STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAVIS PITTS, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-2478

) 93-2241

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 6, 1991, and July 7, 1993. 1/

APPEARANCES

For Petitioner: Lorence Jon Bielby, Esquire

Greenberg Traurig

111 South Monroe Street, Suite 2000 Tallahassee, Florida 32301

For Respondent: Stanley M. Danek, Esquire

Division of Retirement

Cedars Executive Center, Building C Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether Petitioner has forfeited his rights and benefits under the Florida Retirement System.

PRELIMINARY STATEMENT

By letter dated March 22, 1991, the State of Florida, Department of Administration, by and through the Division of Retirement, officially notified the Petitioner that his rights and benefits under the Florida Retirement System had been forfeited pursuant to Section 121.091(5)(f), Florida Statutes. The Department based its decision on Pitts having been found guilty by a verdict of a jury of committing theft from his employer, with such theft having been committed prior to retirement.

By Petition for formal administrative proceedings dated April 15, 1991, (DOAH Case No. 91-2478), Pitts challenged the Department's Notice of Forfeiture, by stating, inter alia, that Pitts was not found guilty by a verdict of a jury of theft from his employer, and that therefore the Department had no basis to enter a forfeiture of all Pitts' rights and benefits in the Florida Retirement System.

By letter dated March 22, 1993, the State of Florida, Department of Administration, Division of Retirement, officially notified Pitts that his rights and benefits under the Florida Retirement System had been forfeited pursuant to Section 121.091(5)(f), Florida Statutes. Such section provides that any elected official who is convicted by the Senate of an impeachable offense prior to retirement shall forfeit all rights and benefits under Chapter 121, except the return of his accumulated contributions as of the date of his conviction.

By Petition for Formal Administrative Proceedings dated April 15, 1993 (DOAH Case 93-2241), Pitts challenged the Department's Notice of Forfeiture, by stating, inter alia, that Pitts was not "convicted" by the Senate of an "impeachable offense," and that therefore any such action by the Senate does not constitute a conviction for the purposes of Section 121.091(5)(g), Florida Statutes.

Both Petitions for Formal Administrative Hearing were forwarded to the Division of Administrative Hearings and the cases were consolidated for purposes of hearing.

At the hearings, Petitioner testified in his own behalf but did not introduce any exhibits into evidence. Respondent offered the testimony of three witnesses and introduced 21 exhibits into evidence.

After the hearing, Petitioner and Respondent submitted their Proposed Recommended Orders on August 6, 1993. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

Additionally, Respondent, in its Proposed Recommended Order, abandoned its claim of forfeiture based on Petitioner's alleged conviction by the Senate of an impeachable offense. Therefore, issues raised by the Petitioner at formal hearing in Case No. 93-2241 are moot and the Petition in Case No. 93-2241 is dismissed. Also, after the hearing, Petitioner filed a Motion to Strike certain proposed findings of fact of Respondent's Proposed Recommended Order.

Petitioner's Motion is denied since the facts found by the Hearing Officer address Petitioner's objection or such objections are ruled on in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Prior to April 29, 1993, Travis Pitts was the Clerk of the Circuit Court in Washington County, Florida, and a constitutional officer. See Article V, Section 1, Florida Constitution. Petitioner had been elected and seated in the Clerk's office in January 1981. Subsequently, he was reelected twice to the Clerk's position. As Clerk, Petitioner received a salary from the Clerk's office. Petitioner served as the Clerk of Washington County until February 19, 1990, when he was suspended by Executive Order No. 90-51, by then

   Robert Martinez.

   
   

2. As an elected official, Petitioner was both a public officer and a public employee of Washington County who performed the constitutional duties of Clerk as well as other duties taken on by the Clerk's Office. Petitioner's duties included serving as custodian of all county funds and court funds for

   Washington County. All the funds belonged to Washington County and were only cared for by its officers.

   
   

3. Mr. Pitts was a member of the Elected State and County Officers Class of the Florida Retirement System (FRS).

   
   

4. The Petitioner was suspended because on February 19, 1990, he was charged by information with one count of grand theft. The information stated as follows:

   1. . . . Travis W. Pitts . . . did knowingly and unlawfully obtain or use or endeavor to obtain or use the property of another, to-wit: money, of the value of $300.00 or more, with

      the intent to temporarily or permanently deprive Washington County of a right to the money or benefit therefrom, or with the intent to temporarily or permanently appropriate the

      money to his own use . . .

      
      

5. Although not specified in the information, the case against Petitioner centered upon four separate types of monies constituting the alleged theft, as follows:

   
   

   1. Insurance premium funds;

   2. Travel advances;

   3. One $4,582.00 withdrawal of certain funds by Pitts; and

   4. Clerk's office cash collections [one

      $2,000.00 amount, and one $1,440.00 amount].

