07-002192 Russell S. Lawler vs. Department Of Management Services, Division Of Retirement
 Status: Closed
Recommended Order on Wednesday, January 30, 2008.


View Dockets  
Summary: Respondent failed to get evidence admitted over hearsay and relevancy objections, which might have shown Petitioner violated statute by the type of felony committed and caused retirement forfeiture. Therefore, there is no forfeiture.

1Case No. 07-2192

4STATE OF FLORIDA

7DIVISION OF ADMINISTRATIVE HEARINGS

11RUSSELL S. LAWLER, ) ) ) ) ) ) ) ) ) ) ) )

26Petitioner, RECOMMENDED ORDER

29vs.

30DEPARTMENT OF MANAGEMENT

33SERVICES, DIVISION OF

36RETIREMENT,

37Respondent.

38This cause came on for formal proceeding and hearing, as

48noticed, in Jacksonville, Florida, on August 22, 2007, before

57P. Michael Ruff, a duly-designated Administrative Law Judge of

66the Division of Administrative Hearings. The appearances were as

75follows:

76APPEARANCES

77For Petitioner: Geoffrey M. Christian, Esquire

83Department of Management Services

874050 Esplanade Way, Suite 160

92Tallahassee, Florida 32399-0950

95For Respondent: Thomas A. Delegal, III, Esquire

102Delegal Law Offices, P.A.

106424 East Monroe Street

110Jacksonville, Florida 32202

113STATEMENT OF THE ISSUES

117The issues to be resolved in this proceeding concern whether

127the Petitioner's rights and benefits under the Florida Retirement

136System (FRS), should be forfeited for the reasons alleged in the

147Notice of Forfeiture of Retirement Benefits dated March 12, 2007.

157PRELIMINARY STATEMENT

159This cause has its origin in a Notice of Forfeiture of

170Retirement Benefits issued on March 12, 2007, by the Respondent,

180Department of Management Services, Division of Retirement

187(Division). In that Notice the above-named Petitioner was

195advised that the Respondent had decided to forfeited his rights

205and benefits under the FRS pursuant to the provisions of Section

216112.3173, Florida Statutes (2003). 1/ The Agency action at issue

226was based upon the Respondent learning that the Petitioner may

236have been convicted in a state court proceeding of a certain

247third degree felony. On April 1, 2007, the Petitioner filed a

258timely request for administrative hearing to contest the

266proposed agency action. The initial Petition filed by the

275Petitioner was dismissed without prejudice to re-filing an

283Amended Petition concerning certain insufficiencies in the

290Petition. Petitioner thereupon filed an Amended Petition on

298April 26, 2007, and the matter was transferred to the Division

309of Administrative Hearings for formal proceeding. The case was

318duly assigned to the undersigned Administrative Law Judge for

327formal proceeding and conducting of a formal hearing pursuant to

337Section 120.57(1), Florida Statutes.

341The cause came on for hearing as noticed. The Petitioner

351called no witnesses, but offered Petitioner's Exhibits one

359through five which were received in evidence. The Respondent,

368with the burden of proof, presented the testimony of one witness

379and offered seven exhibits for admission into evidence.

387Respondent's Exhibits one and two, the Arrest and Booking

396Report, and the Criminal Information by the state attorney for

406the (Fourth Circuit), Duval County, were not admitted on grounds

416of being irrelevant and hearsay, and not coming within any

426recognized hearsay exception raised by the Respondent's counsel.

434Respondent's exhibits one and two are irrelevant since they

443refer to an arrest made by a law enforcement officer and charges

455filed by the state attorney. They are not evidence of any

466conviction of a crime for purposes of the issue of forfeiture of

478benefits as contemplated by Section 112.3173, Florida Statutes.

486Concerning the hearsay character of the two exhibits, it was

496determined that they were obtained and maintained in

504contemplation of litigation and no sufficient foundation was

512offered to show that they complied with the business records

522exception to the hearsay rule, which had been asserted by

532Respondent's counsel in response to objection. Thus, they are

541hearsay. Ruling on that issue was reserved until it could be

552determined if competent, non-hearsay testimony or evidence was

560adduced whereby the two exhibits could be considered

568corroborative hearsay, as contemplated by Section 120.57(1)(c),

575Florida Statutes. Since the only evidence of which they could

585be corroborative or explanatory is Respondent's Exhibit seven,

593the deposition of Deputy Sheriff Lavalley, and since, for

602reasons delineated below, that deposition cannot be admitted

610into evidence, Respondent's Exhibits one and two are not

619admitted for any purpose offered. Because they are irrelevant

628the question of the quality of their hearsay character is

638immaterial in any event.

