STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN MAGYARI,

Petitioner,

vs.

CITY OF STARKE,

Respondent.

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) Case No. 06-3701

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on February 2, 2007, in Starke, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Emory Springfield, Esquire

605 Northeast First Street, Suite G Gainesville, Florida 32601

For Respondent: John Lyon Broling, Esquire

Brown & Broling

486 North Temple Avenue Post Office Box 40 Starke, Florida 32091

STATEMENT OF THE ISSUE

Whether Petitioner's benefits under the Florida Retirement System should be forfeited.

PRELIMINARY STATEMENT

On July 12, 2006, the Board of Trustees of the City of Starke General Employees Pension Board sent to Petitioner, Glenn Magyari, a Notice of Intent to Enter an Order of Forfeiture of Retirement Benefits (Notice) pursuant to Section 113.3173, Florida Statutes. This action was premised on Petitioner's entry of a plea of no contest to violations of Section 893.12(1)(a)1., Florida Statutes, regarding the sale of a controlled substance, Oxycontin, through a prescription obtained as a result of a workers' compensation claim.

Petitioner disputed the Notice and timely requested an administrative hearing. The case was transmitted to the Division of Administrative Hearings on September 27, 2006, for the purpose of conducting an administrative hearing.

The case was initially scheduled for hearing on December 14, 2006. Respondent filed an Unopposed Motion for Continuance, which was granted. The case was rescheduled for February 2, 2007. The case was heard as scheduled.

At hearing, Petitioner did not present the testimony of any witnesses and did not offer any exhibits into evidence.

Respondent presented the testimony of Sergeant Kevin Mueller, Ricky Thompson, and Linda Johns. Respondent's Exhibits numbered

1 through 15 were admitted into evidence.

A one-volume transcript was filed on February 14, 2007.

Petitioner timely filed a Proposed Recommended Order which has been considered in the preparation of this Recommended Order. Respondent did not file a post-hearing submission.

FINDINGS OF FACT

1. Petitioner began employment with the City of Starke in 1993, and acquired vested retirement benefits. Petitioner held the position of gas mechanic or service technician. His job duties included installing gas lines, hooking up appliances, extending gas lines, and taking readings at the city gate station.

2. Petitioner reported an on-the-job injury sometime in 2004. The exact date of the injury is not clear from the record. As a result of the injury, Petitioner was unable to work for a period of time and received workers' compensation benefits.

3. Petitioner was prescribed medications, including Oxycontin, by Dr. Christopher Leber. Oxycontin is a controlled substance. The last time Dr. Leber prescribed this medication to Petitioner was November 4, 2004.

4. The Florida League of Cities is Respondent's workers' compensation insurance carrier. Respondent pays premiums to the Florida League of Cities for workers' compensation coverage for

   its employees, and the Florida League of Cities pays the medical bills and prescriptions for injured workers.

5. The exact date that Petitioner stopped performing work duties due to his injury is not clear from the record. However, on June 16, 2004, the City Manager wrote a letter to Petitioner regarding Petitioner's return to work for the City. The letter instructed Petitioner to report to "Ricky Thompson at Purchasing" on Monday June 21, 2004, at 8:00 a.m. Petitioner was also instructed to provide a complete list of prescription medications when he reported to Mr. Thompson.

6. On June 22, 2004, Mr. Thompson wrote a memorandum to the City Manager informing him that Petitioner reported to work at 7:30 a.m. and was assigned to the recycle yard. Petitioner worked from 7:30 a.m. until 8:05 a.m., then left work complaining of back pain. Petitioner was paid for one hour of work.

7. On June 22, 2004, Mr. Thompson wrote another memorandum to the City Manager informing him that Petitioner called

   Mr. Thompson, and informed him that he was unable to work due to back and neck pain.

8. Linda Johns is the City Clerk for the City of Starke.

   
   

   One of her responsibilities in that position is to manage the human resources department for the City, including workers' compensation matters and payroll.

9. Although June 22, 2004, was the last day Petitioner performed any work for the City, the City continued to issue paychecks to Petitioner every other week for hours that would have been his vacation and sick time. The City continued to issue these checks to Petitioner throughout 2004. According to Ms. Johns, he was paid for this leave because she still considered Petitioner to be a city employee and because no one told her not to pay him for vacation and sick time. Petitioner picked up these checks from Ms. Johns' office.

10. In October and November, 2004, Petitioner was the target of a sting operation by the Bradford County Drug Task Force.

11. On November 14, 2004, Sergeant Mueller gave $900 in bills to a confidential informant for the purpose of purchasing Oxycontin from Petitioner. On November 15, 2004, Petitioner was arrested for the sale of Oxycontin by Sergeant Kevin Mueller. At the time of the arrest, Sergeant Mueller confiscated a prescription bottle that was in Petitioner's possession. The prescription bottle was for 90 (40 milligram) tablets of

    Oxycontin, which had been prescribed to Petitioner by Dr. Leber. The prescription had been filled on November 14, 2004, the day before the sting operation.