      
      

6. In regard to the insurance premiums, all of the constitutional officers for Washington County, along with the Board of County Commissioners, held a group health insurance policy with Administrative Systems of Tennessee, Inc. (ASTI) an out-of-state insurance carrier. The evidence did not show that Petitioner negotiated with ASTI for the insurance policy on behalf of the other county employees. Each of the constitutional officers, and the Board of County Commissioners, submitted their monthly insurance premium payments directly to Petitioner, as Clerk who, in turn, mailed one premium payment check per month to the insurance carrier. Essentially, beginning in December 1985, and continuing until September 1986, the first year of the insurance contract with the health insurance carrier, Petitioner deposited each of the constitutional officer's premium payments, and the Board of County Commissioner's premium payments, into a Clerk's office account, and thereafter sent one Clerk's office account check to the insurance carrier for that month's premium payment. However, beginning October 1986, and continuing until September 1988, the second and third years during which the health insurance policy was in effect, Petitioner deposited the constitutional officer's premium payments and the Board of County Commissioner's insurance premium payments directly into one of Petitioner's personal checking accounts, and wrote one personal check for each month's premium amount which check was forwarded to the insurance carrier.

   
   

7. During this time, Mr. Pitts personal account was chronically overdrawn in excess of the amount deposited for the insurance premiums. The testimony at the Final Hearing was that the documents and records from the insurance carrier indicated that each of Petitioner's personal checks was forwarded by U.S. Mail to the insurance carrier, and that the carrier deposited such checks in the carrier's account anywhere from sixty (60) days to over one hundred (100) days

   after the Constitutional Officers and the Board of County Commissioners had submitted their premium payment checks to Petitioner. Petitioner therefore had the use of the insurance premium funds sixty (60) to one hundred (100) days after the date that he had deposited those checks into his personal account, which funds were used to cover the overdrafts in his personal account.

   
   

8. Eventually, in September of 1988, the policy was cancelled for nonpayment of premiums. The nonpayment was voluntary on the part of the insureds who desired to cancel the policy. The evidence was clear that all insurance premium monies were accounted for and that there was no money missing. However, there appeared no reason that the premium monies were deposited in Pitts' personal account since the Board and other employees paid their premiums to Pitts in a timely manner.

   
   

9. Testimony at the Final Hearing regarding travel advances was that Petitioner had drawn funds from the Clerk's office operating account on four separate occasions, and that Petitioner had drawn funds from the Board of County Commissioner's accounts on two separate occasions. All six of these withdrawals were to be used for travel which was to be taken by Petitioner in the future.

   
   

10. The testimony differed as to when actual travel was taken, and differed as to whether travel was taken at all. The essence of such testimony was that the travel advances were taken by Petitioner, sometimes well in advance of actual travel, and that the amounts of the advances did not bear any relationship to actual travel expenses for individual trips. The testimony was clear, however, that when Petitioner was suspended from office on February 19, 1990, or within a day or two thereafter, Petitioner returned all such money which had been outstanding at that time from previous travel advances to the Clerk's office.

    
    

11. Again, the problem with the travel advances was that the funds were deposited in Petitioner's overdrawn personal bank account and were immediately used for the overdrafts. Moreover, the reason for the travel advances is at best unclear and tenuous since Petitioner had the authority to immediately reimburse himself after any travel expense had been incurred. The overall impression was that the Petitioner was taking money from the Clerk's office account to cover an overdrawn bank account and calling the withdrawn clerk's funds advance travel.

    
    

12. Testimony at the Final Hearing regarding the $4,582.00 withdrawal amount was that a check dated December 15, 1988, a check in the amount of

    $4,582.00, was written on the Washington County Clerk's operating account made payable to Travis W. Pitts, signed by Petitioner, and thereafter deposited to Petitioner's personal account. Such funds were not redeposited into the Clerk's office operating account until mid to late January, 1989. The testimony was that Petitioner therefore had the use of the funds for a four to five week period. Petitioner testified that such funds were withdrawn for the sole purpose of his making one insurance premium payment to the health insurance carrier, and that the funds were re-deposited after the insurance carrier did not deposit one of Petitioner's individual checks made payable to the insurance carrier.

    
    

13. Finally, testimony at the Final Hearing regarding cash collections of the Clerk's office was that on December 30-31, 1988, Petitioner removed

    $2,000.00 in cash, followed by his removal of $1,440.00 in cash, from the "cash drawer" of the Clerk's office, and, in turn, Petitioner submitted one personal

    check in the amount of $2,000.00, and one personal check in the amount of

    $1440.00, into the Clerk's office "cash drawer."

