WYATT O. HENDERSON,
vs.
Respondent.
) Case No. 07-2104
Pursuant to notice, a formal hearing was set to be held on July 17, 2007, before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida.
For Petitioner: Wilbur C. Smith, III, Esquire
For Respondent: Geoffrey M. Christian, Esquire
Whether Petitioner, who was convicted of three felony counts in federal court, must forfeit his rights and benefits
under the Florida Retirement Systems (FRS), pursuant to Section 112.3173, Florida Statutes (2006).1
Whether Petitioner's conviction in U.S. District Court in the underlying criminal case is not final because a petition for writ of habeas corpus, based upon ineffective assistance of trial counsel, is pending in the U.S. District Court.
On March 15, 2007, Respondent issued a Notice of Action to Forfeit Retirement Benefits under the FRS, pursuant to Section 112.3173, Florida Statutes. The proposed agency action was premised on Petitioner's convictions in a U.S. District Court proceeding wherein he had been charged with certain federal criminal offenses. On March 19, 2007, Respondent received the Notice of Action by certified letter. It afforded Petitioner a point of entry to challenge the agency's decision and to request an administrative review of the issues. On April 4, 2007, Petitioner timely filed his request for an administrative hearing.
Thereafter, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The formal hearing was scheduled for July 17, 2007. However, on June 18, 2007, during a teleconference with counsel for the parties, the parties
agreed, in lieu of a formal hearing, to submit joint exhibits and a joint stipulation of facts. The facts and exhibits were accordingly filed on June 25, 2007. In addition, the parties agreed to file proposed recommended orders and/or briefs on or before July 17, 2007. The parties' Proposals were timely filed, and they have been carefully considered by the undersigned in the preparation of this Recommended Order.
Based on the joint exhibits and joint stipulation of facts submitted by the parties, the following findings of fact are made:
The Division of Retirement (Respondent) is charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services.
The FRS is a public retirement system, as defined by Florida law. As such, Respondent's proposed action regarding the forfeiture of Petitioner's rights and benefits under the FRS are subject to administrative review.
Petitioner was formerly employed by the Charlotte County Sheriff's Department as a deputy sheriff.
Petitioner retired from the aforesaid employment and began receiving FRS benefits in March of 2003.
Petitioner is a special risk class member of the FRS.
On May 28, 2003, Petitioner was charged by Incident in the U.S. District Court for the Middle District of Florida, Fort Myers Division, in case number 2:03-cr-00065, with (1) One Count of Deprivation of rights under color of law, in violation of 18 U.S.C. Section 242; (2) One Count of engaging in misleading conduct, in violation of 18 U.S.C. Section 1512(b)(3); and (3) One Count of making a false statement, in violation of 18 U.S.C. Section 1001. On September 18, 2003, a Superseding Indictment was entered charging the same offenses.
Count One of the Superseding Indictment, dated September 18, 2003, provides:
On or about May 21, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, while acting under color of the laws of the State of Florida, did willfully deprive C.G., a juvenile, resulting in bodily injury to C.G. and did thereby willfully deprive C.G. of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, which includes the right to be secure in his person and free from the intentional use of unreasonable force by one acting under color of law. All in violation of Title 18, United States Code, Section 242.
18 U.S.C. Section 242 provides, in relevant part: Whoever, under color of any law, . . .
willfully subjects any person in any State
. . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the
United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, that are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more that one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both. . . .
Count Two of the Superseding Indictment provides: On or about May 22, 2002, in Charlotte
County, in the Middle District of Florida,
defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly engage in misleading conduct toward another person, with intent to hinder, delay or prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a Federal offense, namely, Deprivation of Rights Under Color of Law, as charged in Count One of this Indictment, by submitting to Sergeant Jerry White of the Charlotte County Sheriff's Department an incomplete and inaccurate statement regarding the arrest on or about May 21, 2002, of C.G., a juvenile. In violation of Title 18, United States Code, Section 1512(b)(3).
18 U.S.C. Section 1512(b)(3) provides, in relevant part:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to --
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(3) hinder, delay, or prevent the communication to a law enforcement officer
. . . of information relating to the commission or possible commission of a Federal offense . . .;
Shall be fined under this title or imprisoned not more that ten years, or both.
Count Three of the Superseding Indictment provides: On or about October 4, 2002, in Charlotte
County, in the Middle District of Florida,
defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly and willfully make a false and fictitious statement and representation of material fact in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency of the United States, in that the defendant stated and represented while being interviewed by agents of the Federal Bureau of Investigation, that on or about May 21, 2002, prior to pushing C.G., a juvenile, to the ground, the defendant threw his handgun into the window of his car, whereas the defendant then knew that on or about May 21, 2002, he did not throw his handgun into the window of his car prior to pushing C.G., a juvenile, to the ground. In violation of Title 18, United Stated Code, Section 1001.
