06-003701 Glenn Magyari vs. City Of Starke Status: Closed Recommended Order on Tuesday, April 3, 2007.

Summary: The conviction of the sale of a controlled substance was not a specified offense. Recommend that Petitioner not forfeit his retirement benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN MAGYARI, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3701

)

CITY OF STARKE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hear ing was held pursuant to notice, on February 2, 2007,

in Starke, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Emory Springfield, Esquire

605 Northeast First Street, Suite G

Gainesville, Florida 32601

For Respondent: John Lyon Broling, Esquire

Brown & Broling

486 North Temple Avenue

Post Office Box 40

Starke, Florida 32091

STATEMENT OF THE ISSUE

Whether Petitioner's benefits under the Florida Retirement

System should be forfeited.

PRELIMINARY STATEMENT

On July 12, 2006, the Board of Trustees of the City of

Starke General Employees Pension Board sent to Petitioner, Glenn

M agyari, a Notice of Intent to Enter an Order of Forfeiture of

Retirement Benefits (Notice) pursuant to Section 113.3173,

Florida Statutes. This action was premised on Petitioner's

entry of a plea of no contest to violations of Section

893.12(1)(a)1., Flor ida Statutes, regarding the sale of a

controlled substance, Oxycontin, through a prescription o btained

as a result of a worker s ' compensation claim.

Petitioner disputed the Notice and timely requested an

administrative hearing. The case was transmitted to the

Division of Administrative Hearings on September 27, 2006, for

the purpose of conducting an administrative hearing.

The case was initially scheduled for hearing on

December 14, 2006. Respondent filed an Unopposed Motion for

Continuance, which was gra nted. The case was rescheduled for

February 2, 2007. The case was heard as scheduled.

At hearing, Petitioner did not present the testimony of any

witnesses and did not offer any exhibits into evidence.

Respondent presented the testimony of Sergeant Kevi n Mueller,

Ricky Thompson, and Linda Johns. Respondent's E xhibits numbered

1 through 15 were admitted into evidence.

A one - volume transcript was filed on February 14, 2007.

Petitioner timely filed a Proposed Recommended Order which has

been considered in the preparation of this Recommended Order.

Respondent did not file a post - hearing submission.

FINDINGS OF FACT

1. Petitioner began employment with the City of Starke in

1993, and acquired vested retirement benefits. Petitioner held

the position of gas mechanic or service technician. His job

duties included installing gas lines, hooking up appliances,

extending gas lines, and taking readings at the city gate

station.

2. Petitioner reported an on - the - job injury sometime in

2004. The exact date of the injury is not clear from the

record. As a result of the injury, Petitioner was unable to

work for a per iod of time and received worker s ' compensation

benefits.

3. Petitioner was prescribed medications, including

Oxycontin, by Dr. Christopher Leber. Oxyc ontin is a controlled

substance. The last time Dr. Leber prescribed this medication

to Petitioner was November 4, 2004.

4. The Florida League of Cities is Respondent's workers'

compensation insurance carrier. Respondent pays premiums to the

Florida Leag ue of Cities for worker s ' compensation coverage for

its employees, and the Florida League of Cities pays the medical

bills and prescriptions for injured workers.

5. The exact date that Petitioner stopped performing work

duties due to his injury is not cle ar from the record. However,

on June 16, 2004, the City Manager wrote a letter to Petitioner

regarding Petitioner's return to work for the City. The letter

instructed Petitioner to report to "Ricky Thompson at

Purchasing" on Monday June 21, 2004 , at 8:00 a.m. Petitioner

was also instructed to provide a complete list of prescription

medications when he reported to Mr. Thompson.

6. On June 22, 2004, Mr. Thompson wrote a memorandum to

the City Manager informing him that Petitioner reported to work

at 7:30 a.m. and was assigned to the recycle yard. Petitioner

worked from 7:30 a.m. until 8:05 a.m., then left work

complaining of back pain. Petitioner was paid for one hour of

work.

7. On June 22, 2004, Mr. Thompson wrote another memorandum

to the City Manage r informing him that Petitioner called

Mr. Thompson, and informed him that he was unable to work due to

back and neck pain.

8. Linda Johns is the City Clerk for the City of Starke.

One of her responsibilities in that position is to manage the

human resou rces department for the City, including workers'

compensation matters and payroll.