12. Also in Petitioner's possession at the time of his arrest was $900, comprised of bills that were the same serial numbers as the bills given to the confidential informant by Sergeant Mueller to effect the sting operation.

13. In case number 2004-CF-604, Petitioner was charged with the sale of Oxycontin to a confidential informant on October 27, 2004. In case number 2004-CF-600, Petitioner was charged with the sale of Oxycontin to a confidential informant on November 15, 2004.

14. On September 27, 2005, Petitioner entered a plea of nolo contendere to the sale of a controlled substance in case number 2004-CF 604 in violation of Section 893.13(1)(a)1., Florida Statutes, and to the sale of a controlled substance in case number 2004-CF-600, also in violation of Section 893.13(1)(a)1., Florida Statutes. On September 27, 2005, Petitioner was adjudicated guilty of the sale of a controlled substance in violation of Section 893.13(1)(a)1., Florida Statutes, in both cases. These crimes are second degree felonies. In each case, Petitioner was placed on community control for 18 months to be followed by drug offender probation for 32 months, the probation and community control to be served concurrently.

15. On March 28, 2005, the City Manager wrote a termination of employment letter to Petitioner. The letter advised Petitioner that he was being terminated immediately "as a result of your abandonment of your light-duty position and misconduct." The letter also informed Petitioner that if he wanted a pre-termination hearing, he must request it within 10 days.

16. On April 4, 2005, Ms. Johns wrote to Petitioner attaching COBRA papers inquiring as to whether Petitioner wanted continuation of his insurance coverage.

17. On April 14, 2005, the City Manager again wrote Petitioner and informed him that Petitioner was not afforded a pre-termination hearing because he had abandoned his position. The letter provided notice of a post termination/name clearing hearing on April 21, 2005.

18. On April 20, 2005, Petitioner signed a memorandum to Ms. Johns informing her that he did not wish to continue coverage of medical insurance or COBRA.

19. On June 2, 2006, Mr. Thompson sent a letter to Petitioner informing him of a job opening with the City of Starke as a recycle yard attendant.

20. On July 25, 2006, Mr. Thompson sent a letter to Petitioner informing him of a job opening with the City of Starke as an animal shelter office manager.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 112.3173(5), 120.569 and 120.57, Fla. Stat.

    
    

22. 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). Respondent has the burden of proof in this proceeding.

23. The applicable version of the pension forfeiture statute is the one that was in effect at the time Petitioner committed the crimes. Busbee v. State of Florida, Division of Retirement, 685 So. 2d 914, 916-17 (Fla. 1st DCA 1996). The crimes were committed in 2004. Section 112.3173, Florida Statutes (2004),1/ reads as follows:

    INTENT.--It is the intent of the Legislature to implement the provisions of s. 8(d), Art. II of the State Constitution.

    
    

    1. 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.

          
          

    2. 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.

       
       

    3. NOTICE.--

       
       

       1. The clerk of a court in which a proceeding involving a specified offense is being conducted against a public officer or employee shall furnish notice of the proceeding to the Commission on Ethics. Such notice is sufficient if it is in the form of a copy of the indictment, information, or other document containing the charges. In addition, if a verdict of guilty is returned by a jury or by the court trying the case without a jury, or a plea of guilty or of nolo contendere is entered in the court by the public officer or employee, the clerk shall furnish a copy thereof to the Commission on Ethics.

          
          

       2. The Secretary of the Senate shall furnish to the Commission on Ethics notice of any proceeding of impeachment being conducted by the Senate. In addition, if such trial results in conviction, the Secretary of the Senate shall furnish notice of the conviction to the commission.

          
          

       3. The employer of any member whose office or employment is terminated by reason of his or her admitted commission, aid, or abetment of a specified offense shall forward notice thereof to the commission.

       4. The Commission on Ethics shall forward any notice and any other document received by it pursuant to this subsection to the governing body of the public retirement system of which the public officer or employee is a member or from which the public officer or employee may be entitled to receive a benefit. When called on by the Commission on Ethics, the Department of Management Services shall assist the commission in identifying the appropriate public retirement system.

       
       

    4. FORFEITURE DETERMINATION.--

       
       

       1. Whenever the official or board responsible for paying benefits under a public retirement system receives notice pursuant to subsection (4), or otherwise has reason to believe that the rights and privileges of any person under such system are required to be forfeited under this section, such official or board shall give notice and hold a hearing in accordance with chapter 120 for the purpose of determining whether such rights and privileges are required to be forfeited. If the official or board determines that such rights and privileges are required to be forfeited, the official or board shall order such rights and privileges forfeited.

          
          

       2. Any order of forfeiture of retirement system rights and privileges is appealable to the district court of appeal.

          
          

       3. The payment of retirement benefits ordered forfeited, except payments drawn from nonemployer contributions to the retiree's account, shall be stayed pending an appeal as to a felony conviction. If such conviction is reversed, no retirement benefits shall be forfeited. If such conviction is affirmed, retirement benefits shall be forfeited as ordered in this section.

