines and Policy Considerations For
the Development of Circuit Plans for Court Reporting Services (Guidelines) encourages
developing a list of available temporary reporters, scopists, and typists. The Guidelines
further suggest using rotation lists to distribute such temporary work.
Recommendations:
1. Court Administration should consider developing lists of available providers, and
rotating temporary work among them to avoid actual or even apparent favoritism.
Court Administration's Response:
1. There was no favoritism towards Florida Keys Reporting; it was the only provider
physically located in the Upper Keys and available on short notice to provide coverage
in Plantation Key. Given the geographic constraints, there could be no expectation that
providers would travel 177 miles roundtrip from Key West or 80 miles roundtrip from
Marathon to cover hearings and obviously they couldn't provide services within
minutes of a request. The Court was always mindful of travel costs (including time and
mileage) and availability of local and employee reporters when scheduling for outside
reporters for Plantation Key. In addition, over time, quite a few providers would not
accept work covering circuit court in Plantation Key despite the former Court Reporting
Manager's efforts to develop and maintain positive working relationships with
providers. Florida Keys Reporting was willing to work in the Plantation Key circuit
court, proved prompt and reliable, and provided quality work for the Court. The
current Court Reporting Manager will be directed to develop lists by geographical area
of available providers acceptable to the Court and rotate temporary work at the
respective courthouses among them.
Clerk's Response:
1. Numerous instances demonstrate that freelance providers are willing to travel. For
example, Sue Ex traveled 100 miles round-trip each day from Marathon to Key West
for the Overton trial and the Wallace jury selection. FKR sent employees to Key West
from Plantation Key to cover State Attorney depositions, receiving only a $30
attendance fee. Expenses and mileage are not paid to freelance reporters for travel.
Rotation lists for the entire County would give all acceptable vendors an equal
opportunity to accept or decline work.
25
2. Electronic recorder operators
The Florida Supreme Court's Guidelines include electronic recorder operators (ERO's)
among its approaches for delivering court reporting services. ERO's monitor proceedings
with audio or video tape recorders. They are used to record proceedings that typically
generate few transcripts. ERO's cost less than stenographic court reporters, which any
circuit using the employee approach should consider.
Recommendations:
1. Court Administration should consider utilizing electronic recorder operators as
appropriate.
Court Administration's Response:
1. Administrative orders (currently, #2.012 and #2.013) were originally issued in the 16th
Judicial Circuit in the early 1980's authorizing and outlining the provision of electronic
recordation services for both courtroom proceedings and depositions. Though the
Circuit has a considerable amount of experience (over twenty years) in this method of
reporting and continues to utilize it to the fullest extent possible, certain problems have
arisen and the method is not always reliable. In attempting to use the method for
"proceedings that typically generate few transcripts" one may not always "guess"
correctly which proceeding that might be. For example, while recordation is used
almost exclusively for misdemeanor proceedings an appeal (which always requires a
transcript) could be filed in any misdemeanor jury trial. The circuit has experienced
numerous problems in attempting to create a record on appeal from misdemeanor trial
recordation. If a record is not available or is not clear, the appellate court sends the
case back to the lower court to determine a set of facts stipulated by both the
prosecution and the defense. These stipulated facts are then to be sent back up to the
appellate court so that they may determine the merits of the appeal. It has been the
experience of county court that such a stipulation by the defense never occurs. Thus,
there is no choice but to dismiss the case against the criminal defendant no matter how
strong the evidence might have been. Notwithstanding these critical problems, the
Circuit is committed to continuing to iron out the wrinkles in the existing recordation
program and to utilize it where and when possible. Concurrently, the Circuit is
exploring the feasibility of replacing the existing analog equipment with new, more
reliable digital recordation technology. This may necessitate the purchase of technical
assistance services as well.
Due to the Circuit's geographical configuration, resulting in three courthouse
locations, providing no economy of scale, the lack of technical resources, and the
onslaught of emerging recordation technologies, there does not appear to be reliable
cost benefits at this time to purchasing the services of a recordation system's manager,
operators, technicians, and transcriptionists, all of whom are necessary for an expanded
recordation program. To date, Deputy Clerks have acted as in-court electronic
operators at the county court level (at no additional expense to the county).
26
It should be noted that the 16th Judicial Circuit authorized the use of electronic
recording equipment in the taking of depositions by the Office of the Public Defender in
1981. Since that time, the Circuit has expanded not only the program but also the
court's oversight of the program to reduce and control costs for the county. Many
judicial circuits in Florida do not provide such services for their respective counties.
27
3. Reconsideration of employee court reporters
Administrative Order 2.039 established the present court reporting services plan which
utilizes full-time judicial employees on the County's payroll. In fact, court reporting
services are currently being provided by a combination of employee court reporters,
freelance court reporters, and private court reporting firms.
Recommendations:
1. Court Administration should periodically reevaluate the efficiency and effectiveness of
using the employee approach to provide court reporting services.
Court Administration's Response:
1. The Court Administrator monitors court reporting detailed expenses every month as
well as scrutinizes, prior to approval, every payment for court reporting expenses.
Expenses are also analyzed in conjunction with annual budget preparation. The
assessment of the delivery of court reporting services is constant and ongoing.
When the initial court reporting plan was developed, court reporting providers, the
chief judge, and the court administrator critically reviewed the Supreme Court
guidelines and attended various workshops at a statewide conference on the required
change in the delivery of court reporting services. Meetings were held with officials
and judges, negotiations were conducted with providers, a detailed expense analysis
was undertaken and revenues were projected. It was clear that the plan was the most
cost effective for the 16th Judicial Circuit. Continuously since that time, the Court and
Court Administration have regularly reviewed how services are provided. This is
illustrated by the changes in the way civil matters are reported -- changes that were
contemplated in early 1997 (less than two years after the Supreme Court order
requiring the plan) and finalized in 1998. And although it is a matter of fact that court
reporting is inherently expensive, the Circuit continues to look for ways to economize
these statutorily required services.
28
VI. Exhibits
Exhibit A
Administrative Order 2.039
IN THE CIRCUIT COURT OF THE 16TH
JUDICIAL CIRCUIT OF THE STATE OF
FLORIDA IN AND FOR MONROE COUNTY
ADMINISTRATIVE ORDER 2.039
IN RE:
COURT REPORTING SERVICES PLAN
•
•
WHEREAS, the Supreme- Court of Florida has found . that an
emergency exists in the present court reporting system in Florida,
• 650 Sold 38, Fla. Rules of Jud. Admin. (Fla. 1995) ; and,
• WHEREAS, in response to the emergency the- court adopted
amendments to rule 2 .-0-70 of the ' Florida Rules of Judicial
Administration requiring the chief judge to enter an administrative
order developing and implementing a circuitwide plan for the court
reporting of all' proceedings required to be reported at public
expense using either full or part-time court employees or
independent contractors; and
•
• WHEREAS, the circuit court and-county court judges in the
circuit were consulted as to. the most efficient and economic means
of providing court reporting services; and .
• WHEREAS, the court administrator under the direction of the
chief judge provided an analysis of the financial, technological,
and personnel resources available in the circuit to provide court
reporting services; and
WHEREAS, the current. . system for providing court reporting
services in the 16th Judicial Circuit (Monroe County) blurs the
distinction required by the Supreme Court of Florida, as.well as by
state and federal laws, between public employees and private
service :providers; and '
WHEREAS, an issue aper regarding, the fundingof court
reporting services in Mon oe Countywas
Monroe presented to the Board of
County:.Commissioners at a !regularly scheduled meeting; and
WHEREAS, the Board of County Commissioners for Monroe County
approved in concept a new system for providing court reporting
services including the establishment of four full-time judicial
- employees on county payroll;
NOW, THEREFORE, it is ORDERED that the ollowing plan is
establishecL to•, provide:'court •,reportingi services in the Sixteenth
Judicial. Circuit of Florida (Monroe County) :
1. The current four Official Court Repo ters will become
. full-time judicial employees on county payroll c eating a pool for
the purpose of reporting and transcribing (when o dered) all felony
proceedings, evidentiary hearings, juvenile
proceedings, and
county criminal trials as required. As employees, these reporters
' are not eligible to receive additional compensation from the county
for appearances or transcript production within the scope of their
employment.
•
2 . All official court reporters shall achieve and maintain
the designation of Registered . Professional Reporter (RPR) as
defined by the National Court Reporter Association. Equivalent
designations from other associations will also be acceptable as a
minimum standard for official court reporters. Currently employed
official court reporters that lack the registered professional
reporter or an equivalent designation shall have two (2) years to
achieve such a designation.
3 . Depositions in capital cases assigned to court-appointed
attorneys will be reported and transcribed (when ordered) by the
employee court reporter pool.,
4. Civil hearings will be reported by the pool 'as time
allows in order to insure coverage in a noncompetitive market and
to increase revenue to the county through the billing of hearing
fees to the private attorneys. However, nothing in this order
I restricts outside competition for civil work by any qualified
reporter nor should this order be construed as suggesting or
implying any right to the civil workload by the employees in the
pool.
l.� 5. All court reporters serve at the
easure of and as
directed by the Chief Judge and the majority ofl the judges in the
I . 16th Judicial Circuit.
6 . One of the reporters shall be designated as a
coordinate court and de osition a coordinate to
work.
P ppearances as well as transcript
I
7 . When the workload prevents proper coverage of the courts,
the Managing Court Reporter is authorized to retain the reporting
services of a private provider whose appearance and transcript fees
in criminal hearings shall be paid through the Fine and Forfeiture
Fund and, in civil cases, shall be paid directly by the attorneys.
8. It is expected that due to workload, epositions in all
indigent criminal cases where a private attorney is assigned due to
•
the Public Defender having a conflict in the case will continue to
be taken by private court reporting providers . ' However, conflict
attorneys shall inquire as to the availability of an employee
reporter prior to retaining private providers for reporting these
depositions.
9 . Wherein Administrative Order No. 2 .012I In re; Electronic
Recording of Depositions, prohibits the taking of a deposition
involving a defendant represented by the Office of the Public
.Defender by an Official [Court Reporter] or freelance reporter
•
without prior approval of the presiding judge, in those cases where
i the presiding judge approves the taking of a deposition by
✓ stenographic means, the Office of the Public Defender shall first
contact the Managing Court Reporter as to the availability of an
employee reporter prior to retaining the services of a freelance
reporter.
10 . Administrative Order .No. 2.011, In re: Electronic Court
Reporting for Third Degree Felonies, remains in effect.
11. Administrative Order No. 2 .012, Jul re: Electronic
Recording of Depositions, remains in effect.
12 . Administrative , Order No. 2 .013, In re: Electronic
Recording of Judicial Proceedings, remains in effect.
13 . Administrative Order No. 2.016, In re: Transcripts for
.Multi-Defendant Criminal Cases, remains in effect.
14. Administrative Order No. 2.023, In re: Court
Reporters/Fee Schedules/Transcript Specifications/Forms, remains in
effect.
15. Administrative order No. 11.002, In re: Official Court
Reporters Appointment, and all its amendments are hereby rescinded.
This order shall take effect July 1, 1995 .
DO AND ORDERED Key West, Monroe County, Florida, this the
•
day of , 1995.
77144111 //111'11114°°/charowler
Chie Judge
•
I '
Exhibit B
Amendment 98-1 to Administrative Order 2.039
•
IN THE CIRCUIT COURT OF THE 16TH •
JUDICIAL CIRCUIT OF THE STATE OF
FLORIDA IN AND FOR MONROE COUNTY
ADMINISTRATIVE ORDER 2 .039/98-1
AMENDED
IN RE:
COURT REPORTING SERVICES PLAN
•
The Supreme Court, in In Re: Florida Rules of Judicial
Administration--Court Reporting, 650 So.2d 38 (Fla. 199.5) directed
the Chief Judge, after consultation with the circuit court and
county court judges in the circuit, to enter an administrative
order developing and implementing a circuit wide plan for court
reporting of all proceedings required to be reported at public
expense using full or part time court employees or independent
contractors.
