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


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ISMAEL PAGE, )

11)

12Petitioner, )

14)

15vs. ) Case No. 05-0532

20)

21DEPARTMENT OF MANAGEMENT )

25SERVICES, DIVISION OF )

29RETIREMENT, )

31)

32Respondent. )

34________________________________)

35RECOMMENDED ORDER OF DISMISSAL

39Pursuant to notice, a final hearing was held in this case

50by video teleconference on July 11, 2005, with connecting sites

60in Miami and Tallahassee, Florida, before Errol H. Powell, a

70designated Administrative Law Judge of the Division of

78Administrative Hearings.

80APPEARANCES

81For Petitioner: No Appearance

85For Respondent: Thomas E. Wright, Esquire

91Department of Management Services

95Division of Retirement

984050 Esplanade Way, Suite 260

103Tallahassee, Florida 32399-0950

106STATEMENT OF THE ISSUE

110The issue for determination is whether Petitioner's rights

118and benefits under the Florida Retirement System should be

127terminated, per Respondent's Notice of Termination dated

134November 19, 2004.

137PRELIMINARY STATEMENT

139Ismael Page received notification from the Department of

147Management Services, Division of Retirement (Retirement) that

154her rights and benefits under the Florida Retirement System

163(FRS) were terminated because she pled guilty to criminal

172violations while she was employed with the Florida Department of

182Labor and Employment Security (DLES), citing the violations and

191the constitutional and statutory provisions supporting

197Retirement's action. Ms. Page challenged Retirement's action

204and requested a hearing. On February 14, 2005, this matter was

215referred to the Division of Administrative Hearings.

222The hearing in this matter was originally set for April 26,

2332005 at 11:00 a.m. in Miami, Florida. The start of the hearing

245was delayed to provide additional time for Ms. Page to appear.

256The undersigned did not begin the hearing until approximately

26511:50 a.m., but Ms. Page failed to appear and no appearance was

277made on her behalf. Counsel for Retirement and a witness for

288Retirement appeared at the hearing. The undersigned determined

296at that hearing that the final burden of proof was on Ms. Page,

309and, based on that pronouncement, Retirement chose to present no

319testimony and to enter no exhibits into evidence, relying upon

329the documents in the record. No transcript of the matters

339placed on the record was ordered.

345By letter dated May 6, 2005, Retirement's counsel notified

354the undersigned that, when he returned to his office on

364April 28, 2005, after the hearing, he had a voice mail message

376from Ms. Page indicating that she had a death in her family and

389that she could not attend the hearing. Retirement's counsel

398further notified the undersigned that he telephoned Ms. Page the

408same day, April 28, 2005, and advised her, through voice mail,

419that she must request any relief that she is seeking, including

430a continuance, from the undersigned and that he had not had any

442further communication with or from Ms. Page.

449By Order dated May 11, 2005, the undersigned provided an

459opportunity for and directed Ms. Page to file her request for a

471continuance or any other relief that she desired no later than

482May 19, 2005. Ms. Page failed to file any request for relief.

494At the conclusion of the hearing on April 26, 2005,

504Retirement requested to file a post-hearing submission within 10

513days following the hearing. Retirement timely filed a post-

522hearing submission.

524Subsequent to Retirement filing its post-hearing

530submission, by Order dated May 25, 2005, the undersigned, sua

540sponte , re-considered the determination on the burden of proof.

549In the Order, the undersigned concluded, among other things,

558that Retirement, not Ms. Page, had the ultimate burden of proof

569and that the hearing would be re-opened. The final hearing was

580re-set for July 11, 2005, and was conducted.

588At hearing, Retirement presented the testimony of two

596witnesses and entered seven exhibits (Respondent's Exhibits

603numbered 1-7) into evidence. Ms. Page again failed to appear,

613and no appearance was made on her behalf. A transcript was

624ordered. At the request of Retirement, the time for filing

634post-hearing submissions was set for ten days following the

643filing of the transcript. The Transcript, consisting of one

652volume, was filed on August 9, 2005.

659Retirement timely filed its post-hearing submission, which

666was considered in the preparation of this Recommended Order.

675Ms. Page did not file a post-hearing submission.

683FINDINGS OF FACT

6861. No dispute exists that Ms. Page was employed with DLES.

697Furthermore, no dispute exists that, because of her employment

706with DLES, Ms. Page is a member of FRS.

7152. No evidence was presented as to Ms. Page's duties at

726DLES.

