Filed: Nov. 14, 2018
Latest Update: Mar. 03, 2020
Summary: Third District Court of Appeal State of Florida Opinion filed November 14, 2018. Not final until disposition of timely filed motion for rehearing. _ No. 3D18-780 Lower Tribunal No. 17-1318 _ Javier Cuenca, Appellant, vs. State Board of Administration, Appellee. An Appeal from the State Board of Administration. Law Offices of Slesnick and Casey, LLP, and James C. Casey, for appellant. Ruth Ann Smith (Tallahassee), Assistant General Counsel; Pennington, P.A., and Brian A. Newman (Tallahassee) and
Summary: Third District Court of Appeal State of Florida Opinion filed November 14, 2018. Not final until disposition of timely filed motion for rehearing. _ No. 3D18-780 Lower Tribunal No. 17-1318 _ Javier Cuenca, Appellant, vs. State Board of Administration, Appellee. An Appeal from the State Board of Administration. Law Offices of Slesnick and Casey, LLP, and James C. Casey, for appellant. Ruth Ann Smith (Tallahassee), Assistant General Counsel; Pennington, P.A., and Brian A. Newman (Tallahassee) and B..
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Third District Court of Appeal
State of Florida
Opinion filed November 14, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-780
Lower Tribunal No. 17-1318
________________
Javier Cuenca,
Appellant,
vs.
State Board of Administration,
Appellee.
An Appeal from the State Board of Administration.
Law Offices of Slesnick and Casey, LLP, and James C. Casey, for appellant.
Ruth Ann Smith (Tallahassee), Assistant General Counsel; Pennington,
P.A., and Brian A. Newman (Tallahassee) and Brandice D. Dickson (Tallahassee),
for appellee.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
ROTHENBERG, C.J.
Javier Cuenca (“Cuenca”), a former employee of the Miami-Dade County
Public Schools (“MDCPS”), seeks judicial review of the final order entered by the
State Board of Administration (“State Board”), concluding that pursuant to section
112.3173(3), Florida Statutes (2012), Cuenca has forfeited his rights and benefits
under the Florida Retirement System (“FRS”) Investment Plan, except for the
portion of his accumulated contributions, because he was convicted of a “specified
offense” committed prior to his retirement as defined in section 112.3173(2)(e)6.,
Florida Statutes (2012). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 7, 2017, the State Board notified Cuenca that pursuant to
section 112.3173 he had forfeited his rights and benefits under the FRS Investment
Plan as a result of his October 4, 2016 plea of nolo contendere to two counts of
felony battery in case number 14-25626 for acts committed while employed by
MDCPS and demanded that Cuenca return the distributions he had received,
except for his employee contributions. After receiving the State Board’s notice,
Cuenca requested a formal hearing before the Division of Administrative Hearings
(“DOAH”).
At the formal hearing before DOAH, the State Board introduced into
evidence, among other things, the following: (1) the transcript of the sworn
statement of one of the victims, D.F., made prior to Cuenca’s arrest in case number
14-25626; (2) the original information filed against Cuenca relating to D.F.; (3) the
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arrest affidavit relating to D.F.; (4) the transcript of D.F.’s deposition conducted by
Cuenca’s counsel following Cuenca’s arrest; (5) the consolidated information
resulting from Cuenca’s negotiated plea; and (6) the transcript of Cuenca’s plea
colloquy. In addition, several witnesses testified at the hearing, including Cuenca
and the prosecutor involved in Cuenca’s criminal case.
The evidence presented at the hearing reflects that Cuenca was employed by
MDCPS in various positions, including as a basketball coach. After four of
Cuenca’s basketball players alleged that he had sexually harassed and/or assaulted
them, Cuenca was charged in four separate cases with lewd and lascivious
molestation on a child twelve years of age or older but less than sixteen years of
age, attempted lewd and lascivious molestation on a child twelve years of age or
older but less than sixteen years of age, or lewd and lascivious conduct on a child
over sixteen years of age by a defendant over eighteen years of age.
