STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA G. BYRD,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

)

)

)

)

)

)

)

) Case No. 07-5008

)

)

)

)

RECOMMENDED ORDER

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

December 21, 2007, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Martha G. Byrd, pro se

1911 Northwest 190 Terrace Opa Locka, Florida 33056

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 Action to Forfeit Retirement Benefits dated August 22, 2007, Respondent Department of Management Services, Division of Retirement, notified Petitioner Martha G. Byrd that her rights and benefits under the Florida Retirement System are forfeit as a result of her convictions, in 2004, for bribery, receipt or solicitation of unlawful compensation, and grand theft, which crimes were committed while she was a county employee. Ms. Byrd timely requested a formal hearing to contest this forfeiture determination, and, on October 29, 2007, the matter was filed with the Division of Administrative Hearings.

The final hearing took place as scheduled on December 21, 2007, with both parties present. Respondent called as its sole witness Ira Gaines, a Benefits Administrator in Respondent's Bureau of Retirement Calculations. In addition, Respondent offered five exhibits, numbered 1 through 5, and each was received in evidence. Ms. Byrd testified on her own behalf; she presented no other evidence.

A final hearing transcript was not provided. Each party filed a post-hearing submission ahead of the deadline (January 7, 2008) that had been established at hearing. Respondent's

Proposed Recommended Order and Petitioner's correspondence dated December 28, 2007, were considered.

FINDINGS OF FACT

1. At the time of her arrest in March 2002 on criminal charges relating to the alleged acceptance of a bribe, Petitioner Martha G. Byrd ("Byrd") was employed as a clerk in the Miami-Dade County Property Appraiser's Office. 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, Byrd earned approximately 21 years of creditable service in the FRS.

2. On March 8, 2004, Byrd pleaded nolo contendere in the Miami-Dade County Circuit Court, Eleventh Judicial Circuit, to three crimes, namely: solicitation or acceptance of unlawful compensation for an official act as proscribed in Section 838.016, Florida Statutes (2002); solicitation or acceptance of a bribe, as prohibited under Section 838.015, Florida Statutes (2002); and grand theft of the third degree, as proscribed in Section 812.014(c), Florida Statutes (2002). Based on the plea, the court found that Byrd had committed the crimes charged and sentenced her to probation with special conditions; adjudication of guilt was withheld, however, with regard to each charge.

3. The Division learned about the criminal prosecution of Byrd upon receiving notice thereof from the Commission on Ethics. After reviewing the court file, the Division determined that Byrd 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.

4. By letter dated August 22, 2007, the Division notified Byrd 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. Byrd timely requested a hearing.

5. Byrd maintains her innocence of the crimes for which she was sentenced. She insists that she was a good employee who never took any money in exchange for a corrupt act. Byrd pleaded no contest to the criminal charges, she says, because she had no way of proving that the government's principal piece of evidence against her——a tape recording made by an undercover agent——had been altered; thus, she feared being convicted at trial, on the strength of the surreptitious recording, and sent to prison.

   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 (2002),i 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;

         1. The committing of an impeachable offense; or

         2. 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.

      
      

      (Emphasis added.)

      
      

9. As the party asserting that Byrd'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 instant case 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 government employee 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.ii 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. Byrd pleaded nolo contendere to three crimes, each a felony, and thus was "convicted" of those offenses within the plain meaning of Section 112.3173(2)(a), Florida Statutes (2002), which unambiguously defines "conviction" as including, among other things, a plea of nolo contendere. (The fact that Byrd pleaded nolo contendere is sufficient, of itself, to establish that she was "convicted" for purposes of the pension forfeiture law. Therefore, even if the undersigned were to find that Byrd had not, in fact, committed the crimes in question, he would still be compelled to conclude, pursuant to Section 112.3173(2)(a), that she was "convicted" of them. In short, the actual, historical facts that gave rise to Byrd's arrest and prosecution are irrelevant to the matter at hand.)

12. One of the crimes of which Byrd was convicted was "bribery," which was defined as follows:

    1. "Bribery" means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or herself or another, any pecuniary or other benefit with an intent or purpose to influence the performance of any act or

       omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty.

       
       

       § 838.015, Fla. Stat. (2002).

       
       

13. Another of Byrd's convictions was for solicitation or receipt of unlawful compensation, a crime defined as follows:

    1. It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal.

       
       

       § 838.016(1), Fla. Stat. (2002).

       
       

14. The foregoing crimes, named in Chapter 838, Florida Statutes, are clearly and unequivocally "specified offenses," a term which by definition plainly includes "[a]ny felony specified in Chapter 838, except ss. 838.15 and 838.16."

    § 112.3173(2)(e)3., Fla. Stat. (2002). (The excluded provisions are inapplicable here.)

15. Consequently, it is the will of the people, the undersigned has no choice but to conclude, that Byrd, having

been "convicted" of "specified offenses" committed prior to retirement, 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. Byrd forfeited all her rights and benefits under the Florida Retirement System, except for the return of any accumulated contributions, when she pleaded no contest to "specified offenses" committed prior to her retirement from public service.

DONE AND ENTERED this 16th 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 16th day of January, 2008.

ENDNOTES

i/ 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).

ii/ 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:

Martha G. Byrd

Post Office Box 1855

Opa Locka, Florida 33055

Martha G. Byrd

1911 Northwest 190 Terrace Opa Locka, Florida 33056

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 Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, 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: 07-005008

Orders for Case No: 07-005008