The Issue Should the benefits of the Petitioner, Charles Bullock, under the Florida Retirement System Investment Plan, be forfeited due to his plea of no contest and adjudication of guilt to two felony counts of child abuse?
Findings Of Fact The Collier County Sheriff's Office employed Mr. Bullock as a law enforcement officer from 1994 through 2010. Due to his employment, Mr. Bullock was a member of the Florida Retirement System Investment Plan. Mr. Bullock worked in the sheriff's office's civil process unit. He and the other civil process deputies routinely met for coffee in the afternoon about 2:00 p.m., to discuss business. They usually met at the Starbucks in the Coastland Mall in Collier County. Sometimes they met at other locations to avoid drawing public attention and adverse comments. For the same reason, after some unfavorable television coverage, they often dispersed their cars in the parking lot, instead of parking together. Mr. Bullock usually did not wear a uniform, badge, gun, or anything else identifying him as a Collier County deputy or a law enforcement officer. On at least three occasions between November 2009 and February 2010, while on duty, Mr. Bullock went to the food court bathroom after these meetings. The evidence does not establish that Mr. Bullock was wearing a uniform, badge, gun, or anything else identifying him as a Collier County deputy or law enforcement officer on those occasions. On the first two of those occasions, Mr. Bullock sexually molested a male, under the age of 16, by forcing him to allow Mr. Bullock to perform oral sex. On the third occasion, Mr. Bullock was approaching the male minor by looking under and over the bathroom stall divider, when he was interrupted by a mall employee. The evidence does not establish that the minor knew on any of the occasions that Mr. Bullock was a deputy or law enforcement officer. The evidence does not otherwise establish that Mr. Bullock's position as a Collier County deputy facilitated, contributed to, provided the opportunity for, or otherwise played a role in his ability to commit the acts described on those three occasions. He committed the offenses in a public place during normal operating hours. His position as a deputy did not provide access to the food court bathroom that any citizen would not have had. As a result of the interruption of the third encounter and the information the mall employee was able to provide, law enforcement conducted an investigation of Mr. Bullock's conduct in the mall bathroom. The investigation culminated on April 19, 2010, in a warrant to arrest Mr. Bullock. The warrant charged Mr. Bullock with lewd or lascivious battery (violation of section 800.04(4)(a), Florida Statutes (2010)), a second-degree felony, and official misconduct (violation of section 838.022, Florida Statutes (2010)), a third-degree felony. On March 10, 2014, Mr. Bullock entered a plea of no contest to a different charge based upon his sexual molestation of the male under the age of 16. The offense to which Mr. Bullock entered a plea of no contest was child abuse, a violation of section 827.03, Florida Statutes (2010), a third-degree felony. At the time of his plea and in this proceeding, Mr. Bullock maintained that he was not guilty of the charges, but chose to plead no contest because of concerns that the nature of the charges would inflame jurors. The court adjudicated Mr. Bullock guilty of the charges to which he pled no contest. It imposed a sentence of two years' probation, prohibited contact with the victim, required payment of $151.00 in court costs, and required Mr. Bullock to give up his law enforcement certification. On March 20, 2014, the Board notified Mr. Bullock that his rights and benefits under the Florida Retirement System were forfeited as a result of his no contest plea to child abuse. This proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, State Board of Administration, enter a final order finding that the Petitioner, Charles Bullock, was not convicted of a specified offense as identified in section 112.3173, Florida Statutes, and directing that he not forfeit his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of September, 2014.
The Issue Whether the Petition has forfeited his rights and benefits under the Florida Retirement System (FRS) as a result of a guilty plea in the United States District Court, Southern District of Florida, for acts committed in connection with Petitioner's employment with the Broward County Sheriff's Department.
Findings Of Fact From the Joint Stipulation of Facts: 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 behalf of the Department of Management Services. Petitioner was employed as an Assistant State Attorney by the State Attorney's Office from December 1972 to January 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed as Executive Director of the Broward County Charter Commission from January 1974 to November 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed by the Broward County Board of County Commissioners from March 1975 to November 1978. During this time, Petitioner was a member of the FRS, and this service is credited as service under the FRS. In November 1978, Petitioner was elected to serve as a member of the Florida Legislature; he continued to serve as a state legislator for approximately 18 years. As a state legislator, Petitioner was a member of the FRS class of State Elected Officers, and this service is credited service under the FRS. Most recently, Petitioner was the elected Sheriff of Broward County. By reason of his service as Sheriff, Petitioner was a member of the FRS. Petitioner was initially appointed Sheriff in January 1998 by then-Governor Lawton Chiles. Petitioner was subsequently elected Sheriff in 1998 and reelected in 2000 and 2004. As Sheriff of Broward County, Petitioner was Broward County's chief law enforcement officer and was responsible for directing the Broward County Sheriff's Office ("BSO"), a law enforcement agency that currently employs over 6,000 employees. The office of Sheriff is a constitutional office established under Article VIII, Section 1(d), Constitution of Florida. Upon assuming his duties as Sheriff of Broward County, Petitioner took an oath to support, protect, and defend the Constitution and Government of the United States and the State of Florida and to faithfully perform the duties of sheriff pursuant to Article II, Section 5(b), Constitution of Florida. On or about September 4, 2007, Petitioner wrote a letter to Governor Charlie Crist notifying him of his resignation from the office of Sheriff of Broward County. By reply letter of the same date, Governor Crist accepted Petitioner's resignation. Petitioner is not retired from the FRS and currently does not receive FRS retirement benefits. On or about September 4, 2007, Petitioner was charged, by information, in the United States District Court for the Southern District of Florida, in case number 0:07-cr-60209-WPB, with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 371, and three counts of filing a false tax return, in violation of Title 26, United States Code, Section 7206(1). The same four-count information is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr- 60209-WPB as document 1. At all times relevant to the information, Petitioner was the Sheriff of Broward County. The section of the information entitled "General Allegations" contains numerous references to Petitioner's service as Sheriff of Broward County and the power and authority vested in that position. The "Objects of the Conspiracy" contained