ADRIENNE F. LAFLAMME,
vs.
Respondent.
) Case No. 11-4342
On August 28, 2012, an administrative hearing in this case was held by video teleconference in Orlando and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Charles L. Handlin, Esquire
Handlin and Hefferan, P.A.
For Respondent: Geoffrey M. Christian, Esquire
The issue is whether the Petitioner has forfeited her rights and benefits under the Florida Retirement System (FRS).
By certified letter dated April 16, 2010, the Department of Management Service, Division of Retirement (Respondent), notified Adrienne F. LaFlamme (Petitioner) that the Respondent was suspending the Petitioner's benefits under the FRS based on then- pending criminal charges against the Petitioner. The letter further notified the Petitioner that the resolution of such charges could result in forfeiture of such benefits. The Petitioner challenged the proposed forfeiture and requested an administrative hearing. On August 24, 2011, after the resolution of the charges and subsequent proceedings, the Respondent forwarded the case to the Division of Administrative Hearings, which scheduled the dispute for hearing. After being twice continued, the hearing occurred on August 28, 2012.
The Petitioner did not attend the hearing. She was represented at the hearing by legal counsel who presented no testimony or exhibits. The Respondent presented the testimony of two witnesses and the deposition testimony of the Petitioner and had Exhibits A through G, I, J, and M through P admitted into evidence.
Prior to the hearing, the parties filed a Joint Response to Pre-hearing Order (Joint Response), including a statement of admitted facts that have been adopted and incorporated herein as necessary. In the Joint Response, the parties referenced the
2008 edition of the Florida Statutes. The felonies referenced herein occurred in May to June 2008, and the applicable law is that set forth in Florida Statutes (2007). Accordingly, unless otherwise indicated, all statutory references herein are to Florida Statutes (2007).
A Transcript of the hearing was filed on September 5, 2012.
Following two extensions of the filing deadline granted upon motions of the parties, both parties filed proposed recommended orders that have been considered in the preparation of this Recommended Order.
The FRS is a public retirement system as defined by Florida law.
The Respondent is the Florida agency responsible for management and operation of the FRS.
At all times material to this case, the Petitioner was employed as a teacher by the Brevard County School Board (BCSB).
The BCSB is an FRS-participating employer. Because of her employment, the Petitioner was enrolled in the FRS.
On or about June 25, 2008, the Petitioner was arrested and charged with the following offenses:
Twenty counts of unlawful sexual activity with a minor, a second degree felony, in violation of Section 794.05(1), Florida Statutes;
One count of lewd or lascivious conduct, a second degree felony, in violation of Section 800.04(6)(a)1., Florida Statutes;
One count of lewd or lascivious exhibition, a second degree felony, in violation of
Section 800.04(7)(a), Florida Statutes;
One count of lewd or lascivious molestation, a second degree felony, in violation of Section 800.04(5)(c), Florida Statutes;
One count of lewd or lascivious battery, a second degree felony, in violation of Section 800.04(4)(a), Florida Statutes; and
One count of delivery of cannabis to a minor, a second degree felony, in violation of Section 893.13(4)(a)-(d), Florida Statutes.
The victim of the alleged crimes was a male who had been temporarily incarcerated at the Brevard Regional Juvenile Detention Center (Center).
As an employee of the BCSB, the Petitioner taught science, English, and health education to detainees incarcerated at the Center.
The victim was a student in the Petitioner's classroom during his incarceration at the Center.
The Petitioner engaged in sexual activity with the victim between May 16, 2008, and June 19, 2008, after the victim had been discharged from the Center.
The evidence fails to establish the manner in which the Petitioner and the victim made initial contact after his discharge from the Center.
There is no evidence that the Petitioner was coerced or required to engage in sexual activity with the victim.
On at least one occasion, the sexual activity occurred in the Petitioner's home.
On July 7, 2008, the BCSB commenced proceedings to terminate the Petitioner's employment as a teacher. On July 14, 2008, the Petitioner resigned from her employment with the BCSB.
In February 2010, the Petitioner executed an agreement to plead guilty to three counts of unlawful sexual activity
with a minor, a second degree felony, in violation of
section 794.05(1), Florida Statutes, and one count of making a false report to law enforcement officers, a first degree misdemeanor, in violation of section 837.05(1), Florida Statutes.
On February 7, 2011, the Petitioner's plea agreement was filed in court, and the Petitioner was adjudicated guilty.
The BCSB thereafter referred the matter to the Florida Department of Education, Office of Professional Practices.
As a teacher, the Petitioner was subject to jurisdiction of the Education Practices Commission, pursuant to section 1012.795, Florida Statutes, and was required to comply with the Code of Ethics for the Education Profession in Florida (Code of Ethics) and with the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct).