D.F.’s sworn statement and/or deposition reflect that Cuenca was D.F.’s
basketball coach starting when he was in the seventh grade at a Miami-Dade
County middle school, and Cuenca also coached D.F. when he was in the ninth
grade at a Miami-Dade County high school. While D.F. and Cuenca were alone in
a classroom when D.F. was in the ninth grade, Cuenca asked D.F. to see what he
referred to as D.F.’s “virgin line.” Cuenca explained to D.F. that by looking at
D.F.’s penis, he could tell whether or not D.F. was a virgin and this was important
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because having sex would adversely affect D.F.’s basketball performance.
Because Cuenca had repeatedly asked D.F. to let him see his “virgin line” and D.F.
was tired of being repeatedly asked, D.F. pulled down his shorts and exposed his
penis. However, when Cuenca attempted to touch D.F.’s genitals, D.F. swiped
Cuenca’s hand away before Cuenca was able to touch him, pulled up his pants, and
left the classroom. D.F. did not initially report this incident. The evidence also
reflects that Cuenca asked D.F. if he wanted to take an enhancement drug that
would make him stronger and bigger. At first, D.F. said that he did, but after
Cuenca told D.F. that he would have to constantly check D.F.’s testicles while on
the drug, D.F. decided to not take the enhancement drug because he did not want
expose his genitals to Cuenca.
In addition to the original information relating to D.F., the police reports, the
consolidated information, D.F.’s sworn statement, the prosecutor’s testimony, and
the judgment showing Cuenca’s convictions for two counts of felony battery, the
State Board also introduced a transcript of the plea colloquy, which reflects that
Cuenca entered into a negotiated plea on October 4, 2016. The transcript reflects
that although Cuenca was willing to change his plea from not guilty to one of no
contest, Cuenca was unwilling to plea to any charge that would designate him as a
sexual offender or to any charge he believed would later prohibit him from sealing
his criminal record. Thus, the State agreed to consolidate the four cases involving
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four separate victims into a single four-count information under case number 14-
25626, dismiss two of the four counts, and amend the two remaining counts
relating to victims D.F. and O.Q. to charge felony batteries, in exchange for
Cuenca’s plea of nolo contendere to two counts of felony battery, and Cuenca’s
agreement to waive any defects in the new charging document or the arrest forms
and to stipulate that there was a prima facie factual basis for the negotiated plea.
Pursuant to the negotiated plea, Cuenca pled nolo contendere to the two counts of
felony battery, stipulated that there was a factual basis to support his plea, waived
any and all defects in the amended information, and agreed, among other things,
that during the term of his probation, he could not: have any unsupervised contact
with any minor; reside in a setting with minors; or teach, volunteer, coach, or
engage in any activity that would place him in a position of authority over minors.
Based on the negotiated plea, the trial court found Cuenca guilty of the two counts
of felony battery and withheld adjudication.
In addition to the plea colloquy and other documentary evidence, Cuenca
and the prosecutor who investigated the case and negotiated the plea with Cuenca,
testified at the formal hearing. Cuenca admitted that he was D.F.’s basketball
coach at a Miami-Dade County public middle school and high school, and that he
was aware of the allegations made by D.F.—that he had asked D.F. to pull down
his shorts, and thereafter, he had attempted to touch D.F.’s genitals. Cuenca also
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acknowledged that he was able to be at the high school because he was a basketball
coach at the school, and he additionally acknowledged that he entered into the
negotiated plea to resolve the pending criminal charges, including those relating to
D.F.
Following the hearing, the ALJ entered its recommended order making
numerous factual findings, including that Cuenca was an employee of MDCPS and
that Cuenca pled nolo contendere to two counts of felony battery, which constitutes
a “conviction” pursuant to section 112.3173(2)(a).1 However, in its conclusions of
law, the ALJ determined that despite its determination that Cuenca was an
employee of MDCPS at the time of the offenses, the State Board failed to establish
the “nexus” requirement for forfeiture under section 112.3173(2)(e)6., and
therefore, Cuenca had not forfeited his FRS benefits. Specifically, the ALJ
determined that the record lacked competent, substantial evidence of Cuenca’s
conduct, the circumstances, and the location associated with Cuenca’s crimes.