On June 30, 1995, the. Sixteenth Judicial Circuit Court Reporting
Plan was adopted by Administrative Order 2 .039. In accordance with•
the plan, court reporting services shall be provided by court
employees. The order was subsequently amended on November 28, 1995
to include a schedule of fees.
Whereas in 1995, the demand for court reporting services far
exceeded the supply, the circuit sought some means by which to
insure coverage for civil hearings in the existing noncompetitive
market. Because such coverage was not statutorily required to be
provided at public expense, a procedure for billing the provision
of these services to the users was developed and it was hoped that
these revenues would offset the cost. In order to insure that. the
procedures not constitute an unfair labor practice, the plan
included a caveat in this regard: "However nothing in this order
restricts outside competition for civil work by any qualified
reporter nor should this order be construed as suggesting or
implying any right to the civil workload by the employees in the
pool. " In addition, civil hearings were to be reported by the
employee pool "as time allow[ed] . " It became the expectation of
users, however, that employee court reporters would always be
available to report all, civil hearings.
An analysis of the actual use of the employee court reporting pool
for civil reporting has taken place over the past year. The
I findings indicate that the actual practices place an undue burden
upon the circuit' s limited court reporting resources; that the ,.,
costs far outweigh the collected revenues; and that the supply side
of the market has shifted and become more competitive.
Further analysis of the plan uncovered a contradiction with the
Policy Statement of the Florida State Courts System' s Personnel
Regulations Manual, which requires the Chief Judge of the circuit
to exercise administrative supervision over. court personnel.
One other minor section in the plan was also found to be outdated.
In consultation with the circuit court and county court judges of
the 16th Judicial. Circuit,
IT IS THEREFORE ORDERED:
Administrative Order No. 2.039, In re: Court Reporting Services
• Plan, is hereby amended: •
•
Section 4 is replaced as follows:
4. Civil hearings and trials shall be reported by private court
reporters as arranged by the parties. However, cases required
to be recorded by statute, such as guardian appointments,
juvenile dependency cases, and final hearings in dissolution
• of marriage actions are the responsibility of the circuit' s
court reporter program and will be recorded electronically or
by an employee court reporter if electronic services are not
available. In addition, hearings of simplified dissolutions,
temporary restraining orders, and hearings set as emergencies
by a judge, are also the responsibility of the circuit' s court
reporting program.
Section 5 is replaced as follows:
5. All employee court reporters are at-will employees and serve
at the pleasure of the appointing authority -- the Chief Judge
of the circuit.
Section 10 is replaced as follows:
10. Administrative Order No. 2.011, In re: Electronic Court
Reporting for Third Degree Felonies, is hereby rescinded.
This order shall take effect November 1, 1998 .
DO AND ORDERED at Key� �st, Monroe County, Florida, this the
day of ,C�1:LrkC , 1998.
A.
kiA64d, /
Sandra Ta /r
Chief Jud• -
Exhibit C
Agreement Between The State Of Florida
Office Of The Attorney General
And
Florida Keys Reporting, Inc.
•
AGREEMENT BETWEEN THE STATE OF FLORIDA
OFFICE OF THE ATTORNEY GENERAL
• AND
FLORIDA KEYS REPORTING, INC.
•
This AGREEMENT is entered into in the City of Tallahassee, Leon County, Florida by
and between the State of Florida, the Office of the Attorney General(the OAG), an agency of the
State of Florida with headquarters located in The Capitol,Tallahassee,Florida 32399-1050, and
Florida Keys Reporting, Inc.,P.O.Box 655, Tavernier,Florida 33070 (the CONTRACTOR).
The OAG, pursuant to §287.059(13),Florida Statutes, is authorized to contract with one
or more court reporter services, on a circuit-wide basison behalf of all state agencies.
AND,THEREFORE,the parties mutually agree as follows:
ARTICLE I.FNGACEMENT_OF THE CONTRACTOR
(a) The OAG agrees to engage the CONTRACTOR and the CONTRACTOR agrees to
perform the court reporting services as the First(1st) ranked CONTRACTOR in the Sixteenth
(16th)Circuit for all ELIGIBLE USERS as outlined in ITB 96/97-1, which is incorporated by
reference as Attachment 1, and as further set forth below.
(b)The term ELIGIBLE USERS includes state officers, departments,boards,
commissions, divisions, bureaus, councils, and units of organization., however designated, of the
executive branch of state government, community and junior colleges, and multicounty special
districts exclusive of those created by interlocal agreement or which have elected governing
boards.
(c)ELIGIBLE USERS, on whose behalf the OAG is entering this contract must use rank
order when selecting a court reporting firm. It is the intent of the state to place orders in rank
order starting with number one. The state reserves the right to place orders with other court
reporters if delivery time and availability of services cannot be met by any of the ranked
CONTRACTOR(S)at the time of need.
(d)The CONTRACTOR agrees to provide court reporting services on both a scheduled
and an unscheduled basis. Such services may be subcontracted to previously approved
subcontractors, as provided below. Scheduled services are those where notice to the
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UHh PAGE F)3
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CONTRACTOR is provided at least five(5)working days prior to the proceeding. Unscheduled •
services are those where less than five(5)working days notice is provided.
• (e)If during the contract period,the CONTRACTOR adds employees or associates who
were not originally listed with a resume on May 8, 1997(see Attachment 2), such new employees
are not eligible to perform work under this contract until their individual resume is submitted by
the CONTRACTOR and approved by the OAG. The same procedure will be used for the
approval of subcontractors.
ARTICLE 2.SCOPE OF SERVICES
The CONTRACTOR agrees under the direct supervision of the ELIGIBLE USER to
provide services under the conditions set forth in the attached ITB 96/97-1,which.is incorporated
by reference. (See Attachment 1.)
ARTICLE 3.TIME OF PERFORMANCE
(a)This AGREEMENT shall bind the parties upon its execution by their representatives
and shall become effective July 1, 1997. The contract period is one year and will end on June 30,
1998.
(b)•The CONTRACTOR will perform services, including recording the proceedings at the
time, date, and location provided by the ELIGIBLE USER.
(c)Delivery of services, including transcripts of those proceedings ordered by the • •
ELIGIBLE USER shall be achieved within the conditions set forth in Article 4.
• (d)The State may renew this contract for two (2)additional one(1)year periods after the
initial contract period contingent upon satisfactory performance evaluations by the OAG and the
availability of funds. Consideration at the time of renewal may change consistent with the
provisions of the attached 1TE 96/97-1; page 1, Contract Renewal, paragraph C and page 9,
. Price Adjustment Clauses. (See Attachment 1.)
ARTICLE 4.f.ONSrDERATION
(a)As compensation for the satisfactory performance of the reporting services, the
CONTRACTOR shall receive payment according to the schedule outlined in Attachment 3,
Proposal Sheet, Court Reporting Services and as further set forth below.
(b)The first hour of appearance fec will be paid in full regardless of time worked. Each
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hour after the first hour will be billed and compensated rounded to the nearest quarter hour.
(c)Appearance fees will not be paid for travel time or any breaks (including meals breaks).
(d)Computer disk(s)and video tapes•(if applicable)will be provided at no charge with
transcript order.
(e)No excerpt search charge will be allowed.
(t)No per diem or mileage will be paid when the location of the proceeding to be recorded
is S0 miles or less from the CONTRACTORS'S official headquarters, as indicated in the
CONTRACTOR'S bid. Per.diem and mileage will be paid in accordance with Section 112.061,
Florida Statutes, when the CONTRACTOR must travel more than 50 miles within the judicial
circuit from the CONTRACTOR'S official headquarteFsr. In no event will the CONTRACTOR
receive per diem or mileage for travel to a location outside the circuit where the
CONTRACTOR'S official headquarters is located.
(g)Cancellation of appearance by a state agency or other eligible user without a minimum
of four(4)hours notice prior to beginning time will result in the state agency or other eligible user
paying the CONTRACTOR$40.00.
(h)In accordance with the provisions of Section 287.0582,Florida Statutes, if the terms
of this AGREEMENT extend beyond the.current fiscal year, "The State of Florida's performance
and obligations to pay under this contract is contingent upon,an annual appropriation by the
Legislature".
ARTICLE 5.LIQUIDATED DAMAGE$
In the event the CONTRACTOR fails to provide court reporter services under the terms
of this contract, CONTRACTOR will pay liquidated damages to the state of S500 per proceeding
(e.g.,hearing, deposition, trial, etc.). CONTRACTOR and OAG recognize the difficulty in
ascertaining actual damages and agree that the CONTRACTOR shall pay this amount as
liquidated damages and not as a penalty.
ARTICLE 6.DOCJJMENTATIOrj
(a)CONTRACTOR shall submit written invoices to the contracting ELIGIBLE USER for •
all fees or other compensation for services or expenses In detail sufficient for a proper pre-audit
and post-audit, including the nature of the services performed or expenses incurred, the identity of
•
. 3 ,
• , ( j
•
person(s)who performed the services or Incurred the expenses, the amount of time expended in
performing services, includingthe dayon which the services were performed, and, if expenses
were incurred, a detailed itemization of such. Invoices or bills must indicate:
1)Case name(s) and number(s). •
2)Date(s) services rendered.
3)Time at which the proceeding commenced and adjourned, hourly fee, and amount due.
4)Description of services performed and costs incurred.
5)Number of original transcript pages and contract amount per page, number of copy
pages and the contract amount per page, and the amount due for each.
6)The contract number assigned by the OAG:
7)The eligible user's name and employing attorney name.
8)All costs associated with each proceeding shall be delivered by the CONTRACTOR to
the eligible user on a separate bill invoice.
(b) Charges for postage, supported by appropriate invoices, receipts, or affidavit, shall be
billed and reimbursed at cost. No transcript shall be sent other than by regular United States mail
unless directed by the contracting agency.
(c)The first four or five digits of the CONTRACTOR'S invoice number,which must
appear on all invoices,will be the contract number. The contract number is 97161.
(d)The CONTRACTOR shall submit to the Office of the Attorney General on a quarterly
basis, by the 15th day of the month following the end of the quarter, beginning October 15, 1997,
a list of all jobs offered, accepted, or refused by CONTRACTOR, as well as the name of the
• ELIGIBLE USER offering the work. CONTRACTOR shall indicate if the work offered was
scheduled or unscheduled.
(e)When an eligible user is a party to a proceeding but not the employing agency, the
CONTRACTOR must provide the eligible user services at contract rates.
ARTICLE 7.PUBLIC RECORDS
(a)Unless specifically exempted by law, all records made or received by CONTRACTOR
in conjunction with this AGREEMENT are public records available for inspection by the public in
accordance with the provisions of Section 119.07,F.S. Refusal of the CONTRACTOR to allow
4 •
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ul/dl/4UUU 1U:02 8504870168 OAG PAGE 06
•
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public access to such records shall constitute grounds for cancellation of this AGREEMENT as
provided in Section 287.058, F.S.
(b)Since the services being contracted for in this AGREEMENT are intended to assist the
ELIGIBLE USERS in ongoing or imminent litigation or adversarial administrative proceedings,
certain records made or received by the CONTRACTOR reflecting a mental impression,
conclusion, litigation strategy, or legal theory may be exempt from the disclosure requirements of
Section 119.07.F.S. In order to assure that records subject to this exemption are not disclosed,
the CONTRACTOR agrees,to notify the ELIGIBLE USER immediately upon being requested to
disclose any documents or records in CONTRACTOR'S possession which relate to the subject
matter of this AGREEMENT. The CONTRACTOR shall not allow any inspection of or
•
otherwise disclose any information found in said documents or records unless and until directed
by the ELIGIBLE USER,
ARTICLE 8.TERMINATION_OF AGREEMENT FOR CAUSE
(a) In the event this AGREEMENT is terminated for convenience or cause, all finished or
unfinished documents, data, studies,correspondence,reports and other products prepared by or
for the CONTRACTOR under this AGREEMENT shall be made available to and for the use of
the ELIGIBLE USERS,who requested such products.
(b)Notwithstanding the above, the CONTRACTOR shall not be relieved of liability to the
ELIGIBLE USERS for damages sustained by the ELIGIBLE USERS by virtue of any termination
of this AGREEMENT by the CONTRACTOR. In the event this AGREEMENT is terminated,
the CONTRACTOR shall be reimbursed for services satisfactorily completed subject to any such
damages.