18 U.S.C. Section 1001 provides, in relevant part:
Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully --
falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
makes any materially false, fictitious, or fraudulent statement or representation; or
makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
Shall be fined under this title, imprisoned not more that 5 years . . . or both.
The charges contained in the Superseding Indictment were committed prior to Petitioner's retirement under the FRS.
On December 10, 2003, a jury returned a verdict of guilty of all three counts in the Superseding Indictment.
On March 12, 2004, the Amended Judgment in a Criminal Case was entered on the aforesaid verdict, by the Honorable Anne C. Conway, United States District Judge. Therein,
Petitioner was adjudicated guilty of all counts charged in the aforesaid superseding indictment. Petitioner was sentenced to a term of imprisonment in the custody of the United States Bureau of Prisons.
Petitioner appealed his conviction and in an opinion issued on May 23, 2005, the U.S. Court of Appeals for the Eleventh Circuit, in case number 04-11545, affirmed the aforesaid judgment in part, vacated the same in part, and remanded the case to the District Court. See United States v.
Henderson, 409 F.3d. 1293 (11th Cir. 2005), certiorari denied,
126 S.Ct. 1331 (2006). The Circuit Court issued its mandate on July 26, 2005.
On May 3, 2006, a Judgment on Remand in a Criminal Case was entered by the District Court on the aforesaid verdict, wherein Petitioner was again adjudicated guilty of all counts charged in the aforesaid Superseding Indictment and was re- sentenced.
An appeal was again taken and in an opinion issued on December 22, 2006, the U.S. Court of Appeals for the Eleventh Circuit, in case number 06-12816, affirmed the aforesaid judgment on remand. See United States v. Henderson, 211 Fed. Appx. 919, 2006 U.S. App. LEXIS 31565 (11th Cir. 2006). The Circuit Court issued its mandate on January 22, 2007.
On July 24, 2006, Petitioner filed a Petition for Writ of Habeas Corpus and Motion to Vacate and Set Aside Sentence in the U.S. District Court for the Middle District of Florida, in case number 2:06-cv-00373. Said Petition and Motion are now pending before the U.S. District Court (M.D. Fla.).
On March 19, 2007, Petitioner received the Notice of Action to Forfeit Retirement Benefits signed by Sarabeth Snuggs, State Retirement Director, by certified letter, dated March 15, 2007. The letter advised Petitioner of the proposed agency action to forfeit his FRS rights and benefits as a result of the above referenced conviction.
Petitioner timely requested a formal hearing before an Administrative Law Judge to challenge the proposed agency action.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 112.3173(5), 120.569, and 120.57(1), Fla. Stat.
Respondent is charged with the responsibility of managing, governing, and administering the FRS. §§ 112.011 112.025, and 112.021(3), Fla. Stat.
Petitioner is a special risk class member.
§ 112.0515, Fla. Stat.
The FRS is as public retirement system and, as such, Respondent's proposed action seeking the forfeiture of Petitioner's rights and benefits under the FRS are subject to administrative review. § 112.3173(5)(a), Fla. Stat.
The burden of proof in administrative proceedings is on the party asserting the affirmative of an issue. Wilson v. Department of Management Services, Div. of Retirement, 538 So. 2d 139, 141-42 (Fla. 4th DCA 1989); Department of Transportation v. J.W.C. Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Respondent bears the burden of proof in this proceeding.
The standard of proof in administrative proceedings is a preponderance of evidence. Subsection 120.57(1)(j), Florida
Statutes (2006)("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. . . ."). A preponderance of the evidence means that Respondent must prove that something is "more probable than not." Holland v. Department of Management Servs., DOAH Case No. 02-0986 (Recommended Order, dated June 24, 2002; Final Order, dated October 1, 2002). To meet its burden, Respondent must establish facts upon which its allegations are based by a preponderance of the evidence.
Article II, Subsection 8(d), of the Florida Constitution, as revised in 1968 and subsequently amended,
provides:
SECTION 8. Ethics in government.--A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
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(d) Any 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.
Article II, Section 8, of the Florida Constitution is codified in Chapter 112, Part III, of the Florida Statutes.
Subsections 112.311(5) and (6), Florida Statutes, provide, in relevant part:
It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state
. . . shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity . . . which is in substantial conflict with the proper discharge of his or her duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees . . . in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state but also as a basis for discipline of those who violate the provisions of this part.
It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their position for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern.