       4. If any person's rights and privileges under a public retirement system are forfeited pursuant to this section and that person has received benefits from the system in excess of his or her accumulated contributions, such person shall pay back to the system the amount of the benefits received in excess of his or her accumulated contributions. If he or she fails to pay back such amount, the official or board responsible for paying benefits pursuant to the retirement system or pension plan may bring an action in circuit court to recover such amount, plus court costs.

       
       

    5. FORFEITURE NONEXCLUSIVE.--

       
       

       1. The forfeiture of retirement rights and privileges pursuant to this section is supplemental to any other forfeiture requirements provided by law.

          
          

       2. This section does not preclude or otherwise limit the Commission on Ethics in conducting under authority of other law an independent investigation of a complaint which it may receive against a public officer or employee involving a specified offense. (Emphasis supplied)

       
       

24. Statutes imposing forfeiture are not favored in law and are strictly construed in a manner to avoid the forfeiture. Williams v. Christian, 335 So. 2d 358 (Fla. 1st DCA 1976).

25. The threshold issue is whether or not Petitioner was still an employee at the times the underlying crimes were committed. Petitioner argues that he was not, as the last day he performed work for the City was June 22, 2004. However, Petitioner continued to pick up paychecks, albeit small ones paying only for accrued leave, throughout 2004. Moreover, he

    was still receiving workers' compensation benefits at the times the crimes for which he was adjudicated guilty were committed. Finally, the City did not issue a termination letter to him until March 28, 2005. Accordingly, the undersigned concludes that Petitioner was still an employee of Respondent as contemplated in the definition of "employee" in Section 112.3173(2)(c), Florida Statutes (2004).

26. The next step of the analysis is whether Petitioner committed a specified offense as contemplated by Section 112.3173(2)(e), Florida Statutes (2004). A specified offense under the statute must have been committed by a public employee; have been committed in a manner willfully and with the intent to defraud the public employee's faithful performance of his public duty; have been committed by the public employee in an attempt to obtain a profit or gain for himself or some other person; and have been committed using the powers or duties of the public employee's position.

27. Petitioner pled nolo contendere in a court of competent jurisdiction to two felonies committed when he was still a public employee. Petitioner was adjudicated guilty to both felonies. Thus, Petitioner was "convicted" under the forfeiture law.

28. The nature of the crimes of which Petitioner was convicted realized or attempted to realize a profit or gain to Petitioner. However, the evidence does not establish that Petitioner had the intent to defraud the public or public agency of the right to receive the faithful performance of his duty as a public employee. His duties as a public employee were those of a gas mechanic. Further, any gain or profit received by Petitioner was not through the use or attempted use of the power, rights, privileges, duties, or position of his public employment.

29. Respondent argues that Petitioner defrauded Respondent by the sale of a drug that was prescribed to him by a doctor who was treating him as part of workers' compensation benefits. The undersigned is not persuaded that this factual scenario is sufficient to meet the statutory requirement of a nexus between the crimes charged against the public employee and his duties and/or position. cf. Warshaw v. City of Miami Firefighters' and Police Officer's Retirement Trust, 885 So. 2d 892 (3rd DCA 2004) (Former police chief was registered agent for a not-for-profit organization financed principally by the city, arranged for city funds to be transferred to the not-for-profit bank accounts and used part of those transferred funds to pay for personal, unauthorized matters over a period of years); and DeSoto v. Hialeah Police Pension Fund Board of Trustees, 870 So. 2d 844

    (3rd DCA 2003) (Sufficient nexus found between crimes and duties of a police officer, who was convicted of conspiracy to possess and distribute cocaine and to commit robbery, who informed accomplices that an individual was a drug dealer, provided surveillance prior to the robbery, contacted a police officer accomplice to notify him that victim was leaving work so the officer could conduct a traffic stop, and provided handcuffs used to restrain the victim.).

30. Accordingly, Petitioner did not commit a specified offense as contemplated by Section 112.3173(2)(c), Florida

Statutes (2004).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the City of Starke enter a final order rescinding its Notice of Intent to Enter an Order of Forfeiture of Retirement Benefits.

DONE AND ENTERED this 3rd day of April, 2007, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 3rd day of April, 2007.

ENDNOTE

1/ The History notes in the Florida Statutes indicate that the statute has not been amended since 1999. Therefore, there has been no change in the law since the 2004 Florida Statutes.

COPIES FURNISHED:

Emory Springfield, Esquire

605 Northeast First Street, Suite G Gainesville, Florida 32601

John Lyon Broling, Esquire Brown & Broling

486 North Temple Avenue Post Office Box 40 Starke, Florida 32091

Ricky Thomson, Chairman Board of Trustees

City of Starke General Employees Pension Board

Post Office Drawer C Starke, Florida 32091

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: 06-003701

Orders for Case No: 06-003701