(c)If, in the judgement of the OAG,the CONTRACTOR for any reason fails to fulfill in a
timely manner all obligations under this Agreement, or if the CONTRACTOR should violate any
of the covenants, agreements or stipulations of this AGREEMENT, the OAG shall have the right
to terminate this AGREEMENT by giving at least five days written notice by registered mail to
the CONTRACTOR of such termination and by specifying the effective date.
(d)The CONTRACTOR will be considered in non-compliance if(s)he fails to appear, fails
to provide accurate transcripts, or fails to provide transcripts, or fails to provide transcripts in the
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Wit Oki Ain 8504070160 OAG PAGE 07
(0 i
agreed upon time frame in the price sheets. Non•compliance may result in any of the following:
1)Reduction in amount owed for appearance fee and transcript for specific
• proceeding by an amount up to 100%.
2)No additional work to CONTRACTOR until transcript is provided.
3)Termination of contract.
ARTICLE 9.ADMINISTRATION OF AGREEMENT •
(a)The provisions of this AGREEMENT shall be administered by the Office of the
Attorney General.
(b)Any dispute over performance or other terms of this AGREEMENT shall be governed
by Florida Law and any action arising over any such dispute may only be maintained in Florida
Courts.
ARTICLE 10.AMENDMENTS
]Either party may, from time to time,request changes in the scope of services to be
performed under this AGREEMENT. Such changes which arc mutually agreed upon by all
parties shall be incorporated in written amendments to this AGREEMENT.
ARTICLE 11.TRANSCRIPTS
Transcripts must be delivered by the CONTRACTOR to the contracting ELIGIBLE
USER within the time frames stated in the price sheet(Attachment 3). If an ELIGIBLE USER,
for whatever reason,grants an extension of time to deliver the transcript, the extension must be
authorized in writing, by the contracting attorney or designated position, and a copy of the
authorization must be delivered to the CONTRACTOR
ARTICLE 12.AGTtF,EM..NT AS INCLUDINQJNTTRE AGREEMENT
This instrument,with Attachment 1, Attachment 2 and Attachment 3, embodies the entire
• AGREEMENT of the parties. There are no provisions,terms, conditions,or obligations other
than those contained herein. This AGREEMENT supersedes all previous communication,
representation or agreements on this same subject verbal or written between the parties.
•
•
L
� cuuu iv.uc tl iCl4tl ltJlbtl UFil7 NAl.E kld
In witness whereof,Florida Keys R •ortin_, I c. and the Office of the Attorney General
have executed this agreement,
A... 4 ,
Flo •a Keys Reporting, Inc. 7ter Antonacci •
Deput Attor ey General
( -ai - 0 q ?
DATE DATE
)11)05 1
FID Number
•
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, 7
Exhibit D
FKR's Invoices and Court Reporter
Ackiiowlegment Form
I
'
9totida %yb GRE/2otlin9
,,;; !Box 635 Federal I.D. # 59-2420581
��•• 7avctntit, 9(otida ggo7O
832.20g N° 12544
•
TO• Board of County Commissioners
Key West, Florida
Attn: Court Executive
•
April 23, 1996
DATE,
April 18, 1996, Circuit Court, Case No. KW-95-1078-CF
Depositions of: Ted and Gloria Lukaszak •
Re: State v. David Glenn
Attendance of Reporter: 4:00 - 5:00 $30.00
INDIGENT
Reporter: Jill Middlemiss
•
•
ACKNOWLEDGEMENT OP
COURT REPORTER'S APPEARANCE - DEPOSITIONS
Case No.(s) K9' o 78-CF
Name of Reporter .X.0145 400144e1
Style S- '' - i J (7I-e Vl1 Appearance Dates i I ei /9 g/,
5a4 to i1 S�'t�-
Location Nature of Appearance %�I J)t.5 .
A.M. Appearance P.M. Appearance
Start:
Start: • 1).0 •
5-
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Stop: Stop:
Deposed Partylies) Acknowledgement of Deposing Attorneys
ItC1 k_ukoseek
I hereby acknowledge that this
wkRs �� deposition is sary and th wit ess
material. •
Submit to:
State:
Court Executive
--- Defense:
Room 302
Monroe County Courthouse Annex
Key West, Florida 33040 (305) 294.9646
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,TO:, i• Il1, Ward & NenderSon,, P.A. :" .. . 1
• . P. 0. Box 223.1...
Attn: Robert :S. .Gough, ;III,' Eeq. ' , i • . • . ' ::
- •
• Dare: AuquBt 25, '1999
August 13, 1999, Circuit Court; Case Nov 97.639-CA-11 1 • .
Depositions or: Julio 'Goaos, 48 pages, Scott Mollies, 92 pages, • .
JimmgyFreecs, 37 pages •: . • .. ,
Re: Mollie v• . Chrysler Corp. . . • .
.
'Attendance of Reporter: 11 ;30 2:00 A 3:00 3s30 $9 90.00 : •
' . Original 4 1, 1.40 pages . . . 560.00.
1cc 37 pages . 74.00
Exhibits: 11 pages, Laser colored photos 45.00
Postage 6.50
• • 4775.50 •
Reporters Lisa Rosser
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Transcripts mailed Priority Mail on 8-23-99. •• .
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1`� ✓ �}ax 305-ds.94r0 N2 016993 ..
•TO: Department of Health '
Internal Services . /
• BIN# CO1 •
• 2020 Capital Circle SE
Tallahassee, FL 32399-3251 :;
Attn: . Peggy Sue Anderson Dare:Jere 29. 1999
Contract 097-161 •
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June 25th and 26th, 1999, Board of Chiropractic Medicine Meeting
held in Key West • ..
•
Attendance of Reporter: 6-25 9:00 - 12:00 $ 65.00
• 6-26' (Saturday) 9:00 - 10:00 55.00
• . $120.00 •.
Reporters: Ji iss
isa •Roeser .
55106
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Thank you. .
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SO 39dd 030 S>1e1310 SOLT68ZS0E S0:TT 000Z/0T/E0
Exhibit E
Double Compensation to Full-Time Employees
Double Compensation to Full-Time Employees
Monroe County Wages Paid during Second Jobs
1200
800
1000
r—
m ® Wages
600 paid
0
400 '
200 r-
0
Jeske McDonough Rosser Wade Lear
Court Reporters
Payments from Private Firms to County Employees
7000
6000 '
5000 '
4000
■ Payments
3000
2000
1000 '
0
Jeske McDonough Roeser Wade Lear
Court Reporters
Hours County Employees Compensated Twice
5o ' -
40 '
30
o ■TNne
= 20 '
10
0
Jeske McDonough Roeser Wade Lear
Court Reporters
Reporter Jeske McDonough Roeser Wade Lear
County pay $15.50 $64.25 $1,032.68 $75.76 $38.13
Payments $30.00 $172.50 $5,905.95 $110.00 $65.00
Hours 0.75 3.25 42.25 3.25 2
Instances 1 5 35 3 2
Exhibit F
Florida Supreme Court Office Of The State
Courts Administrator
Guidelines and Policy Considerations For The
Development of Circuit Plans for Court
Reporting Services
•
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( FLORIDA SUPREME COURT
OFFICE OF THE STATE COURTS ADMINISTRATOR
e* * ****f-
(.3
t *******
•
GUIDELINES AND POLICY CONSIDERATIONS
~ FOR THE DEVELOPMENT OF
CIRCUIT PLANS FOR COURT REPORTING SERVICES
•
•
State Courts Administrator
Kenneth R. Palmer
Project Staff •
• Mignon U. Beranek
Richard E. Cox
Brian Lynch.
Gregory J. Youchock
FEBRUARY 23, 1995 •
(�-
•
•
TABLE OF CONTENTS
l' •
•
I. INTRODUCTION AND STATEMENT OF PURPOSE 1
•
II. REQUIREMENTS OF CHAPTER 112, FLORIDA STATUTES 1
III. REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT 2
A. Employer/Employee Relationship 2
B. Independent Contractor Relationship 3 .
IV. APPROACHES FOR DELIVERING COURT REPORTING SERVICES 4
A. Employee Court Reporters 4
1. Employee Status • 4
2. Salaries and Benefits 5
3. Staffing Configurations 5
a. Court Reporters 5
b. Electronic Recorder Operators (EROs) 6
c. Supplemental Personnel 7
d. Managers 7
e. Temporary Assistance 8
4. Equipment 8
5. Ownership of the Record 10
6. Making Staffing Determinations 10
7. Overtime Under the Employee Approach 11
8. Management Decisions Relating to Costs 11
a. Policies for Felony Proceedings 12
(1) Computer-Aided Transcription(CAT)and Scopists 12
(2) Pooling 12
(3) Coordination 13
(4) Transcript Production Policies 13
b. Policies for Low Transcript Volume Proceedings (Juvenile, County Criminal
&Traffic) 14
c. Policies for Depositions 15
(1) Overview 15
(2) Employee Court Reporters 15
(3) Temporary Court Reporters 15
(4) Electronic Reporting 16
B. Court Reporting Services Provided by Independent Contractors 17
1. Preservation of an Independent Contractor Relationship 17
a. Control Over Personnel 17
b. Skill Required of the Contractor's Work Force 18
c. The Contractor's Ability to Hire and Fire 18
d. Investment in Equipment 18
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e. Contractor's Opportunity to Use Initiative, Skill, and Judgment 18
f. Non-Exclusivity of the Business Relationship 18
_ }
g. Permanency of Relationship 18
h. Premises of the Contracting Authority 19
i. Right of Individual Court Reporters to Refuse Work or Work Elsewhere 19
j. Compensation for Services • 19
k. Contractor's Compliance with Applicable State and Federal Law 19
2. Procurement Strategies 19
a. Request for Proposals(RFP) for Contractual Services 20
(1) Statement of Contract Duration 21
(2) Qualification Criteria 21
(3) Methods for Invoicing and Payment 21
(4) Divisions and Proceedings to be Recorded 21
(5) Descriptive Information 21
(6) Laws and Rules Relevant to the Court Reporting Function 21
(7) Minimum Performance Standards . 22
(8) Award Evaluation Criteria 22
(9) Specific Information That Must Be Included in the 22
b. Invitation to Bid(ITB) for Contractual Services 22
(1) Contract Terms 23
(2) Divisions and Proceedings to be Recorded 23
(3) Performance Standards 23
(4) Pricing Information 24
c. Multiple Award Contracts 24
C. The Hybrid Approach: The Use of Both Employees and Independent Contractors 25
V. TRANSITION TO A NEW DELIVERY SYSTEM 25
A. Considerations 25
1. General Description of Method of Service Delivery 25
2. The Employment Method. 25
B. The Independent Contractor Method 27
VI. SUGGESTED DATA ELEMENTS 27
A. Reporting and Transcript Production 28
_ B. Cost • 28
C. Expedited Requests and Extensions 28
D. Freelance Reporters 29
! E. Scopists/Typists/Other Support Personnel • 29
F. Overtime 29
APPENDIX .
•
•
GUIDELINES AND POLICY CONSIDERATIONS
FOR THE DEVELOPMENT OF
CIRCUIT PLANS FOR COURT REPORTING SERVICES
INTRODUCTION AND STATEMENT OF PURPOSE
Two issues involving state and federal law have fundamentally impacted the delivery of
court reporting services in Florida. The first issue arises under Chapter 112, Florida
Statutes, Part III, Code of Ethics for Public Officers and Employers, and the other issue
involves the application of the Fair Labor Standards Act. The Supreme Court in In Re:
Florida Rules of Judicial Administration—Court Reporting,No. 85,055 (Fla. Feb. 23,
1995) has outlined the necessity for the circuit courts to ensure compliance with such
state and federal laws by requiring them to reevaluate the historical relationships among
official court reporters, their deputies,and the courts. Specifically, the chief judge of
each judicial circuit is directed to develop an administrative plan for the provision of
court reporting services provided at public expense. The chief judge is also to ensure that
the record of court proceedings and testimony is properly taken and preserved. The
purpose of these guidelines is to outline employment, funding,policy, and organizational
factors and alternatives that should be taken into consideration in the development and
execution of such plans. •
II. REQUIREMENTS OF CHAPTER 112,FLORIDA STATUTES
The Code of Ethics for Public Officers and Employees, Part III of Section 112,Florida
Statutes, prohibits public officers and employees from doing business with their own
governmental agency, procuring contractual services on behalf of their agency from their
private business,and using public property to conduct private business. Traditionally,
official court reporters have provided the services of their businesses to meet the
reporting needs of the trial courts. Their incomes have been primarily generated through
appearance and transcript fees that they and their employees have earned, even though
they also receive an annual state salary of$5,400 plus benefits. Some receive a county
salary or stipend as well. This approach,which is authorized in Chapter 29,Florida
Statutes,has subjected several official court reporters to investigation by the Florida
Commission on Ethics. In at least one instance, the commission has determined that an
official court reporter's use of his own business to provide court reporting services to the
courts violates the Code of Ethics.
