07-000890 Barbara Boone vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, July 31, 2007.

Summary: The nolo contendere plea is held to be insufficient by itself to deny retirement benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA F. BOONE , )

)

Petitioner, )

)

vs. ) Case No. 0 7 - 0890

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT , )

)

Respondent. )

)

RECO MMENDED ORDER

A final disputed - fact hearing was noticed for April 23,

2007, before Ella Jane P. Davis, a duly - assigned Administrative

Law Judge of the Division of Administrative Hearings. On

April 20, 2007, the parties agreed by telephone to submit this

cause upon stipulated facts and exhibits, including prior

transcripts which are to be taken as sworn testimony herein.

APPEARANCES

For Petitioner: Henry M. Coxe, III, Esquire

Bedell, D ittmar, DeVault, Pillins &

Coxe, P.A.

101 East Adams Street

Jacksonville, Florida 32202

For Respondent: Geoffrey M. Christian, Esquire

Assistant General Counsel

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, F lorida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner, by pleading no contest to four counts

of petit theft, in violation of Section 812.014(2)(e), Florida

Statutes, despite steadfastly maintaining her innocence, must

forfeit her rights and be nefits under the Florida Retirement

System , pursuant to Section 112.3173, Florida Statutes.

PRELIMINARY STATEMENT

O n August 21, 2006, the Division of Retirement approved the

forfeiture of Petitioner's rights and benefits under the Florida

Retirement Syste m , pursuant to Section 112.3173, Florida

Statutes, premised on Petitioner's entry of a plea of nolo

contendere in a state court proceeding wherein she had been

charged with certain criminal offenses.

Respondent notified Petitioner of the forfeiture of her

Florida Retirement System rights and benefits. Petitioner

timely filed her request for an administrative hearing to

challenge the proposed final agency action. The Department of

Management Services conducted an informal proceeding on or about

February 1 9, 2007, This hearing produced a transcript.

On or about February 20, 2007, the case was referred to the

Division of Administrative Hearings for a disputed - fact hearing ,

pursuant to Section 120.57(1), Florida Statutes.

The final disputed - fact hearing wa s noticed for April 23,

2007. However, on April 20, 2007, during a telephonic

conference, the parties agreed, in lieu of a formal hearing, to

submit j oint e xhibits and a J oint S tipulation of F act s , which

were accordingly filed on April 24, 2007. In addit ion, the

parties agreed to file proposed recommended orders by May 31,

2007 . The parties' Proposed Recommended Orders were timely

filed and have been considered in the preparation of this

Recommended Order. This Recommended Order utilizes their Joint

Sti pulation of Facts , modified only as to format, not content .

FINDINGS OF FACT

1. Respondent Division of Retirement is charged with the

responsibility of managing, governing , and administering the

Florida Retirement System ( FRS ) on behalf of the Department of

Management Services. (Joint Stipulation of Fact 1 . )

2. FRS is a public retirement system as defined by Florida

law. As such, Respondent had deemed its action regarding the

forfeiture of Petitioner's rights and benefits under FRS subject

to administr ative review. (Joint Stipulation of Fact 2 . )

3. Petitioner is a senior management service class member

of FRS. (Joint Stipulation of Fact 3 . )

4. At all times material to the allegations of this case,

Petitioner was employed by the Town of Callahan as a planning

and zoning administrator. (Joint Stipulation of Fact 4 . )

5. On or about August 23, 2005, the State Attorney for the

Fourth Judicial Circuit, through an assistant, filed a T hird

A mended I nformation charging Petitioner with (a) one (1) count

of g rand theft, contrary to the provisions of Section

812.014(2)(c), Florida Statutes; (b) two (2) counts of grand

theft, contrary to the provisions of Section 812.014(2)(b)1.,

Florida Statutes; (c) nineteen (19) counts of official

misconduct, contrary to the provisions of Section 839.25(1),

Florida Statutes; and (d) one (1) count of petit theft, contra ry

to the provisions of Section 812.014(2)(e), Florida Statutes.

