The Issue Whether Petitioner is eligible to receive retirement credit for the period of his employment with the Florida Bar from July 1, 1977 through June 4, 1981.
Findings Of Fact Petitioner was employed by the Florida Bar from July 1, 1977 to June 4, 1981. The record is unclear as to the nature of his employment at the Florida Bar. He is presently employed as a professor at Florida State University and has approximately 24 years' credit in the Florida Retirement System (FRS). Employees of the Florida Bar are paid as part of an overall budgetary process generated primarily from members' dues. Their salaries are not established by or funded by legislative appropriation. The Florida Bar has its own pension system that is a defined contribution plan funded entirely by the Florida Bar. The Bar employees contribute nothing to their pension system. This system has been in place since approximately 1970. Salaries of state officers and employees are reported from the State Comptroller to the Division of State Retirement. No salaries of the Florida Bar were paid or reported to the Division for the period of time Petitioner was employed at the Florida Bar. In the 1970's the FRS went from an employee/employer funded system to a strictly employer funded system which became known as a non-contributory system. The Florida Bar does not participate as a paying agency of the FRS and employees of The Florida Bar do not participate in any state employee benefit system. Beginning in 1955, until the establishment of the FRS, the Florida Board of Bar Examiners participated in the former public retirement system. When the FRS was created, participants, such as the Florida Board of Bar Examiners, began reporting into the new system and were allowed to participate in the new system. Mr. Ragsdale, administrator of the enrollment section of the Division, established that the employees of the Board of Bar Examiners participated by contributing into the former retirement system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for retirement service credit for the period of his employment with the Florida Bar. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. 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 14th day of September, 2001.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by falsifying official records of the Florida Highway Patrol with intent to mislead her supervisors in violation of Section 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Between March 13, 1987, and July 9, 1987, Respondent was a law enforcement officer certified by Petitioner. All events incident to the findings of fact in this Recommended Order occurred while Respondent was working in the ordinary course of her employment as a Florida Highway Patrol trooper in Miami, Florida. On April 7, 1987, Respondent stopped motorist Donald McCarron for driving a vehicle with an expired tag. Respondent issued Mr. McCarron a correction card for driving a vehicle with an expired tag but did not issue motorist McCarron a written warning. Respondent claimed both a correction card and a written warning as work activity in her weekly report to her supervisor. On June 23, 1987, Respondent stopped motorist James Merklein for speeding. Respondent issued Mr. Merklein a citation for speeding. Mr. Merklein did not have his vehicle registration in the car. Respondent verbally warned Mr. Merklein to carry his vehicle registration in the car, but did not issue motorist Merklein a written warning. Respondent claimed both a citation and a written warning as work activity in her weekly report to her supervisor. The existence of incidents in addition to those involving motorists Merklein and McCarron was not established by competent and substantial evidence. One or two incidents in which Respondent failed to give correction cards and written warnings to motorists is not clear and convincing evidence of lack of good moral character. 2/ Respondent admitted to Lieutenant John C. Baker that she "on occasion" writes warnings and cards, leaves them in her patrol car seat, and forgets to give them to the violator. Such occasions occur only when Respondent has given a motorist a lengthy explanation. The record does not reflect that Respondent admitted to additional incidents alleged to have been documented by Sergeants Alvarez and Pelton. Instead, in the words of Lieutenant Baker, "she did not deny the allegations in the complaint." Florida Highway Patrol trooper work activity, in the form of claimed written warnings and correction cards issued to motorists, form a significant portion of a trooper's report of weekly work performed. In order for a trooper to legitimately claim credit for written warnings or correction cards, the trooper must have given a copy of the document to the motorist in question. A Florida Highway Patrol supervisor, in formulating a subordinate performance evaluation for a given period, compiles statistics of the trooper's work activity and utilizes these statistics to rate the trooper's work performance. Evaluations form the basis of Florida Highway Patrol decisions concerning trooper retention, promotion, and salary increases. During the Respondent's June, 1986, to June, 1987, Florida Highway Patrol work evaluation cycle, her work activity, as reported by her, was considered by the Florida Highway Patrol to be in the "low satisfactory" range. Discounting the two incidents established by clear and convincing evidence in which Respondent claimed written warning and correction card work activity on her weekly report but failed to give the written warnings and correction cards to the motorist would not have caused her work activity to fall below satisfactory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of March, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1990.