. If the court reporting plan developed and implemented in each circuit provides that court
reporting services will be delivered by either employees or independent contractors,
violations of the Code of Conduct under the traditional approach will be eliminated.
Independent contractors will clearly be private entities who are not public employees
subject to the Code. On the other hand,court employees will be governed by the Code,
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but they will be providing direct professional services on a full time basis instead of
relying on private businesses to assist them in performing the court reporting function.
III. REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT
The Fair Labor Standards Act(FLSA) requires that additional compensation(either in the
form of compensatory time or pay at a rate of time and a half)be paid to employees who
have worked in excess of 40 hours in a given work week. The majority of judicial •
circuits in Florida have retained the services of official court reporters and deputy court
reporters in a manner generally consistent with provisions of Chapter 29,Florida Statutes.
However,under such arrangements,the official court reporters and deputy court reporters
in most of these circuits may be considered court employees for purposes of application
of the FLSA. Thus,both the time official and deputy court reporters spend in court and
the time they devote to the preparation of transcripts out of court may be considered hours
worked,which may be subject to the overtime provisions of the FLSA. To avoid
unexpected liability for overtime, the courts must engage the services of court reporters in
one of two ways: by hiring them as independent contractors or as employees whose work
hours are accounted for on a routine basis and who are compensated for overtime in
accordance with the FLSA. The essential elements of each relationship follow:
A. Employer/Employee Relationship
An employer/employee relationship exists when one person employs another to do
certain work and also exercises control over the performance of the work to the
extent of prescribing the time and manner in which the work is to be executed.
The following elements are indicative of this relationship:
1. The employer pays the employee's salary and provides benefits, including
health and life insurance,matching social security, retirement, liability/risk
management coverage, and workers and unemployment compensation.
2. The employee is eligible to earn annual and sick leave,plus paid holidays.
3. The employer hires,supervises and terminates the employee and any.
subordinates of that employee.
4. The employer has the right to control and direct the manner in which the
employee performs the work.
•
5. The employer sets the employee's hours of work.
6. The employee performs services to the employer's satisfaction.
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7. The employee performs the work on the employer's premises.
8. The employer furnishes equipment,office space and materials to
employee.
9. The employer pays the employee's business and/or travel and continuing
education expenses.
10. The employer must comply with other state and federal employment laws.
B. Independent Contractor Relationship
An independent contractor relationship exists when a person is engaged to
perform a job, but is answerable only to the results of the work and not the means
by which the results are accomplished. There is no single factor for determining
whether an independent contractor relationship exists. The following factors are
indicative of an independent contractual relationship:
•
1. The contracting authority does not pay salary or benefits for the
independent contractor.
2. The contracting authority does not provide insurance benefits or .
malpractice insurance for the independent contractor.
3. The independent contractor hires,compensates, supervises, and terminates
members of his or her work force; such decisions are not subject to
oversight or control by the contracting authority.
4. The independent contractor has the right to control and direct the manner
in which the work is performed.
5. The independent contractor sets the hours of work for members of the
contractor's work force.
- 6. The independent contractor performs services to contract specifications;
unsatisfactory work performance by members of the contractor's work
force subjects them to dismissal by the contractor, or the contractor to
penalties or cancellation of the contract. .
7. The independent contractor may perform the work away from the
contracting authority's premises.
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•
8. The independent contractor furnishes his or her own tools and materials to .
complete the job.
9. The independent contractor pays his or her own business and/or travel and
continuing education expenses.
•
10. The method of payment,whether by time or by the job, is negotiated
{ contractually.
11. State and federal employment laws are not applicable to the contracting
authority.
IV. APPROACHES FOR DELIVERING COURT REPORTING SERVICES
There are two basic approaches for engaging personnel to deliver court reporting services
which should facilitate compliance with the FLSA and the requirements of Chapter 112,
Florida Statutes. In addition,there are a range of funding,organizational, technological,
and policy issues which must be considered when implementing either approach. The
following is an overview of issues that should be considered if court reporters are hired as
employees and a summary of factors to be weighed in retaining the services of court
reporters as independent contractors.
A. Employee Court Reporters
1. Employee Status
a. Court reporters would be full-time or part-time county employees
with full benefits. It may be possible to permit court reporter
employees to retain transcript production rights and revenues.
However, the court reporting plan should ensure that time spent out
of court in transcript production or other functions related to
proceedings reported at public expense is included in the
calculations of total hours worked.'
b. As county employees,court reporters would work a forty-hour
week and receive compensation for overtime as "included".
employees, at a rate of one and a half hour's pay or compensatory
time for every hour of overtime worked. Managing court reporters
may be"excluded" employees and, thus,would be eligible for only
'According to the Department of Labor,overtime compensation may be calculated by multiplying 1.5 by a combination of the hourly
wage end the hourly rate from transcript earnings. .
_ •
•
} one hour of compensatory time for every hour of overtime worked,
' ... if local policy permits.
2. Salaries and Benefits
Salaries would be set according to county salary schedules. In circuits
where court reporters are currently employed, the value of benefit
, • packages that court reporters and other employees receive is usually equal
to approximately one-third of the salary. •
3. Staffing Configurations .
The administrative plan for employee-based court reporting systems
should account for a variety of positions. Along with court reporters,
courts need to consider the necessity for electronic recorder or operator
positions, support personnel,managers and coordinators,and temporary
assistance. ' •
a. Court Reporters
` For the purposes of these guidelines, court reporters include those
who take the record of proceedings using stenotype machines,
1 I stenomasks, or shorthand. The National Court Reporters
• Association estimates that 90 percent of court reporters in the U.S.
now use special stenotype machines that allow Computer-Aided
•
Transcription(CAT),and may be referred to as CAT reporters. In
Florida,most reporters who are court employees are CAT
reporters. They usually work in felony divisions,or in other
divisions where there is a high demand for transcripts. Salaries for
court reporter employees currently range from$30,158 to$51,694. •
Table 1 includes salary ranges in four circuits where court reporter
earnings are based solely on salaries.
•
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Table 1
1994 Salary Ranges for Court Reporters
Circuit Salary Range
First $ 30,158 -$ 44,296
Second $ 37,791 - $41,892
Twelfth $ 32,274 -$41,114
Fifteenth $40,221 -$ 51,694
b. Electronic Recorder Operators(EROs)
- . Electronic recorder operators(EROs) may be retained to take the
. record in selected proceedings. Their most common use is to
record county criminal,criminal traffic,and juvenile proceedings,
which generate a low volume of transcripts. Several courts employ
• EROs to record depositions as well. They have been used to record
felony proceedings in one judicial circuit.
_- Electronic recorder operators monitor court proceedings with an ,1
audio or video tape recorder,keep a log of all event times, and
produce transcripts, sometimes with the assistance of a typist.
EROs are usually full-time,county employees who receive a salary
and benefits package; however, they are not trained as stenographic
court reporters. Table 2 presents salaries for EROs currently
. employed in some of Florida's circuits.
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Table 2
1994 Salary Ranges for Electronic Recorder Operators
(EROs)
Circuit Salary Range
Ninth $ 16,973 - $26,874
Twelfth(Manatee) $ 19,552 -$ 22,276
Fifteenth. full time:
$ 19,433
part time:
$ 8.99 per hour, no benefits-
$14,575 per year,plus fringe benefits
c. Supplemental Personnel
Scopists or text editors may be employed in some courts to work
with CAT reporters. Scopists,who are versed in court reporting
theory, are individuals trained in the reporter's style of shorthand.
— The scopist's job is to perform an initial edit of the transcript. Final
review and certification of the transcript is performed by the court
reporter. The use of scopists reduces transcript production time.
In circuits where court reporters are currently employed, salaries
for scopists range from$18,340 to$22,590 plus benefits.
d. Managers
The court reporting plan may include a manager who is responsible
for the supervision of the court reporting unit. The manager
ensures that all proceedings which must be reported are covered
and that transcripts are produced on time. This individual may or
may not report proceedings, depending on the structure of the unit.
In circuits that currently employ court reporters, managers who are
court reporters are the highest paid court reporters in their division,
usually earning$2,000-$4,000 more than their colleagues.
Coordinators and managers who are not qualified court reporters
typically earn much less than court reporters; their salaries range
from$21,330 to$27,831 plus benefits. Court reporting managers
are usually supervised by the court administrator or a deputy court
administrator..,
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e. Temporary Assistance • ^.
Court reporting divisions may need to engage court reporters and
typists on a temporary basis. Court reporters hired temporarily
(often referred to as "freelance" court reporters) typically receive a
per diem or appearance fee and page rates for transcripts produced.
Typists are frequently used to transcribe proceedings,particularly
those that have been electronically recorded. Compensation for
temporary court reporters and typists may be set by local
administrative order. Much like the lists used for court-appointed
and conflict attorneys,,rotation lists.may be ysed to calk in
temporary.cqurt_reporters and typists.
Courts should be aware of the indicators of an employment
relationship set forth in Section III A of these guidelines when
retaining temporary court reporter or typist services. FLSA
requirements apply to any temporary employee whose workload
meets or exceeds forty hours in one week,and to those who are
regularly engaged by the court. Out-of-court transcript time is
counted towards the number of hours worked. The same law
applies to members of an independent contractor's work force; the
independent contractor must pay overtime to its employees when
they work more than forty hours per week. — l
4. Equipment ll
Equipment necessary to the court reporting function would be purchased
and owned by the court. Courts converting court reporters to full-time
_ employees should either purchase new equipment or reimburse the court
reporter for privately owned equipment. Maintenance, training, and
software upgrade costs are borne by the county. All costs for office space,
equipment,supplies,telephones, are also paid by the county.
•
Efficiency is maximized when court reporters who are full-time employees
use CAT to report proceedings to reduce transcript production time. A
workstation for a CAT reporter costs between$10,000-$12,000 per
reporter,based on a sample of major CAT vendors conducted in
December, 1994. These estimates generally include a stenograph writer or
machine,a computer and printer,a software license for a single user,
installation and set up,dictionary conversion and hot line support.
It should be noted,however,that hardware costs for CAT equipment may
either increase or decrease depending on the needs of the court and the
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number of units purchased. When multiple work stations are needed, the
�_. negotiated price may decrease. Needs for scopists, file servers and
maintenance will also affect cost estimates.
Methods other than CAT reporting used by the circuit will determine the
additional equipment needed. Most commonly, this includes analog audio
tape recorders used for electronic court reporting. Other equipment may
be needed for video court reporting or for the storage of audio files or
digital audio tapes.
There is a wide array of equipment available for the electronic reporting of
court proceedings and depositions. No one type of equipment is
appropriate for every setting. What may be appropriate for a more
controlled setting such as a deposition may not work in a more chaotic
environment. Electronic recording equipment can vary in terms of:
• the method of recording(i.e.,audio versus video);
• the configuration of equipment(e.g.,centralized control
rooms versus individual courtroom installations);
• the level of sophistication of the recording device(e.g., the
•number of tracks,noise control and sound isolation
capabilities);
• the types of storage devices (e.g.,VHS tapes, analog audio
cassettes,digital audio tapes, computer files);
• the input devices (i.e.,microphones and conference
microphones); and
1 • the level of integration with personal computers.
