05-000532 Ismael Page vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, September 2, 2005.

Summary: Retirement showed felony convictions of and wrongful gain by the public employee but failed to show her duty and breach of duty. Recommend retension of rights and benefits under the Florida Retirement System.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISMAEL PAGE, )

)

Petitioner, )

)

vs. ) Case No. 05-0532

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a final hearing was held in this case

by video teleconference on July 11, 2005, with connecting sites

in Miami and Tallahassee, Florida, before Errol H. Powell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's rights

and benefits under the Florida Retirement System should be

terminated, per Respondent's Notice of Termination dated

November 19, 2004.

PRELIMINARY STATEMENT

Ismael Page received notification from the Department of

Management Services, Division of Retirement (Retirement) that

her rights and benefits under the Florida Retirement System

(FRS) were terminated because she pled guilty to criminal

violations while she was employed with the Florida Department of

Labor and Employment Security (DLES), citing the violations and

the constitutional and statutory provisions supporting

Retirement's action. Ms. Page challenged Retirement's action

and requested a hearing. On February 14, 2005, this matter was

referred to the Division of Administrative Hearings.

The hearing in this matter was originally set for April 26,

2005 at 11:00 a.m. in Miami, Florida. The start of the hearing

was delayed to provide additional time for Ms. Page to appear.

The undersigned did not begin the hearing until approximately

11:50 a.m., but Ms. Page failed to appear and no appearance was

made on her behalf. Counsel for Retirement and a witness for

Retirement appeared at the hearing. The undersigned determined

at that hearing that the final burden of proof was on Ms. Page,

and, based on that pronouncement, Retirement chose to present no

testimony and to enter no exhibits into evidence, relying upon

the documents in the record. No transcript of the matters

placed on the record was ordered.

By letter dated May 6, 2005, Retirement's counsel notified

the undersigned that, when he returned to his office on

April 28, 2005, after the hearing, he had a voice mail message

from Ms. Page indicating that she had a death in her family and

that she could not attend the hearing. Retirement's counsel

further notified the undersigned that he telephoned Ms. Page the

same day, April 28, 2005, and advised her, through voice mail,

that she must request any relief that she is seeking, including

a continuance, from the undersigned and that he had not had any

further communication with or from Ms. Page.

By Order dated May 11, 2005, the undersigned provided an

opportunity for and directed Ms. Page to file her request for a

continuance or any other relief that she desired no later than

May 19, 2005. Ms. Page failed to file any request for relief.

At the conclusion of the hearing on April 26, 2005,

Retirement requested to file a post-hearing submission within 10

days following the hearing. Retirement timely filed a post-

hearing submission.

Subsequent to Retirement filing its post-hearing

submission, by Order dated May 25, 2005, the undersigned, sua

sponte , re-considered the determination on the burden of proof.

In the Order, the undersigned concluded, among other things,

that Retirement, not Ms. Page, had the ultimate burden of proof

and that the hearing would be re-opened. The final hearing was

re-set for July 11, 2005, and was conducted.

At hearing, Retirement presented the testimony of two

witnesses and entered seven exhibits (Respondent's Exhibits

numbered 1-7) into evidence. Ms. Page again failed to appear,

and no appearance was made on her behalf. A transcript was

ordered. At the request of Retirement, the time for filing

post-hearing submissions was set for ten days following the

filing of the transcript. The Transcript, consisting of one

volume, was filed on August 9, 2005.

Retirement timely filed its post-hearing submission, which

was considered in the preparation of this Recommended Order.

Ms. Page did not file a post-hearing submission.

FINDINGS OF FACT

1. No dispute exists that Ms. Page was employed with DLES.

Furthermore, no dispute exists that, because of her employment

with DLES, Ms. Page is a member of FRS.

2. No evidence was presented as to Ms. Page's duties at

DLES.

3. In September 1999, Ms. Page was charged by an

information in the Eleventh Judicial Circuit, In and For Dade

County, in The State of Florida v. Ismael Page aka May

Washington aka Ismay Washington , Case No. 99-27532, with one

count of filing a false and fraudulent insurance claim in

violation of Section 817.234(1), Florida Statutes, a third

degree felony; and one count of grand theft in violation of

Section 812.014(2)(c)1, Florida Statutes, a the third degree

felony.

4. Additionally, in September 1999, Ms. Page was charged

by an information in the Eleventh Judicial Circuit, In and For

Dade County, in The State of Florida v. Ismael Page aka May

Washington aka Ismay Washington , Case No. 99-27533, with one

count of filing a false and fraudulent insurance claim in

violation of Section 817.234(1), Florida Statutes, a third

degree felony; one count of uttering a forged instrument in

violation of Section 831.02, Florida Statutes, a third degree

felony; and one count of grand theft in violation of Section

812.014(2)(c)1, Florida Statutes, a the third degree felony.

5. The count of uttering a forged instrument involved a

forged letter by Ms. Page from a person, who was employed at

DLES and who was alleged in the letter to be her supervisor at

DLES, showing that Ms. Page had incurred lost wages as the

result of an injury in an accident. The forged letter was

submitted by Ms. Page to an insurance company in support of her

claim for disability benefits.