Findings Of Fact At all times relevant hereto Thomas K. Morgan was a trooper with the Florida Highway Patrol and was certified as a law enforcement officer by Respondent. On April 28, 1984, Brenda Liles, a 22-year-old woman, was returning to her home in Ruskin when she ran out of gas and pulled off on the shoulder of U.S. 41 in a rural area. Before leaving from her departure point, she realized her gas gauge was on empty and she called her father to ask him to come look for her if she was not home in 15 minutes. Trooper Morgan saw the AMC Concord parked along U.S. 41 and pulled up behind the car. Miss Liles was in the car with the doors locked and the windows rolled up. When Respondent approached her car he shined his flashlight inside the car to look for weapons or anything suspicious. Seeing the trooper, Miss Liles lowered the window to tell him she had run out of gas but her father would be along momentarily. Respondent stayed alongside Miss Liles' car and they held a general conversation for several minutes before Mr. Liles arrived. Miss Liles was dressed in shorts and tee shirt. When her father arrived he found his daughter calm and he suggested she get into his pickup truck and he would return for the AMC the following day. Respondent told Liles that he (Morgan) had a gas can he could borrow to get gas and the car could then be driven away rather than be left alongside the highway all night. Liles took the gas can and departed. He planned to stop by his home for a funnel but, even so, the round-trip for gas was expected to take no more than ten minutes. When Liles left, Respondent continued talking to Miss Liles and suddenly started shining his flashlight over her body and said, "Pussy, pussy, let me see that pussy," or "I want that pussy; open it up," or words of similar import. Miss Liles initially did not understand him and asked him what he had said. He repeated the words while shining his flashlight over her body. She immediately rolled up the window through which they had been talking (the doors had remained locked) and became very frightened and started crying. Respondent returned to his patrol car and started filling out reports. Approximately five minutes later Mr. Liles returned with the gas, saw his daughter was crying, and that she was visibly upset. After putting gas in the car, he returned the gas can to Respondent and asked his name and badge number. When the AMC was started Liles told his daughter to follow him and he drove to the sheriff's substation in Ruskin. Although Liles did not ask his daughter what had happened, he sensed it had something to do with Respondent. Upon arrival at the Sheriff's Office they encountered Trooper Donna L. Middleton who was told by Liles that they wanted to make a complaint. At this time Miss Liles was either still crying or showed visible evidence of having been crying and was quite upset. Trooper Middleton took father and daughter into an office to inquire as to the nature of the complaint. Miss Liles was having some difficulty getting the words out so Mr. Liles excused himself and went outside. Trooper Middleton gave Miss Liles complaint forms and asked her to write down what had happened. She assisted Miss Liles in the correct spelling of some of the words. As soon as she realized the nature of the complaint, Middleton called her supervisor to come to the Ruskin office. The Lileses remained at the substation until the then-Corporal Shriver arrived approximately one hour after the Lileses had arrived. At this time Miss Liles still gave the appearance of being upset and of earlier crying. Shriver took custody of the statement and the Lileses returned home. The complaint was duly processed by the Florida Highway Patrol, referred to the investigation branch, and investigated by Lieutenant Brown. Brown interviewed all the parties above named including Respondent. Following this investigation Respondent was dismissed from his employment with the Florida Highway Patrol. Respondent presented his wife and a female friend of his wife to testify that they had never heard Respondent make comments about the anatomical parts of the female body, and that such comments would be inconsistent with their impression of Respondent's character. In his testimony Respondent confirmed all of the testimony of the Lileses except Respondent's use of the language complained of, which he denied. Although all witnesses had testified that the weather was mild on the evening in question, Respondent testified Miss Liles rolled up her window because she was cold and he then returned to the patrol car. Respondent also testified that he had always been interested in work as a law enforcement officer and was very proud of his position as a trooper in the Florida Highway Patrol.
