STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF TRUSTEES OF THE ) CITY OF DAYTONA BEACH ) POLICE AND FIRE DEPARTMENT ) PENSION FUND, )

)

Petitioner, )

)

vs. ) Case No. 97-3543

)

FRANCIS THOMPSON and )

PATRICIA R. THOMPSON, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 17, 1997, in Daytona Beach, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Margaret T. Roberts, Esquire

Post Office Box 832

New Smyrna Beach, Florida 32170-0832

For Respondent: David D. Fuller, Esquire (Patricia R. 220 South Ridgewood

Thompson) Suite 212

Daytona Beach, Florida 32114

For Respondent: No appearance (Francis Thompson)

STATEMENT OF THE ISSUE

The issues are whether Respondent Francis Thompson's interests in the pension plan are forfeited under the law,

whether he should be required to repay all monies received less accumulated contributions, and whether Respondent Patricia R. Thompson's interest in the plan is forfeited upon the forfeiture of the rights of her former husband.

PRELIMINARY STATEMENT

This matter began on August 5, 1997, when Petitioner, Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund, initiated a proceeding to terminate the pension rights and benefits of Respondent, Francis Thompson, a former police officer, on the ground that he had been convicted of a felony involving a breach of public trust. Petitioner also asked that Respondent repay the sum of $42,655.20, plus all distributions, if any, made after June 1997, and that any future distributions be terminated. Because Respondent had transferred certain interests in the plan benefits to his former wife, Patricia R. Thompson, she was also named a respondent in this proceeding.

Respondent Patricia R. Thompson requested a formal hearing to contest the agency's proposed action. Respondent Francis Thompson has never responded to any papers. The case was referred by Petitioner to the Division of Administrative Hearings on August 29, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated September 4, 1997, a final hearing was scheduled on December 4, 1997, in Daytona Beach, Florida. By agreement of the

parties, the case was later continued to December 17, 1997, at the same location. On December 2, 1997, the case was transferred from Administrative Law Judge P. Michael Ruff to the undersigned.

At final hearing, Petitioner presented the testimony of Michael Kerney, a records supervisor for the City of Daytona Beach Police Department, and James C. Maniak, City Finance Director and Pension Plan Administrator. Also, it offered Petitioner's Exhibits 1-24. All exhibits were received in evidence. Respondent Patricia R. Thompson offered Respondent's Exhibits 1 and 2. Both exhibits were received in evidence.

There was no appearance on behalf of Respondent Francis Thompson. However, his present wife, Patricia B. Thompson, appeared as a witness on his behalf. The parties also offered Joint Exhibit 1 which was received in evidence. Finally, at the request of Petitioner, the undersigned took official recognition of numerous statutes, constitutional provisions, portions of the Florida Administrative Code, federal statutes, city code provisions, and documents from other judicial proceedings. These matters were then offered into evidence as Petitioner's Exhibits 1-24.

The transcript of hearing was filed on December 31, 1997. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent Patricia R. Thompson on January 12 and 14, 1998, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. The City of Daytona Beach (City) is a municipal

   corporation created as a political subdivision of the State of Florida. Petitioner, Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund (Board), was established by Special Act of the Legislature in 1959, as amended in 1965. The Board is responsible for administering the City's police and fire department retirement plan (plan) and paying benefits to eligible participants subject, however, to the requirements of Chapter 112, Part VII, Florida Statutes.

2. Respondent, Francis Thompson, is a plan participant, having retired as a police officer with the City of Daytona Beach Police Department on September 24, 1994. His dates of service are from July 31, 1972, to July 30, 1977, and from June 19, 1983, to September 24, 1994.

3. Under the terms of the plan, upon retirement, Francis Thompson was entitled to $1439.84 per month in retirement benefits. Sometime prior to his retirement, however, his marriage to Patricia R. Thompson was dissolved. As a part of the settlement between the parties, Francis Thompson agreed to transfer a portion of his benefits (48.75% had he retired on January 31, 1992), but not to exceed a total liability of

   $31,000.000, plus twelve percent simple interest on the unpaid balance computed from January 31, 1992. This agreement is embodied in a Domestic Relations Order entered on March 30, 1993, by the Circuit Court, in and for Volusia County, Florida.