7273. In September 1999, Ms. Page was charged by an

737information in the Eleventh Judicial Circuit, In and For Dade

747County, in The State of Florida v. Ismael Page aka May

758Washington aka Ismay Washington , Case No. 99-27532, with one

767count of filing a false and fraudulent insurance claim in

777violation of Section 817.234(1), Florida Statutes, a third

785degree felony; and one count of grand theft in violation of

796Section 812.014(2)(c)1, Florida Statutes, a the third degree

804felony.

8054. Additionally, in September 1999, Ms. Page was charged

814by an information in the Eleventh Judicial Circuit, In and For

825Dade County, in The State of Florida v. Ismael Page aka May

837Washington aka Ismay Washington , Case No. 99-27533, with one

846count of filing a false and fraudulent insurance claim in

856violation of Section 817.234(1), Florida Statutes, a third

864degree felony; one count of uttering a forged instrument in

874violation of Section 831.02, Florida Statutes, a third degree

883felony; and one count of grand theft in violation of Section

894812.014(2)(c)1, Florida Statutes, a the third degree felony.

9025. The count of uttering a forged instrument involved a

912forged letter by Ms. Page from a person, who was employed at

924DLES and who was alleged in the letter to be her supervisor at

937DLES, showing that Ms. Page had incurred lost wages as the

948result of an injury in an accident. The forged letter was

959submitted by Ms. Page to an insurance company in support of her

971claim for disability benefits.

9756. The person who was alleged to have written the letter

986and to be Ms. Page's supervisor at DLES did not write the

998letter.

9997. Ms. Page received disability payments from the

1007insurance company.

10098. On or about September 13, 1999, Ms. Page pled guilty to

1021and was adjudicated guilty of the one count of filing a false

1033and fraudulent insurance claim and the one count of grand theft

1044in Case No. 99-27532.

10489. On or about September 13, 1999, Ms. Page pled guilty to

1060and was adjudicated guilty of the one count of filing a false

1072and fraudulent insurance claim, the one count of uttering a

1082forged instrument, and the one count of grand theft in Case No.

109499-27533.

109510. By Notice of Termination of All Rights and Benefits

1105Under the Florida Retirement System (Notice), dated November 19,

11142004, Retirement notified Ms. Page that all of her rights and

1125benefits under FRS were terminated. Retirement claimed in the

1134Notice that Ms. Page, while employed at DLES, had pled guilty to

1146one count of fraudulent insurance claims in violation of Section

1156817.234(1), Florida Statutes; one count of uttering a forged

1165instrument in violation of Section 831.02, Florida Statutes; and

1174one count of grand theft in the third degree in violation of

1186Section 812.014(2)(c), Florida Statutes. Further, Retirement

1192asserted in the Notice that, based on the criminal violations

1202and pursuant to Article II, Section 8(d) of the Florida

1212Constitution, Section 121.091(5)(f), Florida Statutes (2000),

1218and Section 112.3173, Florida Statutes, she had no further

1227rights under FRS, that she would not be permitted to repurchase,

1238as prior service, the years of creditable service she earned

1248prior to the convictions, and that her accumulated contributions

1257on deposit in the FRS Trust Fund, if any, would not be affected.

127011. Ms. Page challenged Retirement's action and requested

1278a hearing. In her challenge to Retirement's action, Ms. Page

1288made an allegation of dismissal of charges and of being

1298presently disabled.

130012. Ms. Page failed to appear at the hearing. Because of

1311her failure to appear, her allegation remains nothing more than

1321an allegation without support for which no finding of fact can

1332be made.

1334CONCLUSIONS OF LAW

133713. The Division of Administrative Hearings has

1344jurisdiction over the subject matter of this proceeding and the

1354parties thereto pursuant to Sections 120.569 and 120.57(1),

1362Florida Statutes (2005).

136514. The general rule is that "the burden of proof, apart

1376from statute, is on the party asserting the affirmative of an

1387issue before an administrative tribunal." Florida Department of

1395Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778, 788

1407(Fla. 1st DCA 1981). The case at hand involves the forfeiture

1418of Ms. Page's rights and benefits under FRS and involves

1428Retirement asserting that she should lose her rights and

1437benefits under FRS because of criminal convictions.