The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
The Issue Whether Appellant on February 6 and 7, 1977, violated Department of Highway Safety & Motor Vehicles Personnel Rules and Regulations 2.1C and Florida Highway Patrol General Order 19, paragraph 11, as specifically alleged in the disciplinary letter of March 14, 1977. Whether the Appellee's suspension of Appellant should be sustained.
Findings Of Fact Appellant Jerry Shores is employed by the Appellee Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Troop B, Orange County, Florida, with the rank of Trooper. He was so employed on December 26, 1976, and on February 6 and 7, 1977. A letter dated March 14, 1977, sent by Certified Mail with Return Receipt Requested was mailed to Appellant Shores notifying him that he was being suspended for sixteen (16) hours without pay based on the violation which is the subject of this hearing. The letter was signed by J.E. Beach, Colonel, Director, Florida Highway Patrol and was approved by Ralph Davis, Executive Director of the Department of Highway Safety and Motor Vehicles. The Appellant Shores appealed this suspension. 3 Documentary evidence and testimony of the witnesses for the Appellee established that on February 6, 1977, during his regular patrol duty hours, Trooper Shores stopped at a "Seven-Eleven" store at 8:30 a.m. without checking in and out of his station by radio then proceeded to his home at 8:40 a.m. where he stopped and went inside without checking out, then left his home at 9:00 a.m. without checking back in by radio, and at 9:30 a.m. stopped at a plant nursery without checking out by radio. At 9:50 a.m. Trooper Shores, while at the nursery, received a call to investigate and assist a disabled vehicle. Trooper Shores did not leave the nursery to attend to the disabled vehicle and while still at the nursery the Patrol Station called him at 10:15 a.m. advising him to work an accident. Trooper Shores then radioed that the reason that he did not get to the disabled vehicle was that he was busy with another disabled vehicle. On Tuesday, February 8, 1977, the Patrol Station called Trooper Shores on the radio during his regular patrol duty hours at 3:50 p.m. The station did not make radio contact although several attempts were made until 4:20 p.m. when Trooper Shores advised he was out of the patrol car. On December 26, 1976, Trooper Shores received a written reprimand from Sergeant J. C. Rique because he was out of his patrol car at the Hilton Inn on West State Road 50 without either checking out by radio or by telephone. Trooper Shores had depended upon another person to check him out.
Recommendation Sustain the penalty of sixteen (16) hours without pay. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of June, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Jerry Shores Route 2, Box 526-C Apopka, Florida 32702
The Issue The issue is whether Petitioner is eligible to purchase her employee service as a CETA employee with a state agency as credible service in the Florida Retirement Service.