Additionally, despite concluding that Cuenca “had a duty to the public to safeguard
students,” the ALJ determined that the “record fail[ed] to meet the statutory
1 Section 112.3173(2)(a), Florida Statutes (2012), provides as follows:
(2) DEFINITIONS.—As used in this section, unless the
context otherwise requires, the term:
(a) “Conviction” and “convicted” mean an adjudication of guilt
by a court of competent jurisdiction; a plea of guilty or of nolo
contendere; a jury verdict of guilty when adjudication of guilt is
withheld and the accused is placed on probation; or a conviction by
the Senate of an impeachable offense.
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requirement and demonstrate any nexus between the crimes charged against
[Cuenca] and his duties as a coach because no factual basis was established . . .
between the offenses committed and [Cuenca’s] position as a coach.” In reaching
its conclusions, the ALJ found persuasive and relied on Rivera v. Board of
Trustees of the City of Tampa’s General Employment Retirement Fund, 189 So. 3d
207 (Fla. 2d DCA 2016).
Cuenca and the State Board did not file exceptions to the ALJ’s
recommended order. The matter then went before the State Board for final agency
action. In its final order, the State Board adopted the ALJ’s factual findings and
rejected a portion of the ALJ’s conclusions of law, including that the State Board
failed to establish the requirements for forfeiture under section 112.3173(2)(e)6.,
and therefore, Cuenca had not forfeited his FRS benefits. The State Board also
found that the ALJ’s reliance on Rivera was misplaced, and included the following
additional conclusions of law:
50. School teachers and coaches occupy a unique position with
respect to minors, as they act in loco parentis to the students and
players that they teach or coach. . . . Thus, [Cuenca], as a basketball
coach acting in loco parentis, was an authority figure who had ample
opportunities to engage in inappropriate contact with the students he
coached because of his public position.
....
59. In this matter, [Cuenca] by virtue of his public employment
exercised a position of authority over the minor victim he taught and
coached. . . .
60. The evidence is sufficient to establish a nexus between the
offense(s) to which [Cuenca] pled and [Cuenca’s] public employment.
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As such, the requirements of Section 112.3173(2)(e)6., Florida
Statutes, are satisfied, and [Cuenca’s] rights and benefits under the
FRS Investment Plan must be forfeited.
Cuenca’s appeal of the final agency order followed. See § 120.68(1)(a), Fla.
Stat. (2017) (“A party who is adversely affected by final agency action is entitled
to judicial review.”).
ANALYSIS
Cuenca contends that the State Board erred by concluding in its final agency
order that Cuenca forfeited his FRS retirement benefits under the catch-all
forfeiture provision set forth in section 112.3173(2)(e)6. As will be discussed fully
below, we find no error.
Judicial review of the State Board’s final agency action is governed by
section 120.68 of Florida’s Administrative Procedure Act. See Bollone v. Dep’t of
Mgmt. Servs., Div. of Ret., 100 So. 3d 1276, 1279 (Fla. 1st DCA 2012); Simcox v.
City of Hollywood Police Officers’ Ret. Sys.,
988 So. 2d 731, 732 (Fla. 4th DCA
2008). The State Board’s final agency action may be set aside “only upon a
finding that it is not supported by substantial competent evidence in the record or
that there are material errors in procedure, incorrect interpretations of law, or an
abuse of discretion.” Hames v. City of Miami Firefighters’ & Police Officers’ Tr.,
980 So. 2d 1112, 1114 (Fla. 3d DCA 2008) (quoting Waters v. Dep’t of Health,
Bd. of Med.,
962 So. 2d 1011 (Fla. 3d DCA 2007)); see also § 120.68(7), Fla. Stat.
8
(2017). Further, “an agency’s interpretation of the statutes that it is charged with
administering is entitled to deference unless the agency’s interpretation is clearly
erroneous.” Bollone, 100 So. 3d at 1279.