in count one of the information states: An object of the conspiracy was for JENNE to unlawfully enrich himself by obtaining monies from P.P. and L.N., who were Broward Sheriff's Office vendors, by making false representations, omitting to state material facts, and concealing material facts concerning, among other things, the ultimate destination of monies that JENNE asked P.P. and L.N. to give to his secretaries, A.V. and M.Y. It was further an object of the scheme for JENNE to perpetuate and conceal the scheme and the actions taken in furtherance of it by, among other things, making false, misleading, and incomplete statements in public filings and to investigators. The "Manner and Means of the Conspiracy" contained in count one of the information states: JENNE and M.Y. arranged for JENNE to receive $20,000 from P.P. by having the money transferred from P.P. through JENNE's secretary, M.Y., to JENNE. JENNE and M.Y. did this in order to conceal that JENNE was the true recipient of the funds. JENNE provided L.N. with access to off- duty Broward Sheriff's Office deputies, who L.N. hired to do work for his companies. On two different occasions, in exchange for the access to the deputies, JENNE instructed L.N. to pay money to JENNE's secretary, A.V., purportedly to compensate A.V. for work done for L.N. JENNE instructed A.V. to cash checks given to her by L.N. and to have the cash deposited into JENNE's bank account. JENNE and A.V. did this in order to conceal that JENNE was the true recipient of the funds, which totaled $5,500. JENNE perpetuated this fraud and attempted to prevent its detection by mailing incomplete and misleading annual financial disclosure forms, which did not list his receipt of the payments from P.P. and L.N., to the Florida Commission on Ethics. On or about September 5, 2007, after being advised of the nature of the charges against him, the above-referenced information, and of his rights, Petitioner waived in open court prosecution by indictment and consented to proceeding by information. The same waiver of indictment is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 13. On or about September 5, 2007, Petitioner entered into an agreement with the United States of America to plead guilty as charged in the four-count information. The same plea agreement is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 3. Paragraph 7.c. of the plea agreement provides: 7. The United States and the defendant agree that, although not binding on the probation office or the court, they will jointly recommend that the court make the following findings and conclusions as to the sentence to be imposed: * * * c. Advisory sentencing range on the conspiracy to commit mail fraud count: That, pursuant to U.S.S.G. § 2X1.1, the applicable guideline to be used in calculating the defendant's advisory sentencing range on the conspiracy to commit mail fraud count is § 2B1.1; that under § 2B1.1(a)(1), the Base Offense Level is 7; that under § 2B1.1(b)(1)(C), four levels are added because the loss was between $10,000 and $30,000; that under § 3B1.3, two levels are added because of the defendant's abuse of his position of public trust; and that under § 3E1.1(b), two levels are subtracted for acceptance of responsibility . . . The United States Sentencing Guide, Section 3B1.3, referenced in paragraph 7.c of the plea agreement, provides in relevant part that "[i]f the defendant abused a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." USSG § 3B1.3. Paragraphs 10. and 12. of the plea agreement provide: 10. The defendant confirms that he is guilty of the offenses to which he is pleading guilty; that his decision to plead guilty is the decision that he has made; and that nobody has forced, threatened, or coerced him into pleading guilty. The defendant affirms that he has discussed this matter thoroughly with his attorneys. The defendant further affirms that his discussions with his attorneys have included discussion of possible defenses that he may raise if the case were to go to trial, as well as possible issues and arguments that he may raise at sentencing. The defendant additionally affirms that he is satisfied with the representation provided by his attorneys. The defendant accordingly affirms that he is entering into this agreement knowingly, voluntarily, and intelligently, and with the benefit of full, complete, and effective assistance by his attorneys. * * * 12. This is the entire agreement and understanding between the United States and the defendant. There are no other agreements, promises, representations, or understandings. On or about September 5, 2007, Petitioner entered a statement of factual basis for guilty plea with the United States of America (hereinafter "factual proffer"), wherein he agreed that, if the case went to trial, the government would have been able to establish the facts recited therein beyond a reasonable doubt. The same factual proffer is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 8. On or about September 5, 2007, a hearing was held in which Petitioner pled guilty as charged in the information. At the hearing, Petitioner admitted to committing the acts set forth in the charges and to which he pled guilty. In addition, at the hearing Petitioner admitted to the following facts and to committing the following actions: At no point in time did Petitioner ever disclose to the public that he received an $8,130 benefit from P.P. in November 2001 in connection with the demolition of a house he owned in Lake Worth, Florida. Within P.P.'s internal accounting system, the $8,130 check was attributed to the "HIDTA project" (i.e., a lease committing BSO and HIDTA as tenants of an office building owned by P.P.). Petitioner never reported the $8,130 benefit on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. At no point in time did Petitioner ever disclose to the public that, in September 2002, he had received $10,000 from P.P. as a reward for his work concerning a new company called SuperTech Products, Inc. Petitioner never reported the $10,000 payment on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. Prior to becoming Sheriff, Petitioner was a partner in Conrad, Scherer & Jenne, a law firm located in Fort Lauderdale. Petitioner was with the firm from 1992 through the beginning of 1998, when he left to become Sheriff. While Petitioner was at the firm, he, like some other partners, drove a car paid for by the firm's investment arm, CSJ Investments. In October, 1997, at Petitioner's request, the law firm, through CSJ Investments, bought a used 1994 Mercedes E320 convertible for Petitioner to drive. The price of the Mercedes was $61,297. Rather than pay for the car all at once, the firm financed the car with a 60-month loan. When Petitioner left the firm in early 1998 following his appointment as Sheriff, he took the Mercedes with him. Despite the fact that Petitioner no longer worked for the firm, the firm continued to pay off the Mercedes loan for the balance of the loan term, making the final payment in 2003. The loan payments were $1,320 per month, resulting in a total eventual cost to the firm of approximately $79,234 in loan payments, all but approximately $1,320, of which were made after Petitioner had already left the firm to become Sheriff. In addition, after Petitioner left the law firm, the firm continued to pay for the insurance on the Mercedes. The insurance payments continued even unto September 2007. At that time, the firm had made a total of approximately $30,961 in insurance payments on Petitioner's behalf, all but approximately $880, of which were made after Petitioner had already left the firm to become Sheriff. Petitioner never disclosed any of the loan payments or insurance payments made by the firm on his behalf on any state ethics filing. During the time that Petitioner was receiving these undisclosed payments from Conrad, Scherer, the firm was billing BCSO for legal work that it was doing on its behalf. At the hearing, Petitioner did not take any exception or make any objections to the facts as summarized in the factual proffer. In fact, with the exception of one non-substantive addition, Petitioner accepted the factual proffer as indicated. On or about November 16, 2007, a judgment was entered on the aforesaid guilty plea, wherein Petitioner was adjudicated guilty of all counts charged in the four-count information. The same judgment is filed in U.S. District Court (S.D. Fla.) in case number 0:07-cr-60209-WPB as document 59. By certified letter dated January 24, 2008, Petitioner was notified of Respondent's proposed action to forfeit his FRS rights and benefits as a result of the aforesaid guilty plea. The notice set forth the basis for the Division's decision and informed Petitioner of his right to an administrative hearing. Petitioner, by and through counsel, timely requested a formal administrative hearing to challenge said proposed agency action. [End of Stipulated Facts] The parties agreed that the following exhibits would be considered in this cause: Petitioner's resignation letter dated September 4, 2007; Governor Crist's letter accepting Petitioner's resignation dated September 4, 2007; The Information filed against Petitioner on September 4, 2007, in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Plea Agreement offered in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Statement of Factual Basis for Guilty Plea of Defendant Kenneth C. Jenne in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Transcript of the Plea of Guilty before the Honorable William P. Dimitrouleas, U.S. District Judge, United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209- WPB, United States District Court, Southern District of Florida; The Waiver of Indictment from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Judgment in a Criminal Case from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Agency Action letter dated January 24, 2008; Form 6 Full and Public Disclosure of Financial Interests 2001 (with attachments and amendments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, June 27, 2002; Form 6 Full and Public Disclosure of Financial Interests 2002 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 7, 2003; and Form 6 Full and Public Disclosure of Financial Interests 2004 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 1, 2005. Petitioner did not have a trial on the merits of the charges against him. Instead, he voluntarily accepted and admitted to the factual allegations set forth in the charging and plea documents. The factual statements set forth in those documents are not subject to interpretation or conjecture. They must be considered facts of this case based upon the stipulation of the parties. Petitioner was notified of the Department's preliminary decision to forfeit the FRS benefits and rights and Petitioner timely challenged that decision.
Recommendation Based upon the Findings of Fact and the Conclusions of Law set forth above, it is RECOMMENDED that Respondent enter a final order finding Petitioner was convicted of crimes that require the forfeiture of his rights and benefits under the FRS, pursuant to Florida law. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 March, 2009. COPIES FURNISHED: 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 Mark Herron, Esquire Thomas M. Findley, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317-5579 Clifford A. Taylor, Esquire Barbara M. Crosier, Esquire Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
The Issue Should Petitioner's benefits under the Florida Retirement System be forfeited based on Petitioner having pleaded guilty to a felony, conspiracy to interfere with commerce by committing extortion, for which he was subsequently adjudged guilty in federal court?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Division is charged with the responsibility of administering the Florida Retirement System. At all times material to this proceeding, Petitioner, James Sanders, was employed by the Collier County, Florida Sheriff's Office as a Law Enforcement Officer. On April 26, 2000, the Grand Jury for the United States Middle District of Florida, Fort Myers Division handed down an Indictment wherein Petitioner was charged with, among other things, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2. On April 30, 2001, Petitioner, in accordance with the Plea Agreement dated January 19, 2001, pleaded guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion in violation of Title 18 U.S.C. Sections 1951 and 2, a felony, as that term is defined in Section 775.08(1), Florida Statutes. On May 2, 2001, Judge John E. Steele, United States District Judge, Middle District of Florida, Fort Myers Division entered a Judgment in a Criminal Case wherein Petitioner was adjudged guilty (convicted) of Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner expressly admitted his guilt to that charge under the terms of the Plea Agreement. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner admitted to entering the conspiracy for monetary gain, and that he obtained money in furtherance of the conspiracy. After his conviction, Petitioner applied for, and began receiving, retirement benefits under the Florida Retirement System. Upon learning that Petitioner had been convicted of the charge of conspiracy to interfere with commerce by committing extortion by the United States District Court, Middle District, Fort Myers Division, the Division investigated and subsequently advised Petitioner that his retirement benefits under the Florida Retirement System were being forfeited. Neither the Division nor Petitioner presented any evidence of: (a) Petitioner's accumulated contributions to the Florida Retirement System as of the date of his termination; or the amount of retirement benefits that Petitioner had received prior to the Division advising him of the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a Final Order finding that Petitioner has forfeited all rights and benefits under the Florida Retirement System upon his April 30, 2001, federal felony conviction and requiring the refund by Petitioner of any benefits paid to him in excess of Petitioner's accumulated contributions. DONE AND ENTERED this 11th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2002. COPIES FURNISHED: James Sanders c/o FCI Edgefield 501 Gary Hill Road Post Office Box 723 Edgefield, South Carolina 29824 Peggy Sanders Post Office Box 5103 Immokalee, Florida 34143 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Joseph Matrascia, Respondent, is registered with FBRE as a broker- salesman and was so registered at all times here involved. On 22 September 1976, Respondent was found guilty in the Circuit Court of the 11th Judicial Circuit in and for Dade County, of the offense of receiving stolen property (Exhibit 1) and of obstructing an officer in the service of process. He was sentenced to two years confinement in the State penitentiary followed by a 6 months sentence and three years probation. This judgment was affirmed on appeal. Petitioner is presently attempting to obtain a new trial on the basis of newly discovered evidence.