The costs associated with the different types of electronic recording
devices are at least as variable as the capabilities of the equipment. Courts
using electronic methods of reporting must critically examine the types of
equipment available and their proposed use of that equipment. Before
purchasing a system,the court should be satisfied with the quality and
reliability of the manufacturer and vendor,and consider the requirements
of installation and maintenance. In addition,the court should integrate its
proposed plan for staffing the electronic reporting division with the plan
for equipment acquisition.
• 9
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5. Ownership of the Record
•
When court employees provide court reporting services, the county owns
the record. Non-indigent parties pay the county for transcripts. Transcript
fees for non-indigent parties may be set by local administrative order.
6. Making Staffing Determinations •
Perhaps the most critical decision in planning to convert to the
employment approach is the determination of the number of court reporter
positions required to adequately cover all court proceedings and at the
same time ensure that accurate transcripts are produced without
unnecessary delay. A review of the literature suggests little in the way of
staffing or workload standards to guide this decision.
Two critical workload components are in-court coverage of proceedings
and completion of those tasks associated with the preparation of verbatim
transcripts. These out-of-court tasks include: research, translation,
editing,printing,proofreading,correcting,maintaining and storing
• dictionaries,producing indices and concordances, duplicating, collating
and binding,certification and delivery or filing.
There are few benchmarks available for making staffing decisions..
Productivity benchmarks, such as the number of transcript pages a court
reporter can produce in an hour,are rare. A 1986 study estimated that a
CAT reporter can produce 15 pages of transcript per hour without the use
of a scopist.2 Other estimates vary widely, but the number of pages that a
- reporter is able to produce in an hour should increase over time as
technology and court reporter skills and techniques improve.
Courts that can estimate in-court time and know the approximate number
of transcript pages produced for various procedures may be able to use
such data to estimate the number of reporters that will,be needed. Other
variables that should be considered are downtime, administrative time, as
well as sick and annual leave. Courts that have no basis for estimating
either in-court time or transcript volume may choose to rely on the
experience of other circuits as the basis for staffing projections.
Table 3 is a ratio analysis of judge to reporter full-time equivalent
positions (FTEs) in six circuit criminal divisions throughout the state that
•
•
•
1A Study of the Impact of Changing the Employment Status of Federal Court Reporters(Washington,D.C.: Price Waterhouse),
November 20,1986,p.IX.19. Based on data gathered for Computer-Aided Transcrlplion In the Courts(Williamsburg,Virginia: National Center •
for State Courts),1981,p.34.
10
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use the county employee model. Based on interviews and data collected
during site visits to these circuits, it appears that a maximum ratio of one
and a half reporters per one judge is found in circuit criminal divisions.
The staffing of other divisions may be more difficult to compare, due to
organizational differences and the variety of methods used to take the
record.
Table 3
Staffing Ratios for Circuit Criminal Divisions
Circuit Number of Reporters Per Judge
First(Escambia County Only) 1.09
Second 1.38
Fourth(Duval County Only) 1.33
Ninth(Orange County Only) 1.44
Twelfth 1.15
Fifteenth 1.50
L.. 7. Overtime Under the Employee Approach
Closely related to making staffing determinations is the management of
overtime. The key to avoiding excessive overtime is to staff the divisions
_ at a level that allows individual reporters sufficient time to do all of their
work,whether in or out of court,and for managers to closely monitor
reporter workloads. The use of overtime is necessary for limited periods
of high demand,but if overtime costs remain high over an extended period
of time,additional positions should be considered. Circuits that currently
use employee court reporters report minimal overtime.
8. Management Decisions Relating to Costs
The manner in which the court provides for court reporting services will
determine the cost of that service. For courts using employees,policies for
reporting felony proceedings, low volume or transcript demand
proceedings,and depositions need to be carefully developed.
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a. Policies for Felony Proceedings
{ (1) Computer-Aided Transcription(CAT) and Scopists
Most court reporters who are county employees use CAT to
record and transcribe proceedings. CAT, along with
Computer Integrated Courtrooms, are the state of the art
method of court reporting' The computer capability of
CAT,coupled with the use of scopists or text editors,
greatly reduces transcript production time. This technology
is the most cost efficient and,based on the experience of
several Florida circuits, is critical to the success of the
employee approach.
•
(2) Pooling
•
The pooling of court reporters involves balancing the
• number of in-court hours, in terms of both the number of
' proceedings covered and the transcript demand. It may
• require the shuffling of court reporters to accommodate
long duration trials.
The pooling concept,as opposed to assigning court
reporters to a judge, allows for the most efficient use of a
court reporter's time in court and while transcribing. Judge-
-
,;specific allocation.of court reporters hinders maximum . . •
efficiency and often increases either:
• the number of full time equivalents (FTEs)
necessary; or
• the cost associated with hiring temporary
reporters to cover required proceedings.
Reporter assignment, work hours (including overtime
hours),workload,and productivity must be monitored
closely under the pooling system.
•
In a Computer Integrated Courtroom,judges,attorneys,and some parties(particularly those who require accommodations under the
Americans With Disabilities Act)all have computers that allow them to read an unofficial version of the transcript on their own computer screens
as it is being prepared by the court reporter. The technology also allows parties to read forward and backward through the record on their own
computer screens. Computer Integrated Courtrooms require a higher level of skill on the part of court reporters,because there is obviously no lime
for editing before the record is read.
• 12 1
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The pooling of reporters is also very useful in multi-county
i'' •.- circuits. Small counties in multi-county circuits may pay a
larger county for court reporter coverage. The amount paid
would be a percentage of the total court reporting budget,
perhaps based on the percentage of criminal filings in the
smaller county, as compared to the entire circuit. This
formula is very helpful to a small county that may have a
high profile case or other lengthy trial which would be
difficult to budget for or manage. An additional advantage
.is availability. By having access to multiple reporters,
counties are not dependent upon a single individual for
coverage.
(3) Coordination
Thejmportance_of properly managing_reporter assignments
and transcription_production cannot be overstated. In-court
h uo rs cari vary considerably due to length of trials,
absenteeism and vacations. A capital murder case or an
extended illness, for example, can have an enormous
impact on court reporting costs. The monitoring of
transcript production time is also crucial to the successful
management of court reporter employees. The proper
•management of scopist time and workload should permit •
reporters to spend more time in court.
Court reporting managers and coordinators must constantly
strive to achieve a workload balance(i.e., in-court hours
versus transcript production hours) among court reporters.
This effort requires constant communication between
managers and court reporters. Particularly important is
knowing which cases will likely require transcription and
which will not,and balancing workload accordingly.
(4) Transcript Production Policies
•
•
Producing accurate,timely transcripts and minimizing
requests for extensions should be the primary goals of court
reporting departments. An additional goal is the avoidance
of unnecessary requests for transcripts. Indeed, several
circuits have local administrative orders which govern this
process. To prevent or discourage unnecessary transcript
•
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production,judicial approval of requests for transcripts is
often required. },
Reporters must be given sufficient out-of-court time to
produce transcripts. It is therefore incumbent upon the
manager to have a firm grasp of court needs and the types
of cases being reported. It is also important for the court
administrator along with the managing reporter to have a
contingency plan for high demand periods. This would
include the development of a list of available temporary
repodcrs scQpists and typists`During high demand
periods,court may consider prioritizing the production of
transcripts, allowing those deemed less important to wait
until time permits. Supervision coupled with a cooperative
atmosphere among reporters fosters a collective spirit of
• fairness and collegiality which lends itself to the timely
production of transcripts.
b. Policies for Low Transcript Volume Proceedings (Juvenile, County
Criminal&Traffic)
Policies governing transcript production for low volume
proceedings vary across judicial circuits. Many coverage options
exist, each with differing degrees of cost and benefits. The court
must determine which type of coverage is appropriate to the level
of demand(i.e., types of proceedings, court environment, and the
number of requests for transcripts). The type of coverage used is
also affected by judicial preference, local legal culture,personnel
and technology costs, and administrative requirements. Several
reporting options exist: (1)court reporters; (2) electronic recorder
operators (EROs); (3)unstaffed electronic recorders(multi-track,
_ cassette tape recorders) operated with an event log kept by a bailiff
or deputy clerk of court;and(4)temporary court reporters who are
paid an appearance fee and per page rate.
Each scenario identified above is used in one or more of the
judicial circuits in Florida. No one scenario is necessarily correct.
The cost can vary considerably depending on the option used in •
relation to types,of staff,salary ranges, and types of equipment.
Each option must satisfy demand without sacrificing the quality of
Li the record.
•
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c. Policies for Depositions
(1) Overview •
Deposition coverage continues to be costly in many
circuits, and in some circuits accounts for the majority of
the court reporting budget. Decisions about the method of
reporting and the policies regarding transcription determine
cost.
As with low transcript volume proceedings,alternative
J approaches exist. They include: (1) court reporters; (2)
electronic recorder operators(EROs); (3)unstaffed
electronic recorders(multi-track, cassette tape recorders);
and(4)temporary court reporters who are paid an
appearance fee and per page rate.
Policies governing transcription vary. In some circuits the
decision to transcribe depositions is within the discretion of
the state attorney or public defender. In other circuits, the
judges conduct a more rigorous review of the necessity for
transcripts and consequently have reduced costs to some
;( extent. The levels of requests for transcripts vary from
situations where most or all depositions are being
transcribed to the more conservative approach where only
those deemed critical to case preparation are produced.
(2) Employee Court Reporters •
Employee court reporters may be used to cover depositions
if the demand for certified transcripts is extremely high.
When nearly all depositions are transcribed, a proceeding
reported by a CAT reporter can sometimes be transcribed '
more quickly than one recorded electronically.
(3) Temporary Court Reporters
In many circuits,depositions have been covered using
temporary court reporters retained from a rotating list of
freelance reporters or through a contract with a local court
reporting firm. These reporters usually receive a morning
and afternoon per diem or hourly appearance fees and page
•. rates set by local administrative order.
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(4) Electronic Reporting—Staffed and Unstaffed
Electronic reporting, both staffed and unstaffed, is used in
many circuits to record depositions. When EROs are used,
the court administrator's office coordinates deposition
coverage with the state attomey's or public defender's
office. The county owns the record; thus,transcript costs
are somewhat reduced. The cost for using staffed
electronic reporters is usually less than using freelance
reporters but more,understandably, than unmanned
recorders.
Deposition rooms are increasingly equipped with dual
cassette tape recorders with multiple tracks to record
depositions. The tapes are provided by the county and the
attorneys run the machines. In a typical deposition the
witnesses and attorneys are identified and only one person
speaks at a time. The multi-track recorder is equipped to
distinguish between several people speaking
simultaneously,thus enabling transcriptionists to identify
speakers clearly when producing the record.
Upon conclusion,both attorneys have their own tape of the
proceeding. If either party wants the tape transcribed, they
hire from a list of temporary typists or use office personnel.
The requesting party provides a copy of the transcript to the
other side.
Costs for this type of system are usually less than the
freelance or staffed electronic option. Most of the cost for
this system is for the purchase of the recorders,which as
indicated earlier may vary greatly.
Page rates for typists are about half those of freelance court
reporters without the obligatory appearance or per diem fee.
Most managers report that the quality of the record is not
compromised(i.e.,an excessively high number of words
that cannot be understood or translated).
•
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•
B. Court Reporting Services Provided by Independent Contractors
1. Preservation of an Independent Contractor Relationship
In order to ensure that individuals who provide court reporting services
pursuant to contract remain independent contractors, the independence of
the ce ccr' k force must be preserven
of ancontra employment torand relathtiontraonship to between
swor court reporter contractorsd. I anddicia the
court must be avoided to the greatest extent possible. To preserve the
contractor's economic independence, the following issues should be
addressed in the selection process and included in the contract document.
a. Control Over Personnel
When court reporting services are provided by an independent
contractor, individual court reporters perform under the control and
supervision of the contractor. Members of the judiciary have no
authority for the assignment, supervision, or control of individual
court reporters.The contract should specifically recite that the
court officers and court staff do not have the right to control
procedures for accomplishing the contracted services.
(1) The contract should set forth specific criteria for the
selection of individual court reporters in the contractor's
work force. Judges cannot specify which court reporters
the contractor will employ.