( Joint Stipulation of Fact 5 . )

6. The events that formed the basis for the T hird A mended

I nfor mation occurr ed during Petitioner's tenure as an employee

of the Town of Callahan. (Joint Stipulation of Fact 6 . )

7. The Third Amended Information outlines the violation s

to which Petitioner pled no contest and provides, in pertinent

part, as follows:

CO UNT 1: BARBARA F. BOONE on or between

May 10, 2001 and January 31, 2002, in the

County of Nassau and the State of Florida,

did knowingly obtain or use or endeavor to

obtain or use U.S. currency or gasoline, the

value of $300.00 or more but less than

$20,0 00.00, the property of the TOWN OF

CALLAHAN, with intent to either temporarily

or permanently deprive THE TOWN OF CALLAHAN

of a right to the property or benefits

therefrom, or with the intent to appropriate

the property to her own use or to the use of

any person not entitled thereto . . .

COUNT 2: BARBARA F. BOONE on or between

October 1, 1999 and September 30, 2002, in

the County of Nassau and the State of

Florida, did knowingly obtain or use or

endeavor to obtain or use U.S. currency, the

value of $20,0 00.00 or more but less than

$100,000.00, the property of THE TOWN OF

CALLAHAN received in accordance with El Nino

Community Development Block Grant 00DB - 6M -

04 - 55 - 02 - G16, with intent to either

temporarily or permanently deprive THE TOWN

OF CALLAHAN o f a rig ht to the property or

benefit therefrom, or with the intent to

appropriate the property to her own use or

the use of any person not entitled thereto .

. .

COUNT 3 : BARBARA F. BOONE on or between

October 1, 1999 and September 30, 2002, in

the County of N assau and the State of

Florida, did knowingly obtain or use or

endeavor to obtain or use U.S. currency, the

value of $20,000.00 or more but less than

$100,000.00, the property of THE TOWN OF

CALLAHAN received in accordance with Housing

Rehabilitation Commu nity Development Block

Grant 00DB - 6B - 04 - 055 - 02 - H09, with intent to

either temporarily or permanently deprive

THE TOWN OF CALLAHAN of a right to the

property or benefit therefrom, or with the

intent to appropriate the property to her

own use or to the use o f any person not

entitled thereto . . .

* * *

COUNT 23: BARBARA F. BOONE on or between

October 1, 2000 and January 31, 2002, in the

County of Nassau and the State of Florida,

did knowingly obtain or use, or endeavor to

obtain or use U.S. currency or cellular

phone service, valued at One - Hundred Dollars

($100.00) or more but less than Three -

Hundred Dollars ($300.00), the property of

THE TOWN OF CALLAHAN, with intent to, either

temporarily or permanently deprive THE TOWN

OF CALLAHAN of a right to the pr operty or

benefit therefrom, or with the intent to

appropriate the property to her own use or

to the use of any person not entitled

there to . . . (Joint Stipulation of Fact

9 . )

8. Count 1 related to alleged misuse of a City gasoline

credit card. Count 2 related to alleged dual billing of hours

for the El Nino Block Grant. Count 3 related to alleged dual

billing of hours fo r the HUD Block Grant. Count 23 related to

alleged mis use of a City cell phone. (Exhibit 4: Circu i t Court

Hearing Transcript, pag es 10 - 12.)

9. Petitioner had filed a civil action against the City

concerning all these issue s before she was charged with them as

crimes . (Exhibit 9: Informal Hearing Transcript, page 13.)

10 . On or about March 7, 2006, Petitioner entered a plea

agree ment with the State of Florida, wherein she acknowledged

she would plead no contest ( nolo contendere ) , while maintaining

her innocence, to the "lesser included" offense of petit theft

contained in Count s 1, 2, 3 an d 23 of the Third Amended

Information. T h e agreement provided, however, that Counts 1, 2,

and 3 would be reduced to the lesser - included misdemeanor counts

of petit theft, in violation of the provisions of Section

812.014(2)(e), Florida Statutes, and Counts 4 through 22 would

be dismissed. (Joint Stipulation of Fact 7 . )

1 1 . The first sentence of the plea agreement reads as

follows:

I hereby enter my plea of no contest for the

reason it is in my best interest although I

maintain my innocence. (Joint Stipulation

of Fact 8 . )

1 2 . On or about Mar ch 7, 2006, Petitioner pled no contest

in accordance with the terms of the plea agreement. (Joint

Stipulation of Fact 10 . )

1 3 . During the plea dialogue, which include d inquiry by

the circuit judge taking the plea to ascertain if the accused

underst ood th e charges and was entering the plea voluntarily,

Petitioner articulated that she was innocent of all charges.