The Issue Whether Petitioner qualifies for retirement benefits as a joint annuitant of the late Roy Hartley, Jr.
Findings Of Fact Roy Hartley, Jr., died on June 11, 1994, with more than ten years of service as a member of the Florida Retirement System (FRS). Mr. Hartley was employed as a police officer with the Metro Dade Police Department. His Social Security Number was 267-70-3906. At the time of his death, Mr. Hartley had personally contributed the sum of $655.38 to the FRS. On October 29, 1993, Mr. Hartley designated Petitioner as the beneficiary of his retirement benefits on FRS Form M-10. After Mr. Hartley's death, Petitioner applied to the State of Florida, Division of Retirement, for benefits as Mr. Hartley's designated beneficiary. To be entitled to monthly retirement benefits, Petitioner must establish that she was a dependent of Mr. Hartley so as to qualify as a joint annuitant of his monthly retirement benefits. Section 121.091(7)(g), Florida Statutes (1994), contains the option that Petitioner seeks to exercise: (7)(g) The designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to the completion of 10 years of credible service but prior to actual retirement may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his death and the age the member would have attained on the commencement date of the deferred benefit elected by his beneficiary, paid in accordance with option 3 of paragraph (6)(a). Section 121.021(28)(c), Florida Statutes, contains the definition of the term "dependent beneficiary" that is pertinent to this proceeding: (28) Dependent beneficiary means any person designated by the member to receive a retirement benefit upon the member's death who is either: * * * (c) A person who is financially dependent for no less than one-half of his support from the deceased at retirement or at time of the death of such member, whichever occurs first. Rule 60S-6.001(34), Florida Administrative Code, defines the term "joint annuitant" as follows: JOINT ANNUITANT -- Means . . . any other person who is financially dependent where the other person is someone who is receiving one-half or more of his support from the member or is eligible to be claimed as a dependent or exemption on the Federal income tax return of the member. Petitioner and Mr. Hartley were not married, but they were living together at the time of his death. Except for a relatively short breakup, they had lived together for thirteen years. Petitioner was not claimed as a dependent on Mr. Hartley's federal income tax return. At the times pertinent to this proceeding, Petitioner worked part-time as a bartender. Respondent requires a person who is claiming to be a dependent of a deceased member pursuant to Section 121.021(28)(c), Florida Statutes, to document that the member contributed more than half of the alleged dependent's support. Stanley Colvin, the administrator of Respondent's retirement section, established that the Respondent typically reviews financial data for the year preceding the member's death in determining whether the deceased member contributed half of the alleged dependent's support. In making this determination, the Respondent determines the amount that the alleged dependent has to contribute to his or her own support and thereafter requires the alleged dependent to establish that the member contributed an amount equal to or more than that amount. Since the member died in June of 1994, Respondent in this case examined the W-2 statements for Petitioner and for Mr. Hartley for several years proceeding his death and for the year 1994. The 1993 W-2 statements reflect that Mr. Hartley had income from his employment of $67,360.23 while Petitioner had income from her employment of $9,450.00. Based on the differences between their earnings, it did not appear that there would be a problem with Petitioner's claim when Respondent's staff first reviewed the claim. The house in which Petitioner and Mr. Hartley lived at the time of his death was titled solely in the name of the Petitioner. This house was purchased in 1992. The fact that Petitioner owned the house only in her name caused Respondent's staff to question this claim. After learning about the house, Respondent's staff asked Petitioner to document that Mr. Hartley contributed more than half of her support and requested that she provide copies of cancelled checks and tax returns. In response to that request, Petitioner provided copies of certain cancelled checks and copies of her tax returns for 1992 and 1993. 1/ Mr. Hartley and Petitioner routinely gambled at Seminole Bingo. The down payment for the house came from their bingo winnings. Although they both gambled at bingo, Petitioner usually sat in the chair so that she would be the one to claim any bingo winnings. These winnings were reported on Petitioner's income taxes for the years 1992 and 1993. For 1992, Petitioner claimed bingo winnings in the amount of $60,531 and wagering losses in the amount $45,850. For 1993, Petitioner claimed bingo winnings in the amount of $21,860 and wagering losses in an equal amount. Petitioner's federal income tax return for 1993 reflected an adjusted gross income of $31,508. This sum included bingo winnings of $21,860. Petitioner testified, credibly, that they did not go to bingo as frequently in 1994 because Mr. Hartley had become interested in racing automobiles, but there was no evidence as to whether Petitioner or Mr. Hartley won at bingo during 1994 prior to Mr. Hartley's death. After reviewing the documentation provided by Petitioner, the Respondent denied monthly benefits to her. Respondent's denial was based on its interpretation of its rule that all income, including gambling winnings, should be considered as being available for the support of a person claiming to be a dependent of a member of the FRS. 2/ Respondent is not concerned with whether the alleged dependent loses his or her winnings at bingo or uses the winnings to pay bills. Respondent allocated the house payments, household expenses, and grocery costs paid by Mr. Hartley to have been one-half for Petitioner's support and the other half for his own support. 3. Respondent determined, correctly, that the documentation did not support a findings that Mr. Hartley contributed more than half of Petitioner's support when the bingo winnings were considered. Respondent advised Petitioner that she was entitled to a refund of Mr. Hartley's contribution to the FRS in the amount of $655.38. Petitioner established that Mr. Hartley paid the house payment ($683.00 per month in 1994), that he paid most of the household expenses, and that he routinely gave Petitioner cash for food, clothes, and miscellaneous expenses. The only bill routinely paid by Petitioner was the utility bill. She also paid her car bill and her auto insurance bill. Mr. Hartley occasionally assisted her with those bills. Based on the totality of the evidence, 4/ including the discrepancy between Mr. Hartley's earned income and Petitioner's earned income, 5/ the fact that Mr. Hartley paid the housing expenses, except for utilities, and the fact that he routinely gave Petitioner cash to use for her support, it is found that Mr. Hartley contributed more than $10,000 a year toward Petitioner's support. The evidence does not, however, support a finding that Mr. Hartley contributed more than $31,000 a year toward Petitioner's support. 6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and approves Petitioner's application for monthly benefits as a joint annuitant of Roy Hartley, Jr. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue Whether Petitioner is entitled to a refund of retirement contributions for the period from February 1, 1960, through January 1975.