9. Although June 22, 2004, was the last day Petitioner

performed any work for the City, the City continued to issue

paychecks to Petitioner every other week for hours tha t would

have been his vacation and sick time. The City continued to

issue these checks to Petitioner throughout 2004. According to

Ms. Johns, he was paid for this leave because she still

considered Petitioner to be a city employee and because no one

told her not to pay him for vacation and sick time. Petitioner

picked up these checks from Ms. Johns ' office.

10. In October and November, 2004, Petitioner was the

target of a sting operation by the Bradford County Drug Task

Force.

11. On November 14, 2 004, Sergeant Mueller gave $900 in

bills to a confidential informant for the purpose of purchasing

Oxycontin from Petitioner. On November 15, 2004, Petitioner was

arrested for the sale of Oxycontin by Sergeant Kevin Mueller.

At the time of the arrest, Se rgeant Mueller confiscated a

prescription bottle that was in Petitioner's possession. The

prescription bottle was for 90 (40 milligram) tablets of

Oxycontin, which had been prescribed to Petitioner by Dr. Leber.

The prescription had been filled on Novemb er 14, 2004, the day

before the sting operation.

12. Also in Petitioner's possession at the time of his

arrest was $900, comprised of bills that were the same serial

numbers as the bills given to the confidential informant by

Sergeant Mueller to effect t he sting operation.

13. In case number 2004 - CF - 604, Petitioner was charged

with the sale of Oxycontin to a confidential informant on

October 27, 2004. In case number 2004 - CF - 600, Petitioner was

charged with the sale of Oxycontin to a confidential informa nt

on November 15, 2004.

14. On September 27, 2005, Petitioner entered a plea of

nolo contendere to the sale of a controlled substance in case

number 2004 - CF 604 in vio lation of Section 893.13(1)(a)1 . ,

Florida Statutes, and to the sale of a controlled s ubstance in

case number 2004 - CF - 600, also in violation of Section

893.13(1)(a)1 . , Florida Statutes. On September 27, 2005,

Petitioner was adjudicated guilty of the sale of a controlled

substance in viol ation of Section 893.13(1)(a)1 . , Florida

Statutes, in both cases. These crimes are second degree

felonies. In each case, Petitioner was placed on community

control for 18 months to be followed by drug offender probation

for 32 months, the probation and community control to be served

concurrently.

15. O n March 28, 2005, the City Manager wrote a

termination of employment letter to Petitioner. The letter

advised Petitioner that he was being terminated immediately "as

a result of your abandonment of your light - duty position and

misconduct." The letter als o informed Petitioner that if he

wanted a pre - termination hearing, he must request it within 10

days.

16. On April 4, 2005, Ms. Johns wrote to Petitioner

attaching COBRA papers inquiring as to whether Petitioner wanted

continuation of his insurance covera ge.

17. On April 14, 2005, the City Manager again wrote

Petitioner and informed him that Petitioner was not afforded a

pre - termination hearing because he had abandoned his position.

The letter provided notice of a post termination/name clearing

hearing o n April 21, 2005.

18. On April 20, 2005, Petitioner signed a memorandum to

Ms. Johns informing her that he did not wish to continue

coverage of medical insurance or COBRA.

19. On June 2, 2006, Mr. Thompson sent a letter to

Petitioner informing him of a j ob opening with the City of

Starke as a recycle yard attendant.

20. On July 25, 2006, Mr. Thompson sent a letter to

Petitioner informing him of a job opening with the City of

Starke as an animal shelter office manager.

CONCLUSIONS OF LAW

21. The Divisio n of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 112.3173(5), 120.569 and 120.57, Fla. Stat.

22. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribuna l.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). Respondent has the burden

of proof in this proceeding.

23. The applicable version of the pension forfeiture

statute is the one that was in effect at the time Petitioner

committed the crimes. Busbee v. State of Florida, Division of

Retirement , 685 So. 2d 914, 916 - 17 (Fla. 1st DCA 1996). The

crimes were committed in 2004. Section 112.3173, Florida

Statutes (2004), 1/ reads as follows:

INTENT. -- It is the i ntent 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 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 Senate of an impeachable

offense.

(b) "Cou rt" means any state or federal

court of competent jurisdiction which is

exercising its jurisdiction to consider a

proceeding involving the alleged commission

of a specified offense.

(c) "Public officer or employee" means an

officer or employee of any pu blic body,

political subdivision, or public

instrumentality within the state.

(d) "Public retirement system" means any

retirement system or plan to which the

provisions of part VII of this chapter

apply.

(e) "Specified offense" means:

1. The commit ting, 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

pro fit, 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

emp loyee 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 p ublic 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.

(4) NOTICE. --

(a) The clerk of a court in which a

proceeding involving a specified offense is

being c onducted against a public officer 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 additi on, 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 o n 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 commission.