1444Consequently, Retirement has the burden of proof by establishing

1453through a preponderance of evidence that forfeiture is

1461warranted. Department of Banking and Finance, Division of

1469Securities and Investor Protection v. Osborne Stern and Company ,

147815. "Any public officer or employee who is convicted of a

1489felony involving a breach of public trust shall be subject to

1500forfeiture of rights and privileges under a public retirement

1509system or pension plan in such manner as may be provided by

1521law." Art. II, § 8, Fla. Const. (1968 Revision)

153016. Section 112.3173, Florida Statutes (2000), provides in

1538pertinent part:

1540(1) INTENT .-- It is the intent of the

1549Legislature to implement the provisions of

1555s. 8(d), Art. II of the State Constitution.

1563(2) DEFINITIONS .-- As used in this section,

1571unless the context otherwise requires, the

1577term:

1578(a) "Conviction" and "convicted" mean an

1584adjudication of guilt by the court of

1591competent jurisdiction; a plea of guilty or

1598of nolo contendere; a jury verdict of guilty

1606when adjudication of guilt is withheld and

1613the accused is placed on probation; or a

1621conviction by the Senate of an impeachable

1628offense.

1629* * *

1632(c) "Public officer or employee" means an

1639officer or employee of any public body,

1646political subdivision, or public

1650instrumentality within the state.

1654* * *

1657(e) "Specified offense" means:

16611. The committing, aiding, or abetting of

1668an embezzlement of public funds;

16732. The committing, aiding, or abetting of

1680any theft by a public officer or employee

1688from his or her employer;

16933. Bribery in connection with the

1699employment of a public officer or employee;

17064. Any felony specified in chapter 838,

1713except ss. 838.15 and 838.16;

17185. The committing of an impeachable

1724offense; or

17266. The committing of any felony by a public

1735officer or employee who, willfully and with

1742intent to defraud the public or the public

1750agency for which the public officer or

1757employee acts or in which he or she is

1766employed of the right to receive the

1773faithful performance of his or her duty as a

1782public officer or employee, realizes or

1788obtains, or attempts to realize or obtain, a

1796profit, gain, or advantage for himself or

1803herself or for some other person through the

1811use or attempted use of the power, rights,

1819privileges, duties, or position of his or

1826her public office or employment position.

1832(3) FORFEITURE .-- Any public officer or

1839employee who is convicted of a specified

1846offense committed prior to retirement, or

1852whose office or employment is terminated by

1859reason of his or her admitted commission,

1866aid, or abetment of a specified offense,

1873shall forfeit all rights and benefits under

1880any public retirement system of which he or

1888she is a member, except for the return of

1897his or her accumulated contributions as of

1904the date of termination.

1908(emphasis added)

191017. Section 121.091, Florida Statutes (2000), provides in

1918pertinent part:

1920(5) TERMINATION BENEFITS.--A member whose

1925employment is terminated prior to retirement

1931retains membership rights to previously

1936earned member-noncontributory service

1939credit, and to member-contributory service

1944credit, if the member leaves the member

1951contributions on deposit in his or her

1958retirement account. If a terminated member

1964receives a refund of member contributions,

1970such member may reinstate membership rights

1976to the previously earned service credit

1982represented by the refund by completing 1

1989year of creditable service and repaying the

1996refunded member contributions, plus

2000interest.

2001* * *

2004(f) Any member who has been found guilty by

2013a verdict of a jury, or by the court trying

2023the case without a jury, of committing,

2030aiding, or abetting any embezzlement or

2036theft from his or her employer, bribery in

2044connection with the employment, or other

2050felony specified in chapter 838, except ss.

2057838.15 and 838.16, committed prior to

2063retirement, or who has entered a plea of

2071guilty or of nolo contendere to such crime,

2079or any member whose employment is terminated

2086by reason of the member's admitted

2092commitment, aiding, or abetting of an

2098embezzlement or theft from his or her

2105employer, bribery, or other felony specified

2111in chapter 838, except ss. 838.15 and

2118838.16, shall forfeit all rights and

2124benefits under this chapter, except the

2130return of his or her accumulated

2136contributions as of the date of termination.

214318. Retirement argues that Ms. Page's "conviction clearly

2151deprived the public of the faithful performance of her duties

2161and was committed to obtain a benefit to which she was not

2173entitled. It [the conviction] thus meets the definition set

2182forth by the legislature." In support of its argument,

2191Retirement cites the following cases: Ellis v. Division of

2200Retirement , DOAH Case No. 97-1357 (1997) (affirmed per curiam at

2210731 So. 2d 652 (Fla. 1st DCA 1999)); and Jacobo v. Board of

2223Trustees of the Miami Police , 788 So. 2d 362 (Fla. 3rd DCA

22352001). Ellis and Jacobo , supra , present the factors which must

2245be considered in the case at hand.