Findings Of Fact Until January 1975, the Florida Retirement System and its predecessor, the State and County Officers and Employees Retirement System (SCOERS), were contributory retirement plans, in which state employees contributed a portion of their wages toward their retirement benefits. In January 1975, FRS became a non-contributory retirement plan, in which the employer paid all contributions to the plan. On February 1, 1960, Petitioner, who was then known as Rebecca Jamis or James Lee, began her state employment at Florida State Hospital (FSH), located in Chattahoochee, Florida. During her employment, Petitioner was enrolled in the state’s retirement plan and contributed $2,188.01 to that plan. In 1980, Petitioner was convicted of a felony offense and was sentenced to prison. She began serving her sentence in state prison in June 1980. Due to her imprisonment, Petitioner’s employment at FSH terminated on July 29, 1980. At some unknown date, Respondent received form FRS-M81 requesting a refund of Petitioner's contributions to the state’s retirement plan. Pursuant to the state's document retention policy, the original form was destroyed many years ago with a microfilmed copy of the front of the form retained by DMS. The microfilmed copy of this form does not reflect the date the form was signed. Additionally, except for the agency number and various signatures, information contained in the refund request form was typed in. The date of termination of Petitioner’s employment was also typed on the form, indicating the form was completed after Petitioner was imprisoned. More importantly, the form was purportedly signed by Petitioner with the name she used at the time. However, the address on the request was not Petitioner’s residence but was the 1980 address of Florida State Hospital Credit Union. At the time, Petitioner had a loan at the credit union, although she denies having an account there. Petitioner also did not hear any more from the Credit Union about her loan and does not know what happened to it. The regularly kept records of the Division indicate that on November 4, 1980, pursuant to this request for refund, Respondent issued Warrant No. 264829 in the amount due Petitioner for a refund of her retirement contributions. The warrant was issued to Petitioner and mailed as instructed to the address of the credit union. Again due to the passage of time, a copy of this warrant is no longer available. Moreover, the credit union records are not available. However, Charlene Fansler performed a search of un- cashed state warrants for Warrant No. 264829. The warrant was not on the list of warrants that remained outstanding. Further, the warrant had not escheated to the State as abandoned property. As such, the evidence demonstrated that the warrant was paid by the State. In 1990, at the age of 60 and several years after her release from prison, Petitioner requested a refund of her retirement contributions. On May 24, 1990, Respondent denied Petitioner’s request based on the 1980 refund of those contributions. At the time, Respondent did not advise Petitioner of her chapter 120 hearing rights; and therefore, did not provide Petitioner with a clear point of entry for an administrative hearing. However, Petitioner was clearly aware that DMS claimed that she had been issued a refund of her contributions and was, therefore, not entitled to a further refund. Petitioner took no action in 1990 even though she did not personally receive the 1980 refund because and claimed to not have signed the refund request form. In 2012, 32 years after the 1980 warrant was issued and 22 years after the 1990 denial of her request for refund, Petitioner, at the age of 82, again requested a refund of her retirement contributions based on her claim that she did not sign the 1980 refund request form and the fact that she did not personally receive the refund warrant. Respondent submitted the microfilmed copy of the signed refund request form and known handwriting exemplars of Petitioner's signature to the Florida Department of Law Enforcement (FDLE) laboratory for analysis. Kesha White, a handwriting analyst with FDLE, analyzed the documents and concluded that they were more likely than not signed by the same person. Her finding was not conclusive due to the limits of analyzing signed documents preserved on microfilm. Indeed, the signatures on the refund form and the known handwriting samples of Petitioner's signature are very similar and appear to be by the same person. In this case, the better evidence demonstrates that Petitioner signed the 1980 refund request form and, due to the passage of time, has simply forgotten that she did so. By signing that form, Petitioner instructed Respondent to issue and mail the warrant to the address for the credit union listed on the form. Respondent complied with that request. Given these facts, Petitioner is not entitled to another refund of her retirement contributions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order finding that Petitioner was issued a refund of retirement contributions for the period from February 1960, through January 1975, and dismissing Petitioner's request for hearing. DONE AND ENTERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 21st day of May, 2013. COPIES FURNISHED: Rebecca Thomas 1929 Hamilton Street Quincy, Florida 32351 Thomas E. Wright, Esquire Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 Dan Drake, Director Division of Retirement Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
The Issue The issue is whether the Petitioner has forfeited her rights and benefits under the Florida Retirement System (FRS).