Subsection 112.312(3), Florida Statutes, provides, in relevant part:
"Breach of the public trust" means a violation of a provision of the State Constitution or this part which establishes a standard of ethical conduct . . . or a prohibition applicable to public . . . employees in order to avoid conflicts between public duties and private interests, including, without limitation, a violation of s. 8, Art. II of the State Constitution or of this part.
Section 112.3173, Florida Statutes, provides, in relevant part:
INTENT.--It is the intent of the Legislature to implement the provisions of
s. 8(d), Art. II of the State Constitution.
DEFINITIONS.--As used in this section, unless the context otherwise requires, the term:
"Conviction" and "convicted" mean an adjudication of guilt by a court of competent jurisdiction . . .
"Court" means any state or federal court of competent jurisdiction which is exercising it jurisdiction to consider a proceeding involving the alleged commission of a specified offence.
"Public officer or employee" means an officer or employee of any public body, political subdivision, or public instrumentality within the state.
"Public retirement system" means any retirement system or plan to which the provisions of part VII of this chapter apply.
"Specified offense" means:
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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 herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or public office or employment position.
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 contribution as of the date of termination.
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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. § 112.3173(3), Fla. Stat. Therefore, Respondent must establish, by a preponderance of the evidence, that Petitioner has been convicted of a specified offense and must therefor forfeit his rights and benefits under the FRS. Respondent has met its burden.
The office of sheriff is a constitutional office established under Article VIII, Section 1(d), Constitution of Florida, is the chief law enforcement officer within the county
and possesses the executive power of the State within the county. 40 Fla. Jur.2d, Police, Sheriffs, and Constables, Section 68. A portion of the sovereign power of the State, residing in the office of sheriff, and the office has with it all of the common law powers and duties associated with the office. Id., Section 80. A sheriff takes an oath of office in which he swears that he will support, protect, and defend the Constitution and government of the United States and of the State of Florida and will faithfully perform the duties of sheriff. Fla. Const., Art. II, § 5(b).
Sheriffs have the power to appoint deputies to act under them who have the same powers as the sheriff. Section 30.07, Florida Statutes. A deputy sheriff may not perform any services as deputy until he or she subscribes to the same oath prescribed for sheriffs. Section 30.09, Florida Statutes. Thus, Petitioner, upon assuming his duties as deputy sheriff, took an oath to "support, protect, and defend the Constitution and Government of the United States and the State of Florida
. . . and . . . faithfully perform the duties of" deputy sheriff.
Petitioner was convicted of three federal crimes as specified in the indictment, superseding indictment, verdict, and judgment. Petitioner has not been convicted of a violation of Florida criminal law.
Article II, § 8, Florida Constitution provides that "[a]ny public officer of 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." The Florida Constitution clearly provides that to forfeit a public pension, a person must (1) be convicted of a felony, and (2) that felony must involve "a breach of public trust."
The legislation implementing that provision, Subsection 112.3173, Florida Statutes, properly follows the constitutional mandate. See Pilkay v. City of Tampa, General Employee Pension Fund, Board of Trustees, 505 So. 2d 1100 (Fla. 2d DCA 1987), review denied, 513 So. 2d 1062 (Fla. 1987).
Subsection 112.3173(3), Florida Statutes, provides that "[a]ny 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. "
A "specified offense" is precisely defined in Subsection 112.3173(1)(e)(1 through 5) as embezzlement, theft, bribery, any felony specified in Chapter 838 (Bribery, misuse of public office bid, tampering), or committing an impeachable offence. Clearly, these subsections of the statute do not apply to this case.
However, Subsection 112.3173(2)(e)(6), Florida Statutes provides, in pertinent part:
6. The committing of any felony by a public officer . . . who, willfully and with intent to defraud the public of the public agency for which the public officer 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 . . ., realizes or obtains, . . . a profit, gain, or advantage for himself or herself . . . through the use or attempted use of the power, rights, privileges, duties or position of his or her public office
. . . .
Petitioner argues that the operative question in the instant case is whether Petitioner has been convicted of a "specified offense," i.e. one of the offenses listed in Subsection 112.3173(1)(e) or included therein by reference. He asserts that the Judgment of Conviction on Remand following appeal in the underlying criminal case clearly establishes that Petitioner has not been convicted of any offense listed in Section 112.3173, or of any violation of Chapter 838, and therefore, Petitioner has been convicted of no offense which might be a predicate for a forfeiture of a Florida public pension. Petitioner goes on to argue that the Florida Supreme Court has repeatedly held that "[f]orfeiture actions are harsh exactions and are generally not favored in either law or equity. Therefore, this Court has strictly construed the forfeiture statutes." Byrom v. Gallagher, 609 So. 2d 24, 26 (Fla. 1992),
quoting Department of Law Enforcement v. Real Property, 588 So. 2d 957, 961 (Fla. 1991). Petitioner argues that strictly reading Section 112.3173, Florida Statutes, in the light of the general rules of statutory construction, explained infra, requires that only the offenses listed in Subsection 112.3173(1)(e) be used as the basis for a statutory forfeiture of a Florida public pension.