The Petitioner was an authority figure to her students at the Center. According to the Principles of Professional Conduct, she had an obligation to protect students from conditions harmful to learning and harmful to their health and safety and an obligation to refrain from exploiting a relationship with a student for personal gain or advantage.
On May 11, 2011, the Florida commissioner of education filed an Administrative Complaint before the Education Practices Commission alleging that the Petitioner had violated provisions of the Code of Ethics and the Principles of Professional Conduct and seeking to impose a disciplinary penalty against the Petitioner's educator's certificate.
On December 14, 2011, the Petitioner surrendered her educator's certificate for permanent revocation.
On January 5, 2012, the Education Practices Commission issued a Final Order permanently revoking the Petitioner's educator's certificate.
When the Petitioner was charged with the crimes referenced herein, the Respondent suspended the Petitioner's FRS rights and benefits and provided proper notice of the suspension to the Petitioner. After the Petitioner was adjudicated guilty, the Respondent notified Petitioner that her FRS rights and benefits had been forfeited as a result of the plea. The
Petitioner timely requested an administrative hearing to challenge the suspension and forfeiture.
The Petitioner has not retired from the FRS and is not receiving FRS retirement benefits.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2012).
The Respondent has the burden of proving by a preponderance of the evidence that the Petitioner's rights and benefits under the FRS have been forfeited. Wilson v. Dep't of Admin., Div. of Ret., 538 So. 2d 139, 141-142 (Fla. 4th DCA 1989); Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).
Section 112.311(6), Florida Statutes, provides in relevant part as follows:
[P]ublic officers and employees, state and local, are agents of the people and hold their positions 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 . . . 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.
It is a "breach of the public trust" to violate any provision of the Florida Constitution or of chapter 112, "which establishes a standard of ethical conduct, a disclosure requirement, or a prohibition applicable to public officers or employees in order to avoid conflicts between public duties and private interests . . . ." See § 112.312(3), Fla. Stat.
According to Article II, Section 8(d), Florida Constitution, any public 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."
Section 112.3173, provides, in relevant part, as
follows:
Felonies involving breach of public trust and other specified offenses by public officers and employees; forfeiture of retirement benefits.--
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; 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.
"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.
"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 her public office or employment position.
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.
The FRS is a public retirement system as defined by Florida law, and, as such, the Respondent's proposed action to forfeit the Petitioner's FRS rights and benefits is subject to administrative review. See § 112.3173(5)(a), Fla. Stat.
The issue in this case is whether the Petitioner's crime constitutes a "specified offense" under section 112.3173(2)(e)6., the only enumerated offense relevant to this proceeding. If Petitioner is determined to have committed a specified offense, her FRS rights and benefits must be forfeited.
In order to constitute a specified offense under section 112.3173(2)(e)6., the criminal act must be a felony committed by a public employee, willfully and with intent to defraud the public of the faithful performance of the employee's duties. Here, the Petitioner, a public employee and an authority figure to her students, was adjudicated guilty of felonies that, by their nature, willfully and intentionally defrauded the BCSB of the faithful performance of her obligations to the student and to the public.
The Petitioner violated Florida Administrative Code Rule 6B-1.001, the "Code of Ethics for the Education Profession in Florida," which states as follows:
Code of Ethics of the Education Profession in Florida.
The educator values the worth and dignity of every person, the pursuit of
truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
The Petitioner violated rule 6B-1.006, the "Principles of Professional Conduct for the Education Profession in Florida," which, in relevant part, states as follows:
Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to
learning and/or to the student's mental and/or physical health and/or safety.
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(h) Shall not exploit a relationship with a student for personal gain or advantage.
Obligation to the public requires that the individual:
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(c) Shall not use institutional privileges for personal gain or advantage.
Additionally, in order to constitute a specified offense under section 112.3173(2)(e)6., the employee must have obtained, or have attempted to obtain, profit, advantage or gain, for herself or for others, and must have used or have attempted to use, the powers, rights, privileges, duties or position of her employment. Here, the Petitioner acted for her own gain or advantage when she engaged in sexual activity with a minor student for personal gratification. Further, the Petitioner used the position of her public employment as the victim's teacher to commit the criminal activities for which she was convicted.
The facts are sufficient to establish a nexus between the Petitioner's felony convictions and her duties and responsibilities as a teacher. See DeSoto v. Hialeah Police Pension Fund Bd. of Trustees, 870 So. 2d 844 (Fla. 3rd DCA 2003). The evidence establishes that the felonies identified herein are
within the specified offenses that require forfeiture of the Petitioner's FRS rights and benefits.
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 finding that the Petitioner was convicted of a specified offense pursuant to section 112.3173 and directing the forfeiture of her FRS rights and benefits.
DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012.
Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160
Charles L. Handlin, Esquire Handlin and Hefferan, P.A.
Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000
Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160
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.
