BARBARA F. BOONE,
vs.
Respondent.
) Case No. 07-0890
A final disputed-fact hearing was noticed for April 23, 2007, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings. On
April 20, 2007, the parties agreed by telephone to submit this cause upon stipulated facts and exhibits, including prior transcripts which are to be taken as sworn testimony herein.
For Petitioner: Henry M. Coxe, III, Esquire
Bedell, Dittmar, DeVault, Pillins & Coxe, P.A.
For Respondent: Geoffrey M. Christian, Esquire
Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160
Whether Petitioner, by pleading no contest to four counts of petit theft, in violation of Section 812.014(2)(e), Florida Statutes, despite steadfastly maintaining her innocence, must forfeit her rights and benefits under the Florida Retirement System, pursuant to Section 112.3173, Florida Statutes.
On August 21, 2006, the Division of Retirement approved the forfeiture of Petitioner's rights and benefits under the Florida Retirement System, pursuant to Section 112.3173, Florida Statutes, premised on Petitioner's entry of a plea of nolo contendere in a state court proceeding wherein she had been charged with certain criminal offenses.
Respondent notified Petitioner of the forfeiture of her Florida Retirement System rights and benefits. Petitioner timely filed her request for an administrative hearing to challenge the proposed final agency action. The Department of Management Services conducted an informal proceeding on or about February 19, 2007, This hearing produced a transcript.
On or about February 20, 2007, the case was referred to the Division of Administrative Hearings for a disputed-fact hearing, pursuant to Section 120.57(1), Florida Statutes.
The final disputed-fact hearing was noticed for April 23, 2007. However, on April 20, 2007, during a telephonic
conference, the parties agreed, in lieu of a formal hearing, to submit joint exhibits and a Joint Stipulation of Facts, which were accordingly filed on April 24, 2007. In addition, the parties agreed to file proposed recommended orders by May 31, 2007. The parties' Proposed Recommended Orders were timely filed and have been considered in the preparation of this Recommended Order. This Recommended Order utilizes their Joint Stipulation of Facts, modified only as to format, not content.
Respondent Division of Retirement is charged with the responsibility of managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. (Joint Stipulation of Fact 1.)
FRS is a public retirement system as defined by Florida law. As such, Respondent had deemed its action regarding the forfeiture of Petitioner's rights and benefits under FRS subject to administrative review. (Joint Stipulation of Fact 2.)
Petitioner is a senior management service class member of FRS. (Joint Stipulation of Fact 3.)
At all times material to the allegations of this case, Petitioner was employed by the Town of Callahan as a planning and zoning administrator. (Joint Stipulation of Fact 4.)
On or about August 23, 2005, the State Attorney for the Fourth Judicial Circuit, through an assistant, filed a Third
Amended Information charging Petitioner with (a) one (1) count of grand theft, contrary to the provisions of Section 812.014(2)(c), Florida Statutes; (b) two (2) counts of grand theft, contrary to the provisions of Section 812.014(2)(b)1., Florida Statutes; (c) nineteen (19) counts of official misconduct, contrary to the provisions of Section 839.25(1), Florida Statutes; and (d) one (1) count of petit theft, contrary to the provisions of Section 812.014(2)(e), Florida Statutes. (Joint Stipulation of Fact 5.)
The events that formed the basis for the Third Amended Information occurred during Petitioner's tenure as an employee of the Town of Callahan. (Joint Stipulation of Fact 6.)
The Third Amended Information outlines the violations to which Petitioner pled no contest and provides, in pertinent part, as follows:
COUNT 1: BARBARA F. BOONE on or between May 10, 2001 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency or gasoline, the value of $300.00 or more but less than
$20,000.00, the property of the TOWN OF CALLAHAN, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefits therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . .
COUNT 2: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of
Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than
$100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with El Nino Community Development Block Grant 00DB-6M- 04-55-02-G16, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or the use of any person not entitled thereto .
. .
COUNT 3: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than
$100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with Housing Rehabilitation Community Development Block Grant 00DB-6B-04-055-02-H09, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . .
* * *
COUNT 23: BARBARA F. BOONE on or between October 1, 2000 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use, or endeavor to obtain or use U.S. currency or cellular phone service, valued at One-Hundred Dollars ($100.00) or more but less than Three- Hundred Dollars ($300.00), the property of THE TOWN OF CALLAHAN, with intent to, either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled
thereto . . . (Joint Stipulation of Fact 9.)
Count 1 related to alleged misuse of a City gasoline credit card. Count 2 related to alleged dual billing of hours for the El Nino Block Grant. Count 3 related to alleged dual billing of hours for the HUD Block Grant. Count 23 related to alleged misuse of a City cell phone. (Exhibit 4: Circuit Court Hearing Transcript, pages 10-12.)