(2) Court reporting services should be performed according to
contract specification. Unsatisfactory work performance by
an individual court reporter would subject that reporter to
dismissal or discipline by the contractor,not the court.
(3) The contract should provide that the contractor will
establish the conditions under which individual court
reporters will report; when, where, and the manner in which
court reporters will report; and the job assignments of
individual court reporters. Judges cannot request or require
that specific court reporters be assigned to their courtrooms. •
Similarly,the number of hours per day and the number of
days per week that individual court reporters will work is
the responsibility of the contractor. Neither judges nor
court personnel can have responsibility or authority for
these functions.
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b. Skill Required of the Contractor's Work Force
The contract should specify the skills, training, and experience
required of the members of the contractor's work force who will be
providing court reporting services. A standard stenographic course
of study,such as the Registered Professional Reporter program of
the National Court_Reporters Association, may be required.
•
c. The Contractor's Ability to Hire and Fire
The contract should specify that all hiring and firing decisions are
strictly within the discretion of the contractor. Any relief from
substandard performance by a member of the contractor's work
force would have to be dealt with under the terms of the contract or
raised within the context of an action for breach of the contract.
d. Investment in Equipment
The contract should establish that equipment, supplies, and all
other costs of doing business are furnished by the contractor. The
court should not pay for equipment, supplies, or other court
reporter expenses.
e. Contractor's Opportunity to Use Initiative, Skill, and Judgment
The contract should provide maximum opportunity for the
contractor to use initiative, skill,and judgment in the business
enterprise.
f. Non-Exclusivity of the Business Relationship
The contractor should be free to provide court reporting services to
other private and public.entities. Nothing in the contract should
suggest that the contractual relationship with the court is exclusive.
g. Permanency of Relationship
Contracts with independent contractors for court reporting services
should be of relatively short duration, for example, one to two
years. Contracts should not be subject to automatic renewal.
18
h. Premises of the Contracting Authority
The contract should specify that office work and transcription
services may not be performed on court property. Only the
•reporting of depositions at public expense and proceedings that
must be conducted in either courtrooms or a judges'chambers
should be held on court premises. Under no circumstances should
the contractor or members of the contractor's work force be
provided office space at the courthouse.
i. Right of Individual Court Reporters to Refuse Work or Work
Elsewhere •
The court should have no control over whether a particular court
reporter refuses a job assignment. Any action taken against such a
reporter would be taken by the contractor. The court should have
no control over, or interest in,whether a court reporter or the
contractor works elsewhere.
j. •Compensation for Services
The contract should specify the means of payment for services
( rendered under the contract. Payment should be by periodic lump
sum or by services performed(such as by appearance or transcript
produced),rather than an hourly rate for the time that individual
reporters spend on the job.
k. Contractor's Compliance with Applicable State and Federal Law
The contract should require that the contractor comply with state
and federal tax and employment laws, including the Fair Labor
Standards Act, the Americans with Disabilities Act, and the
Federal Civil Rights Act. The contract should also specify that the
contractor is solely responsible for income tax,FICA, and any
other withholdings from its employees'or subcontractors'wages.
2. Procurement Strategies
•
If the court reporting plan provides that independent contractors will be
used to deliver court reporting services, the court must use a competitive
process to select the contractor. The court should rely on established
county purchasing procedures and select the competitive process that most
appropriately meets local needs. When either a Request for Proposal
19 .
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(RFP)or an Invitation to Bid(ITB) is released, the court must be able to
provide prospective contractors with sufficient statistical and demographic
information to permit a responsive offer. If the court's reporting needs and
expectations are well defined, it will be,more cost effective and productive
to use an ITB process. If its needs and expectations are not adequately
defined, the RFP process will be the preferred selection method. The
following section briefly describes additional factors to consider in
deciding whether to use an RFP or an ITB process and whether to issue a
multiple award contract.
a. Request for Proposals(RFP) for Contractual Services
This process is generally used when the court is seeking solutions
from potential contractors (proposers). The methodology offered
by proposers is more important to accomplishing the ends than
price or detailed specifics. Frequently the particular expertise of a
proposer is considered in the award process.
The RFP method requires more resources to develop and release.
A minimum period of 60 days from design to award should be
planned. In addition,although the RFP is less structured than an
ITB, the evaluation and award processes are time consuming. The
court choosing this process is more reliant on the proposer and
maintains less control than through other competitive selection •
processes. Use of the RFP generally assumes that the court is
unfamiliar with methods of achieving desired results and relies on
the proposer's skills and inventiveness to deliver a satisfactory
service. RFPs are more susceptible to protest since they may be
more subjective in the evaluation and selection of a contractor than
under the ITB method.
An RFP should, at a minimum, include a statement of work to be
performed,time frames for the work to be completed, and specific
criteria to be used in evaluating the proposal.The basis for an
award must be established in the RFP document. A review
committee is assigned the task of evaluating the general quality and
responsiveness, organization and personnel, and price schedules of
the contractor's proposal.The RFP should require the proposer
provide information relative to their understanding of the problem,
experience of key personnel,work to be done, and approach to be
used to achieve the objectives,and pricing. In the RFP process, a
contract is negotiated separately using the RFP and response as a
integral part of the contract but not as the exclusive agreement.
20 �)
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Most importantly, the RFP does not specify the methodology to be
��_.. used in providing court reporting services. An RFP seeks proposed
solutions for meeting the court's needs, which are then evaluated to
identify the proposer who offers the most effective and cost-
efficient means of delivering the service.
An RFP for court reporting services should specifically include:
(1) Statement.of Contract Duration
The RFP should detail the length of time that the contractor
will be expected to provide the contractual services.
(2) Qualification Criteria
The RFP should state the minimum standards to be used in
qualifying the proposer as a responsible contractor.
(3) Methods for Invoicing and Payment
The RFP should identify the county's requirements in order
to allow for the performance of pre and post audit review of
invoices, as well as payment method and schedule.
(4) Divisions and Proceedings to be Reported
The RFP should include a general description of the court
functions that will require reporting and identify the
geographic location of the courtrooms where the reporting
is to occur.
(5) Descriptive Information
The RFP should address statistical and demographic
information pertinent to the service requested. It should
also provide information on the number of courtrooms
requiring reporters,the average annual numbers of recorded
and transcribed cases,and the average length of trials.
(6) Laws and Rules Relevant to the Court Reporting Function
The RFP should specify statutes and court rules that govern
the discharge of a court reporter's responsibilities.
21
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(7) Minimum Performance Standards
The RFP should present minimum performance standards
that the contractor will be expected to maintain. The
standards should include performance expectations for
members of the contractors'workforce, as well as any
minimum qualifications and training that will be required
of every court reporter who will be assigned to the courts.
(8) Award Evaluation Criteria
The RFP should describe the specific award criteria that
will be used to judge the proposals submitted.
(9) Specific Information That Must Be Included in the
• Proposals
The RFP should specify any information that the court.
needs or wants from the proposers. For example, the court
may want to require that the proposer furnish specific
information concerning its corporate structure and a list of
references. The court should also consider asking the
_' proposer to include a plan for handling complaints about
the performance or conduct of individual reporters assigned
to the courts.
Proposers should be expected to describe the methodology
that they will use to provide the court reporting services,
including the type of equipment to be employed; the
number of personnel to be assigned and a detailed
description of their skills and qualifications; and the means
' by which the proposer will coordinate and manage the
delivery of services. Finally, the proposer should give a •
detailed fee schedule of the services described in the
proposal.
, b. Invitation to Bid(ITB) for Contractual Services
• The ITB is commonly used when the court can be specific as to its
needs. The court should be familiar with the marketplace and
availability of court reporting services in the area. Provided that
the detailed specifications in the ITB have been met,an offer from
a potential contractor(bidder) is accepted or rejected based upon
• 22 ,
price. There is less latitude permitted in the ITB process than the
RFP described above. The ITB is a unilateral offer which becomes
the contract document. When used to purchase court reporter
services,the court must be specific as to its court reporting needs
and expected results.
The ITB process is usually less time consuming than an RFP. The
evaluation and award are based upon definitive standards outlined
in the bid document. Awards are made to the lowest responsive
and responsible bidder. The bid document and successful bidder's
response become the contract.
An ITB for court reporting services contains some of the same
information that is provided in an RFP. For example, ITB's should
include a statement of contract duration, methods for invoicing and
payment, descriptive information,and the laws and rules relevant
to the court reporting function. In addition, ITB's should contain
certain detailed, specific information, including the following:
(1) Contract Terms
An ITB should list all terms and conditions that will be
included in the contract document to be executed upon
award to the lowest responsive and responsible bidder.
_ (2) Divisions and Proceedings to be Recorded
The ITB should identify the divisions to be covered and the
types of proceedings to be recorded. In addition, the ITB
should specify the methodology to be used in providing
court reporting services. For example, the court may
require that CAT technology be used to report proceedings
• in all circuit criminal divisions, and that electronic
.recording devices be used in certain low transcript volume
proceedings.
(3) Performance Standards
The ITB should specify the minimum performance
standards that the successful bidder will be expected to
maintain throughout the contract period. The standards
• should include all performance criteria that the court
considers essential to the satisfactory delivery of court
-(
23
reporting services.The ITB should list all training and
qualification specifications required of the contractor's /
workforce and the level of productivity at which each
individual worker is expected to perform.
•
- (4) Pricing Information
The ITB should specify the pricing information that each
responsive and responsible bid must contain.
c. Multiple Award Contracts
The court may consider issuing multiple award contracts—an
award of separate contracts to two or more bidders for the court
reporting services. This may be desirable in situations where the
award of a single contract would be impractical or not meet the
court's total requirements. For example, the individual bidders
may not have sufficient personnel resources to provide the level of
court reporting service that the court's workload requires. Multiple
award contracts may be preferred depending on market conditions
and the contracting authority's needs.
Multiple award agreements are an accepted method of public
contracting. The ITB is used in the multiple award process. Court
reporting firms would be invited to reply to an ITB. All responses
meeting the criteria established in the ITB would be considered
successful:
Use of multiple award contracts usually provide for pre-qualifying
of bidders. Generally accepted standards relating to the service
needed should be used. In the case of court reporters, it could
include,at a minimum,nationally recognized levels of
certification,a documented ability to perform under the terms of
the agreement,and acceptance by the bidder of the contract
agreement that will be used by the parties. The court would then
be free to select from among several court reporting firms
• responding to the ITB and meeting the qualifications. Since prices
may differ from bidder to bidder,the court may realize a cost
savings by selecting the lowest price competitor. When rival firms
r- know up front that there will be open selection by the court, there
is often incentive to provide a higher level of services at:.
competitive prices.
24
•
C. The Hybrid Approach: The Use of Both Employees and Independent
Contractors
It is conceivable that circuits may elect to use county employees in one division or
county and independent contractors in another. For example,a county may wish
to employ CAT reporters in circuit criminal and bid out juvenile,county court,
' criminal traffic or depositions. Another scenario may be in a multi-county circuit
where one county may wish to employ court reporters and the others may want to
use independent contractors. .Each option is permissible as long as compliance
with state and federal law is assured.
V. TRANSITION TO A NEW DELIVERY SYSTEM
A. Considerations
As indicated in the introduction to these guidelines, the opinion of In Re: Florida
Rules of Judicial Administration—Court Reporting requires each judicial circuit
to develop an administrative plan to deliver court reporting services. Each court
should allow several months for a transition period from their existing system to
either the county employee or independent contractor approach,or a hybrid
thereof. The following is a summary of key components of the administrative
plans along with a suggested timetable.
1. General Description of Method of Service Delivery
Administrative plans should identify whether court reporting services will
be delivered by employees, independent contractors, or a combination
thereof. If a combination is used, the plan should specify the method of
service delivery by county and/or division.
Administrative plans should address the general needs,workload and
staffing requirements under an employment approach, or the coverage
requirements under an independent contractor approach. The plan should
be developed in consideration of costs in other circuits. Costs associated
with six employee-based court reporting systems are included in the
Appendix.
•
2. The Employment Method
If court employees are used, the following elements should be addressed in
the administrative plan: .