6. The person who was alleged to have written the letter

and to be Ms. Page's supervisor at DLES did not write the

letter.

7. Ms. Page received disability payments from the

insurance company.

8. On or about September 13, 1999, Ms. Page pled guilty to

and was adjudicated guilty of the one count of filing a false

and fraudulent insurance claim and the one count of grand theft

in Case No. 99-27532.

9. On or about September 13, 1999, Ms. Page pled guilty to

and was adjudicated guilty of the one count of filing a false

and fraudulent insurance claim, the one count of uttering a

forged instrument, and the one count of grand theft in Case No.

99-27533.

10. By Notice of Termination of All Rights and Benefits

Under the Florida Retirement System (Notice), dated November 19,

2004, Retirement notified Ms. Page that all of her rights and

benefits under FRS were terminated. Retirement claimed in the

Notice that Ms. Page, while employed at DLES, had pled guilty to

one count of fraudulent insurance claims in violation of Section

817.234(1), Florida Statutes; one count of uttering a forged

instrument in violation of Section 831.02, Florida Statutes; and

one count of grand theft in the third degree in violation of

Section 812.014(2)(c), Florida Statutes. Further, Retirement

asserted in the Notice that, based on the criminal violations

and pursuant to Article II, Section 8(d) of the Florida

Constitution, Section 121.091(5)(f), Florida Statutes (2000),

and Section 112.3173, Florida Statutes, she had no further

rights under FRS, that she would not be permitted to repurchase,

as prior service, the years of creditable service she earned

prior to the convictions, and that her accumulated contributions

on deposit in the FRS Trust Fund, if any, would not be affected.

11. Ms. Page challenged Retirement's action and requested

a hearing. In her challenge to Retirement's action, Ms. Page

made an allegation of dismissal of charges and of being

presently disabled.

12. Ms. Page failed to appear at the hearing. Because of

her failure to appear, her allegation remains nothing more than

an allegation without support for which no finding of fact can

be made.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2005).

14. The general rule is that "the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an administrative tribunal." Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). The case at hand involves the forfeiture

of Ms. Page's rights and benefits under FRS and involves

Retirement asserting that she should lose her rights and

benefits under FRS because of criminal convictions.

Consequently, Retirement has the burden of proof by establishing

through a preponderance of evidence that forfeiture is

warranted. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

15. "Any public officer or employee who is convicted of a

felony involving a breach of public trust shall be subject to

forfeiture of rights and privileges under a public retirement

system or pension plan in such manner as may be provided by

law." Art. II, § 8, Fla. Const. (1968 Revision)

16. Section 112.3173, Florida Statutes (2000), provides in

pertinent part:

(1) INTENT .-- It is the intent of the

Legislature to implement the provisions of

s. 8(d), Art. II of the State Constitution.

(2) DEFINITIONS .-- As used in this section,

unless the context otherwise requires, the

term:

(a) "Conviction" and "convicted" mean an

adjudication of guilt by the court of

competent jurisdiction; a plea of guilty or

of nolo contendere; a jury verdict of guilty

when adjudication of guilt is withheld and

the accused is placed on probation; or a

conviction by the Senate of an impeachable

offense.

* * *

(c) "Public officer or employee" means an

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

* * *

(e) "Specified offense" means:

1. The committing, aiding, or abetting of

an embezzlement of public funds;

2. The committing, aiding, or abetting of

any theft by a public officer or employee

from his or her employer;

3. Bribery in connection with the

employment of a public officer or employee;

4. Any felony specified in chapter 838,

except ss. 838.15 and 838.16;

5. The committing of an impeachable

offense; or

6. The committing of any felony by a public

officer or employee who, willfully and with

intent to defraud the public or the public

agency for which the public officer or

employee acts or in which he or she is

employed of the right to receive the

faithful performance of his or her duty as a

public officer or employee, realizes or

obtains, or attempts to realize or obtain, a

profit, gain, or advantage for himself or

herself or for some other person through the

use or attempted use of the power, rights,

privileges, duties, or position of his or

her public office or employment position.

(3) FORFEITURE .-- Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

whose office or employment is terminated by

reason of his or her admitted commission,

aid, or abetment of a specified offense,

shall forfeit all rights and benefits under

any public retirement system of which he or

she is a member, except for the return of

his or her accumulated contributions as of

the date of termination.

(emphasis added)

17. Section 121.091, Florida Statutes (2000), provides in

pertinent part:

(5) TERMINATION BENEFITS.--A member whose

employment is terminated prior to retirement

retains membership rights to previously

earned member-noncontributory service

credit, and to member-contributory service

credit, if the member leaves the member

contributions on deposit in his or her

retirement account. If a terminated member

receives a refund of member contributions,

such member may reinstate membership rights

to the previously earned service credit

represented by the refund by completing 1

year of creditable service and repaying the

refunded member contributions, plus

interest.

* * *

(f) Any member who has been found guilty by

a verdict of a jury, or by the court trying

the case without a jury, of committing,

aiding, or abetting any embezzlement or

theft from his or her employer, bribery in

connection with the employment, or other

felony specified in chapter 838, except ss.