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Respondent is the Florida agency responsible for management and operation of the FRS. At all times material to this case, the Petitioner was employed as a teacher by the Brevard County School Board (BCSB). The BCSB is an FRS-participating employer. Because of her employment, the Petitioner was enrolled in the FRS. On or about June 25, 2008, the Petitioner was arrested and charged with the following offenses: Twenty counts of unlawful sexual activity with a minor, a second degree felony, in violation of Section 794.05(1), Florida Statutes; One count of lewd or lascivious conduct, a second degree felony, in violation of Section 800.04(6)(a)1., Florida Statutes; One count of lewd or lascivious exhibition, a second degree felony, in violation of Section 800.04(7)(a), Florida Statutes; One count of lewd or lascivious molestation, a second degree felony, in violation of Section 800.04(5)(c), Florida Statutes; One count of lewd or lascivious battery, a second degree felony, in violation of Section 800.04(4)(a), Florida Statutes; and One count of delivery of cannabis to a minor, a second degree felony, in violation of Section 893.13(4)(a)-(d), Florida Statutes. The victim of the alleged crimes was a male who had been temporarily incarcerated at the Brevard Regional Juvenile Detention Center (Center). As an employee of the BCSB, the Petitioner taught science, English, and health education to detainees incarcerated at the Center. The victim was a student in the Petitioner's classroom during his incarceration at the Center. The Petitioner engaged in sexual activity with the victim between May 16, 2008, and June 19, 2008, after the victim had been discharged from the Center. The evidence fails to establish the manner in which the Petitioner and the victim made initial contact after his discharge from the Center. There is no evidence that the Petitioner was coerced or required to engage in sexual activity with the victim. On at least one occasion, the sexual activity occurred in the Petitioner's home. On July 7, 2008, the BCSB commenced proceedings to terminate the Petitioner's employment as a teacher. On July 14, 2008, the Petitioner resigned from her employment with the BCSB. In February 2010, the Petitioner executed an agreement to plead guilty to three counts of unlawful sexual activity with a minor, a second degree felony, in violation of section 794.05(1), Florida Statutes, and one count of making a false report to law enforcement officers, a first degree misdemeanor, in violation of section 837.05(1), Florida Statutes. On February 7, 2011, the Petitioner's plea agreement was filed in court, and the Petitioner was adjudicated guilty. The BCSB thereafter referred the matter to the Florida Department of Education, Office of Professional Practices. As a teacher, the Petitioner was subject to jurisdiction of the Education Practices Commission, pursuant to section 1012.795, Florida Statutes, and was required to comply with the Code of Ethics for the Education Profession in Florida (Code of Ethics) and with the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct). The Petitioner was an authority figure to her students at the Center. According to the Principles of Professional Conduct, she had an obligation to protect students from conditions harmful to learning and harmful to their health and safety and an obligation to refrain from exploiting a relationship with a student for personal gain or advantage. On May 11, 2011, the Florida commissioner of education filed an Administrative Complaint before the Education Practices Commission alleging that the Petitioner had violated provisions of the Code of Ethics and the Principles of Professional Conduct and seeking to impose a disciplinary penalty against the Petitioner's educator's certificate. On December 14, 2011, the Petitioner surrendered her educator's certificate for permanent revocation. On January 5, 2012, the Education Practices Commission issued a Final Order permanently revoking the Petitioner's educator's certificate. When the Petitioner was charged with the crimes referenced herein, the Respondent suspended the Petitioner's FRS rights and benefits and provided proper notice of the suspension to the Petitioner. After the Petitioner was adjudicated guilty, the Respondent notified Petitioner that her FRS rights and benefits had been forfeited as a result of the plea. The Petitioner timely requested an administrative hearing to challenge the suspension and forfeiture. The Petitioner has not retired from the FRS and is not receiving FRS retirement benefits.
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 specified offense pursuant to section 112.3173 and directing the forfeiture of her FRS rights and benefits. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of December, 2012. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Charles L. Handlin, Esquire Handlin and Hefferan, P.A. 12 North Summerlin Avenue Orlando, Florida 32801 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
Findings Of Fact The Petitioner, Ida L. Salz, began her employment as a classroom teacher in 1942 with the Central Institute for the Deaf in St. Louis, Missouri. The Central Institute for the Deaf is a private, non-profit agency and has been such ever since its beginning in 1914. Mrs. Salz worked for the institute as a classroom teacher for eight (8) years. She moved to Florida in 1954 and began employment with the public schools in January, 1955, at which time she also became a member of the Teachers' Retirement System. When she started her employment with the Dade County School System, she completed an enrollment application form which is required of all teachers in the public school systems of Florida. The purpose of the enrollment form was to identify the member, to provide beneficiary designation, to establish the beginning date of employment and the beginning date of membership in the Teachers' Retirement System. In 1966, she inquired of the (then) Teachers' Retirement System regarding her right to purchase credit for the eight (8) years of out-of-state teaching service from Missouri. She was informed shortly thereafter by the Teachers' Retirement System (Mr. B. M. Kelley) that she would be allowed to purchase eight (8) years of credit for hem Missouri teaching time. The Petitioner received a letter from Mr. B. M. Kelley employed by the Respondent, in September 2, 1966, stating that she could make periodic personal remittances to the Teachers' Retirement System in any amount she desired. She made periodic payments to the Teachers' Retirement System and on November 28, 1977, made the final payment of the amount due to the Teachers' Retirement System representing the eight (8) years prior service credit which she was purchasing. The Petitioner retired on June 15, 1981. She thereupon made application to the Respondent for retirement benefits. The Petitioner is sixty- four (64) years of age and has been a classroom teacher since 1942. The Petitioner's husband had previously retired on April 1, 1979,and is now sixty- seven (67) years old. The Petitioner's and her husband's retirement plans were based upon their belief that her retirement benefits would be computed based upon credit for the eight (8) years out-of-state Missouri service. The Petitioner would not have retired in July of 1981 had she not been in the belief, since 1966, that she would receive credit for her eight (8) years of out-of-state service. She relied on the Division of Retirement's representation in 1966 that she would have credit for those eight (8) years out-of-state service and had computed her expected retirement benefits and personal budget based on this information. Had the Petitioner known that after her retirement benefits resulting from the eight (8) years out-of-state service would be denied, she would not have retired, since the income so generated is insufficient to adequately support her and her husband. Upon receipt of the Petitioner's retirement application by the Division, the Bureau of Retirement Calculation reviewed the Petitioner's file for compliance with the statute and appropriate rules and regulations. It determined that the eight (8) years out-of-state service was not creditable because it was in a private school. The Respondent took the position that the so-called approval given the Petitioner in 1966 to