STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT T. LACEY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3968

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on December 15, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: John Patrick Contini, Esquire

The 110 Tower, Suite 1552

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

For Respondent: Larry D. Scott

Assistant Division Attorney Division of Legal Services

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's rights and benefits under the Florida Retirement System are subject to forfeiture.

PRELIMINARY STATEMENT

By letter of June 7, 1993, respondent notified petitioner that his "rights and benefits under the Florida Retirement System have been forfeited as a result of your conviction for a violation of Chapter 838, Florida Statutes," and advised petitioner of his right to a formal hearing to contest such decision.

Petitioner elected to request a formal hearing, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner testified on his own behalf, and petitioner's exhibits 1-27 were received into evidence. Respondent called Martin Murphy as a witness, and its composite exhibit 1 was received into evidence. 1/

The transcript of hearing was filed January 14, 1994, and the parties were granted ten days from that date within which to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Robert T. Lacey (Lacey), was employed as the Director of the Criminal Justice Institute, Broward Community College, Broward County, Florida, from at least January 1, 1985, until his resignation in March 1986.

   
   

2. At all times pertinent to this case, Broward Community College (BCC) was an employer which participated in the Florida Retirement System, and petitioner, while employed by BCC, was a member of the Florida Retirement System.

   
   

3. On February 4, 1987, a Grand Jury impaneled in Broward County, Florida, returned a fourteen (14) count true bill of indictment against Lacey. The matter was ultimately assigned Case No. 87-2056CFA, Circuit Court, Broward County, Florida. Pertinent to this case are Counts I-XII of the indictment, one count for each of the calendar months of 1985 (January through December 1985). Each count charges that Lacey did, while employed by BCC that year, commit the following acts each month:

   
   

   . . . unlawfully and knowingly obtain or endeavor to obtain the property of Broward Community College, to wit: United States Currency, services and/or material, of a value of one hundred dollars ($100.00) or more, with the intent to permanently or temporarily deprive Broward Community College of a right to the property or a benefit thereof, or to appropriate the property to his own use or the use of any person not entitled thereto, contrary to F.S.

   812.014(1)(a)., and (1)(b)., and F.S. 812.014(2)(b).

   
   

   The gravamen of such charges was the assertion that while employed as director of the Criminal Justice Institute, an entity within Broward Community College, Lacy used materials, time and personnel to benefit him personally in his consulting business.

   
   

4. On February 25, 1988, following a jury trial, the jury returned a verdict of guilty of grand theft, as alleged in Counts I-XII of the indictment, and not guilty as to Counts XIII and XIV of the indictment. Although found guilty by a verdict of the jury, the court withheld adjudication as to each count, placed Lacey on probation for a period of three years, ordered Lacey to pay $3,000 in restitution to BCC, and ordered Lacey to perform 200 hours of community service. Lacey's post trial motions for arrest of judgment, new trial, and renewed motion for judgment of acquittal were denied by the court.

   
   

5. Following the true bill of indictment that issued February 4, 1987, Lacey was also charged by direct information filed April 21, 1987, in the Circuit Court, Broward County, Florida, Case No.87-6744CFA, with two counts of official misconduct (Counts I and III), one count of petit theft (Count II), and

   one count of grand theft (Count IV). Pertinent to this case, Count I of the information charged that on or about September 5, 1985, Lacey did, while a public servant, to wit:

   
   

   . . . an employee of Broward Community College

   . . . did then and there unlawfully and knowingly falsify, or cause another to falsify, an official record or official document, to-wit: a Broward Community College form entitled "STAFF AND PROGRAM DEVELOPMENT COURSE APPROVAL FORM," with the

   corrupt intent to obtain a benefit for himself

   . . . or another, to-wit: for the benefit of JACINDA LYNN FANNIN, contrary to F.S. 839.25(1)(b).

   
   

   Counts III and IV of the information charged Lacey with official misconduct and grand theft, respectively; however, that portion of the information which would have set forth the factual basis for Counts III and IV is not of record, and no conclusion can be drawn as to whether or not the basis for those charges related to Lacey's employment with BCC.

   
   

6. In response to the information in Case No. 87-6744 CFA, and following the resolution of Case No. 87-2056CFA, Lacey entered a plea of nolo contendere to all counts. The Court, by order of November 28, 1988, withheld adjudication of guilt, and placed Lacey on probation for three years with regard to Counts I, III and IV and six months as to Court II. All probationary terms were to run concurrent and coterminous with those imposed in Case No.87-2056CFA. 2/

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 112.3173(5)(a) and 120.57(1), Florida Statutes.