Findings Of Fact Petitioner, Sherry Stearns, was employed by the State of Florida, Department of Labor and Commerce, in the Florida State Unemployment office from January 1976 until September 30, 1977. The records maintained by the Department of Retirement based upon payroll data submitted by the Department of Revenue reflect that Petitioner was not in a permanent position as reflected by the Code 0303 and the entry of "zz" in the last column showing she was not eligible for retirement benefits. The Petitioner offered no evidence in support of her claim to show that she was employed in a position which was covered or for which she could claim prior service credit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner's claim be DENIED. DONE AND ENTERED this 29th day of July, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1998. COPIES FURNISHED: Sherry Stearns 360 South Senaca Boulevard Daytona Beach, Florida 32114 Stanley N. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS), pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because of his conviction for official misconduct, a third degree felony under section 838.022(1), Florida Statutes.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. In January 1987, Petitioner began employment with the Florida Department of Transportation ("DOT"), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and DOT made contributions to the FRS on his behalf. In March 2001 and March 2005, Petitioner was elected to separate four-year terms as a Commissioner on the City Commission of the City of Deerfield Beach, Florida ("City"), an FRS-participating employer. By reason of his public office as a City Commissioner, Petitioner was enrolled in the FRS, and the City made contributions to the FRS on his behalf. Before entering upon the duties of his public office, pursuant to Florida law and the City Charter, Petitioner was required to take and subscribe substantially to the following oath: I do solemnly swear or affirm that I am a citizen of the State of Florida and of the United States of America and a registered voter and resident of the City of Deerfield Beach, as shown by the public records of Broward County, Florida. I am being employed as a Commissioner of the City of Deerfield Beach and will be a recipient of public funds. As such Commissioner I further swear or affirm that I will support the Charter of the City of Deerfield Beach, the Constitution of the State of Florida, and the Constitution of the United States, and that I will well and faithfully perform the duties of my office upon which I am about to enter. All elected officials of the City were subject to the standards of ethical conduct for public officers set by Florida law and the City Charter. Effective December 11, 2008, Petitioner resigned his position as City Commissioner. On or about December 29, 2008, Petitioner was charged, by information, with one count of grand theft, a third degree felony, in violation of sections 812.014(1)(a) and (b) and (2)(c)2., Florida Statutes; one count of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes; and one count of falsifying records, a first degree misdemeanor, in violation of section 839.13, Florida Statutes. The crimes with which Petitioner was charged were alleged to have occurred between October 6, 2007 and January 10, 2008. The basis for the official misconduct charge was that Petitioner falsified a campaign treasurer's report as part of his campaign for mayor of the City. The campaign treasurer's report is an official record or document belonging to the office of the City Clerk and/or the Florida Department of State, Division of Elections. Petitioner is no longer employed by DOT or the City. Petitioner is not retired from the FRS, and he has not received FRS retirement benefits. On or about May 7, 2010, Petitioner filed with the Division a completed FRS Pension Plan Application for Service Retirement (Form FR-11). By letter dated May 11, 2010, the Division advised Petitioner in relevant part as follows: This letter is to advise you of the status of your application for Florida Retirement System benefits. Our Legal office is reviewing your current legal situation for a determination of whether a forfeiture of benefits has occurred. If the determination is that forfeiture occurred, you will be notified and given information if you wish to appeal that determination. Your retirement application is pending until this review is complete. On May 10, 2011, a jury rendered a verdict which found Petitioner guilty as charged in the information. On July 29, 2011, the court adjudicated Petitioner guilty of the crimes. On or about August 3, 2011, Petitioner filed a notice of appeal in Florida's Fourth District Court of Appeal. On May 1, 2013, the Fourth District Court of Appeal affirmed Petitioner's convictions for grand theft, official misconduct, and falsifying records, and authored an opinion which addressed Petitioner's contention that he was entitled to a judgment of acquittal on the count of official misconduct. The Court wrote in relevant part: Section 838.022(1)(a), Florida Statutes (2007), makes it "unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to ... [f]alsify, or cause another person to falsify, any official record or official document." In this case, the basis for the official misconduct charge was that appellant falsified a campaign report as part of his campaign for mayor of Deerfield Beach. On appeal, appellant focuses on section 838.022(2)(a), which defines "public servant" as not "includ[ing] a candidate who does not otherwise qualify as a public servant," for the argument that "he was not a public servant at the time of the alleged offense" but was "merely a candidate for public office." However, as the State argues, at the time appellant was a candidate for mayor, he "otherwise qualif[ied] as a public servant" by virtue of his status as a city commissioner. Chapter 838 defines "public servant" as including "[a]ny officer or employee of a state, county, municipal, or special district agency or entity." § 838.014 (6)(a), Fla. Stat. (2007). The statute distinguishes a mere candidate from a public job or office holder in order to reach the evil of public servants misusing their office. Here, appellant was not just a candidate at the time of the offense; it was his dual status as a candidate and an incumbent commissioner that brought him within the ambit of the statute. ... Gonot v. State, 112 So. 3d 679, 680 (Fla. 4th DCA 2013)(emphasis in original). ULTIMATE FACTUAL FINDINGS Petitioner forfeited his rights and benefits under the FRS pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because he was convicted of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes.