225219. The Administrative Law Judge in Ellis , supra , whose

2261Recommended Order was adopted in toto by Retirement, identified

2270the duty of the public and constitutional officer (the sheriff),

2280whose retirement benefits were being forfeited, and how the

2289sheriff breached his duty by committing and being convicted of

2299felony offenses which were contrary to his duty, through which

2309he was realizing or obtaining, or attempting to realize or

2319obtain a personal gain or profit. The felony offenses involved

2329knowingly possessing and conspiring to possess, with intent to

2338distribute, cocaine and marijuana and knowingly conspiring to

2346obstruct justice. The Administrative Law Judge determined that

2354the felony offenses that the sheriff committed, and for which he

2365was convicted, constituted official misconduct.

237020. Likewise, as to the issues raised in the instant

2380matter, the court in Jacobo , supra , proceeded through the same

2390analysis, as the Administrative Law Judge in Ellis , supra , in

2400its case with the duty of the public employee (police officer),

2411whose retirement benefits were being forfeited. The police

2419officer was convicted of official misconduct, a felony, by

2428making a false statement in an arrest affidavit. Pertinent to

2438the case at hand, the court in Jacobo held that:

2448[I]t is a breach of the public trust to

2457violate any standard of ethical conduct in

2464Chapter 112, including section

2468112.313(2)(e)6, which proscribes the

2472commission of a felony with intent to

2479defraud the public to gain an advantage for

2487himself or someone else through the use of

2495his office. Official misconduct . . . [as

2503defined] is clearly a breach of the public

2511trust . . . .

2516Jacobo , at 365. Further, the court provided the definition of

2526official misconduct found at Section 839.25(1), Florida Statutes

2534(1991), at footnote numbered 3, which was as follows:

2543[T]he commission of the following act by a

2551public servant, with corrupt intent to

2557obtain a benefit for himself or herself or

2565another or to cause unlawful harm to

2572another: knowingly falsifying, or causing

2577another to falsify, an official record or

2584official document.

2586Jacobo , at 365.

258921. In the instant matter, the evidence demonstrates that

2598Ms. Page is a public employee, as defined, that she was

2609convicted of several felonies, and that she attempted to obtain

2619and did obtain personal gain from her illegal conduct.

2628Retirement takes a broad approach that, because Ms. Page is a

2639public employee, because she committed and was convicted of the

2649offenses, and because her illegal conduct permitted her to

2658obtain a benefit to which she was not entitled, Ms. Page

"2669deprived the public of the faithful performance of her duties,"

2679and that the conduct meets the definition of a "specified

2689offense" found at Section 112.3173(1)(e)6, Florida Statutes.

269622. Applying the factors in the analysis provided in Ellis

2706and Jacobo , supra , Ms. Page's duty at DLES is unknown because no

2718evidence was presented as to her duty. Furthermore, Retirement

2727failed to demonstrate that Ms. Page had been convicted of

2737misconduct in office.

274023. On the other hand, the Administrative Law Judge in

2750Ellis , supra , determined that the sheriff's convictions

"2757constituted" misconduct even though the sheriff had not been

2766convicted of misconduct. However, the Administrative Law Judge

2774analyzed how the convictions constituted misconduct by

2781determining the duty of the sheriff and how the sheriff violated

2792that duty. Again, in the instant case, the evidence presented

2802failed to identify Ms. Page's duty and to demonstrate how she

2813breached or violated that duty.

281824. Hence, Retirement failed to establish that Ms. Page

2827had committed a breach of public trust or that she had committed

2839official misconduct, which is a breach of the public trust. 1

2850RECOMMENDATION

2851Based on the foregoing Findings of Fact and Conclusions of

2861Law, it is

2864RECOMMENDED that the Department of Management Services,

2871Division of Retirement enter a final order reinstating the

2880rights and benefits of Ismael Page under the Florida Retirement

2890System.

2891DONE AND ENTERED this 2nd day of September 2005, in

2901Tallahassee, Leon County, Florida.