•
( 25
LI
•
I__
•
• Staffing Plan •
• number of positions,by type
• salary ranges
• job descriptions
• qualifications of positions
• testing(if any)
• method of advertisement and recruitment
• screening of applicants
• new employee orientation
• Management and Operating Procedures
• reporting/organizational structure
• roles of deputy court administrators/managers
• assignment and scheduling
•• supervision/discipline
• special provisions/uses of staff •
• back-up policies
• use of temporary help
Facilities and Equipment
• location of court reporters •
• acquisition of CAT/stenographic equipment
• acquisition of electronic recording equipment
• equipment quality and specifications standards
• peripheral equipment(facsimile and photocopier machines and
other office equipment)
Budget
• identification of public expense court reporting cost centers
•
(includes state attorney,public defender, and county budgets)
• use of state pass-through funds4
• one-time/start-up expenses
• recurring salaries and expenses
:
• calculation of present versus future costs
• other cost considerations
•
'Contingent upon changes in Chanter 29,Florida Statutes,and the General Appropriations Act,state court reporter finds will be passed
directly to the circuits. These funds will be allocated based upon an equitable distribution.
26
_7.. Timetable
�_.. • divisional phase-in
• allowance for recruitment
• county budget approval
• Transition From Existing Systems
- • acquisition of existing court reporter notes/diskettes
• ownership of the record
B. The Independent Contractor Method
If independent contractors are used, the following should be addressed in the
administrative plan: •
Means of Solicitation
• • selection of Request For Proposal, Invitation to Bid, or Multiple
Vendors
Contract Requirements
• review of specifications/requirements
• criteria for selection
• term of contract(number of years)
' Contract Management
• role of trial court administrator/deputy court administrator
• provisions for audit and breach of contract
Estimated Budget
• selection of fixed, capped,or open ended costs .
Timetable
• allowance for procurement negotiations
• • county budget approval
Transition From Existing System
•' selection of workshop team .
• policy regarding existing reporter notes
VI. SUGGESTED DATA ELEMENTS
Monitoring court reporter time and workload, both in and out of court,will greatly assist
the management of court reporting services. Along with knowing judicial calendars and
divisional coverage needs, it is helpful to collect reporter-specific information. The
/
• 27
ii
•
•
following is a set of data elements that should be maintained and collected to assist the
court in providing adequate coverage and in controlling costs. >>
A. Reporting and Transcript Production
• Number of hours spent reporting proceedings in court, by division or type
of proceeding or both.
• Number of hours spent producing transcripts, by case type, division or type
of proceeding or both.
• Number of hours spent recording depositions (if applicable).
• Number of transcripts actually requested by agency(e.g., state attorney,
public defender or county government).
• Number of hours spent producing deposition transcripts
• Number of transcript pages produced for the state attorney and public
defender's office..
• Number of transcript pages produced for trials.
• Number of transcript pages produced for appeals. •
B. Cost
• Total amount billed for transcripts by fiscal year for public defender's
office.
• Total amount billed for transcripts by fiscal year for state attomey's office.
• Total amount billed for duplicate copies of transcripts for all entities.
C. Expedited Requests and Extensions
•
• Number requests for expedited or daily copy.
• Time from request for transcript to completion.
• Number of extensions requested by court reporter.
• Average number of days for extensions.
28
•
• Number of complaints about the timeliness of delivery.
•
• Number of complaints about the quality of the transcript.
D. Freelance Reporters
• Number of freelance reporters used.
• Number of hours (actual) spent reporting depositions or in-court
proceedings.
•
• Number of transcript pages produced for in-court proceedings.
• Number of transcript pages produced for appeal.
• Amount paid for appearance and/or per diem fees.
• Amount paid for transcript pages.
• Number of requests for extension.
E. Scopists/Typists/Other Support Personnel
• Number of pages scoped,by scopist.
• Number of reporters serviced.
•
• Number of transcript pages typed.
• Number of hours of on-call reporter time used because of caseload
demands.
F. Overtime
• Number of overtime hours worked.
• Compensation for overtime hours worked,by position.
'--` 29
VII. Auditee Responses
MARK H. JONES
CHIEF JUDGE
SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA
MONROE COUNTY COURTHOUSE ANNEX
i KEY WEST, FLORIDA 33040
SANDRA S. BAZO
LINDA M. YAKEL TEL: 305/292-3422
JUDICIAL ASSISTANTS FAX: 305/295-3625
MEMORANDUM
To: Danny L. Kolhage, Clerk of the Circuit Court
From: Mark H. Jones, Chief Judge'
Date: June 5, 2000 •
Re: Response to Final Audit Report of Certain Court Reporting
Revenues & Expenditures
This memorandum contains the responses of the 16th Judicial Circuit,
subsequent to our meeting on June 2, to the findings contained in the Final Audit
Report of Certain Court Reporting Revenues & Expenditures, the preliminary
report of which you provided to me on or about March 20, 2000. These
responses are the product of a substantial amount of research and investigation
as well as consultation with legal and other related staff members at the Office
of the State Courts Administrator. Prior to specifically addressing each individual
finding, I believe that it would be helpful to provide some background
information regarding the development and implementation of the 16th Judicial
Circuit's court reporting services plan.
On February 23, 1995, the Supreme Court of Florida found that an
-, emergency existed in the state's court reporting system and ordered each chief
judge to develop a circuit plan for providing court reporting services. The plans
were.to be consistent with the Fair Labor Standards Act as well as other state
and federal laws. Upon receipt of the order of the Supreme Court of Florida, the
court administrator's office for this circuit began to gather information on the
various costs associated with court reporting throughout the county. On May 10
and 11, 1995, the Office of the State Courts Administrator sponsored a
conference on court reporting to assist the circuits in developing a plan in
compliance with the Supreme Court order. The chief judge, court administrator,
1
and two of the official court reporters for the 16th Judicial Circuit attended that
conference.
One of the major challenges facing the 16th Circuit in implementing a
court reporting services plan, which changed the status of official court reporters
to employees, was the fact that at the time, there was a limited number of court
reporters in Monroe County. This set of circumstances had a direct impact on
the availability and cost of hiring competent court reporters. On May 23, 1995,
in order to ensure continuity of court reporting services, the chief judge and
court administrator met collectively and individually with the circuit's four official •
court reporters to achieve consensus for the employee model and to negotiate
the terms and conditions of their employment. The circuit's original court
reporting plan effective July 1, 1995 reflects the results of those negotiations.
Since that time, the plan has been amended in 1995, 1998 and 1999 in a
continuing effort to provide court reporting services in the most efficient and cost
effective manner possible.
Findings: Section A.1. Florida Keys Reporting, Inc., Unnecessary expenditure
for criminal depositions
Response:
1. The original court reporting services plan did not specifically address the
responsibility of employee court reporters regarding depositions taken by the
State Attorney's Office (SAO). Court Administration did, however, send a
copy of the plan (Administrative Order 2.039, In re: Court Reporting Services
P/an) to all appropriate officers, agencies, and parties including the SAO at
the time of its recording with the Clerk of the Court. When the SAO entered
a contract with Florida Keys Reporting, Inc. (FKR) to provide "court reporting
services", Court Administration did not receive a copy of the contract and the
SAO did not initiate communication with Court Administration regarding the
use of employee court reporters for their depositions. In retrospect, this is
one aspect of a complex and multi-faceted court reporting services plan
where there should have been better coordination between the Circuit and
the SAO.
2. Administrative Order 2.039 will be amended to specifically
p y provide that the
reporting of those criminal depositions taken by the SAO for which Monroe
County has the responsibility to pay are part of the regular duties of
employee court reporters when they are available. In addition, employee
court reporters will be prohibited from reporting these depositions, outside
the scope of their employment, as private, independent contractors.
2
if
Findings: Section A.2. Florida Keys Reporting, Inc., Misleading invoices
submitted
Response:
1. Court Administration never specifically instructed the former Court Reporting
Manager and Administrative Order 2.093 did not specifically provide that
employee court reporters were prohibited from attending and reporting
criminal depositions under Florida Keys Reporting, Inc.'s contract with the
SAO. Clearly, there was a great deal of confusion regarding this work.
The invoices described as "nonspecific"did not appear so at the time they
were accepted, reviewed, and approved by Court Administration. Following
Court Administration's submission of invoices for payment, another level of
review takes place in Monroe County's Finance Department. The invoices
discussed herein were also reviewed at that level apparently without notice or
concern as to the documentation. Court Administration will continue to
attentively scrutinize all invoices, of which there are literally thousands, prior
to approval for payment.
Findings: Section A.3. Florida Keys Reporting, Inc., Monroe County employees
subcontracting for Florida Keys Reporting
Response:
1. The court reporter employees were not independent contractors for the 16th
Judicial Circuit under the arrangement described. The employees may have
been working as independent contractors for FKR performing work for the
SAO for which ultimately Monroe County was liable. However, as has been
noted, this was obviously a complex and confusing area for all parties involved
and it was not clearly defined in the court reporting plan that the employees
were responsible for covering this work as time allowed. Further, the
reporting and transcription of criminal depositions for the SAO would represent
only a small fragment of the employee court reporters' overall responsibilities.
For the Court, there is no blurring of these employees' status under the Fair
Labor Standards Act (FLSA) —they are clearly employees and are not being
treated as independent contractors by the Court. As has been previously
stated, the Court will clarify the obligation of the employee reporters to report
depositions for the SAO.
Findings: Section A.4. Florida Keys Reporting, Inc., Multiple invoices submitted
for the same work
Response:
3
hI
1. Court Administration accepts, reviews, and approves invoices for payment for
the 16th Judicial Circuit with intense scrutiny and attention to detail. It is
regrettable and unfortunate that out of millions of dollars worth of invoices
reviewed over more than seven years, mistakes were made causing a few
invoices to be paid twice. Following Court Administration's submission of
invoices for payment, another level of review takes place in Monroe County's
Finance Department. The invoices discussed herein were also reviewed at
that level. Court Administration is committed to exploring cost effective
processes that provide 100% error free invoice submission. When Court
Administration discovers errors made causing double payment, every effort is
• made by court staff (with a great deal of success thus far) to collect the
duplicate payment. In the instance of the $1,957.50 double payment, the
duplicate payment was discovered rather quickly, either by the vendor, Court
Administration or the Clerk's Office, since the vendor issued a reimbursement
check eight days after the duplicate payment was made. As to the $72.00
double payment, Court Administration has requested that the Clerk research
whether the vendor reimbursed the second payment. If the vendor has not
reimbursed the $72.00, Court Administration will attempt to collect.
Findings: Section A.S. Florida Keys Reporting, Inc., Noncompliance with state
contract
Response:
1. Court Administration has no authority or control over this contractual
relationship.
•
Findings: Section B.1. Former Court Reporting Manager - ?
Response: In view of the fact that the draft audit did not reveal this finding(s),
it is not possible for the Circuit to formulate a response.
Findings: Section B.2. Former Court Reporting Manager, Personal work
performed on the job
Response:
1. In terms of almost any criminal transcription (aside from work performed
under FKR's contract with the SAO), the employee court reporters would have •
been completing work well within the scope of their duties and there would
have been instances when schedules would legitimately need to be adjusted
to meet time deadlines for filing criminal transcripts. It is contrary to court
policy for employees to perform personal work while on the job. If this
� f 4
I�
occurred, it did so without the knowledge, authorization or consent of the •
Court Administrator.