purchase the service time related to her private school teaching was a "clerical error or a oversight" by the division. In a letter of August 3, 1981, Mr. A. J. McMullian, III, Director of the division, advised the Petitioner that the out-of-state service had been erroneously allowed to her, that the contribution she had paid for it would be returned, and that she would not get retirement credit for those eight (8) years. The personnel of the Teachers' Retirement System (later the Division of Retirement) are unilaterally responsible for the investigation in 1966, which led to their determination at that time that the Petitioner was entitled to the eight (8) years out- of-state service. The Petitioner had no influence in making this determination, but has relied on it in making her retirement plans during the years from 1966 through 1981. Sometime after the Petitioner started employment in the Dade County School System, the Division of Retirements' sent a form. to the Central Institute for the Deaf in St. Louis and, either personnel of that institute or of `a state agency of Missouri, completed the form and returned it to the Division of Retirement. The form certifies that the Petitioner was employed in the school, Central Institute for the Deaf in St. Louis, Missouri, from September 1, 1940 to June, 1948. The word in the form, "public", which appears before "schools" on the form was crossed out by either the Central Institute personnel or an employee of the Missouri State Government who completed the form. Thus, the Respondent's official who read the form and made the decision that the Petitioner was entitled to eight (8) years of out-of-state service was on notice that the out-of-state service was performed at a private institution rather than a public school. The parties stipulated that the Central Institute for the Deaf in St. Louis, Missouri, is a private, non-profit school and not a public school and that their interpretation of the statute quoted below is that out-of-state service in private schools is not creditable. The Petitioner contends, however, that inasmuch as the Petitioner relied, from 1966 through 1981, upon the representation made to her in 1966 that she would be allowed credit for the eight (8) years out-of-state service and planned her retirement and budgeted her retirement income accordingly, that the State Division of Retirement is now estopped to deny her benefits based upon those eight (8) years out-of-state service.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the pleadings and arguments of the parties, the candor and demeanor of the witnesses and the evidence in the record, it is RECOMMENDED: That the Respondent, the Division of Retirement, issue a Final Order finding that the Petitioner be allowed credit for her out-of-state teaching service, and recompute her retirement benefits from the date of her retirement, allowing her such credit. DONE and ENTERED this 11th day of June, 1982 at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1982. COPIES FURNISHED: William DuFresne, Esquire Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration The Carl ton Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT IDA L. SALZ, Petitioner, vs. CASE NO. 81-2487 DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT, Respondent. /
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 The Petitioner, C. DEAN LEWIS, was first employed on March 4, 1966 by the Lafayette County School Board and remained employed by that agency until September 1, 1975. From the time of his employment with that agency, Mr. Lewis was enrolled in the agency retirement system. On September 1, 1975, Petitioner was employed as County Attorney by Suwannee County, Florida. From the time of enrollment in 1966 until such time as the retirement system became non- contributory, sums were withheld from his salary for payment into the retirement fund. When Petitioner became County Attorney for Suwannee County in September 1975, he continued his enrollment in the Florida Retirement System. The evidence presented in the form of enrollment cards fails to show the exact date of enrollment or for what position of employment he was enrolled. However, it is quite clear that Petitioner was enrolled in the Florida Retirement System or its predecessor system continuously since the inception of his employment by a governmental agency. On July 1, 1979, the Division of Retirement issued new rules regarding membership in the Florida Retirement System contained in Section 22B-1.04(5)(6), Florida Administrative Code. On September 15, 1979, the Division of Retirement promulgated its Memorandum No. 79-20, to all Florida Retirement System reporting agencies outlining the new guidelines for enrollment. This memorandum specifically referred to attorneys and encouraged the agency to examine the employment status of attorneys to determine whether that individual was an employee of the agency or merely a contractor. Thereafter on February 26, 1981, the Division of Retirement sent out another memorandum, Number 81-38, again to all retirement system reporting units, which placed specific emphasis on those situations involving employees versus consultants/contractors. This situation clearly pertains to the situation of the Petitioner here. When these memoranda were received by Suwannee County, at least one was inserted in Petitioner's personnel file. At no time, however, was any consideration given to the Petitioner's situation nor was any mention made by the County to the Petitioner regarding these memoranda. In addition, at no time did any representative of the Florida Retirement System or the Division of Retirement have any contact with Petitioner either in person or through correspondence to advise him that his status was under reconsideration and that he had an obligation to clarify his standing to the satisfaction of the Division. In early 1984 the Division of Retirement forwarded an employment relationship questionnaire to the Suwannee County Board of County Commissioners requesting that it complete the questionnaire as it pertained to Petitioner, the County Attorney. This questionnaire was completed by Jerry A. Scarborough, Clerk of the Circuit Court, who was responsible for maintaining the personnel records of Petitioner and most other county employees. On the basis of Mr. Scarborough's answers to various questions, the Division of Retirement on May 14, 1984, advised Petitioner of its intention to disenroll him from the Florida Retirement System. The Division listed some seven areas wherein Mr. Scarborough's answers indicated that Petitioner was a "consultant or other professional person" as defined in Rule 22B-6.01(12), rather than a true employee of the county. As such, Mr. Tom F. Wooten, Chief, Bureau of Enrollment and Contributions, Division of Retirement, concluded that Petitioner was, therefore, not eligible to participate as a member of the Florida Retirement System. Mr. Wooten further indicated the Division's intent to remove him from membership as of July 1, 1979. Thereafter, as was stated previously, on July 6, 1984, Mr. A. J. McMullian, III, State Retirement Director, by letter, advised Petitioner that he had considered his response to the original letter of intent but nonetheless, continued to conclude that he was not eligible to participate as a member of the Florida Retirement System. The July 6, 1984 letter by Mr. McMullian indicated the finality of the Division's decision. It is not now the Division's intention to disenroll Petitioner from the Florida Retirement System effective in 1979. Based on a recent decision of the Florida District Court of Appeals, the Division recognizes that it can reasonably disenroll him no earlier than the date he was first advised of the Division's concern regarding his status. That date is May 14, 1984, the date of the Division's initial letter of intent. The decision by the Division of Retirement to remove Petitioner and other professional contractors from the retirement system is based on its contention that the Petitioner and these other individuals are not bona fide employees of the agency under whose auspices they are enrolled in the system. It is not the position of the Division that only full-time employees can be enrolled. To the contrary, the agency is quite willing to accept that part-time employees are eligible for enrollment providing they meet the other