(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 forward

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 e mployee may be entitled

to receive 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) W henever 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 th at 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 sh all be forfeited. If such

conviction 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 r eceived benefits from the system

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

responsible 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 ri ghts 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 i nvestigation of a complaint

which it may receive against a public

officer or employee involving a specified

offense. (Emphasis supplied)

24. Statutes imposing forfeiture are not favored in law

and are strictly construed in a manner to avoid the for feiture.

Williams v. Christian , 335 So. 2d 358 (Fla. 1st DCA 1976).

25. The threshold issue is whether or not Petitioner was

still an employee at the times the underlying crimes were

committed. Petitioner argues that he was not, as the last day

he per formed work for the City was June 22, 2004. However,

Petitioner continued to pick up paychecks, albeit small ones

paying only for accrued leave, throughout 2004. Moreover, he

was still receiving workers' compensation benefits at the times

the crimes for which he was adjudicated guilty were committed.

Finally, the City did not issue a termination letter to him

until March 28, 2005. Accordingly, the undersigned concludes

that Petitioner was still an employee of Respondent as

contemplated in the definition of "employee" in Section

112.3173(2)(c), Florida Statutes (2004).

26. The next step of the analysis is whether Petitioner

committed a specified offense as contemplated by Section

112.3173(2)(e), Florida Statutes (2004). A specified offense

under the s tatute must have been committed by a public employee;

have been committed in a manner willfully and with the intent to

defraud the public employee's faithful performance of his public

duty; have been committed by the public employee in an attempt

to obtain a profit or gain for himself or some other person; and

have been committed using the powers or duties of the public

employee's position.

27. Petitioner pled nolo contendere in a court of

competent jurisdiction to two felonies committed when he was

still a public employee. Petitioner was adjudicated guilty to

both felonies. Thus, Petitioner was "convicted" under the

forfeiture law.

28. The nature of the crimes of which Petitioner was

convicted realized or attempted to realize a profit or gain to

P etitioner. However, the evidence does not establish that

Petitioner had the intent to defraud the public or public agency

of the right to receive the faithful performance of his duty as

a public employee. His duties as a public employee were those

of a g as mechanic. Further, any gain or profit received by

Petitioner was not through the use or attempted use of the

power, rights, privileges, duties, or position of his public

employment.

29. Respondent argues that Petitioner defrauded Respondent

by the sal e of a drug that was prescribed to him by a doctor who

was treating him as part of workers' compensation benefits. The

undersigned is not persuaded that this factual scenario is

sufficient to meet the statutory requirement of a nexus between

the crimes ch arged against the public employee and his duties

and/or position. cf . Warshaw v. City of Miami Firefighters' and

Police Officer's Retirement Trust , 885 So. 2d 892 (3rd DCA 2004)

(Former police chief was registered agent for a not - for - profit

organization f inanced principally by the city, arranged for city

funds to be transferred to the not - for - profit bank accounts and

used part of those transferred funds to pay for personal,

unauthorized matters over a period of years); and DeSoto v.

Hialeah Police Pension Fund Board of Trustees , 870 So. 2d 844

(3rd DCA 2003) (Sufficient nexus found between crimes and duties

of a police officer, who was convicted of conspiracy to possess

and distribute cocaine and to commit robbery, who informed

accomplices that an individua l was a drug dealer, provided

surveillance prior to the robbery, contacted a police officer

accomplice to notify him that victim was leaving work so the

officer could conduct a traffic stop, and provided handcuffs

used to restrain the victim.) .

30. Acco rdingly, Petitioner did not commit a specified

offense as contemplated by Section 112.3173(2)(c), Florida

Statutes (2004).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the City of Starke enter a final order rescinding its

Notice of Intent to Enter an Order of Forfeiture of Retirement

Benefits .

DONE AND ENTERED this 3rd day of April, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

BAR BARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April, 2007.

ENDNOTE

1/ The History notes in the Florida Statutes indicate that the

statute has not been amended since 1999. Therefore, there has

been no change in the law since the 2004 Florida Statutes.

COPIES FURNISHED :

Emory Springfield, Esquire

605 Northeast First Street, Suite G

Gainesville, Florida 32601

John Lyon Broling, Esquire

Brown & Broling

486 North Temple Avenue

Post Office Box 40

Starke, Florida 32091

Ricky Thomson, Chai rman

Board of Trustees

City of Starke General

Employees Pension Board

Post Office Drawer C

Starke, Florida 32091

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.