642The previously reserved ruling on Respondent's exhibits one

650and two is now entered and, after consideration of post-hearing

660written arguments, they are excluded from evidence. The

668Respondent's exhibits one and two are not admissible for the

678further reason that they did not come within the ambit of the

690public records or government record exception to the hearsay

699rule contained at Section 90.803.(8), Florida Statutes.

706Initially it is pointed out that this statutory section

715specifically excludes, in criminal cases, matters observed by

723police officers and other law enforcement personnel and that

732police reports in such proceedings are not admissible against a

742defendant. The limitation is based on the belief, according to

752Professor Charles Earhardt in Florida Evidence that observations

760by officers at the scene of a crime or when a defendant is

773arrested are not as reliable as observations by public officials

783in other cases because of the adversarial nature of the

793confrontation between the police and the defendant. See United

802States v. Puente , 826 F.2d 1415, 1418 (5th Cir. 1987). Although

813these two exhibits are not offered under the public records

823exception herein in a criminal proceeding, but rather an

832administrative one, the inherent flaw in reliability potentially

840present in the reports of law enforcement officers which

849prevents them under the above statutory section from being

858admitted as a public record exception to the hearsay rule would

869have the same unreliable quality attached in this proceeding, as

879in a criminal proceeding. Moreover, however, under the Florida

888Evidence Code at Section 90.803(8), Florida Statutes, records of

897a public body that rely upon information supplied from outside

907sources or records which contain evaluations or statements of

916opinion by a public official are inadmissible hearsay under the

926Florida Evidence Code. See Lee v. Department of Health and

936Rehabilitative Services , 698 So. 2d 1194, 1201 (Fla. 1997),

945wherein it was held that a written report of an HRS employee who

958investigated an incident was inadmissible under the above

966section of the evidence code as being a record supplied by

977outside sources, or which contained evaluations or statements of

986opinion by a public official and which are inadmissible under

996the public records exception under Section 90.803(8), Florida

1004Statutes. The court said in that case: ". . . in Florida,

1016rather than offering this type of record, a witness must be

1027called who has personal knowledge of the facts." Here the

1037arrest report, as well as the state attorney's information, in

1047addition to being irrelevant because they don't provide

1055probative evidence that the Petitioner herein sustained a

1063conviction of a felony enumerated in the operative statute

1072involved in this proceeding, clearly contain evaluations or

1080opinions of a public official. Therefore, under the referenced

1089authority, they cannot be admitted into evidence under the

1098public records exception to the hearsay rule either.

1106Respondent's Exhibit three is a plea of guilty and

1115negotiated sentence. An objection to that exhibit was made on

1125the basis of hearsay and authenticity. The parties given an

1135opportunity to brief the question of its admissibility in terms

1145of the hearsay issue. Concerning the objection to

1153authentication, the document was determined to be permissibly

1161authenticated because, although not certified, as would normally

1169be required, the circumstances depicted on the face of the

1179document, and surrounding its obtaining and sponsorship by the

1188Respondent's counsel, show circumstantial authenticity such that

1195it was deemed authentic pursuant to Section 90.901, Florida

1204Statutes. Further, under the germane case law, a plea of guilty

1215in a prior criminal proceeding is admissible in a subsequent

1225proceeding as an admission by a party opponent. See Boshnack v.

1236Worldwide Rent-A-Car, Inc. , 195 So. 2d 216, 218-19 (Fla. 1967)

1246and Stevens v. Duke , 42 So. 2d 361, 363 (Fla. 1949). The court

1259in Stevens went on to say, however, that such a plea of guilty

1272is not conclusive, but may be explained by the party against

1283whom it is offered in the subsequent proceeding and that the

1294basis of admissibility is that it is a declaration against

1304interest, rather than the conviction serving as independent

1312objective evidence. So, on this basis, Respondent's exhibit

1320three, the plea of guilty, although not certified, is admitted

1330on the basis of being a party admission for purposes of Section

134290.803.(18)(a), Florida Statutes.

1345Respondent's Exhibit four is the Judgment of Conviction.