Findings; Section B.3. Former Court Reporting Manager, Private court reporters
hired to cover criminal proceedings
Response:
1. The Court has made, and continues to make, every effort to ensure that
reporting services are rendered efficiently and economically, keeping a
watchful eye on minimizing utilization of private court reporters. The unique
geographical configuration of the 16th Judicial Circuit requires at times that
court reporters be in attendance in several different courts at all three
courthouse facilities throughout the Keys simultaneously. In addition,
changes in schedule often occur: Hearings get cancelled, cases are settled or •
take longer than expected; emergencies arise that may require a reporter for
reporting or transcription; transcription deadlines for the 3rd District Court of
Appeals loom. All of these demands and vagaries of the system, coupled
with limited court reporting resources, require daily and sometimes hourly
judgment calls as to how, when, and where to utilize the employee reporters
and when to call in outside help. It is not an exact science. The Court
Reporting Manager was and is the most knowledgeable and experienced
individual to make those calls. In terms of the court reporting costs in
question, it is relatively easy to second-guess decisions which were made at
the time. However, the Court is unable to identify an adequate factual basis
upon which to conclude that these costs were incurred needlessly or as the
result of mismanagement. Nonetheless, in order to impose even tighter
control, the Court will be formally establishing a threshold amount beyond
which managers will be required to seek approval from the Court
Administrator prior to procuring goods or services. •
Findings: Section B.4. Former Court Reporting Manager, Employee civil
reporting continued after Amendment 98-1
Response:
1. Court Administration was acutely aware that following the signing of
Amendment 98-1 to the court reporting plan, there was a transition period
during which time judges, attorneys, employee reporters, and private
reporters experienced a delay in ultimately understanding, acclimating to, and
strictly adhering to the new policies. The Amendment presented a significant
change in the procedure for obtaining court reporting coverage for civil
5
proceedings, requiring a period of adjustment for all participants to adapt.
Every effort was made not to continue cases that were ready for hearing or
- trial just because an attorney may have forgotten to get a reporter and no
private reporters were available on the spur of the moment. This effort
included utilizing employee reporters as a last resort. Further, as recently as
five months ago, the court was still conducting legal research and fine-tuning
the plan to clarify what non-criminal court events should be expected to be •
covered by employee reporters. However, during the transition, it was clearly •
the Court's expectation that the Court Reporting Manager would still oversee
the program's first priority— insure that the circuit courts had court reporting
coverage.
_ Findings: Section B.5. Former Court Reporting Manager, Employees doing
business with their own governmental agencies
Response:
1. It is the opinion of the 16th Judicial Circuit that the set of circumstances
described herein does not violate Florida Statutes. The"agency"of the
employee reporters is the State of Florida State Courts System 16th Judicial
Circuit, not Monroe County and not the State Attorney's Office. However, in
an abundance of caution, the Court will seek a legal opinion and act in
accordance therewith.
Findings: Section B.6. Former Court Reporting Manager, Financial disclosure
for employees with $1000+ purchasing authority
Response:
1. Court Administration will seek a legal opinion regarding which employees
must file the Statement of Financial Interest (Form 1). However, as noted in
the Court's response to the Finding in Section B.3, the court will be
establishing a threshold amount beyond which managers will be required to
seek approval from the Court Administrator prior to procuring any goods or
services which could render this issue moot. Please note that the threshold
amount for purchasing authority as it relates to this issue was raised to
$15,000 during the 1999 legislative session (Section 287.017(1)(a), Florida
Statutes).
Findings: Section B.7 Former Court Reporting Manager, Time keeping for part-
time employees
Response:
6
1. Court Administration was not aware of any other method being utilized for
time keeping for part-time employees and did not approve nor authorize any
other method. It has always been the 16th Judicial Circuit's policy under
Section 4.05, Florida State Courts System Personnel Regulations Manual, for
employees to keep an accurate record of their hours worked. Court
Administration was not advised by the Court Reporting Manager or by any
part-time employee that an alternative time keeping method was being used.
The Circuit does not now employ, nor has it employed for over a year, part-
time personnel for court reporting services.
2. Court Administration will seek a legal opinion regarding whether the former
Court Reporting Manager's time keeping method for part-time court reporters
complied with the Fair Labor Standards Act. It is highly improbable that
Monroe County would be liable for any additional compensation to the
affected part-time employees since compensation would only need to be
made if any of the employees actually performed over forty hours of court
work in a workweek and could provide documentation reflecting same.
Findings: Section B.8. Former Court Reporting Manager, Missing Circuit Court
property
Response:
1. Exit procedures, including signed receipts, are and have been in place for
several years to ensure recovery of the court's property from employees
before their separation from the agency. In this particular instance,
numerous attempts were made to locate and retrieve the disks described. A
meeting was held between the Court Administrator, the Chief Judge and the
former Court Reporting Manager at which time.a request for assistance from
the former Manager was made as to locating the missing disks. The former
Court Reporting Manager agreed to assist and physically escorted the Chief
Judge and Court Administrator to the last location of the disks to her
knowledge, pointing out exactly where she had placed them. The disks'
disappearance remains a mystery. The actual court reporting paper notes,
however, are in the court's possession having been left by the former Court
Reporting Manager and retained in storage for back up purposes.
Findings: Section B.9. Former Court Reporting Manager, Monroe County phone
number in private business advertisements
Response:
1. It has always been the policy of the 16th Judicial Circuit, albeit unwritten, to
- prohibit employees from using their court work telephone number in
�._� 7
I—
advertisements for private business. As well, employees have always been
prohibited from conducting private business on work time. Court
Administration had no knowledge of these activities nor approved them.
Findings: Section B.10. Former Court Reporting Manager, Unlawful travel
reimbursements
Response:
1. Court Administration will exercise care when approving expense
reimbursements for outside contractors.
2. Consistent with the procedures in the Court Reporting P/an (paragraph 7), it
was the Court Reporting Manager's responsibility to insure coverage for civil
court hearings and it was the historical expectation of the civil justice
community that the Court would insure these hearings would be covered by a
reporter. Due to the limited number of local freelance court reporters and
private court reporting firms, the manager was given permission to seek
assistance from outside the county which necessitated guaranteeing travel
expenses. Certainly, the system would not have been well served by
continuing civil cases simply because there was no way to report them.
However, there does not appear to be any rule, statute or other provision
which specifically authorizes these travel expenses to be paid by the County.
Accordingly, efforts will be made to recover the travel expenses in question.
Findings: Section C.1. Guidelines and Policy Considerations, Selecting temporary
court reporting help
Response:
1. There was no favoritism towards Florida Keys Reporting; it was the only
provider physically located in the Upper Keys and available on short notice to•
provide coverage in Plantation Key. Given the geographic constraints, there
could be no expectation that providers would travel 177 miles roundtrip from
Key West or 80 miles roundtrip from Marathon to cover hearings and
obviously they couldn't provide services within minutes of a request. The
Court was always mindful of travel costs (including time and mileage) and
availability of focal and employee reporters when scheduling for outside
reporters for Plantation Key. In addition, over time, quite a few providers
would not accept work covering circuit court in Plantation Key despite the
former Court Reporting Manager's efforts to develop and maintain positive
working relationships with providers. Florida Keys Reporting was willing to
work in the Plantation Key circuit court, proved prompt.and reliable, and
provided quality work for the Court. The current Court Reporting Manager
will be directed to develop lists by geographical area of available providers
!
8
acceptable to the Court and rotate temporary work at the respective
courthouses among them.
Findings: Section C.2. Guidelines and Policy Considerations, Electronic recorder •
operators
Response:
1. Administrative orders (currently, #2.012 and #2.013) were originally issued
in the 16th Judicial Circuit in the early 1980's authorizing and outlining the
provision of electronic recordation services for both courtroom proceedings
and depositions. Though the Circuit has a considerable amount of experience
(over twenty years) in this method of reporting and continues to utilize it to
the fullest extent possible, certain problems have arisen and the method is
not always reliable. In attempting to use the method for"proceedings that
typically generate few transcripts"one may not always "guess"correctly
which proceeding that might be. For example, while recordation is used
almost exclusively for misdemeanor proceedings an appeal (which always
requires a transcript) could be filed in any misdemeanor jury trial. The circuit
has experienced numerous problems in attempting to create a record on •
appeal from misdemeanor trial recordation. If a record is not available or is
not clear, the appellate court sends the case back to the lower court to
determine a set of facts stipulated by both the prosecution and the defense.
These stipulated facts are then to be sent back up to the appellate court so
that they may determine the merits of the appeal. It has been the
experience of county court that such a stipulation by the defense never
occurs. Thus, there is no choice but to dismiss the case against the criminal
defendant no matter how strong the evidence might have been.
Notwithstanding these critical problems, the Circuit is committed to
continuing to iron out the wrinkles in the existing recordation program and to
utilize it where and when possible. Concurrently, the Circuit is exploring the
feasibility of replacing the existing analog equipment with new, more reliable
digital recordation technology. This may necessitate the purchase of
technical assistance services as well.
Due to the Circuit's geographical configuration, resulting in three
courthouse locations, providing no economy of scale, the lack of technical
resources, and the onslaught of emerging recordation technologies, there
does not appear to be reliable cost benefits at this time to purchasing the
services of a recordation system's manager, operators, technicians, and
transcriptionists, all of whom are necessary for an expanded recordation
program. To date, Deputy Clerks have acted as in-court electronic operators
at the county court level (at no additional expense to the county).
It should be noted that the 16th Judicial Circuit authorized the use of
electronic recording equipment in the taking of depositions by the Office of
9
•
the Public Defender in 1981. Since that time, the Circuit has expanded not
only the program but also the court's oversight of the program to reduce and
control costs for the county. Many judicial circuits in Florida do not provide
such services for their respective counties.
Findinas: Section C.3. Guidelines and Policy Considerations, Reconsideration of
employee court reporters
Response:
1. The Court Administrator monitors court reporting detailed expenses every
month as well as scrutinizes, prior to approval, every payment for court
reporting expenses. Expenses are also analyzed in conjunction with annual
budget preparation. The assessment of the delivery of court reporting
services is constant and ongoing.
When the initial court reporting plan was developed, court reporting
providers, the chief judge, and the court administrator critically reviewed the
Supreme Court guidelines and attended various workshops at a statewide
conference on the required change in the delivery of court reporting services.
Meetings were held with officials and judges, negotiations were conducted
with providers, a detailed expense analysis was undertaken and revenues
were projected. It was clear that the plan was the most cost effective for the
16th Judicial Circuit. Continuously since that time, the Court and Court
Administration have regularly reviewed how services are provided. This is
illustrated by the changes in the way civil matters are reported -- changes •
that were contemplated in early 1997 (less than two years after the Supreme
Court order requiring the plan) and finalized in 1998. And although it is a
matter of fact that court reporting is inherently expensive, the Circuit
continues to look for ways to economize these statutorily required services.
10
OAK S(
MARK H. JONE S
CHIEF JUDGE
SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA
MONROE COUNTY COURTHOUSE ANNEX
KEY WEST, FLORIDA 33040
SANDRA S. BAZO
LINDA M. YAKEL TEL: 305/292-3422
JUDICIAL ASSISTANTS MEMORANDUM FAX: 305/295-3625
I `
To:. Danny L. Kolhage, Clerk of the Circuit Court
From: Mark H. Jones, Chief Judge
Date: June 9, 2000
Re: Preliminary Audit Report of Findings Previously Omitted
This memorandum contains the responses of the 16th Judicial Circuit to the findings contained in
the Preliminary Audit Report of Findings Previously Omitted which you first provided to me on
June 7, 2000. This response should be considered in conjunction with the previous response
memoranda which have been submitted to you.
Findings:,. Section B.1.a. Former Court Reporting Manager, Working second jobs on Monroe
County time— leave not taken
Response:
1. At the time in question (and to this date), the 16th Judicial Circuit had in effect a clear
prohibition against the performance of outside work by employee court reporters except
while on annual leave or compensatory leave or after regular office hours. The instances
set forth in the audit where this prohibition was apparently violated occurred without the
knowledge, consent, approval or authorization of Court Administration.
2. The 16th Judicial.Circuit is committed to ensuring that employee time records are accurate.
Adherence to proper policies and procedures regarding the maintenance of employee time
sheets has been and will continue to be emphasized to both employees and supervisors.
Court Administration will closely monitor compliance.
3. Court Administration is committed to working with Monroe County in pursuing restitution
from the court reporter employees and is now in a position to do so having received the
findings which were omitted from the previous preliminary audit report.
I i
Findings: Section B.1.b. Former Court Reporting Manager, Working second jobs on Monroe
County time—ambiguous work status
Response:
1. See response to Section B.1.a. above.
2. Court Administration is committed to working with Monroe County in pursuing
restitution from the appropriate civil attorneys and is now in a position to do so having
received the findings which were omitted from the previous preliminary audit report.
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