838.15 and 838.16, committed prior to

retirement, or who has entered a plea of

guilty or of nolo contendere to such crime,

or any member whose employment is terminated

by reason of the member's admitted

commitment, aiding, or abetting of an

embezzlement or theft from his or her

employer, bribery, or other felony specified

in chapter 838, except ss. 838.15 and

838.16, shall forfeit all rights and

benefits under this chapter, except the

return of his or her accumulated

contributions as of the date of termination.

18. Retirement argues that Ms. Page's "conviction clearly

deprived the public of the faithful performance of her duties

and was committed to obtain a benefit to which she was not

entitled. It [the conviction] thus meets the definition set

forth by the legislature." In support of its argument,

Retirement cites the following cases: Ellis v. Division of

Retirement , DOAH Case No. 97-1357 (1997) (affirmed per curiam at

731 So. 2d 652 (Fla. 1st DCA 1999)); and Jacobo v. Board of

Trustees of the Miami Police , 788 So. 2d 362 (Fla. 3rd DCA

2001). Ellis and Jacobo , supra , present the factors which must

be considered in the case at hand.

19. The Administrative Law Judge in Ellis , supra , whose

Recommended Order was adopted in toto by Retirement, identified

the duty of the public and constitutional officer (the sheriff),

whose retirement benefits were being forfeited, and how the

sheriff breached his duty by committing and being convicted of

felony offenses which were contrary to his duty, through which

he was realizing or obtaining, or attempting to realize or

obtain a personal gain or profit. The felony offenses involved

knowingly possessing and conspiring to possess, with intent to

distribute, cocaine and marijuana and knowingly conspiring to

obstruct justice. The Administrative Law Judge determined that

the felony offenses that the sheriff committed, and for which he

was convicted, constituted official misconduct.

20. Likewise, as to the issues raised in the instant

matter, the court in Jacobo , supra , proceeded through the same

analysis, as the Administrative Law Judge in Ellis , supra , in

its case with the duty of the public employee (police officer),

whose retirement benefits were being forfeited. The police

officer was convicted of official misconduct, a felony, by

making a false statement in an arrest affidavit. Pertinent to

the case at hand, the court in Jacobo held that:

[I]t is a breach of the public trust to

violate any standard of ethical conduct in

Chapter 112, including section

112.313(2)(e)6, which proscribes the

commission of a felony with intent to

defraud the public to gain an advantage for

himself or someone else through the use of

his office. Official misconduct . . . [as

defined] is clearly a breach of the public

trust . . . .

Jacobo , at 365. Further, the court provided the definition of

official misconduct found at Section 839.25(1), Florida Statutes

(1991), at footnote numbered 3, which was as follows:

[T]he commission of the following act by a

public servant, with corrupt intent to

obtain a benefit for himself or herself or

another or to cause unlawful harm to

another: knowingly falsifying, or causing

another to falsify, an official record or

official document.

Jacobo , at 365.

21. In the instant matter, the evidence demonstrates that

Ms. Page is a public employee, as defined, that she was

convicted of several felonies, and that she attempted to obtain

and did obtain personal gain from her illegal conduct.

Retirement takes a broad approach that, because Ms. Page is a

public employee, because she committed and was convicted of the

offenses, and because her illegal conduct permitted her to

obtain a benefit to which she was not entitled, Ms. Page

"deprived the public of the faithful performance of her duties,"

and that the conduct meets the definition of a "specified

offense" found at Section 112.3173(1)(e)6, Florida Statutes.

22. Applying the factors in the analysis provided in Ellis

and Jacobo , supra , Ms. Page's duty at DLES is unknown because no

evidence was presented as to her duty. Furthermore, Retirement

failed to demonstrate that Ms. Page had been convicted of

misconduct in office.

23. On the other hand, the Administrative Law Judge in

Ellis , supra , determined that the sheriff's convictions

"constituted" misconduct even though the sheriff had not been

convicted of misconduct. However, the Administrative Law Judge

analyzed how the convictions constituted misconduct by

determining the duty of the sheriff and how the sheriff violated

that duty. Again, in the instant case, the evidence presented

failed to identify Ms. Page's duty and to demonstrate how she

breached or violated that duty.

24. Hence, Retirement failed to establish that Ms. Page

had committed a breach of public trust or that she had committed

official misconduct, which is a breach of the public trust. 1

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 reinstating the

rights and benefits of Ismael Page under the Florida Retirement

System.

DONE AND ENTERED this 2nd day of September 2005, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of September, 2005.

ENDNOTE

1/ The Legislature in 2003 repealed Section 839.25, Florida

Statutes, and created Section 838.022, Florida Statutes, entitled

"Official misconduct." Pertinent to the case at hand, Section

838.022, Florida Statutes (2003), removed the reference to

obtaining a benefit for oneself and defined official record or

official document as including "only public records."

conduct would not have constituted official misconduct under the

new statute even if the evidence presented demonstrated her duty

and how she violated that duty.

COPIES FURNISHED:

Ismael Page

18451 Northwest 37th Avenue

Apartment 224

Miami, Florida 33056

Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399-9000

Alberto Dominguez, General Counsel

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399-9000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.