( Exhibit 4 : Circuit Court Hearing Transcript , pages 5 - 13 . )

14. In accepting a nolo contendere plea and its

concomitant plea agreement , a circui t judge is required to

inquire and determine if there is a "factual basis" for the

charges . To those types of questions at Petitioner’s plea

dialogue Petitioner's counsel replied:

. . . just for our purposes we do not agree

that any of those facts are tru e, but we do

agree, if they were true they would

constitute a sufficient factual basis.

(Exhibit 4: C ircuit Court H earing

T ranscript , pages 12 - 13 . )

15. The circuit judge then stated on the record:

The C ourt finds that there is sufficient

factual basis to support the pleas, and that

the pleas have been entered into freely,

willingly, and voluntarily. (Exhibit 4:

C ircuit C ourt T ranscript , page 13 . )

1 6 . Judge Robert Foster, Circuit Court Judge in the

Circuit Court of the Fourth Judicial Circuit, in an d for Nassau

County, Florida, ordered that adjudication of guilt be withheld

for good cause shown. Petitioner was ordered to pay $8,260 in

restitution to the Town of Callahan and $386 .00 in court costs.

(Joint Stipulation of Fact 11 . )

17. The state atto rney then entered a Code 30 nol l e

prosequi in accordance with the plea agreement . (Exhibit 4:

Circuit Court Hearing Transcript, page 13.)

1 8 . On or about August 17, 2006, Respondent received from

its legal counsel a report recommending that Petitioner's FRS

rights and benefits be forfeited pursuant to Section 112.3173,

Florida Statutes . (Joint Stipulation of Fact 12 . )

1 9 . O n August 21, 2006, Respondent approved the forfeiture

of Petitioner's FRS rights and benefits pursuant to Section

112.3173, Florid a Statutes. (Joint Stipulation of Fact 13.)

20 . On August 28, 2006, Respondent notified Petitioner, by

agency action letter, of the forfeiture of her FRS rights and

benefits and afforded Petitioner a point of entry to challenge

its decision and to reques t an administrative review of the

issues. (Joint Stipulation of Fact 14.)

21 . The Agency conducted an informal proceeding on or

about February 19, 2007. At that hearing, Petitioner

maintained, under oath, her innocence with regard to all

criminal charge s that had been alleged against her, including

those to which she had pled "no contest." She further testified

that she was not guilty on all counts and had pled "no contest"

to some of the criminal charges because the stress of the

criminal process had b een taking a toll on her and her family.

The stress on Petitioner was exacerbated by a mastectomy and her

subsequent treatment for breast cancer conducted during the

pendency of the criminal proceeding , the plea bargaining, and

the plea itself . (Exhibit 9: Informal Hearing Transcript,

pages 10 - 14.)

22 . After th e informal proceeding, th e cause was referred

to the Division of Administrative Hearings for proceedings

consistent with Section 120.57(1), Florida Statutes.

23. Herein, Respondent presented no e vidence refuting

Petitioner's testimony and no evidence of her guilt in relation

to the charges to which she had pled nolo contendere .

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

jurisdiction over the parties to , and the subject m atter of ,

these proceedings. §§ 112.3173(5) and 120.57(1), Florida

Statutes.

2 5 . Respondent Division of Retirement concedes that t he

duty to go forward and the burden of proof by a preponderance of

the evidence is upon Respondent herein. Wilson v. Depar tment of

Administration, Division of Retirement , 583 So. 2d 139, 141 - 42

(Fla. 4th DCA 1989); Florida Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981);

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (Fla. 1st DCA 1977). See also Holland v. Department

of Management Services , DOAH Case No. 02 - 0986 ( RO: June 24,

2002; modifie d on other issues in FO: dated October 1, 2002).

