STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM L. MCCOGGLE,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 06-3866

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RECOMMENDED ORDER

A formal hearing was held in this case on January 10, 2007, by video teleconference at sites in Tallahassee and Miami, Florida, before Administrative Law Judge Eleanor M. Hunter of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Emily Moore, Esquire

Florida Education Association

118 North Monroe Street Tallahassee, Florida 32301

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether Petitioner, by pleading guilty to a charge of organized scheme to defraud, in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes, committed a

“specified offense” under Section 112.3173, Florida Statutes, and forfeited all rights and benefits under the Florida

Retirement System.

PRELIMINARY STATEMENT

On September 6, 2006, William L. McCoggle, Ph.D., (Petitioner or Dr. McCoggle), received a Notice of Forfeiture of Retirement Benefits from the Department of Management Services, Division of Retirement (Respondent or DMS). The Notice was based on a judgment entered on his plea of guilt to one count in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes (2005).

On September 25, 2006, Petitioner timely filed a request for an administrative hearing, and the matter was transferred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.57(1) and 112.3173(5), Florida Statutes (2006).

After a continuance was requested and granted, the hearing was held on January 10, 2007.

At the hearing, Petitioner testified on his own behalf and presented the testimony of A. J. McMullian, Marion Rogers, and Yvette McKinney. Petitioner’s Exhibits 1, 2, 3 (pp. 11-18, 20,

23), 6 (pp. 49-50), 7 (pp. 51-52), 9 (pp. 60-63), and 11 (pp.

65-68) were received into evidence. Respondent presented the testimony of Charlene Fansler. Respondent’s Exhibits 1 through

8 were received into evidence. Respondent requested and was granted official recognition of Section 121.091(13)(j), Florida Statutes, and all other statutes and cases listed in Respondent’s Notice of Request for Official Recognition, filed on October 16, 2006.

No transcript of the hearing was filed. Proposed Recommended Orders were filed on February 7, 2006.

FINDINGS OF FACT

Based on the testimony and documents presented as evidence at the hearing, the following Findings of Fact are made:

1. Petitioner is a retired physical education teacher who is a member of the Florida Retirement System (FRS).

   Dr. McCoggle entered the Deferred Retirement Option Program (DROP) on or about August 1, 2003, and ended his participation in DROP on June 3, 2005.

2. Respondent is the agency responsible for managing, governing, and administering the FRS.

3. At all times material to the allegations of this case, Petitioner was employed by the Miami-Dade County Public Schools (MDCPS or the school district) as a high school physical education teacher and coach.

4. After ending his participation in DROP in June 2005, Petitioner was issued a warrant for his DROP-accumulated funds, but payment of the warrant was stopped.

5. On July 18, 2005, Petitioner was charged with certain crimes, based on events that occurred while he was a physical education teacher. Specifically, a Miami-Dade County Grand Jury issued an indictment charging Petitioner with one count of grand theft, first degree, in violation of Sections 812.014(1)(2)(a) and 777.011, Florida Statutes, and one count of a scheme to defraud, as defined in Subsection 817.034(3)(d), that constituted organized fraud in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes (2005).

6. On November 17, 2005, an amended information filed to supersede the indictment provided:

   WILLIAM L. McCOGGLE, from on or about JANUARY 1, 1999 to on or about MARCH 31, 2004, in the County and State aforesaid, did unlawfully and feloniously engage in a scheme to defraud as defined by s.

   817.034(3)(d), Fla. Stat., by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: MIAMI-DADE COUNTY PUBLIC SCHOOLS, by

   false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: U.S. COINS OR CURRENCY, of an aggregate value of fifty thousand dollars ($50,000.00) or more, the property of MIAMI-DADE COUNTY PUBLIC SCHOOLS, as owner or custodian, in violation of s. 817.034(4)(a)1 and s. 777.011, Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. (Emphasis added.)

