STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH M. MUSKELLY,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 07-4356

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RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on

December 6, 2007, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all of her rights and benefits under the Florida

Retirement System, except for the return of accumulated

contributions.

PRELIMINARY STATEMENT

In a Notice of Forfeiture of Retirement Benefits dated July 28, 2005, Respondent Department of Management Services,

Division of Retirement, notified Petitioner DeBorah Muskelly that her rights and benefits under the Florida Retirement System are forfeit as a result of her convictions, in 2004, for official misconduct and grand theft, which crimes were committed while she was a state employee. Ms. Muskelly timely requested a formal hearing to contest this forfeiture determination, and, on October 2, 2007, the matter was filed with the Division of Administrative Hearings.

The parties were properly notified that the final hearing would begin at 9:00 a.m. on December 6, 2007. At the designated time and place, the Administrative Law Judge and counsel for Respondent appeared for final hearing. Ms. Muskelly, however, did not appear. After waiting approximately 20 minutes and upon review of the file, from which it was determined that

Ms. Muskelly had been given adequate notice of the final hearing, the Administrative Law Judge commenced the proceeding.

Respondent called as its sole witness Charlene Fansler, a Benefits Administrator in Respondent's Bureau of Retirement

Calculations. In addition, Respondent offered three exhibits, numbered 1 through 3, and each was received in evidence.

After the hearing, on December 13, 2007, the undersigned issued an Order of Post-Hearing Instructions that, among other things, informed the parties of their right to submit a proposed recommended order and the deadline for doing so, which was enlarged (to give Ms. Muskelly extra time) to December 31, 2007. The copy of this order that was mailed to Ms. Muskelly at her address of record was not returned to DOAH as undeliverable and thus, presumably, was received.

A final hearing transcript was not provided. Respondent timely submitted a Proposed Recommended Order, which was considered. Ms. Muskelly has not been heard from.

FINDINGS OF FACT

1. From 1985 to 2002, and at all times relevant to this case, Petitioner DeBorah M. Muskelly ("Muskelly") held various positions as an employee of the Department of Children and Families (or its predecessors). She also worked for a number of years as an adult education teacher in the Miami-Dade County Public Schools. As a public employee, she became a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). All told, Muskelly earned 17.62 years of creditable service.

2. On March 30, 2004, Muskelly pleaded guilty in the Miami-Dade County Circuit Court, Eleventh Judicial Circuit, to two crimes, namely official misconduct as proscribed in Section 839.25, Florida Statutes (2000), and grand theft as proscribed in Section 812.014, Florida Statutes (2000). She was

   adjudicated guilty of official misconduct; adjudication of guilt was withheld with regard to the charge of grand theft.

3. The Amended Information sets forth the basic facts underlying each of the criminal charges to which Muskelly entered a plea of guilty, as follows:

   Count 1

   
   

   [O]n or about JANUARY 20, 2000 and continuing through MARCH 14, 2002, in [Miami-Dade County, Florida], [Muskelly], being a public servant, did knowingly falsify an official record or official document, to with: TIME SHEETS and/or TIME CARDS, with corrupt intent to obtain a benefit for himself [sic] or another . . . .

   
   

   Count 2

   
   

   [O]n or about JANUARY 20, 2000 and continuing through MARCH 14, 2002, in

   [Miami-Dade County, Florida], [Muskelly] did unlawfully and knowingly obtain or use, or did endeavor to obtain or use U.S. coin or currency value of five thousand dollars ($5,000.00) or more, but less than ten thousand dollars ($10,000.00), the property of THE DEPARTMENT OF CHILDREN AND FAMILIES,

   as owner or custodian, with the intent to either temporarily or permanently deprive said owner or custodian of a right to the said property or a benefit therefrom, or to appropriate the same to said defendant's own

   use or to the use of a person not entitled thereto . . . .

   
   

   By pleading guilty to these crimes, Muskelly admitted the foregoing allegations, which the undersigned accordingly adopts as findings of fact herein.i

4. In April 2005, Muskelly asked the Division to give her an estimate of her retirement benefits. Shortly thereafter, the Division learned about Muskelly's criminal record. After reviewing the court file, the Division determined that Muskelly had been convicted of "specified offenses" (a legal term that will be discussed below) and concluded that, consequently, she must forfeit all her rights and benefits as a member of the FRS.

5. By letter dated July 28, 2005, the Division notified Muskelly of its preliminary decision regarding the forfeiture of her retirement benefits and offered her an opportunity to request a formal administrative proceeding to contest the determination. Muskelly timely requested a hearing.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

7. Article II, Section 8(d), Florida Constitution (1976), provides in pertinent part:

   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:

   
   

   * * *

   
   

   (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.

   
   

8. Section 112.3173, Florida Statutes (2000),ii provides in pertinent part:

   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.

         
         

      2. "Court" means any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense.

         
         

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

         
         

      4. "Public retirement system" means any retirement system or plan to which the

         provisions of part VII of this chapter apply.

         
         

      5. "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 or her 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 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 her 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 or her admitted commission, aid, or abetment of a specified offense, 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.