    
    

14. These two checks were thereafter deposited by the Clerk's office into the Clerk's accounts, but one check did not "clear" Petitioner's personal bank account for ten (10) days and the other check did not clear Petitioner's personal bank account for seven (7) days. The cash was deposited by Mr. Pitts into his personal bank account which was overdrawn. Before the two checks cleared Pitts' account, the cash went immediately to pay the overdraft and was used to pay other personal bills. The evidence demonstrated and the testimony presented to the jury at the criminal trial was that Petitioner had the use of the Clerk's funds for ten (10) days and seven (7) days, respectively.

    
    

15. Petitioner testified that he was personally responsible for all cash receipts in the Clerk's office, and that for reasons of safety he had removed the cash from the cash drawer, and replaced such cash with his personal checks. Petitioner stated that on December 31, the upcoming three day weekend would place the cash at risk by being inside the Clerk's office. Petitioner testified that he therefore removed that cash, replaced the cash with personal checks, and thereby removed the danger of theft or loss. Testimony at Final Hearing also demonstrated that Petitioner, along with other courthouse employees, and judges, court reporters, and members of the public, cashed checks from the cash available in the Clerk's cash drawer, and that the cashing of such checks was "standard practice." However, the checks cashed by other employees were never for the amounts which Petitioner "cashed checks" and never with the factual scenario accompanying Petitioner's check cashing and checking account.

    
    

16. In sum, the total amount of funds taken by Mr. Pitts from the Clerk's office for which he was charged for theft was $137,870.00.

    
    

17. On August 3, 1990, following a jury trial in Washington County Circuit Court Case No. 90-00025CF, Petitioner was found guilty of grand theft. The jury verdict entered by the jury stated:

    
    

    VERDICT

    
    

    WE, THE JURY, FIND AS FOLLOWS, AS TO THE DEFENDANT IN THIS CASE:

    1. The Defendant is guilty of theft of money with a value of $300.00 or more, as charged.

       
       

18. On October 6, 1990, in Washington County Circuit Court Case No. 90- 00025CF, the judge withheld adjudication of guilt and sentenced Petitioner to six months of community control followed by four years probation. The judge also sentenced Petitioner to 400 hours of community service hours and imposed a fine of $5,000.00 and court costs of $225.00. No restitution was ordered.

    
    

19. Mr. Pitts appealed the verdict to the First District Court of Appeal in Case No. 90-3305. He subsequently filed a notice of voluntary dismissal which was granted by the court.

    
    

20. Thereafter, the Senate and the State of Florida appointed B. J. Driver, as a Special Master, to conduct preliminary and final hearing on the suspension of Mr. Pitts from office. The Special Master was to provide the Senate with a report of his investigation for the Senate's subsequent action. The hearing was conducted on September 20, 1991.

21. On February 20, 1993, the Senate considered the report and recommendation of the Special Master and voted in open session to sustain Executive Order 90-51, as amended by Executive Order 91-248, and remove Mr. Travis W. Pitts from the Office of Clerk of the County and Circuit Court of Washington County.

    
    

22. Subsequently, by report and order dated April 29, 1993, the Florida Senate in In re: Executive Suspension of Travis W. Pitts, Clerk of he Circuit Court, Washington County, Florida the order removing Petitioner from the Office of Clerk of the Circuit Court, was filed with the Department of State and in the permanent record of the Florida Senate.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57, Florida Statutes.

    
    

24. The Respondent, Division of Retirement, issued two agency actions against Mr. Pitts advising him that he had forfeited any rights to a retirement benefit under the Florida Retirement System, Chapter 121, Florida Statutes. The first letter was issued pursuant to Section 121.091(5)(g), Florida Statutes.

    The second letter was based on a conviction of an impeachable offense by the Senate and was abandoned by Respondent after the close of the hearing in this matter.

    
    

25. Section 121.091(5)(f), Florida Statutes, provides that retirement benefits of a member of the Florida Retirement System will be forfeited when:

    
    

    (a)ny member who has been found guilty by a verdict of a jury, or by the court trying the case without a jury, of committing, aiding, or abetting any embezzlement or theft from his employer, bribery in connection with the employment, or other felony specified in chapter 838, committed prior to retirement, or who has entered a plea of guilty or of nolo contendere to such crime, or any member whose employment

    is terminated by reason of his admitted commitment, aiding, or abetting of an embezzlement or theft from his employer, bribery or other felony specified in chapter 838, shall forfeit all

    rights and benefits under this chapter . . . .