7. On November 18, 2005, a plea agreement between Petitioner and the State was filed, in which Petitioner pled guilty to the one count in the amended information and the circuit court entered a judgment adjudicating Petitioner guilty.

8. After notice of the guilty plea and judgment, Respondent’s legal office reviewed grand jury and court documents, determined that Petitioner had been convicted of a specified offense under Section 112.3173, Florida Statutes, and recommended the termination of Petitioner’s rights and benefits under the FRS.

9. On September 6, 2006, Respondent notified Petitioner, by letter, of the forfeiture of his FRS rights and benefits.

10. On September 25, 2006, Petitioner timely sought an administrative review of the agency action.

11. The legal action taken against Petitioner resulted from his involvement, for at least a decade, in arranging for teachers to receive academic credit for state and school district-required teacher certification and recertification.

12. According to the grand jury and Petitioner, he entered into agreements with accredited post-secondary educational institutions for Petitioner on his own, at first, and then through his organization, Move on Toward Education and Training (MOTET), to provide courses to teachers and for the colleges to provide them transcripts.

13. The grand jury found that teachers came to

    
    

    Dr. McCoggle at the high school where he was teaching, after regular school hours and on Saturday mornings, and paid him to sign-up for classes. Dr. McCoggle’s use of school facilities was authorized. Teachers from Miami-Dade, Broward, and Palm Beach Counties participated in the program.

14. The grand jury also found that the transcripts were fraudulently obtained because there were no classes, no tests, no homework, no assignments, and that no teachers attended any classes.

15. As counsel for the Respondent summarized the issues in this case, in his Proposed Recommended Order, any public employee (undisputed) who is convicted of a specified offense (disputed) committed prior to retirement (undisputed) shall forfeit all rights and benefits under any public retirement system of which he or she is a member (undisputed).

16. The evidence supports Petitioner's claim that his guilty plea to a scheme to defraud was not related to the performance of his official duties as a physical education teacher and coach. Petitioner notes that defrauding a public employer is not a "specified offense" unless the fraud is job- related.

17. The grand jury's final report that was introduced as Respondent's Exhibit 1 and the Petitioner's testimony support a

    conclusion that he charged the teachers fees but took no money directly from the school district. Petitioner notes that a theft is a "specified offense" only if the victim is the public employer.

18. It is the position of the school district that, by pleading guilty to a scheme to defraud, Petitioner pled guilty to theft, and that he committed the theft by assisting teachers in getting paid public funds of the MDCPS to which they were not entitled.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 112.3173(5) and 120.57(1), Fla. Stat.

20. The burden of proof in administrative proceedings is on the party asserting the affirmative of an issue. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Respondent bears the burden of proof.

21. The standard of proof in administrative hearings is a preponderance of the evidence. § 120.57(1)(j), Fla. Stat. (2006).

22. Article II, Section 8(d) of the Florida Constitution provides:

    (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.

    
    

23. Section 112.3173, Florida Statutes (2005), the implementing legislation, provides, in relevant 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 . . . 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;

          
          

          * * *

          
          

          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.

          
          

    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).

       
       

24. As defined in Section 112.3173(2)(a), Florida Statutes (2005), Petitioner’s guilty plea constitutes a conviction.

25. By his plea, Petitioner admitted guilt to Sections

    
    

    1. and 777.011, Florida Statutes, that provide:

       
       

       1. DEFINITIONS.--As used in this section, the term:

          
          

          * * *

          
          

          (b) "Obtain" means temporarily or permanently to deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one's own use or to the use of any other person not entitled thereto.

          
          

          * * *

          
          

          (d) "Scheme to defraud" means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.