   Although the City was never given notice of this proceeding nor

   an opportunity to participate, the order reflects that a copy of the same was served upon the plan administrator.

4. Notwithstanding the above action, Section 10 of

   
   

   Sub-Part D of the City Code provides that "the right of a person to a pension . . . shall be unassignable." In other words, Francis Thompson was prohibited from assigning his plan benefits to another person. Faced with a court order which directed the City to pay a portion of the benefits to a third party, the plan administrator consulted with the City's legal counsel, who advised the adminstrator to "follow the intent" of the court's order and begin paying a portion of the benefits to the former wife. It is noted, however, that Patricia R. Thompson did not receive an interest in the plan by the court's order; rather, she obtained entitlement to a portion of the benefits of a plan member. Between September 1995 and the end of November 1997, Patricia R. Thompson has received $24,199.32 in benefits. As of the same date, Francis Thompson received a total of $55,333.18 in benefits.

5. Based upon a belief that Francis Thompson had been convicted of a specified offense related to conduct prior to his retirement, on August 5, 1997, the Board initiated this proceeding for the purpose of terminating all of his rights and benefits under the plan and requiring him to return $42,655.20, plus all distributions, if any, made subsequent to June 1997. Because Patricia R. Thompson is now receiving a portion of her

   former husband's benefits, she was also named as a party.

   
   

6. Between 1987 and 1994, Francis Thompson was evidence custodian and in charge of the evidence and property room for the City of Daytona Beach Police Department. In that position of special trust, he was responsible for keeping all weapons, drugs, moneys, and other property seized or held by the Police Department. The position of evidence custodian was a position that required the City to trust that the custodian would properly perform his responsibilities and duties.

7. It is undisputed that during his tenure as evidence custodian, Francis Thompson removed multiple firearms from the evidence and property room and shipped them to another person in the State of Pennsylvania for personal use. The Police Department could not find any evidence that the firearms had been properly logged or recorded for removal in accordance with proper protocol. By engaging in this conduct, Respondent violated the City's trust.

8. On June 27, 1996, Francis Thompson was convicted of multiple felony violations of the United States Code in the United States District Court, Eastern District of Pennsylvania, in Case No. 2:95CR00232-1. One of these offenses was "shipping stolen firearms in interstate commerce." Because the offense involved the commission of a theft by a public employee from his employer, it constituted a "specified offense" as defined by Sections 112.3173(2)(e)2. and 6., Florida Statutes (1997). The

   conviction for a specified offense calls for forfeiture of all retirement benefits under Section 112.3173(2)(e)2., Florida Statutes (1997). Finally, it is noted that the illicit activity occurred while Respondent was employed as evidence custodian with the City's Police Department.

9. Throughout his term of employment with the City, Francis Thompson made accumulated contributions to the plan totaling

   $29,173.21. As of November 30, 1997, the plan administrator had distributed plan benefits in the amount of $79,532.50, or

   $50,359.29 more than contributions.

   
   

10. At hearing, Respondent's present wife, Patricia B. Thompson, testified on his behalf. Her testimony was limited to a request that, due to financial and health problems incurred by her incarcerated husband, the undersigned appoint counsel on his behalf. That request was denied.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 112.3173(5), Florida Statutes (1997).

12. As the party seeking relief, Petitioner bears the burden of proving by a preponderance of the evidence that it is entitled to the requested relief. See, e.g., Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

13. Francis Thompson's interest in the plan is subject to

    the requirements of Section 8(d), Article II, of the Florida Constitution. That provision reads as follows:

    (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.

    
    

14. Section 112.3173(3), Florida Statutes (1997), implements the above constitutional provision and reads as follows:

    (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.

