06-003659 Richard Brandenberger vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, February 7, 2007.

Summary: Petitioner`s conviction for smuggling drugs to prisoners warrants forfeiture of his Florida Retirement System benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD BRANDENBERGER , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3659

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT , )

)

Respondent . )

)

RECOMMENDED ORDER

On November 15 , 2006, a formal administrative hearing in

this case was held in Orlando , Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Edward Gay, E squire

1516 East Concord Street

Orlando, Florida 32803

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in the case is as set forth in the Notice of

Forfeiture of Retirement Benefits dated November 10, 2005 , and

issued by the Department of Management Services, Division of

Retirement (Respondent) , to Richard Brandenberger (Petitioner).

PRELIMINARY STATEMENT

By Notice of Forfeiture of Retirement Benefits dated

November 10, 2005, the Respondent advised the Petitioner that

the Petitioner's benefits under the Florida Retireme nt System

were forfeited because of his guilty plea to charges related to

acts committed while employed by the Orange County Board of

County Commissioners. The Petitioner requested a hearing in

December 2005.

The dispute was forwarded to the Division of Administrative

Hearings on September 25, 2006, and an Initial Order was

entered. By Notice of Hearing dated October 5, 2006, the

hearing was scheduled for November 15, 2006, in accordance with

dates of availability identified by the parties in their join t

response to the Initial Order.

At the hearing, the Petitioner testified on his own behalf

and had one exhibit admitted into evidence . The Respondent

presented the testimony of one witness and had exhibits

identified as 1 through 4 and 6 admitted into evidence.

The T ranscript of the hearing was filed on December 14,

2006. By Joint Motion for Extension of Time filed the day prior

to the T ranscript, the parties stipulated to an extension of the

deadline for filing proposed orders to January 12, 2007, a nd

subsequently filed Proposed Recommended Orders on the agreed

date.

FINDINGS OF FACT

1. At all times material to this case, the Petitioner was

employed by the Orange County Board of County Commissioners as a

correctional officer at the county jail and p articipated in the

Florida Retirement System (FRS).

2. The Respondent is the state agency charged with

administering the FRS.

3. The applicable position description for employment by

Orange County as a correctional officer included, in relevant

part, th e followin g description of the job duties:

Supervises inmates to prevent altercations,

intimidation, undesirable or illegal acts,

intercedes when necessary, and to ensure the

safety of the facility, other Correctional

staff and the inmates.

4. On or abou t October 29, 2003, a g rand j ury issued a

one - count indictment against the Petitioner as follows:

On or about July 3, 2003, in Orange County,

Florida, defendant knowingly and

intentionally possessed with intent to

distribute and distributed

Methylenedioxym ethamphetamine ("MDMA")

commonly known as "ecstasy", and marihuana,

controlled substances listed in Schedule I

of 21 U.S.C. Section 812, all in violation

of 21 U.S.C. Sections 841(a)(1),

841(b)(1)(C), and 841(b)(1)(D).

5. The Petitioner was subsequently arrested. He then

retired from employment in December 2003 and began receiving

benefits from the FRS the following January.

6. On or about January 29, 2004, the Petitioner,

represented by legal counsel, entered a plea of guilty to the

indictment and exe cuted a written plea agreement that stated in

material part as follows:

Count Pleading To

The defendant shall enter a plea of guilty

to Count One of the indictment. Count One

charges the defendant with possession with

intent to distribute and distributio n of

MDMA and marihuana, in violation of 21

U.S.C. Sections 841(a)(1).

* * *

Elements of the Offense

The defendant acknowledges understanding the

nature and elements with which defendant has

been charged and to which defendant is

pleading guilty. The elements of Count One

are:

First: That defendant knowingly possessed

or distributed MDMA or marihuana as charged;

and

Second: That defendant possessed the

substance with the intent to distribute it.

* * *

Factual Basis

Defendant is pleading guilty because

defendant is in fact guilty. The defendant

certifies that defendant does hereby admit

that the facts set forth below are true, and

were this case to go to trial, the United

States would be able to prove those specific

fact s and oth ers beyond a reasonable doubt.

FACTS

In October 2002, FBI task force officers

received information from the Orange County

Corrections Department that an inmate had

filed a complaint alleging that inmates were

involved in the sale of drugs such as

heroin, cocaine and marihuana in the Orange

County correctional facility, and that

correctional officers were bringing the

drugs into the jail. Follow up interviews

with several inmates implicated defendant

RICHARD BRANDENBERGER in smuggling illegal

drugs into t he facility for delivery to

inmates. One inmate indicated that

defendant was also smuggling ecstasy (MDMA)

into the jail to inmates. The inmates would

have someone outside the jail supply the

drugs to defendant, who would bring the

drugs into the jail fo r a fee. The inmates

used their inmate accounts at the jail to

fund these deals.