          
          

          * * *

          
          

       2. OFFENSES.--

          1. Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud, punishable as follows:

    1. If the amount of property obtained has an aggregate value of $50,000 or more, the violator is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

    777.011 Principal in first degree.--

    
    

    Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

    
    

26. The elements of the crime of theft are defined in a separate section of the criminal code, Section 812.014, Florida Statutes (2005), that provides:

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another

       with intent to, either temporarily or permanently:

       1. Deprive the other person of a right to the property or a benefit from the property.

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

          
          

27. Section 812.012, Florida Statutes (2005), defines terms used in Section 812.014, Florida Statutes, and provides, in relevant part:

    (3) “Obtains or uses” means any manner of:

    
    

    * * *

    
    

    1. Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

    2. 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception. . . . (Emphasis added).

       
       

28. The elements of the crimes of theft and a scheme to defraud overlap to the extent that both can involve “obtaining money or property by false pretenses.”

29. Respondent cited a number of cases for the proposition that a “scheme to defraud” and “theft” are the same, and that double jeopardy attaches if the same acts or events give rise to both charges. See Pizzo v. State, 916 So. 2d 828 (Fla. 2d DCA 2005)(finding double jeopardy violation where grand theft and organized fraud counts were based on common allegations that the

    owner of a home improvement business misrepresented the quality and value of materials); Louberti v. State, 895 So. 2d 479 (Fla. 4th DCA 2005)(reversing conviction of organized scheme to defraud, even though defendant was acquitted of grand theft counts, where grand theft charges were based on same acts that were elements of organized scheme to defraud); Donovan v. State,

    572 So. 2d 522, 525-26 (Fla. 5th DCA 1990)(holding that defendant could not be convicted of both organized fraud and theft for same act, unauthorized use of credit cares without double jeopardy violation, for elements of theft are all included in elements of organized fraud); Saddler v. State, 921 So. 2d 777 (Fla. 1st DCA 2006)(holding that retail sales person issuing fraudulent returns and refunds could not be convicted of theft and organized fraud because all the elements of theft are included in organized fraud); Cherry v. State, 592 So. 2d 292 (Fla. 2d DCA)(holding that an insurance agent’s failure to forward funds to insurance companies was organized fraud that also included elements of theft); Thompson v. State, 585 So. 2d 1991 (Fla. 5th DCA 1991 affirmed at 607 So. 2d 422 (Fla. 1992)(holding that fraudulent sale of counterfeit controlled substances in a single sale was a specific form of theft).

30. Despite the overlapping definitions and the factual situations that give rise to double jeopardy, the Legislature distinguished between theft and fraud in the forfeiture statute,

    by requiring the latter to relate to an employee’s duties. The case law requires a strict construction of forfeiture statutes. See, e.g., Williams v. Christian, 335 So. 2d 358 (Fla. 1st DCA 1976); and Page v. Department of Management Services, DOAH Case No. 05-0532 (R.O. 9/2/05).

31. The case law does not, however, confine the determination of whether or not a crime is a "specified offense" to an examination of the title of the crime. In Warshaw v. City of Miami Firefighters and Police Officers Ret. Trust, 885 So. 2d 892 (Fla. 3rd DCA 2004), review denied 918 So. 2d 294 (Fla. 2005), a federal conviction for mail fraud was found to be equivalent to embezzlement in the forfeiture statute.

32. In this case, the Petitioner pled to “a scheme to defraud” and more specifically to the following:

    and did, thereby obtain property, to wit: U.S. COINS OR CURRENCY, of an aggregate value of fifty thousand dollars ($50,000.00) or more, the property of MIAMI-DADE COUNTY PUBLIC SCHOOLS. (Emphasis added.)

    
    

33. The Petitioner pled to a theft from his public employer, MDCPS, a specified offense under Subsection 112,3173(2)(e)2., Florida Statutes (2005), and forfeited all rights and benefits under the FRS, as required by Subsection 112.3173(3), Florida Statutes (2005).

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 requiring William L. McCoggle to forfeit all rights and benefits under the Florida Retirement System.

DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 20th day of March, 2007.

COPIES FURNISHED:

Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Emily Moore, Esquire

Florida Education Association

118 North Monroe Street Tallahassee, Florida 32301

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: 06-003866

Orders for Case No: 06-003866