15. Within the context of the foregoing statute, a "specified offense" is defined by Subparagraphs (2)(e)2. and 6. of the same statute as including the following acts:

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

    
    

    6. The committing of a 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.

    
    

16. Respondent Francis Thompson's conduct while evidence custodian and his conviction of a federal felony offense constituted a specified offense under the foregoing statutes.

17. Respondent Francis Thompson's conduct while evidence custodian also constituted felony theft under the elements set forth in Section 812.014(1) and (2)(c)5., Florida Statutes (1997). That is to say, the theft of firearms constitutes a felony offense in the State of Florida.

18. Therefore, Respondent Francis Thompson has forfeited all rights and benefits under the plan, including past payments made and future benefits payable by the plan, less any accumulated contributions. Section 112.3173(3), Florida Statutes (1997). Paragraph (5)(d) of the same statute requires that Respondent "pay back to the system the amount of benefits received in excess of his or her accumulated contributions." In this case, that amount, as of November 30, 1997, was $50,359.29.

19. In her Proposed Recommended Order, Patricia R. Thompson contends that while Francis Thompson's interest may be lawfully terminated by the Board because of his felony convictions, the Board is nonetheless obligated "to continue to pay her the sum of

    $633.49 per month until a total of $31,000 plus interest as set forth in the Court Order has been paid." Without supporting authority, she argues that "[b]y accepting the interest awarded in the Fund by Court Order . . ., [the City] obligated itself to pay to her the sums set forth therein as beneficiary." But the Court did not award her an interest in the plan; with the City's acquiescence, she simply received entitlement to a portion of her former husband's benefits. Moreover, a Qualified Domestic Relations Order (QDRO), such as the one entered by the court herein, "cannot be used to force direct payment to [Patricia R. Thompson] of a portion of [Francis Thompson's] pension benefits in order to achieve an equitable distribution of the parties' marital assets." Board of Pension Trustees v. Vizcaino, 635 So.

    2d 1012, 1015 (Fla. 1st DCA 1994). Put another way, even though the City voluntarily agreed to redistribute a portion of the plan's benefits to Patricia R. Thompson, it was not legally bound by the QDRO between Respondents. Perhaps the former wife's only remedy is to seek a modification of the QDRO to obtain a new allocation of marital assets, if any remain. In any event, the past payments to Patricia R. Thompson could not create a transfer or assignment binding on the Board. To hold otherwise would permit a plan participant who had been charged with a specified offense to circumvent the requirements of the constitution and state law by merely assigning his or her interests in the plan to another person. Such a holding would stand the forfeiture laws on their head.

20. Finally, for the benefit of Respondent Francis Thompson, who was not present at hearing, it is noted that the undersigned has no authority to appoint counsel on his behalf in this proceeding. Indeed, case law instructs us that there is no right to have an attorney appointed in an administrative proceeding. See, e.g., Santacroce v. State, Dep't of Bus. Reg., 608 So. 2d 134, 136 (Fla. 4th DCA 1992). Therefore, the request (made by his present wife) for appointment of counsel was properly denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund enter a final order determining that Francis Thompson's interest in the plan, including past payments made and future benefits payable by the plan, less accumulated contributions shall be forfeited by the Board pursuant to law; that all persons deriving an interest through his interest in the plan, including his present and former wife shall forfeit all future payments from the plan upon the issuance of a final order; and that Francis Thompson shall pay back to the Board all payments in excess of his accumulated contributions in such manner as the Board may determine.

DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998.

COPIES FURNISHED:

Margaret T. Roberts, Esquire Post Office Box 832

New Smyrna Beach, Florida 32170-0832 David D. Fuller, Esquire

220 South Ridgewood Avenue Suite 210

Daytona Beach, Florida 32114

Francis Thompson

Registry Number 17952-018

Eglin Air Force Base Prison Camp Post Office Box 600

Eglin Air Force Base, Florida 32542

James C. Maniak Plan Administrator

City of Daytona Beach Post Office Box 2451

Daytona Beach, Florida 32115-2451

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund.

Docket for Case No: 97-003543

Orders for Case No: 97-003543