2 6 . Section 112.3173, Florida Statutes (2003), provides in

relevant p art:

(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 "convict ed" mean an

adjudication of guilty by a court of

competent jurisdiction; plea of guilty or of

nolo contendere ; a jury verdict of guilty

when adjudication is withheld and the

accused is placed on probation; or a

conviction by the Senate of an impeachable

of fense.

(b) "Court" means any state of federal

court of competent jurisdiction which is

exercising its jurisdiction to consider a

proceeding involving the alleged commission

of a specified offense.

(c) "Public . . . employee" means an . . .

employee of any public 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 :

* * *

2 . The committing, aiding, or abetting of

any theft by a public officer or employee

from his or her employer ;

* * *

6. The committing of any felony by a public

. . . employee who, willfully and with

intent to defraud the public or the public

agency f or which the public . . . 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 .

. . employee, realizes or obtains, or

attempts to realize or obtain, a profit,

gain, or advantage fo r himself or herself or

from some other person through the use or

attempted use of the power, rights,

privileges, duties, or position of his or

her public . . . employment position.

(3) FORFEITURE. -- Any public . . . employee

who is convicted of a specifi ed offense

committed prior to retirement . . . 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 supplied.]

* * *

2 7 . T he present statute clearly states that a ny public

employee who is convicted ("conviction" defined as a plea of

nolo contendere ) of a specified offense ( here, any theft from

his or her employer) committed prior to retirement shall forfeit

all rights and benefits under any public retirement system of

which he or she is a member (in this case, FRS) . The language

of Section 112.3173 is unequivocal.

2 8 . However, Petitioner contends that, because she

steadfastly maintained her innocen ce of the crimes to which she

pled no contest, her FRS rights and benefits shou ld not be

subject to automatic forfeiture; that she should be allowed to

present reasons and circumstances in mitigation of her plea ; and

that, having presented such reasons and circumstances and

maintained her innocence without any refutation or other

evidence presented against her by Respondent, her FRS rights and

benefits may not be forfeited. In support of this premise ,

Petitioner cites a series cases : Ayala v. Department o f

Professional Regulation , 478 So. 2d 1116 (Fla. 1st DCA 1985)

(construing Section 458.331(a)(c), Florida Statutes, which set

forth grounds for disciplinary action against members of the

medical profession); Molinari v. Department of Business and

Professio nal Regulation , 668 So. 2d 388 (Fla. 4th DCA 1997)

(construing Section 489.129(1)(b), Florida Statutes, in a

construction contractor disciplinary proceeding); Son v. Florida

Department of Professional Regulation, Division of Real Estate ,

608 So. 2d 75 (Fla . 3rd DCA 1992) (construing Section

475.25(1)(f), Florida Statutes, in a broker disciplinary

proceeding); The Florida Bar v. Lancaster , 448 So. 2d 1019 (Fla.

1984) (concerning a lawyer who , in addition to other offenses

for which he could be disbarred, ple d nolo contendere to two

misdemeanors for which adjudication was withheld); Kinney v.

Dept. of State, Division of Licensing , 501 So. 2d 129 (Fla. 5th

DCA 1987) (construing Section 493.319(1)(j) Florida Statutes,

which sets forth grounds for disciplinary ac tion against a

private investigator's license ); and Clark v. School Board of

Lake County , 596 So. 2d 735 (Fla. 5th DCA 1992) (construing

Section 231.36(4)(c), Florida Statutes, with regard to a

teacher's contract ).