Petitioner had filed a civil action against the City concerning all these issues before she was charged with them as crimes. (Exhibit 9: Informal Hearing Transcript, page 13.)
On or about March 7, 2006, Petitioner entered a plea agreement with the State of Florida, wherein she acknowledged she would plead no contest (nolo contendere), while maintaining her innocence, to the "lesser included" offense of petit theft contained in Counts 1, 2, 3 and 23 of the Third Amended Information. The agreement provided, however, that Counts 1, 2, and 3 would be reduced to the lesser-included misdemeanor counts of petit theft, in violation of the provisions of Section 812.014(2)(e), Florida Statutes, and Counts 4 through 22 would be dismissed. (Joint Stipulation of Fact 7.)
The first sentence of the plea agreement reads as follows:
I hereby enter my plea of no contest for the reason it is in my best interest although I
maintain my innocence. (Joint Stipulation of Fact 8.)
On or about March 7, 2006, Petitioner pled no contest in accordance with the terms of the plea agreement. (Joint Stipulation of Fact 10.)
During the plea dialogue, which included inquiry by the circuit judge taking the plea to ascertain if the accused understood the charges and was entering the plea voluntarily, Petitioner articulated that she was innocent of all charges. (Exhibit 4: Circuit Court Hearing Transcript, pages 5-13.)
In accepting a nolo contendere plea and its concomitant plea agreement, a circuit judge is required to inquire and determine if there is a "factual basis" for the charges. To those types of questions at Petitioner’s plea dialogue Petitioner's counsel replied:
. . . just for our purposes we do not agree that any of those facts are true, but we do agree, if they were true they would constitute a sufficient factual basis. (Exhibit 4: Circuit Court Hearing Transcript, pages 12-13.)
The circuit judge then stated on the record:
The Court finds that there is sufficient factual basis to support the pleas, and that the pleas have been entered into freely, willingly, and voluntarily. (Exhibit 4: Circuit Court Transcript, page 13.)
Judge Robert Foster, Circuit Court Judge in the Circuit Court of the Fourth Judicial Circuit, in and for Nassau
County, Florida, ordered that adjudication of guilt be withheld for good cause shown. Petitioner was ordered to pay $8,260 in restitution to the Town of Callahan and $386.00 in court costs. (Joint Stipulation of Fact 11.)
The state attorney then entered a Code 30 nolle prosequi in accordance with the plea agreement. (Exhibit 4: Circuit Court Hearing Transcript, page 13.)
On or about August 17, 2006, Respondent received from its legal counsel a report recommending that Petitioner's FRS rights and benefits be forfeited pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 12.)
On August 21, 2006, Respondent approved the forfeiture of Petitioner's FRS rights and benefits pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 13.)
On August 28, 2006, Respondent notified Petitioner, by agency action letter, of the forfeiture of her FRS rights and benefits and afforded Petitioner a point of entry to challenge its decision and to request an administrative review of the issues. (Joint Stipulation of Fact 14.)
The Agency conducted an informal proceeding on or about February 19, 2007. At that hearing, Petitioner maintained, under oath, her innocence with regard to all criminal charges that had been alleged against her, including those to which she had pled "no contest." She further testified
that she was not guilty on all counts and had pled "no contest" to some of the criminal charges because the stress of the criminal process had been taking a toll on her and her family. The stress on Petitioner was exacerbated by a mastectomy and her subsequent treatment for breast cancer conducted during the pendency of the criminal proceeding, the plea bargaining, and the plea itself. (Exhibit 9: Informal Hearing Transcript, pages 10-14.)
After the informal proceeding, the cause was referred to the Division of Administrative Hearings for proceedings consistent with Section 120.57(1), Florida Statutes.
Herein, Respondent presented no evidence refuting Petitioner's testimony and no evidence of her guilt in relation to the charges to which she had pled nolo contendere.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 112.3173(5) and 120.57(1), Florida Statutes.
Respondent Division of Retirement concedes that the duty to go forward and the burden of proof by a preponderance of the evidence is upon Respondent herein. Wilson v. Department of
Administration, Division of Retirement, 583 So. 2d 139, 141-42 (Fla. 4th DCA 1989); 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). See also Holland v. Department of Management Services, DOAH Case No. 02-0986 (RO: June 24, 2002; modified on other issues in FO: dated October 1, 2002).
Section 112.3173, Florida Statutes (2003), provides in relevant part:
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 guilty by a court of competent jurisdiction; plea of guilty or of nolo contendere; a jury verdict of guilty when adjudication is withheld and the accused is placed on probation; or a conviction by the Senate of an impeachable offense.
"Court" means any state of federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense.