      
      

9. As the party asserting that Muskelly's rights and benefits under the FRS are forfeit, the Division bears the burden of proof in this proceeding. See, e.g., Florida

   Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). Because none of the material historical facts relevant to the determination at hand is in dispute, there is no need to address the applicable standard of proof.

10. Forfeitures are sometimes deemed "odious" by courts, which look with disfavor upon these "harsh exactions" and try to avoid them "when possible." See Williams v. Christian, 335 So. 2d 358, 361 (Fla. 1st DCA 1976). Judicial distaste aside, there is obviously widespread public support for the proposition that, no matter the particular circumstances, a state worker who has been convicted of a "felony involving a breach of public trust" ought to be divested of all his pension benefits, in addition to serving the sentence which attaches to the criminal conviction, as every person convicted of the same crime must, regardless of who his employer is; absent broad public support for pension forfeitures, the Florida Constitution could not have authorized such a robustly punitive measure.iii Nevertheless, given the severity of the remedy, statutes "imposing forfeiture [should] be [both] strictly construed in a manner such as to avoid the forfeiture and . . . liberally construed so as to . . . relieve from forfeiture." Id.

11. In this instance, however, there is no room for interpretation of the relevant statutory provisions. Muskelly

    pleaded guilty to two crimes, each a felony, and thus was "convicted" of those offenses within the plain meaning of Section 112.3173(2)(a), Florida Statutes (2000), which unambiguously defines "conviction" as including, among other things, a plea of guilty.

12. One of the crimes of which Muskelly was convicted was called "official misconduct," which was defined as follows:

    1. "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or herself or another or to cause unlawful harm to another: knowingly falsifying, or causing another to falsify, any official record or official document.

       
       

    2. "Corrupt" means done with knowledge that act is wrongful and with improper motives.

       
       

    3. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

       § 839.25, Fla. Stat. (2000). The crime of official misconduct has been held to constitute a "specified offense" under the "plain wording" of Section 112.3173(2)(e)6., a conclusion with which the undersigned must concur. See Jacobo v. Board of

       Trustees of the Miami Police, 788 So. 2d 362, 365 (Fla. 3d DCA 2001).

13. Muskelly's other conviction was for grand theft, stemming from the fact that she had stolen between $5,000 and

    $10,000 from her employer, the Department of Children and Families. The crime of grand theft was defined, in relevant part, as follows:

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       
       

       1. Deprive the other person of a right to the property or a benefit from the property.

          
          

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

          
          

          (2) . . .

          
          

       3. It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:

          
          

          * * *

          
          

          2. Valued at $5,000 or more, but less than

          $10,000.

          
          

          § 812.014, Fla. Stat. (2000). The undersigned concludes that Muskelly's crime of stealing from her employer falls squarely within the unambiguous definition of "specified offense" set forth in Section 112.3173(2)(e)2.

14. Consequently, it is the will of the people, the undersigned has no choice but to conclude, that Muskelly, having been "convicted" of "specified offenses" within the plain meaning of Sections 112.3173(2)(a), (e), Florida Statutes, must

forfeit her retirement benefits pursuant to the clear and unambiguous mandate of Section 112.3173(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order determining that Ms. Muskelly forfeited all her rights and benefits under the Florida Retirement System, except for the return of any accumulated contributions, when she pleaded guilty to "specified offenses" committed prior to her retirement from public service.

DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.stae.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2008.

ENDNOTES

i/ See, e.g., Robinson v. State of Florida, 373 So. 2d 898, 902 (Fla. 1979)(guilty plea is an in-court confession that not only admits the acts charged but also is itself a conviction).

ii/ The applicable version of the forfeiture statute is the one that was in effect on the date of the criminal acts. See Warshaw v. City of Miami Firefighters' & Police Officers' Ret. Trust, 885 So. 2d 892, 895 n.7 (Fla. 3rd DCA 2004)(Cope, J.,

dissenting).

iii/ The undersigned is aware that forfeiture of pension benefits has been held to be "not a punishment" for purposes of evaluating the constitutionality of the forfeiture statute.

Busbee v. State of Florida, Division of Retirement, 685 So. 2d 914, 917 (Fla. 1st DCA 1996). Be that as it may, it seems to the undersigned that, for all other purposes, the forfeiture of pension benefits is a "punishment" as that term is commonly used and understood in everyday discourse. Moreover, this particular exaction is uniquely punitive among forfeitures, because the property being confiscated (pension benefits), unlike the primary targets of forfeiture laws (property used in committing a crime and the fruits of illegal activity, see City of Hollywood v. Mulligan, 934 So. 2d 1238, 1247 (Fla.

2006)(discussing the distinction between "impoundment" and "forfeiture")), is not necessarily related, either causally or logically, to the criminal act leading to the forfeiture.

COPIES FURNISHED:

DeBorah Muskelly

313 Northwest 158th Avenue Pembroke Pines, Florida 33169

Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director Division of Retirement Department of Business and

Professional Regulation Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brennis, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 07-004536

Orders for Case No: 07-004536