29. Respondent asserts to the contrary t hat because

Petitioner's cited cases construe statutes providing for the

regulation of professions and occupations, specifically those

providing for the discipline of individuals' professional

licenses by their regulating agencies , Petitioner’s cases are

n ot applicable to the instant situation. Respondent further

asserts that the statutory forfeiture provision of Section

112.3173 , the retirement forfeiture statute, is not a punishment

for Petitioner's crime, and therefore, no professional licensing

discipl inary cases apply. Respondent argues that the statutory

forfeiture provision is part of a pension "contract" between the

employee and the State, and to the extent that an employee's

retireme nt rights vest, they vest subject to that provision. To

this end , Respondent cites Section 121.011(3)(d), Florida

Statutes (2003), which provides, in relevant part:

As of July 1, 1974, the rights of the

members of the retirement system established

by this chapter are declared to be of a

contractual nature, entered into between the

member and the state, and such rights shall

be legally enforceable as valid contract

rights . . . .

30. Respondent relies upon Busbee v. State Division of

Retirement , 685 So. 2d 914, 918 (Fla. 1st DCA 1996), which was

an action to enforce th e statutory forfeiture provision against

a state employee who pled guilty to the charge of accepting a

bribe in connection with his employment with his public

employer .

31. Indeed, Busbee held that such a forfeiture action is

not disciplinary in nature, nor a punishment, but is a

straightforward question of contract law . Busbee represents in

toto Respondent’s position that Section 112.3173(2)(a), Florida

Statutes, as presently worded, does not permit Respondent to

consider factors that might mitigate th e forfeiture; that the

statute predicates forfeiture simply upon a plea of no contest

to an operative offense; and that, accordingly, under th at

statute, the fact that Petitioner maintained her innocence,

while pleading no contest to an operative offense, is of no

import. 1 / Respondent submits that as a "creature of statute,"

the Agency had no choice but to deny FRS rights and benefits

herein .

32 . While the Agency may have had no choice but to

initially deny FRS rights and benefits u pon the information i t

was operating under at the time, the parties are now engaged in

a de novo proceeding pursuant to Section 120.57 (1) ), a right

acknowledged herein by the Agency and recognized even by Busbee

and its progeny case law . I n this de novo proceeding, there is

a narrow scope of constitutional and public policy

considerations based on separation of powers that must be

addressed.

33 . First , as to what need not be addressed:

Historically, a number of professional disciplinary statu t es had

less clear definitions of “conviction” than that currently

employed in Section 112.3173. Likewise, in the past, forfeiture

of various rights and benefits, including FRS rights and

benefits under 112.3173 , or its predecessor statutes , depended

upon whether a conviction related to a “breach of public trust”

or “intent to defraud” or similar phrases of legal art, or

depended on the type of employment relationship between the

individual “convicted” and the public employer . I t will not be

helpful to digress into those nuances of old v ersions of the

retirement statutes or into factual differences of the cases

cited by Petitioner .

34 . Specifically, i n the present situation, it is

undisputed that all of the misdemeanors to which Petitioner pled

nolo contendere related directly to Petit ioner’s public

employment. Also, the clear language of Section 112.3173 today

is to invoke a forfeiture of FRS rights and benefits upon a

“conviction” of the FRS member for committing any theft from his

emp loyer. For purposes of the current retirement fo rfeiture

statute, “conviction” is defined as a “plea of nolo contendere

[no contest]”. Herein, there was no jury verdict, and the

circuit court withheld adjudication . It is immaterial whether

Petitioner was placed on probation. It is also undisputed tha t

t he offenses charged and pled - to constituted offenses of theft

against Petitioner’s public employer or that they occurred at

the time the present version of Section 112.3173 was in effect.

I t al so is immaterial , for purposes of the present retirement

fo rfeiture statute, whether Petitioner p led to felonies or

misdemeanors . As a result , many of the cases cited by

Petitioner are not helpful.

35 . However, Busbee , also, is not controlling . Not only

was Busbee decided under different statutory language than the

instant case ; Busbee also involved a guilty plea. 2 / Therefore,

Busbee did not involve a mandatory interpretation of a statute

providing that a nolo contendere plea "shall be considered a

conviction," so as to impermissibly convert a nolo contendere

p lea into a conviction, without any opportunity to defend

against the forfeiture. Whether such plea opportunity existing

in a circuit court may be converted into a conviction in the

instant de novo proceeding concerning retirement rights and

benefits is th e issue at bar. That issue was never clearly

raised in Busbee . The issue s raised in very general terms in

Busbee were “vested property rights” versus “impairment of

contracts,” “double jeopardy,” “excessive fines,” “due process,”

and “equal protection ,” and the Busbee court ’s opinion

specifically stated that with regard to vested property rights

and the impairment of contracts, it was not making its decision

based upon “ Florida Constitution Article II sect ion [**7] 8 . .