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 finding that the Petitioner was convicted of a felony under section 838.022(1), Florida Statutes, and directing the forfeiture of his FRS retirement rights and benefits. DONE AND ENTERED this 13th day of December, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2013.
Findings Of Fact Petitioner enrolled in "Plan A" of the Teachers Retirement System on August 13, 1954 as a teacher in the Orange County Florida school System. Petitioner transferred to Jacksonville, Florida and began teaching in Duval County on August 18, 1959 and continued hem membership in the Teachers' Retirement System "Plan A". Petitioner requested a change from the Teachers' Retirement System "Plan A" to Teachers' Retirement System "Plan E" by letter dated April 5, 1965. Petitioner was approved on March 26, 1966 for Teachers' Retirement System benefits and received disability retirement benefits for a period of time until she re-entered the teaching profession on November 27, 1970 in Duval County, Florida. She subsequently repaid an overpayment of these disability benefits which been paid for a period of time when she had returned to work in Duval County without notice to the Division of Retirement. Petitioner transferred from the Teachers Retirement System to the Florida Retirement System on October 15, 1970 when she signed a ballot entitled "Social Security Referendum and Application for Florida Retirement System Membership". Petitioner complains that she did not know when she signed the ballot that she was in fact changing her retirement from the Teachers' Retirement System to the Florida Retirement System contending that the statements of the person conducting the meeting at which the ballots were distributed informed the group the ballots were for an election for social security coverage. The ballot, however, clearly reflects that if social security benefits are desired, a change in the retirement system is necessary. Petitioner applied for Florida Retirement System disability benefits on October 20, 1971 and was approved. This benefit is $26.07 per month greater than the benefits she would have received had she remained in the Teachers' Retirement System. On October 3, 1975, Petitioner was supplied with the various documents concerning her actions in regard to her retirement benefits and was informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could be transferred back into the Teachers' Retirement System. She requested a hearing on the transfer.
Recommendation Dismiss the Petition of Petitioner Martha A. Crosson. DONE and ORDERED this 15th day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Martha A. Crosson 801 West Myrtle Independence, Kansas 67301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT MARTHA A. CARSON, Petitioner, vs. CASE NO. 76-1456 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue The issues are whether the agency statement identified as Section 5.02.08 of the Florida Highway Patrol Auxiliary Policy Manual falls within the definition of a rule, and if so, whether rulemaking is feasible and practicable.
Findings Of Fact Based upon all of the evidence, including the stipulation of facts, the following findings of fact are determined: Petitioner, Berwyn R. Spear, also known as Pete Spear, operates a business under the name of "Pete's Chevron" located at 2151 North Monroe Street, Tallahassee, Florida. Among other things, the business provides wrecker services for towing automobiles. Besides operating his service station, for the last twelve years petitioner has been a member of the Florida Highway Patrol Auxiliary (Auxiliary), a statutorily created volunteer service organization whose members ride with and assist members of the Division of the Florida Highway Patrol (FHP) in the performance of their regular duties. He has expended almost $1,000 for equipment and uniforms. The Auxiliary functions under the direct supervision of the FHP, which in turn is a governmental unit under the jurisdiction of respondent, Department of Highway Safety and Motor Vehicles. Auxiliary members are not required to be sworn police officers but are certified by the Criminal Justice Standards and Training Commission. Members are required to have monthly activity amounting to a minimum of twenty-four hours per calendar quarter, but they receive no pay or benefits other than those prescribed by Part IV of Chapter 110, Florida Statutes, which governs volunteer organizations. Finally, Auxiliary members serve at the pleasure of the FHP director and are subject to removal at will. They have no statutory right of review or appeal for disciplinary action but there is an internal disciplinary review process administered by an FHP review board in Tallahassee. Pursuant to state law, and subject to further requirements in Chapter 15B-9, Florida Administrative Code, the FHP maintains a wrecker rotation list, by which the FHP facilitates wrecker services to persons needing assistance on the roadways. For