An inmate who was cooperating with

investigators set up a meeting between an

undercover officer and BRANDENBERGER outside

the jail so the undercover officer could

provide th e MDMA and marihuana to defendant

for delivery to the inmate in the jail. On

July 2, 2003, the undercover officer called

defendant and arranged to meet him in a

parking lot in Orlando, Florida, to

accomplish the drug transaction. During the

meeting, whic h was videotaped, the

undercover officer gave fifty MDMA pills and

one ounce of marihuana to defendant. The

drugs were clearly visible to defendant, and

the officer told defendant that the bags

contained marihuana and ecstasy. The

officer told the defend ant to delive r the

marih uana and pills to the inmate, to which

defendant replied, "I got to take care of my

boys."

In a later interview, BRANDENBERGER admitted

his involvement in this offense.

7. In April 2004, the Petitioner was adjudicated guilty of

the crimes charged and sentenced to serve a term in prison,

which he did.

8. After becoming aware of the conviction, the Respondent

suspended payment to the Petitioner of the retirement benefits

in November 2005.

9. At the hearing, the Petitioner te stified that he did

not actually take the pills into the facility. The charge, upon

which the Petitioner was convicted, was that he "knowingly

possessed or distributed MDMA or marihuana as charged" and that

he "possessed the substance with the intent to d istribute it."

The distinction being made by the Petitioner's testimony is

immaterial to the issue in this case.

10. The Petitioner also testified that he received no

payment for smuggling the drugs into the jail, but acknowledged

that he received $50 from an inmate's girlfriend on one occasion

to purchase gas. When directly asked by the Administrative Law

Judge the reason for which the girlfriend would have given him

the money, the Petitioner responded as follows:

I guess because I'm delivering the pi lls --

excuse me, not the pills, the weed, to her

boyfriend.

11. The Petitioner's attempt to assert that he received no

compensation for the delivery of the illegal substances to

inmates lacked credibility and is rejected.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

13. The Respondent has the burden of proof in this

proceeding and must establish facts upon which its allegations

are based by a preponderance of the evidence. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996) ; Florida Department of Transportation v. J.W.C. Compa ny,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). The Respondent has

met the burden.

14. Article II, Subsection 8(d), Constitution of the Stat e

of Florida , provides in relevant part as follows:

Section 8. Ethics in Government. -- A public

office is a public t rust. The people shall

have the right to secure and sustain that

trust against abuse. To assure this right:

* * *

(d) 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.

15. S ubs ection 112.312(3), Florida Statutes (2006) ,

provides the following definition:

"Breach of the public trust" means a

violation of a provision of the State

Constitution or this part which establishes

a standard of ethical conduct, a disclosure

requirement, or a prohibition applicable to

public officers or employees in order to

avoid conflicts between public duties and

private interest s, including, without

limitation, a violation of s. 8, Art. II of

the State Constitution or of this part.

16. Section 112.3173, Florida Statutes (2006) , provides in

relevant part as follows:

Felonies involving breach of public trust

and other specified o ffenses by public

officers and employees; forfeiture of

retirement benefits. --

(1) IN TENT. -- 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,

unle ss the context otherwise requires, the

term:

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

adjudication of guilt by a 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 Se nate of an impeachable

offense.

(b) "Court" means any state or federal

court of competent jurisdiction which is

exercising its jurisdiction to consider a

proceeding involving the alleged com mi ssion

of a specified offense.

(c) "Public officer or employee" means an

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

(d) "Public retirement system" means any

retirement system or plan to wh ich the

provisions of part VII of this chapter

apply.

(e) "Specified offense" means:

* * *

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 h imself 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 s pecified

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 wh ich he or

she is a member, except for the return of

his or her accumulated contributions as of

the date of termination.

(4) NOTICE. --

(a) The clerk of a court in which a

proceeding involving a specified offense is

being conducted against a public offi cer or

employee shall furnish notice of the

proceeding to the Commission on Ethics.

Such notice is sufficient if it is in the

form of a copy of the indictment,

information, or other document containing

the charges. In addition, if a verdict of

guilty is returned by a jury or by the court

trying the case without a jury, or a plea of

guilty or of nolo contendere is entered in

the court by the public officer or employee,

the clerk shall furnish a copy thereof to

the Commission on Ethics.

(b) The Secretary of the Senate shall

furnish to the Commission on Ethics notice

of any proceeding of impeachment being

conducted by the Senate. In addition, if

such trial results in conviction, the

Secretary of the Senate shall furnish notice

of the conviction to the comm ission.