. or Section 112.3173 . . . . ” The court f urther stated that ,

with regard to “due process rights , ” the employee seeking to

retain his retirement benefits (Busbee) “ ha s not specified any

particular manner in which his constitutional rights to due

process were abrogated . ” (Emphasis supplied .)

36 . In the instant de novo proceeding, the separation of

p o wers argument has been squarely presented . This issue asks

" W here Article V courts permit a nolo contendere p lea purely for

convenience, may Section 112.3173 convert that no contest plea

int o a conviction, without affording the accused any opportunity

to defend against the resultant forfeiture? " The short answer

is: “No.”

3 7 . The United States Supreme Court has recognized that

there are instances when a person is entitled to maintain his or

her innocence in a criminal case, yet waive a trial and accept a

sentence if it suits his interest. North Carolina v. Alford ,

400 U.S. 25 ( 1970). Florida courts have decisively reiterated

the principle that a criminal defendant may choose to plead no

co ntest to avoid the risk of criminal trial, and in the cases

cited by Petitioner, defend himself in an administrative

proceeding. 3/

38 . In Ayala v. Department of Professional Regulation ,

supra , the court that later decided Busbee supported the general

ru le that a plea of no contest may be entered “without any

collateral implications to the defendant in othe r civil or

criminal proceedings, ” even where the professional licensing

statute construed says that a nolo plea “shall be considered a

conviction.” Th e statute construed in Ayala was Section 458.331

(1) (c) (1984), which contained virtually identical language to

that at bar: “any plea of nolo contendere shall be considered a

conviction for purposes of this chapter”. The statute in the

instant case rea ds "' C onviction' and 'convicted' mean an . . .

plea . . . of nolo contendere ." The Ayala court found that the

penalized physician should be allowed to rebut the presumption

of guilt that followed from entering a plea of no contest to

criminal charges, bec ause to do anything else would compromise

the constitutional validity of the statute involved. Ayala at

1118. Alford supra .

38. Ayala ruled that the Board of Medical Examiners might

presumptively consider a nolo p l ea as evidence of conviction for

purpos es of Chapter 458 . H owever, in accordance with Lancaster,

supra , the Board was required to allow the accused to rebut the

presumption of guilt and assert innocence by explaining the

reasons and circumstances surrounding his plea or in mitigation.

For our purposes here, the important holding in Lancaster was

not whether there has been an actual adjudication of guilt, but

whether the individual has been given a chance to explain the

circumstances surrounding his plea of nolo contendere and

otherwise contest the inference that he engaged in illegal

conduct. The reasoning presented in bot h Ayala and Lancaster

was that where a statute purports to convert a nolo plea into a

judgment of conviction and attaches collateral consequences to

such a nolo plea, the sta tute, in effect, constitutes an

amendment to the criminal rules of court and is violative of the

“separation of powers” doctrine. However, in Ayala , the court

elected to not reach the constitutional arguments , by construing

“shall” in the last sentence of Subsection 458.331 (1) (c) as

permissive, rather than mandatory in meaning.

39. Whether it is the of reading of “shall” in a statute

as “may , ” otherwise rendering a statute permissive as opposed to

mandatory, or a decision on the clear constitutional pr inciple

that the doctrine of separation of powers is essential to

preserve the protections which the rules of court accord to a

nolo contendere plea by not permitting a collateral attack, the

result in the instant situation must be the same. Likewise, the

entire purpose of a Section 120.57(1) proceeding is to permit a

substantial issue of material fact to be determined. 4/

40. While maintaining the sanctity of a nolo contendere

plea in circuit court may require Petitioner to overcome a

presumption and wi ll make it necessary for the Agency to take

the initiative in the administrative forum to present at least

some evidence of wrongdoing , that is not a great price to pay to

maintain the doctrine of separation of powers.