    
    

26. In this case there is no doubt that Mr. Pitts was found guilty by the jury. Petitioner admitted that fact in his "PETITION FOR FORMAL ADMINISTRATIVE HEARING" filed with the Division on April 15, 1991, and thereafter transmitted to the Division of Administrative Hearings on April 23, 1991. Although the judge withheld adjudication, adjudication of guilt is not necessary for a forfeiture to occur.

    
    

27. However, a guilty verdict of theft alone is not enough to cause a forfeiture under Section 121.091(5)(f), Florida Statutes. The statute requires that the theft be from the employer or in connection with the employment. The Department's position is that Petitioner's employer was Washington County, and that Petitioner was found guilty of committing theft from Washington County.

    Petitioner's position, however, is that Washington County was not his employer, and that he was not found guilty of committing theft from his employer.

    
    

28. Clearly, by his conviction of grand theft, Petitioner has come under the operation of the provisions stated above. The acts he committed were done "in connection with" his office of Clerk since the funds in question were the official funds of the Office of the Clerk and Petitioner used the power and authority of his office to take the money and place the monies in his personal bank accounts. The monies were taken on the pretext of use for official business, i.e., official travel as the Clerk, payment of health insurance premiums, or as the person responsible for the Clerk's cash drawer. In the case of the insurance premiums, the monies were given to him in his capacity as the Clerk but were improperly placed in his personal bank accounts to cover his own personal financial dealings. The deposit of the insurance premiums into his personal bank account is in violation of Section 219.02(2), Florida Statutes, which requires each county officer to:

    
    

    . . . exercise all possible care for the protection of the public money in his custody, and all public money shall be kept separate in the depository and shall not be comingled with personal funds.

    
    

29. It has long been held in Florida that the term "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while the term "employment" does not comprehend a delegation of any part of the sovereign authority. The term "office" embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract. An employment does not necessarily authorize the exercise in one's own right of any sovereign power or any prescribed independent authority of a governmental nature. State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 So. 721 (Fla. 1897). State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919). A "public office" is an agency of the State and the person whose duty it is to perform the duties of such office is a "public officer." State v. State Road Department, 173 So.2d 693 (Fla. 1965).

    
    

30. Pursuant to the Florida Constitution (1968), the Office of Clerk of the Circuit Court is a constitutionally defined office and therefore any person elected or appointed to such office is a "constitutional officer." Prior to his suspension on February 19, 1990, Petitioner had been elected to the Office of the Clerk of the Circuit Court, in and for Washington County, on three separate occasions. He therefore held a "public office," and therefore had been delegated a portion of the sovereign power. Election by the people or appointment by the governor, however, is not the true test in determining whether an office exists and an individual filling the position is an officer rather than an employee. Blackburn v. Brorein, et al., 70 So.2d 293 (Fla. 1954). In fact, the Blackburn decision states that deputy sheriffs, even though they are not specifically and individually elected by the people, are "officers" rather than "employees." Blackburn v. Brorein, 70 So.2d at 299. It is also interesting and controlling upon this Court that, in Florida, deputy clerks of the Circuit Court, even though appointed by the Clerk.

    
    

31. However, such a role does not preclude a Clerk from being an employee of the general public or Washingotn County. See Nevin G. Smith as Secretary of Administration and A.J. Mullian II, as State Retirement Director v. Harmon W. Shields, Circuit Court for Second Judicial Circuit, Case No. 80-2374 (December

    30, 1980). In this case, Pitts was an employee within the meaning Section 121.091(5)(f), Florida Statutes.

    
    

32. Since the criminal Information upon which the criminal charge was presented to the jury specifically lists Washington County as the victim of the alleged theft and Petitioner was found guilty by a verdict of a jury of committing theft from Washington County, he has committed a theft against his employer. Therefore, Petitioner has forfeited his right to his pension under Section 121.091(5)(f), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division enter a final order forfeiting Petitioner's

right to his pension and refunding any amounts he has paid in, if any.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of March 1994.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1994.

ENDNOTE

1/ The length of time between the two hearings was caused by the filing of additional reasons for the Division's action and the case being placed in abeyance so that the Senate could conclude its action against Mr. Pitts.

APPENDIX TO CASE NUMBERS 91-2478 & 93-2241

1. The facts contained in paragraphs 1, 8, 9, 13, 14, 16, 17, 18, 19 and

   20 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

2. The facts contained in paragraphs 2, 3, 4, 5, 6, 7, 10, 11, 12 and 15 of Petitioner's Proposed Findings of Fact are subordinate.

4. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of Respondent's Proposed Findings of Fact are adopted.

COPIES FURNISHED:

Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center

2639 Monroe Street, Building C Tallahassee, Florida 32399

Lorence Jon Bielby, Esquire

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302

A.J. McMulian, III, Director Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950

William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002478

Orders for Case No: 91-002478