Petitioner states that the general principles of statutory construction adopted by the Florida Supreme Court require that when a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded. Florida appellate courts have often applied the maxim "expressio unius est exclusio
alterius" that is the "express mention of one thing is the exclusion of another." See, e.g., Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976); Dobbs v. Sea Isle Hotel, 56 So. 2d 341,
342 (Fla. 1952). Thus, the enumeration in a legislative enactment of specific items excludes other items not so listed.
However, the appellate courts have not applied this rule of statutory construction to pension forfeiture cases, in view of the Florida Constitutional provision. The court held in Jacobo v. Board of Trustees of the Miami Police Relief and
Pension Fund, 788 So. 2d 362 (Fla. 3d DCA 2001), that under
Article II, Section 8(d) of the Florida Constitution any public officer who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of his retirement. Citing the statutory definition of "breach of the public trust" contained in Subsection 112.312(3), Florida Statutes, the court held that:
it is a breach of the public trust to violate any standard of ethical conduct in Chapter 112, including Subsection 112.3173(2)(e)(6), which proscribes the commission of a felony with intent to defraud the public to gain an advantage for himself or someone else through the use of his office.
Id. at 364-365.
Depriving a person of his civil rights, by willfully assaulting him, under color of law; engaging in misleading conduct toward another person with intent to hinder the communication of information relating to the commission of a Federal offense; and, willfully making a false statement to a federal agent are clearly breaches of the public trust, and are felonies which constitute a "specified offense" as defined in Subsection 112.3173(2)(e)6., Florida Statutes. Therefore, Petitioner's pension rights are subject to forfeiture. See
Newmans v. Florida Division of Retirement, 701 So. 2d 573, 577 (Fla. 1st DCA 1997); Busbee v. Florida Division of Retirement, 685 So. 2d 914, 917 (Fla. 1st DCA 1996).
Petitioner contends that his conviction is not final and that his FRS rights and benefits cannot be forfeited prior to the conclusion of all of the appeals of his convictions. This argument is based on Petitioner's Petition for Writ of Habeas Corpus and Motion to Vacate and Set Aside Sentence, which is now pending before the United States District Court. Petitioner's argument is without merit.
Subsection 121.091(5)(j), Florida Statutes, provides, in relevant part:
Benefits shall not be paid by the division pending final resolution of such charges against a member or beneficiary if the resolution of such charges could require the forfeiture of benefits. . . .
Chapter 112, Florida Statutes governs all public retirement programs in Florida; Chapter 121, Florida Statutes governs the FRS specifically. Furthermore, Subsection 112.3173(5)(c), Florida Statutes, provides as follows:
The payment of retirement benefits ordered forfeited, except payments drawn from nonemployer contributions to the retiree's account, shall be stayed pending an appeal as to a felony conviction. If such conviction is affirmed, retirement benefits shall be forfeited as ordered in this section. (Emphasis added)
The word "payment" is the subject of the sentence.
The word "stayed" is the passive main verb. The words "shall" and "be" are auxiliary verbs that help complete the form and
meaning of the passive main verb. In this case, the word "shall" is used to express an explicit obligation or requirement. This provision stated that payments of retirement benefits ordered forfeited will be stayed pending an appeal. It does not state that a forfeiture order will be stayed pending appeal. Furthermore, even if the provision were otherwise, as heretofore noted in the findings of fact, Petitioner's direct appeals have ended and Petitioner's convictions are now the law of the case. Petitioner is seeking collateral relief through the Habeas Corpus process which is still pending.
When Petitioner was convicted of a specified offense, he forfeited all rights and benefits under the FRS and Respondent is without statutory authority to permit otherwise. See City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493, 495-96 (Fla. 1973) ("All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. . . . As such, the [administrative body's] powers, duties and authority are those and only those that are conferred expressly or implied by statute of the State. . . .); Sun Coast International, Inc. v. Department of Business Regulation, 596 So. 2d 1118, 1121 (Fla. 1st DCA 1992) ("[A] legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way."); Schiffman v. Department of
Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative agency has only the authority that the legislature has conferred it by statute.") Therefore, Respondent is required to act on said forfeiture at this time.
RECOMMENDED that Respondent enter a final order forfeiting Petitioner's rights and benefits under the FRS.
DONE AND ENTERED this 10th day of September, 2007, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2007.
1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.
Wilbur C. Smith, III, Esquire Wilbur Smith Law Firm
Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160
John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
