STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES SANDERS,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 02-1673

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter by video teleconference on July 26, 2002, in Tallahassee, Florida, and Fort Myers, Florida.

APPEARANCES

For Petitioner: James Sanders, pro se (via telephone)

c/o FCI Edgefield

501 Gary Hill Road Post Office Box 723

Edgefield, South Carolina 29824

For Respondent: Thomas E. Wright, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Should Petitioner's benefits under the Florida Retirement System be forfeited based on Petitioner having pleaded guilty to

a felony, conspiracy to interfere with commerce by committing extortion, for which he was subsequently adjudged guilty in

federal court?

PRELIMINARY STATEMENT

By letter dated November 28, 2001, Erin B. Sjostrom, State Retirement Director, Division of Retirement, Department of Management Services, notified Petitioner that his rights and benefits under the Florida Retirement System had been forfeited as a result of his plea of guilty in the United States District Court, Middle District of Florida, Fort Myers Division, to the charge of Conspiracy to Interfere with Commerce by Committing Extortion as set forth in the Indictment dated May 2, 2001, in violation of Title 18 U.S.C. Sections 1951 and 2, while employed with the Collier County Sheriff's Office Administration.

By letter dated December 18, 2001, Petitioner, through his wife, Peggy Sanders, requested a formal hearing in this matter, and by the same letter requested additional time to respond so that Petitioner could seek legal counsel due to Petitioner's incarceration.

By letter dated April 29, 2002, the Division of Retirement (Division) referred this matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and for the conduct of a formal administrative hearing.

At the hearing, Petitioner testified in his own behalf by telephone and presented the testimony of Peggy Sanders.

Petitioner's Exhibits 1 and 3 were admitted in evidence. Petitioner's Exhibit 2 was rejected. The Division presented the testimony of Andy Snuggs. The Division's Exhibits 1-3 were admitted in evidence.

Chapter 121, Florida Statutes (2001), was officially recognized.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The parties timely filed their Proposed Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Division is charged with the responsibility of administering the Florida Retirement System.

2. At all times material to this proceeding, Petitioner, James Sanders, was employed by the Collier County, Florida Sheriff's Office as a Law Enforcement Officer.

3. On April 26, 2000, the Grand Jury for the United States Middle District of Florida, Fort Myers Division handed down an Indictment wherein Petitioner was charged with, among other

   things, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2.

4. On April 30, 2001, Petitioner, in accordance with the Plea Agreement dated January 19, 2001, pleaded guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion in violation of Title 18 U.S.C. Sections 1951 and 2, a felony, as that term is defined in Section 775.08(1), Florida Statutes.

5. On May 2, 2001, Judge John E. Steele, United States District Judge, Middle District of Florida, Fort Myers Division entered a Judgment in a Criminal Case wherein Petitioner was adjudged guilty (convicted) of Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2.

6. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner expressly admitted his guilt to that charge under the terms of the Plea Agreement.

7. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner admitted to entering the conspiracy for monetary

   gain, and that he obtained money in furtherance of the conspiracy.

8. After his conviction, Petitioner applied for, and began receiving, retirement benefits under the Florida Retirement System.

9. Upon learning that Petitioner had been convicted of the charge of conspiracy to interfere with commerce by committing extortion by the United States District Court, Middle District, Fort Myers Division, the Division investigated and subsequently advised Petitioner that his retirement benefits under the Florida Retirement System were being forfeited.

10. Neither the Division nor Petitioner presented any evidence of: (a) Petitioner's accumulated contributions to the Florida Retirement System as of the date of his termination; or

    1. the amount of retirement benefits that Petitioner had received prior to the Division advising him of the forfeiture.

       CONCLUSIONS OF LAW

       
       

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes.

12. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). The Division has the burden

    of proof in this proceeding. To meet its burden, the Division must establish facts upon which its allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v.

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996) and Section 120.57(1)(j), Florida Statutes (2001).

13. Article II, Subsection 8(d), Constitution of the State of Florida, as revised in 1968 and subsequently amended, provides in relevant part as follows:

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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1. 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. (Emphasis furnished.)

   
   

   14. Subsections 112.3173(1),(2)(a),(e)6, and (3), Florida Statutes (2001), provide as follows:

   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" means an adjudication of guilt by a court of

         competent jurisdiction; a plea of guilty or 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.

         
         

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         (e) "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, 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. (Emphasis furnished.)

         
         

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   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.

1. The Plea Agreement which Petitioner voluntarily signed contains the following:

   8. Factual Basis

   
   

   Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those facts beyond a reasonable doubt.

   
   

   FACTS

   
   

   On dates between 1983 and 1998, in Collier County, Florida, in the Middle District of Florida, the defendant did knowingly and willfully conspire or agree with another person, either Glen Edison, a/k/a Gendell Edison, a/k/a "Pee Wee", or other conspirators involved in illegal gambling to commit extortion, that is, that he obtained money from illegal gambling operation in Immokalee, Florida, with the consent of the other conspirators, such consent being induced by the wrongful use of fear of economic loss, under color of official right. This same conspiracy and gambling operation affected commerce.

   
   

   It was further part of the conspiracy that defendant and others known and unknown to the Grand Jury would and did perform acts and make statements to hide and conceal, and cause to be hidden and concealed, the purpose of the conspiracy in the acts committed in furtherance thereof.

   
   

2. Clearly, the facts upon which the Plea Agreement is based constitutes a "Specified offense" as defined in Subsection 112.3173(2)(e)6, Florida Statues. Having been convicted of committing a "Specified offense," Petitioner's retirement benefits under the Florida Retirement System are subject to forfeiture.

3. Petitioner's arguments that notwithstanding the Plea Agreement he is innocent of the charges and that the Division is estopped from terminating his benefits after they began are without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a Final Order finding that Petitioner has forfeited all rights and benefits under the Florida Retirement System upon his April 30, 2001, federal felony conviction and requiring the refund by Petitioner of any benefits paid to him in excess of Petitioner's accumulated contributions.

DONE AND ENTERED this 11th day of September, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2002.

COPIES FURNISHED:

James Sanders c/o FCI Edgefield

501 Gary Hill Road Post Office Box 723

Edgefield, South Carolina 29824

Peggy Sanders

Post Office Box 5103 Immokalee, Florida 34143

Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Monesia Taylor Brown, Acting General Counsel Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-1560

Erin Sjostrom, Director Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 02-001673