   
   

8. Pertinent to this case, Section 121.091(5), Florida Statutes, provides for the termination of retirement benefits under the Florida Retirement System based on, among other things, the following:

   
   

   (f) Any 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, except ss. 838.15 and 838.16, 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, except ss. 838.15 and 838.16, shall forfeit all rights and benefits under

   this chapter, except the return of his accumulated contributions as of his date of termination.

9. Also, pertinent to this case, Section 112.3173, Florida Statutes, addresses the grounds for forfeiture of retirement benefits and the procedure to be followed in a forfeiture determination as follows:

   
   

   Felonies involving breach of public trust and other specified offenses by public officers and employees; forfeiture of retirement benefits.--

   1. INTENT.--It is the intent of the Legislature to implement the provisions of s. 8(d), Art. II

      of the State Constitution.

   2. DEFINITIONS.--As used in this section, unless the context otherwise requires, the term:

      1. "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.

         * * *

         (c) "Public officer or employee" means an officer or employee of any public body, political subdivision, or public instrumentality within the state.

         * * *

         (e) "Specified offense" means:

         1. The committing, aiding, or abetting of an embezzlement of public funds;

         2. The committing , aiding, or abetting of any theft by a public officer or employee from his employer;

         3. Bribery in connection with the employment of a public officer or employee;

         4. Any felony specified in chapter 838, except ss. 838.15 and 838.16;

         5. The committing of an impeachable offense; or

         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 he acts or in which he is employed

         of the right to receive the faithful performance of his duty as a public officer or employee, realizes or obtains, or attempts to realize

         or obtain, a profit, gain, or advantage for himself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his public office or employment position.

   3. FORFEITURE. Any public officer or employee who is convicted of a specified offense committed prior to retirement, or whose office or employment is terminated by reason of his admitted commission, aid, or abetment of a specified offense, shall forfeit all rights and benefits under any public

      retirement system of which he is a member, except for the return of his accumulated contributions as of his date of termination.

      * * *

      (5) FORFEITURE DETERMINATION.

      (a) Whenever the official or board responsible for paying benefits under a public retirement system receives notice pursuant to subsection (4), or otherwise has reason to believe that

      the rights and privileges of any person under such system are required to be forfeited under this section, such official or board shall give notice and hold a hearing in accordance with chapter 120 for the purpose of determining whether such rights and privileges are required to be forfeited. If the official or board determines that such rights and privileges are required to be forfeited, the official or

      board shall order such rights and privileges forfeited.

      
      

10. As heretofore noted in the findings of fact, Lacey was a "member" of the Florida Retirement System and Broward Community College was an "employer" when the events giving rise to the charges, for which he was ultimately found guilty by a verdict of a jury or entered a plea of nolo contendere, occurred. See Section 121.021(10) and (12), Florida Statutes. Moreover, the offenses for which he was found guilty by a verdict of the jury in Case No.87-2056CFA were predicated on acts constituting theft from his employer, BCC, and were felonies. Section 812.014(1)(a) and (b), Florida Statutes, and Section 812.014(2)(b), Florida Statutes. Further, the offense of official misconduct (Count II) for which Lacey entered a plea of nolo contendere in Case No. 87-6744CFA was, likewise, predicated on acts occurring during the course of his employment, constituted official misconduct, and was a felony. Section 839.25, Florida Statutes. Accordingly, Lacey's retirement benefits are subject to forfeiture under the provisions of Sections 112.3173 and 121.091(5)(f), Florida Statutes.

    
    

11. In reaching the foregoing conclusion, Lacey's contention that he has not been convicted of any offense has not been overlooked. See, Page v. State Board of Medical Examiners, 141 Fla. 294, 193 So.82 (1940), and Ayala v. Department of Professional Regulation, 478 So.2d 1116, 1117 (Fla. 1st DCA 1985) ("A defendant is not considered 'convicted' if adjudication of guilt is withheld"). Section 112.3173(2)(a), Florida Statutes, has, however, defined "conviction" for purposes of forfeiture of retirement benefits to mean:

    
    

    (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.

    
    

    Moreover, Section 121.091(5)(f), Florida Statutes, does not predicate forfeiture on an adjudication of guilt, but merely upon a verdict of guilty by a jury or a plea of nolo contendere

    to an operative felony. Accordingly, under the statutes, as worded, the fact that

    adjudication of guilt was withheld is of no moment.

    
    

12. Also, not overlooked in reaching the foregoing conclusion was Lacey's contention that none of the crimes for which he was charged were felonies specified in Chapter 838, Florida Statutes. The forfeiture provisions prescribed by law are not, however, limited to violations of Chapter 838, but include, among other things, theft by a public officer or employee from his employer. Sections 112.3173(2)(e) and 121.091(5)(f), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered forfeituring the rights and

benefits of petitioner, Robert T. Lacey, under the Florida Retirement System, except for the return of his accumulated contributions.