41. Petitioner’s factual position in this case is more

compelling than that of the physician in Ayala . The record

herein shows that she has maintained her innocence throughout

both the criminal and administrative proceedings. She appeared

and testif ied to that effect at the informal proc eeding under

Section 120.57(2), Florida Statutes, and affirmatively put forth

the non - criminal reasons for her plea: personal, family, and

medical reasons. She further showed that she had initiated

proceedings against the City via civil litigation prior t o the

City instituting any criminal charges against her. This

chronology, without any rebuttal , raises the spectr e of a

retaliatory complaint by the City against Petitioner. Herein,

the Agency produced not a scintilla of proof to rebut

Petitioner's evide nce. Therefore, herein, the evidence is

insufficient to show that a theft was committed, let alone that

Petitioner committed it.

42. This Recommended Order does not affect any plea of

guilty or adjudication of guilt or make any pronouncement on

whether t he Legislature could accomplish the purpose or result

sought herein by the Agency by amending the statute to resemble

the statutory language considered in McNair v. Criminal Justice

Standards and Training Commission , 518 So. 2d 390 (Fla. 1st DCA

1987) . It does not consider or address dates of vesting or any

other peripheral issue. This Recommended Order only conclude s

that where a plea of nolo contendere is entered to an offense

specified under Section 112.3173, and there is no adjudication

of guilt, the employee retains the right to present evidence

pursuant to Section 120.57(1) to rebut the presumption of guilt

established by the nolo contendere plea , and that in the instant

case , Petitioner has rebutted that presumption so that upon the

shifted burden o f proof , Respondent Agency has not prevailed.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Agency enter a final order determining

that Petitioner’s rights and benefits under the Florida

Retire ment System have not been forfeited and reinstituting

those benefits.

D ONE AND ENTERED this 31st day of Ju ly , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administ rative 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 31st day of Ju ly , 2007.

ENDNOTES

1/ Respondent also cites Lacey v. Department of Management

Services, Division of Retirement , DOAH Case No. 93 - 3968 (RO:

March 25, 1994; FO: May 3, 1994), which is distinguishable from

the present situation in a variety of ways, as ex plained in its

footnotes. See also the remainder of these Conclusions of Law

2/ The pertinent cases citing or dissenting from Busbee have

the same critical difference: a guilty plea , guilty verdict , or

adjudication of guilt : Hames v. City of Miami , 47 9 F. Supp. 2d

1276 (U.S. So. District of Fla. 2007); Warsaw v. City of Miami

Firefighters and Police Officers’ Retirement Trust , 885 So. 2d

892 (Fla. 3d DCA 2004).

3 / It is noted that Petitioner has not cited McNair v. Criminal

Justice Standards and Trai ning Commission , 518 So. 2d 390 (Fla.

1 st DCA 1987), wherein the First District Court of Appeals held

that where a plea of nolo contendere or guilty was not evaluated

under Section 943.13(4) as conclusive evidence of the commission

of wrongdoing, but the e ntry of the plea itself create d

noncompliance with a licensing statute’s requirements, the

statutory scheme was acceptable and distinguishable from the

statutory scheme in Ayala v. Department of Professional

Regulation , supra , in which a mandatory interpr etation of

Section 458.331(1)(c), providing that a nolo contendere plea

“shall be considered a conviction,” did impermissibly convert

the nolo contendere plea into a conviction.

4/ N olo pleas assist Article V courts in clearing their

dockets, but if such pleas later can be used as cudgels in the

administrative forum to foreclose the accused having any

opportunity to at least mitigate the administrative action, the

number of such pleas in Article V courts could abruptly

diminish. That contingency presents a public policy issue.

COPIES FURNISHED:

Henry M. Coxe, III, Esquire

Bedell, D ittmar, DeVault,

Pillins & Coxe, P.A.

101 East Adams Street

Jacksonville, Florida 32202

Geoffrey M. Christian, Esquire

Assistant General Counsel

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

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

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.