the last twelve years and until February 1992, petitioner's business was on the rotation list and he derived several hundred dollars per month in such towing income. The rotation list works in the following manner. Whenever a trooper encounters circumstances requiring the towing of a motorist's vehicle, the trooper notifies the dispatcher of the need for a wrecker from the rotation list, unless the motorist expresses a desire for a specific wrecker service. The dispatcher then telephones the next appropriate wrecker service from the rotation list and makes a request for services. It is noted that FHP troopers are prohibited by internal policy 5.19.00 found in the FHP Policy Manual from being employed by any wrecker company (as opposed to just those on the rotation list) since the FHP deems this to be an unacceptable conflict of interest. The FHP has developed an Auxiliary Policy Manual (Manual) containing various written standards and guidelines governing the conduct of Auxiliary members. Like other policy manuals developed by the FHP, the Manual has not been formally adopted as a rule. As is relevant to this controversy, Section 5.02.08 of the Manual relates to the subject of conflict of interest, and prior to January 1992, simply stated in part that "any conflict between private employment and the FHP or any abuse of a member's FHPA position that benefits his employment will result in immediate dismissal from the FHPA." However, the FHP did not construe this provision as barring petitioner from being a member of the Auxiliary and at the same time having his wrecker business on the FHP rotation list. On January 29, 1992, the director of the FHP issued a memorandum to all troop commanders regarding a change in Section 5.02.08 of the Auxiliary Policy Manual. The newly added language read as follows: Due to the sensitive relationship between the Florida Highway Patrol and wrecker companies, employment involving wrecker companies that do business with the Florida Highway Patrol is considered to be a conflict of interest. The director's memorandum provided the following instructions to all troop commanders regarding the new language in Section 5.02.08: The attached policy revisions will bring the Florida Highway Patrol Auxiliary Manual in line with the Florida Highway Patrol Manual regarding employment by wrecker companies. If (sic) is requested that you survey all Auxiliary members in your troop to determine if any are in violation of this policy. Please take the necessary action to bring members found in violation of this policy into compliance. In the event the member cannot comply with this policy, it will be necessary that the member resign from the Auxiliary. Pursuant to this new policy, an FHP troop commander contacted petitioner in February 1991 and advised him that he must either remove his wrecker business from the FHP wrecker rotation list or resign from the Auxiliary. Although strongly disagreeing with the policy, petitioner advised the FHP by letter dated February 18, 1992, that he wished to remove his wrecker business from the rotation list. He did so in order to remain a member of the Auxiliary. After his informal appeal challenging the policy was denied, on August 7, 1992, petitioner filed his petition seeking to have the new language in Section 5.02.08 declared invalid as an unpromulgated rule. According to the FHP's chief of special operations, there is no discretion on the part of the troop commander or other enforcing officer except to require strict adherence to the policy. In other words, the policy in question is not subject in application to the discretion of the enforcing officer. Therefore, the policy has uniform application to all Auxiliary members and requires those members who own wrecker businesses on the FHP rotation list to choose between remaining a member of the Auxiliary or removing their business from the FHP rotation list. Since he is directly impacted by the policy, petitioner has standing to bring this action. In August 1992, respondent adopted substantial amendments to Chapter 15B-9, Florida Administrative Code, which relate to "Wrecker Qualifications and Allocation System." However, the rules do not address petitioner's concerns nor codify the so-called conflict of interest policy applicable to Auxiliary members. At hearing respondent also expressed the view, without further explanation, that if it had to adopt the Auxiliary policies as formal rules, it would be a difficult and "cumbersome" task, it might well "have the effect of eliminating the auxiliary service", it would "serve to inhibit the agency from doing its statutory job", and it "would seriously affect the ability of the agency to effectively operate an auxiliary volunteer service." These assertions were not contradicted. Even so, rulemaking is found to be feasible and practicable since there is no evidence to support a finding that at least one of the exceptions in Subsections 120.535(1)(a) and (b), Florida Statutes, is applicable.