A public employee’s forfeiture of rights and benefits under a public
retirement system is governed by article II, section 8(d) of the Florida Constitution
and section 112.3173 of the Florida Statutes. Article II, section 8(d) provides that
“[a]ny public officer or employee who is convicted of a felony involving a breach
of public trust shall be subject to forfeiture of rights and privileges under a public
retirement system or pension plan in such manner as may be provided by law.” To
implement this provision, the Florida Legislature enacted section 112.3173, which
provides, in part, as follows:
(3) FORFEITURE.—Any public officer or employee who is
convicted of a specified offense committed prior to retirement . . .
shall forfeit all rights and benefits under any public retirement system
of which he or she is a member, except for the return of his or her
accumulated contributions as of the date of termination.
§ 112.3173(3) (emphasis added). The term “specified offense” is defined in
section 112.3173(2)(e) and, as pertinent in this case, includes the following, which
is referred to as the “catch-all” forfeiture provision:
6. The committing of any felony by a public officer or employee
who, willfully and with intent to defraud the public or the public
agency for which the public officer or employee acts or in which he or
she is employed of the right to receive the faithful performance of his
or her duty as a public officer or employee, realizes or obtains, or
attempts to realize or obtain, a profit, gain, or advantage for himself or
9
herself or for some other person through the use or attempted use of
the power, rights, privileges, duties, or position of his or her public
office or employment position[.]
§ 112.3173(2)(e)6.
As explained by the First District Court of Appeal in Bollone, 100 So. 3d at
1280-81:
In order to constitute a “specified offense” under section
112.3173(2)(e)6., the criminal acts must be: (a) a felony; (b)
committed by a public employee; (c) done willfully and with intent to
defraud the public or the employee’s public employer of the right to
receive the faithful performance of the employee’s duty; (d) done to
obtain a profit, gain or advantage for the employee or some other
person; and (e) done through the use or attempted use of the power,
rights, privileges, duties, or position of [the employee’s] employment.
This determination is based on the “conduct of the public [employee], not by the
elements of the crime for which the [public employee] was convicted.” Id. at
1280 (emphasis added).
The evidence presented at the formal hearing satisfied each of the elements
set forth in Bollone. The criminal act was: (a) a felony; (b) committed by Cuenca,
who was a public employee with MDCPS; (c) done willfully and with the intent to
defraud Cuenca’s public employer—MDCPS—of the right to receive the faithful
performance of his duties; (d) done to obtain a gain or advantage for himself—
sexual gratification; and (e) done through the use of his power, rights, privileges,
duties or position as a coach and/or teacher for MDCPS.
Contrary to Cuenca’s argument, the State Board correctly rejected several of
10
the ALJ’s conclusions of law, including the ALJ’s finding that there was no nexus
between the criminal acts and Cuenca’s public employment with MDCPS. The
evidence presented at the formal hearing clearly established that Cuenca was
employed by MDCPS as a teacher and/or basketball coach. As a result of his
public employment with MDCPS, Cuenca was given access to the students he
taught and/or coached, and as a teacher and/or coach, Cuenca exercised a position
of authority over these students. Both the students and their parents expected that
while the students were in Cuenca’s care and under his supervision, he would
protect, not abuse the students or engage in inappropriate conduct with them.
Instead, while entrusted with the care and supervision of students, Cuenca chose to
engage in inappropriate conduct with students he coached, including D.F. Cuenca
called D.F. into a classroom or area of the school where nobody was present.
Cuenca then asked D.F. to show him his penis under the guise of checking for what
he called a “virgin line.” Because Cuenca had repeatedly asked D.F. to show him
his penis, D.F. finally acquiesced and lowered his shorts, exposing his penis.
Cuenca then attempted to touch D.F.’s genitals, but D.F. was able to slap Cuenca’s
hand away. Based on the evidence presented, the necessary nexus was clearly
established. Thus, the State Board correctly concluded in its final agency order
that Cuenca forfeited his FRS Investment Plan benefits under the catch-all
forfeiture provision, section 112.3173(2)(e)6.