"Public . . . employee" means an . . . 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:
* * *
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
. . . employee who, willfully and with intent to defraud the public or the public agency for which the public . . . 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 .
. . employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or from some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public . . . employment position.
FORFEITURE.--Any public . . . employee who is convicted of a specified offense committed prior to retirement . . . 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 supplied.]
* * *
The present statute clearly states that any public employee who is convicted ("conviction" defined as a plea of nolo contendere) of a specified offense (here, any theft from his or her employer) committed prior to retirement shall forfeit all rights and benefits under any public retirement system of
which he or she is a member (in this case, FRS). The language of Section 112.3173 is unequivocal.
However, Petitioner contends that, because she steadfastly maintained her innocence of the crimes to which she pled no contest, her FRS rights and benefits should not be subject to automatic forfeiture; that she should be allowed to present reasons and circumstances in mitigation of her plea; and that, having presented such reasons and circumstances and maintained her innocence without any refutation or other evidence presented against her by Respondent, her FRS rights and benefits may not be forfeited. In support of this premise, Petitioner cites a series cases: Ayala v. Department of Professional Regulation, 478 So. 2d 1116 (Fla. 1st DCA 1985) (construing Section 458.331(a)(c), Florida Statutes, which set forth grounds for disciplinary action against members of the medical profession); Molinari v. Department of Business and Professional Regulation, 668 So. 2d 388 (Fla. 4th DCA 1997) (construing Section 489.129(1)(b), Florida Statutes, in a construction contractor disciplinary proceeding); Son v. Florida Department of Professional Regulation, Division of Real Estate, 608 So. 2d 75 (Fla. 3rd DCA 1992) (construing Section 475.25(1)(f), Florida Statutes, in a broker disciplinary proceeding); The Florida Bar v. Lancaster, 448 So. 2d 1019 (Fla. 1984) (concerning a lawyer who, in addition to other offenses
for which he could be disbarred, pled nolo contendere to two misdemeanors for which adjudication was withheld); Kinney v.
Dept. of State, Division of Licensing, 501 So. 2d 129 (Fla. 5th DCA 1987) (construing Section 493.319(1)(j) Florida Statutes, which sets forth grounds for disciplinary action against a private investigator's license); and Clark v. School Board of
Lake County, 596 So. 2d 735 (Fla. 5th DCA 1992) (construing Section 231.36(4)(c), Florida Statutes, with regard to a teacher's contract).
Respondent asserts to the contrary that because Petitioner's cited cases construe statutes providing for the regulation of professions and occupations, specifically those providing for the discipline of individuals' professional licenses by their regulating agencies, Petitioner’s cases are not applicable to the instant situation. Respondent further asserts that the statutory forfeiture provision of Section 112.3173, the retirement forfeiture statute, is not a punishment for Petitioner's crime, and therefore, no professional licensing disciplinary cases apply. Respondent argues that the statutory forfeiture provision is part of a pension "contract" between the employee and the State, and to the extent that an employee's retirement rights vest, they vest subject to that provision. To this end, Respondent cites Section 121.011(3)(d), Florida Statutes (2003), which provides, in relevant part:
As of July 1, 1974, the rights of the members of the retirement system established by this chapter are declared to be of a contractual nature, entered into between the member and the state, and such rights shall be legally enforceable as valid contract rights . . . .
Respondent relies upon Busbee v. State Division of Retirement, 685 So. 2d 914, 918 (Fla. 1st DCA 1996), which was an action to enforce the statutory forfeiture provision against a state employee who pled guilty to the charge of accepting a bribe in connection with his employment with his public employer.
Indeed, Busbee held that such a forfeiture action is not disciplinary in nature, nor a punishment, but is a straightforward question of contract law. Busbee represents in toto Respondent’s position that Section 112.3173(2)(a), Florida Statutes, as presently worded, does not permit Respondent to consider factors that might mitigate the forfeiture; that the statute predicates forfeiture simply upon a plea of no contest to an operative offense; and that, accordingly, under that statute, the fact that Petitioner maintained her innocence, while pleading no contest to an operative offense, is of no import.1/ Respondent submits that as a "creature of statute," the Agency had no choice but to deny FRS rights and benefits herein.
While the Agency may have had no choice but to initially deny FRS rights and benefits upon the information it was operating under at the time, the parties are now engaged in a de novo proceeding pursuant to Section 120.57(1)), a right acknowledged herein by the Agency and recognized even by Busbee and its progeny case law. In this de novo proceeding, there is a narrow scope of constitutional and public policy considerations based on separation of powers that must be addressed.