2905__________________________________

2906ERROL H. POWELL

2909Administrative Law Judge

2912Division of Administrative Hearings

2916The DeSoto Building

29191230 Apalachee Parkway

2922Tallahassee, Florida 32399-3060

2925(850) 488-9675 SUNCOM 278-9675

2929Fax Filing (850) 921-6847

2933www.doah.state.fl.us

2934Filed with the Clerk of the

2940Division of Administrative Hearings

2944this 2nd day of September, 2005.

2950ENDNOTE

29511/ The Legislature in 2003 repealed Section 839.25, Florida

2960Statutes, and created Section 838.022, Florida Statutes, entitled

"2968Official misconduct." Pertinent to the case at hand, Section

2977838.022, Florida Statutes (2003), removed the reference to

2985obtaining a benefit for oneself and defined official record or

2995official document as including "only public records."

3002conduct would not have constituted official misconduct under the

3011new statute even if the evidence presented demonstrated her duty

3021and how she violated that duty.

3027COPIES FURNISHED:

3029Ismael Page

303118451 Northwest 37th Avenue

3035Apartment 224

3037Miami, Florida 33056

3040Thomas E. Wright, Esquire

3044Department of Management Services

3048Division of Retirement

30514050 Esplanade Way, Suite 260

3056Tallahassee, Florida 32399-0950

3059Sarabeth Snuggs, Director

3062Division of Retirement

3065Department of Management Services

3069Post Office Box 9000

3073Tallahassee, Florida 32399-9000

3076Alberto Dominguez, General Counsel

3080Division of Retirement

3083Department of Management Services

3087Post Office Box 9000

3091Tallahassee, Florida 32399-9000

3094NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3100All parties have the right to submit written exceptions within

311015 days from the date of this recommended order. Any exceptions

3121to this recommended order should be filed with the agency that

3132will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/03/2005
Proceedings: (Agency) Final Order filed.
PDF:
Date: 11/01/2005
Proceedings: Agency Final Order
PDF:
Date: 09/02/2005
Proceedings: Recommended Order
PDF:
Date: 09/02/2005
Proceedings: Recommended Order of Dismissal (hearing held July 11, 2005). CASE CLOSED.
PDF:
Date: 09/02/2005
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/19/2005
Proceedings: Letter to Judge Powell from T. Wright enclosing exhibits (exhibits not available for viewing) filed.
PDF:
Date: 08/19/2005
Proceedings: (Respondent`s) Proposed Recommended Order filed.
Date: 07/11/2005
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/05/2005
Proceedings: Amended Respondent`s Witness List filed.
PDF:
Date: 06/21/2005
Proceedings: Notice of Hearing by Video Teleconference (video hearing set for July 11, 2005; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 06/03/2005
Proceedings: Response to Order Re-opening Hearing filed.
PDF:
Date: 06/03/2005
Proceedings: Response to Order Re-opening Hearing filed.
PDF:
Date: 05/25/2005
Proceedings: Order Re-opening Hearing (parties shall advise in writing no later than June 8, 2005).
PDF:
Date: 05/11/2005
Proceedings: Order Requiring Response (should Petitioner desire a continuance or any other remedy to present her case, she must file her request in writing no later than May 19, 2005).
PDF:
Date: 05/06/2005
Proceedings: Proposed Recommended Order filed.
PDF:
Date: 05/06/2005
Proceedings: Letter to Judge Errol H. Powell concerning Petitioner not showing for hearing and filing of Proposed Recommended Order filed.
Date: 04/26/2005
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/19/2005
Proceedings: Respondent`s Witness List filed.
PDF:
Date: 03/03/2005
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/03/2005
Proceedings: Notice of Hearing (hearing set for April 26, 2005; 11:00 a.m.; Miami, FL).
PDF:
Date: 02/23/2005
Proceedings: Letter to Judge E. Powell from Thomas E. Wright in reply to Initial Order.
PDF:
Date: 02/23/2005
Proceedings: Letter to Judge E. Powell from Thomas E. Wright in reply to Initial Order.
PDF:
Date: 02/15/2005
Proceedings: Initial Order.
PDF:
Date: 02/14/2005
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 02/14/2005
Proceedings: Notice of Termination of All Rights and Benefits under the Florida Retirement System, Chapters 112 and 121, Florida Statutes filed.
PDF:
Date: 02/14/2005
Proceedings: Agency referral filed.

Case Information

Judge:
ERROL H. POWELL
Date Filed:
02/14/2005
Date Assignment:
02/15/2005
Last Docket Entry:
11/03/2005
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (10):