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Although we have determined that the State Board correctly concluded that
Cuenca forfeited his retirement benefits, we briefly address Cuenca’s misplaced
reliance on Rivera. The Board of Trustees of the City of Tampa’s General
Employment Retirement Fund (“Board”) found that based on the evidence
presented: Rivera worked at the City of Tampa (“City”) Wastewater Department;
while working for the City, Rivera used a set of keys issued to him by the City to
access the wastewater pump stations; he was arrested at one of the City’s
wastewater pump stations after he was found on the premises; a subsequent
investigation revealed that Rivera had also taken other minors to the wastewater
pump stations to engage in unlawful sexual acts with several minor victims; and
Rivera pled guilty to: two counts of lewd and lascivious battery of a victim age
twelve to fifteen; one count of unlawful sexual activity with minors age sixteen to
seventeen; and four counts of lewd and lascivious molestation of a victim age
twelve to fifteen. Id.
Thus, the Board concluded that because: Rivera was convicted of specified
offenses as defined in section 112.3173(2)(e)7.; Rivera utilized the keys issued by
the City to enter the City’s property to commit the specified offenses; and Rivera
committed the offenses through the use or attempted use of the power, rights,
privileges, duties, or position of his public employment, Rivera had forfeited his
retirement benefits.
Id. Rivera appealed the forfeiture order.
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On appeal, the Second District Court of Appeal concluded that, although the
evidence established that Rivera was a public employee and he committed the
charged offenses, the Board failed to establish that there was a nexus between
Rivera’s position as a City employee and his commission of the offenses. This
finding was based on the Second District’s finding that the Board had failed to
introduce a transcript of the plea colloquy (which would have included either a
statement of the factual basis for the plea or a stipulation of the factual basis for the
plea), and that the only evidence presented was double or triple hearsay. Id. at
213. Although “[h]earsay evidence may be used for the purpose of supplementing
or explaining other evidence, [] it shall not be sufficient in itself to support a
finding unless it would be admissible over objection in civil actions.” §
120.57(1)(c), Fla. Stat. (2017) Thus, the Second District concluded that the
forfeiture order was not supported by competent, substantial evidence, and
reversed the Board’s forfeiture order.
Rivera, 189 So. 3d at 213.
Rivera, however, is factually distinguishable from the instant case. First, the
minor victims of the crimes Rivera pled guilty to were not in any manner related to
his position at the City’s Wastewater Department. Rivera’s position did not involve
safeguarding minors and did not place him in any position of authority over
minors. In contrast, Cuenca’s position as a basketball coach at a Miami-Dade
County middle school and high school put him in a position of authority over the
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students, including D.F. who he coached at middle school and high school.
Second, unlike in Rivera, where the required nexus was established solely through
hearsay, that was not the case here. The plea colloquy constitutes a statement
against interest and is non-hearsay evidence. Additionally, during the plea
colloquy, Cuenca stipulated that there was a factual basis for the plea and that the
charging documents and arrest forms provided a prima facie basis for the plea, and
the trial court additionally found that there was a prima facie basis for the
negotiated plea. Moreover, at Cuenca’s formal hearing, Cuenca testified and he
admitted that he had coached D.F. at a Miami-Dade County public school and that
he worked at a Miami-Dade County public school as a coach at the time he
committed the offense against D.F. Thus, the nexus between Cuenca’s position as
a public school coach and the charged offenses was establish by a combination of
both hearsay and non-hearsay evidence. We, therefore, conclude that Rivera is
distinguishable from the instant case and Cuenca’s reliance on Rivera is therefore
misplaced.
CONCLUSION
Based on the above analysis, we conclude that the State Board’s
determination that Cuenca forfeited his rights and benefits under the FRS
Investment Plan, except for the portion of his accumulated contributions, is
supported by competent, substantial evidence. We, therefore, affirm the order
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under review.
The remaining arguments raised by Cuenca do not merit discussion.
Affirmed.
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