First, as to what need not be addressed: Historically, a number of professional disciplinary statutes had less clear definitions of “conviction” than that currently employed in Section 112.3173. Likewise, in the past, forfeiture of various rights and benefits, including FRS rights and benefits under 112.3173, or its predecessor statutes, depended upon whether a conviction related to a “breach of public trust” or “intent to defraud” or similar phrases of legal art, or depended on the type of employment relationship between the individual “convicted” and the public employer. It will not be helpful to digress into those nuances of old versions of the retirement statutes or into factual differences of the cases cited by Petitioner.
Specifically, in the present situation, it is undisputed that all of the misdemeanors to which Petitioner pled
nolo contendere related directly to Petitioner’s public employment. Also, the clear language of Section 112.3173 today is to invoke a forfeiture of FRS rights and benefits upon a “conviction” of the FRS member for committing any theft from his employer. For purposes of the current retirement forfeiture statute, “conviction” is defined as a “plea of nolo contendere
[no contest]”. Herein, there was no jury verdict, and the circuit court withheld adjudication. It is immaterial whether Petitioner was placed on probation. It is also undisputed that the offenses charged and pled-to constituted offenses of theft against Petitioner’s public employer or that they occurred at the time the present version of Section 112.3173 was in effect. It also is immaterial, for purposes of the present retirement forfeiture statute, whether Petitioner pled to felonies or misdemeanors. As a result, many of the cases cited by Petitioner are not helpful.
However, Busbee, also, is not controlling. Not only was Busbee decided under different statutory language than the instant case; Busbee also involved a guilty plea.2/ Therefore, Busbee did not involve a mandatory interpretation of a statute providing that a nolo contendere plea "shall be considered a conviction," so as to impermissibly convert a nolo contendere
plea into a conviction, without any opportunity to defend against the forfeiture. Whether such plea opportunity existing
in a circuit court may be converted into a conviction in the instant de novo proceeding concerning retirement rights and benefits is the issue at bar. That issue was never clearly raised in Busbee. The issues raised in very general terms in Busbee were “vested property rights” versus “impairment of contracts,” “double jeopardy,” “excessive fines,” “due process,” and “equal protection,” and the Busbee court’s opinion specifically stated that with regard to vested property rights and the impairment of contracts, it was not making its decision based upon “Florida Constitution Article II section [**7] 8 . .
. or Section 112.3173. . . .” The court further stated that, with regard to “due process rights,” the employee seeking to retain his retirement benefits (Busbee) “has not specified any particular manner in which his constitutional rights to due process were abrogated.” (Emphasis supplied.)
In the instant de novo proceeding, the separation of powers argument has been squarely presented. This issue asks "Where Article V courts permit a nolo contendere plea purely for convenience, may Section 112.3173 convert that no contest plea into a conviction, without affording the accused any opportunity to defend against the resultant forfeiture?" The short answer is: “No.”
The United States Supreme Court has recognized that there are instances when a person is entitled to maintain his or
her innocence in a criminal case, yet waive a trial and accept a sentence if it suits his interest. North Carolina v. Alford,
400 U.S. 25 (1970). Florida courts have decisively reiterated the principle that a criminal defendant may choose to plead no contest to avoid the risk of criminal trial, and in the cases cited by Petitioner, defend himself in an administrative proceeding.3/
In Ayala v. Department of Professional Regulation, supra, the court that later decided Busbee supported the general rule that a plea of no contest may be entered “without any collateral implications to the defendant in other civil or criminal proceedings,” even where the professional licensing statute construed says that a nolo plea “shall be considered a conviction.” The statute construed in Ayala was Section 458.331
(1) (c) (1984), which contained virtually identical language to that at bar: “any plea of nolo contendere shall be considered a conviction for purposes of this chapter”. The statute in the instant case reads "'Conviction' and 'convicted' mean an . . . plea . . . of nolo contendere." The Ayala court found that the penalized physician should be allowed to rebut the presumption of guilt that followed from entering a plea of no contest to criminal charges, because to do anything else would compromise the constitutional validity of the statute involved. Ayala at 1118. Alford supra.
RECOMMENDED that the Agency enter a final order determining that Petitioner’s rights and benefits under the Florida
Retirement System have not been forfeited and reinstituting those benefits.
DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
of wrongdoing, but the entry of the plea itself created noncompliance with a licensing statute’s requirements, the statutory scheme was acceptable and distinguishable from the statutory scheme in Ayala v. Department of Professional Regulation, supra, in which a mandatory interpretation of Section 458.331(1)(c), providing that a nolo contendere plea “shall be considered a conviction,” did impermissibly convert the nolo contendere plea into a conviction.
Henry M. Coxe, III, Esquire Bedell, Dittmar, DeVault,
Pillins & Coxe, P.A.
Geoffrey M. Christian, Esquire Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160
John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way
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.