criteria. With regard to the Petitioner and other professionals, primarily attorneys and physicians, it is the Division's contention that they are not true employees of the county but are independent-contractors or consultants who are not eligible for membership in the system. The factors leading to the conclusion drawn by the Division include such things as: Petitioner was not trained or schooled by the county in the professional work he performs; That he is not given instructions as to how the work is to be done; That he is not required to maintain regular office hours established by the county; That the county does not provide him with materials, tools, or equipment to perform his duties; That he is available to provide identical professional services to others in the county and in furtherance of that pursuit, maintains a business listing in the telephone book, and a trade journal to that effect as well as maintaining a private office for the practice of his profession; That he hires, pays, and supervises assistants who assist him in the performance of his law firm duties as well as those duties performed for the county; and That he is not eligible for annual or sick leave from the county. The Petitioner is hired by the county to advise the Board of County Commissioners, constitutional officers, and citizens of the county having business with the county referred to him by the Board. His private law firm also does additional work for the county in other areas for which it is compensated independently. Petitioner's yearly salary, which was recently increased from $6,000.00 to $8,000.00 per year is related solely to his performance of duties as county attorney. In that capacity he does not get involved in the county's litigation. His firm, as well as other firms in the area, is hired by the county separately for that function. Petitioner vehemently denies that any partner of his or any employee substituted or acted for him at meetings of the Board of County Commissioners in his capacity as county attorney. Whenever such partners or employees addressed the Board, they did so on work they were doing for the firm separately from that related to his position as county attorney. Petitioner contends that he spends an average of 10 hours per month on county business of which 80 percent is accomplished at the county courthouse. In addition to these 10 hours per month, citizens of the county, the press, and county officials contact him at home and at other places at all hours of the day and night regarding county business. He is not furnished an office in the county courthouse or any other county building. Though he contended that his seat in the county commission room is his office and the place where he accomplished most of his county related work, and though this contention was supported by the Clerk of Court, Mr. Scarborough, it is clear that in reality, Petitioner does not have an office furnished him by the county, and such work as he accomplished on the county's behalf is done primarily in the office of the official requesting it. It is also most likely that substantial correspondence and other clerical work is accomplished for the county by the petitioner in his private office and is accomplished by his own law firm employees. The county supplies him with some books and manuals including copies of various ordinances, codes, and attorney general opinions. The outside work which he does for the county, including, for example, such things as plat examinations, is billed to the county at a rate of $75.00 per hour. The amount he receives, however, never exceeds the amount received by the county for this service. In 1975, prior to his becoming county attorney, he discussed the potential for assuming this position with his predecessor and law partner, Mr. Airth. One of the major factors convincing him to accept the position of county attorney was the prospective retirement benefits he could expect after fulfilling a number of years in this job. Petitioner was hired by the County Commission on an oral contract basis and has never had a written contract with the county. At the first commissioner's meeting of each year, the Board considers Petitioner's continued relationship with the county and confirms it. It could, at any time, decline to extend the relationship, though it has not yet done so. This arrangement differs from that of a normal consultant in that the relationship with a relationship is terminated automatically when the specific job for which the individual is hired has been completed. Petitioner's relationship has been continuous since 1975 and at the present time there appears to be no indication that it will be terminated in the foreseeable future. His compensation is reported to the Internal Revenue Service on a form W-2. That which was submitted for the year 1983 reflects that social security taxes were withheld but no federal income tax. Petitioner explains this on the basis that he claims four dependents and that, therefore, no tax should have been withheld. This explanation is questionable at best. Petitioner takes exception to several of the answers by Mr. Scarborough on the questionnaire submitted to the Division of Retirement. For example, at question 4b, Petitioner contends that he does in fact attend regularly scheduled meetings of the Board of County Commissioners and other agencies and is, therefore, required to follow daily routines. He contends that he is given the specific work which has to be done and the time in which it is to be accomplished and is, therefore, instructed as to how the work is `to be done by his employer. He contends that this same relationship makes him no different than any other county agency or section director who have authority to accomplish their work with some latitude and discretion. Petitioner also contends that he was hired for one year, not an indefinite period, though he has continued to work since 1975 and anticipates no change in his relationship in the future. He contends that the requirement to attend meetings on definite dates at certain times, which takes up to 60 to 80 percent of his time on the job, constitutes the fixed hours and certain times mentioned in the questionnaire. Further, he indicates that with regard to the determination of the hours when the work should be performed, this decision is made not by the employee as indicated on the questionnaire, but by his employer, the county. Petitioner also contends that such help as he utilizes in performing county business is received from public employees, not from his own law firm employees, and that most of his work is done in the courthouse. While Petitioner does not earn annual leave, sick pay, bonuses, or other benefits, he has been enrolled in the retirement system, was eligible to purchase county insurance, and was carried as any other employee on the county's workers' compensation policy. He is authorized to miss one commission meeting per year for vacation and others during the year as excused for illness. Taken in its totality, it becomes obvious that Petitioner's relationship with Suwannee County, Florida is little different from that of any other attorney-client relationship of long standing. It is clear that Petitioner's relationship with the county, though it may have been intended since May, 1984 to fall within the guidelines set forth by Use Division of Retirement, did not do so from 1975 to the latter date. It is clear that the Petitioner's primary employment was that of a private practitioner. One of his clients, and perhaps his largest client in terms of population, is Suwannee County, but the relationship is that of attorney-client, not that of employer- employee. While Petitioner no doubt is the Suwannee County Attorney, he performs that function as a private practitioner and not as a member of the county work force even though his salary is paid from the general salary and wages account.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Petitioner, C. DEAN LEWIS, be disenrolled from the Florida Retirement System effective May 14, 1984. RECOMMENDED this 1st day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985. COPIES FURNISHED: William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303 C. Dean Lewis, Esquire c/o Airth, Sellers, Lewis & Decker Post Office Drawer 8 Live Oak, Florida 32060 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