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

WILLIAM J. KENDRICK

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.

ENDNOTES

1/ Subsequent to the hearing, a telephone conference call was held with the parties and they were accorded an opportunity to arrive at a stipulation regarding the specifics of petitioner's employment history to supplement the record. The parties were also advised by letter that respondent's composite exhibit 1, specifically the information for Case No. 87-6744CFA, appeared to be incomplete (the charging language for Counts III and IV was absent). Having received no response by March 14, 1994, the parties were advised by letter of that date that unless a joint stipulation and response regarding respondent's composite exhibit 1 were received by March 24, 1994, the record would be considered closed and the exhibit deemed complete. The only response has been a letter from respondent's attorney which submitted by letter of March 21, 1994, copies of the same documents (again appearing incomplete for the same reasons as before). Under the circumstances, the record was closed March 24, 1994, and respondent's composite exhibit 1 deemed complete.

2/ Regarding his plea of nolo contendere, Lacey averred, at hearing, that he agreed to enter such plea based on assurances he received from counsel that the court would withhold adjudication, merge the probationary terms into the other

charges (Case No. 87-2056CFA), that he would be free of any conviction, and that it would not affect his retirement. Lacey's attorney at that time did not testify at hearing, and his statements appear obiter hearsay. Moreover, Lacey offered no proof at hearing that he was innocent of the underlying criminal charges to which he pled nolo contendere. The court did, however, withhold adjudication, merge the probationary terms, and withhold adjudication.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. To the extent supported by the proof, addressed in paragraph 1. 3-5. Either not supported by the proof or not relevant.

6. Addressed in paragraph 1. Lacey tendered his resignation January 17, 1986, effective March 5, 1986. (Petitioner's exhibit 8)

7-9. Addressed in paragraphs 11 and 12.

1. Not relevant.

2. Addressed in paragraph 3.

3. Addressed in paragraph 5 to the extent supported by the proof.

4. Addressed in paragraph 4.

5. Addressed in paragraph 6 and endnote 2.

15 & 16. Not relevant.

17 & 18. Not supported by the proof.

19 & 20. Not relevant.

21. Addressed in paragraph 11.

Respondent's proposed findings of fact and addressed as follows:

1 & 2. Addressed in paragraphs 1 and 2.

3 & 4. Addressed in paragraph 3.

5 & 6. Addressed in paragraph 4.

7 & 8. Addressed in paragraph 5.

9 & 10. Addressed in paragraph 6.

COPIES FURNISHED:

John Patrick Contini, Esquire The 110 Tower, Suite 1552

110 Southeast Sixth Street Fort Lauderdale, Florida 33301

Larry D. Scott

Assistant Division Attorney Division of Legal Services Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

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

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Paul A. Rowell General Counsel

Knight Building, Suite 312 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT T. LACEY,

Petitioner,

DOR CASE NO. DR93-17

vs. DOAH CASE 93-3968

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent,

/

FINAL ORDER

This matter was heard in Fort Lauderdale, Florida, on December 15, 1993, before William J. Kendrick, a duly designated Hearing Officer of the Division of Administrative Hearings for the purpose of issuing a final agency order.

APPEARANCES

For Petitioner: John Patrick Contini, Esquire

The 110 Tower, Suite 1552

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

For Respondent: Larry D. Scott, Esquire

Assistant Division Attorney Division of Retirement

Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560

The Hearing Officer in the above entitled cause submitted a Recommended Order and all exhibits offered into evidence to the Department of Management Services, Division of Retirement. A copy of that Recommended Order is attached hereto and made a part hereof as "Exhibit A."

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The conclusions of law are adopted and incorporated herein by reference. The Hearing Officer properly concluded that the Petitioner Robert T. Lacey's retirement benefits are subject to forfeiture under the provision of Section 121.091(5)(f), Florida Statutes.

Based upon the foregoing, it is

ORDERED and DIRECTED, that Robert T. Lacey, social security number 262-38- 9932, has forfeited his rights and retirement benefits under the Florida Retirement System, except for the return of his accumulated contributions.

DONE and ORDERED this 3rd day of May, 1994, at Tallahassee, Leon County, Florida.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED

BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

1. J. MCMULLIAN, III, Director Division of Retirement

Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

(904) 488-5541

I HEREBY CERTIFY that this Final Order was filed in the official records of the Division of Retirement on this 5th day of 1994.

BETTY ANN LEDFORD, Clerk

Division of Retirement

Copies furnished to:

John Patrick Contini, Esquire The 110 Tower, Suite 1552

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

Larry D. Scott, Esquire Division of Retirement

Cedar Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Honorable Ann Cole, Clerk

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 93-003968

Orders for Case No: 93-003968