(c) The employer of any member whose office

or employment is terminated by reason of his

or her admitted commission, aid, or abetment

of a specified offense shall forward notice

thereof to the commission.

(d) The Commission on Ethics shall fo rward

any notice and any other document received

by it pursuant to this subsection to the

governing body of the public retirement

system of which the public officer or

employee is a member or from which the

public officer or employee may be entitled

to rec eive a benefit. When called on by the

Commission on Ethics, the Department of

Management Services shall assist the

commission in identifying the appropriate

public retirement system.

(5) FORFEITURE DETERMINATION. --

(a) Whenever the official or board

responsible for paying benefits under a

public retirement system receives notice

pursuant to subsection (4), or otherwise has

reason to believe that the rights and

privileges of any person under such system

are required to be forfeited under this

section, such official or board shall give

notice and hold a hearing in accordance with

chapter 120 for the purpose of determining

whether such rights and privileges are

required to be forfeited. If the official

or board determines that such rights and

privileges are required to be forfeited, the

official or board shall order such rights

and privileges forfeited.

(b) Any order of forfeiture of retirement

system rights and privileges is appealable

to the district court of appeal.

(c) The payment of retirement benefits

ordered forfeited, except payments drawn

from nonemployer contributions to the

retiree's account, shall be stayed pending

an appeal as to a felony conviction. If

such conviction is reversed, no retirement

benefits shall be forfeited. If such

con viction is affirmed, retirement benefits

shall be forfeited as ordered in this

section.

(d) If any person's rights and privileges

under a public retirement system are

forfeited pursuant to this section and that

person has received benefits from the syst em

in excess of his or her accumulated

contributions, such person shall pay back to

the system the amount of the benefits

received in excess of his or her accumulated

contributions. If he or she fails to pay

back such amount, the official or board

respons ible for paying benefits pursuant to

the retirement system or pension plan may

bring an action in circuit court to recover

such amount, plus court costs.

(6) FORFEITURE NONEXCLUSIVE. --

(a) The forfeiture of retirement rights and

privileges pursuant to this section is

supplemental to any other forfeiture

requirements provided by law.

(b) This section does not preclude or

otherwise limit the Commission on Ethics in

conducting under authority of other law an

independent investigation of a complaint

whic h it may receive against a public

officer or employee involving a specified

offense.

17. As set forth in the plea agreement, the facts under

which the Petitioner was convicted clearly constitute a

"specific ed offense" and subject the Petitioner's FRS re tirement

benefits to forfeiture.

18. As set forth in the plea agreement, the Petitioner

smuggled illegal drugs into the jail for which he received a fee

and provided them to inmates. As a correctional officer, the

Petitioner was assigned the duty of su pervising inmates to

prevent illegal activity. The evidence establishes that the

Petitioner, through the means of his employment as a

correctional officer, committed a felony, and , in so doing,

deprived the agency by which he was employed of the right " to

receive the faithful performance of his or her duty as a public

officer or employee " in exchange for monetary gain .

19. The Petitioner asserts that the Respondent prematurely

suspended payment of the benefits in this case because the

Petitioner's readi ng of S ubs ection 112.3173(5)(a), Florida

Statutes (2006), requires that a hearing be conducted prior to

suspension of payments. The Petitioner now argues entitlement,

at the very least, to payment of some type of interest on the

allegedly - prematurely un paid benefit.

20. A reading of the statute does not support the

Petitioner's assertion. Had the Petitioner appealed his

conviction, he would not have been entitled to payment of

benefits during the appeals process. S ubs ection 112.3173(5)(c),

Florida S tatutes (2006) , provides that "[t] he payment of

retirement benefits ordered forfeited . . . shall be stayed

pending an a ppeal as to a felony conviction." If the conviction

had been vacated, the Respondent would have paid the benefits

stayed during the app eal.

21. It is unlikely that an administrative hearing would be

conducted on an issue of retirement benefit forfeiture while a

conviction was on appeal. It is illogical to assume the

Legislature intended that benefits would be paid during an

appeal, eith er of an underlying conviction or through the

administrative hearing process.

22. In any case, the evidence here clearly supports the

forfeiture of benefits , and there is no provision for the

payment of any kind of interest.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Respondent enter a final order

stating that the Petitioner has forfeited his rights and benefits

under the Florida Retirement System.

DONE AND ENTERED this 7th day of February , 2007 , 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 - 967 5 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of February , 2007 .

COPIES FURNISHED :

Geoffrey M. Christian, Esquire

Department of Management Services

4050 E splanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

Edward Gay, Esquire

1516 East Concord Street

Orlando, Florida 32803

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32 315 - 9000

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

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.