1353The Judgment is a certified copy and meets the test for

1364authentication. The Respondent contends that the Judgment of

1372Conviction is a public record and is admissible under that

1382exception to the hearsay rule. However, it has been determined

1392in Napoli v. State , 596 So. 2d 782, 786 (Fla. 1st DCA 1992) that

1406a Judgment of Conviction is not a public record for purposes of

1418Section 90.803(8), Florida Statutes. The Florida Evidence Code

1426does not contain an exception to the hearsay rule for judgments

1437of prior convictions. Under Florida law a conviction is not

1447admissible in subsequent litigation to prove the truth of some

1457essential element in the conviction. See also Boshnick v.

1466Worldwide Rent-A-Car , supra . "The law is well established that

1476a Judgment of Conviction of a criminal offense, whether based on

1487a plea of guilty or nolo contendere , is not admissible in a

1499subsequent civil proceeding as proof of the facts on which it is

1511based." See also Nunez v. Gonzalez , 456 So. 2d 1336, 1338 (Fla.

15232nd DCA 1984). ("It is well settled that a Judgment of

1535Conviction cannot be introduced into evidence in a civil action

1545to establish the truth of the facts upon which it was

1556rendered").

1558Respondent's Exhibit five is the Judgment and Restitution

1566Order. It is not certified and could be determined to not be

1578properly authenticated. The undersigned determined at the

1585hearing, however, that the circumstances of its proffer and

1594possession by the Respondent, together with the circumstances

1602depicted on the face of the judgment, showed sufficient

1611circumstantial indicia of authentication to allow it to be

1620circumstantially authenticated pursuant to Section 90.901,

1626Florida Statutes.

1628The problem remains, however, that the Judgment and

1636Restitution Order is hearsay. It does not come within the

1646public record exception to the hearsay rule, and thus, in view

1657of the authority cited above with regard to Respondent's exhibit

1667four, as well as Charles Ehrhardt: Florida Evidence 2005

1676edition, Section 803.22(a), it is determined that therefore,

1684Respondent's exhibits four and five, (after reviewing the

1692arguments of the parties submitted in writing, post-hearing),

1700are not admissible into evidence for proof of the truth of the

1712facts upon which they were rendered. Respondent's Exhibit six

1721was admitted.

1723Petitioner's Exhibit seven is the deposition of Duval

1731County Sheriff's Deputy Lavalley. It has been offered into

1740evidence as "former testimony" for purposes of Section

174890.803(22) and 90.804(2), Florida Statutes. After consideration

1755of arguments of the parties submitted, it is determined that the

1766deposition is not admitted into evidence. This is based on the

1777fact that there was no showing that the deputy was an

1788unavailable witness, and on authority of Grabau v. Department of

1798Health , 816 So. 2d 701, 709 (Fla. 1st DCA 2002). That decision

1810held that Section 90.803.(22), Florida Statutes, is

1817unconstitutional based upon a violation of the Separation of

1826Powers Doctrine, as an infringement on the Florida Supreme

1835Court's authority to establish rules of procedure for courts.

1844This is treated in more detail in the Conclusions of Law infra .

1857Upon conclusion of the hearing the parties elected to have

1867the record of the hearing transcribed and to submit proposed

1877recommended orders, upon an extended schedule, including the

1885opportunity to brief and argue the evidentiary issues concerning

1894the exhibits referenced. The Proposed Recommended Orders have

1902been considered in the rendition of this Recommended Order.

1911FINDINGS OF FACT

19141. The Division of Retirement (Division) is an Agency of

1924the State of Florida charged with the responsibility of managing,

1934governing and administering the Florida Retirement System (FRS)

1942on behalf of the Department of Management Services.

19502. The FRS is a public retirement system as defined in

1961Florida law. It provides benefits to local and state employees,

1971including teachers, state legislators, local public officials,

1978and public employees employed by local or state agencies which

1988are members of the FRS.

19933. The Petitioner, Russell S. Lawler, was employed as a

2003state employee by the Department of Health from August 1983 until

2014he resigned his position in January 2004. Because he was

2024employed by the Department of Health, the Petitioner became a

2034participant in the FRS public retirement system as of August

20441983. His benefits in the FRS became vested after 10 years, or

2056in August 1993.

20594. On March 12, 2007, the Respondent Agency sent the

2069Petitioner a Notice of Action to Forfeit Retirement benefits, in

2079evidence as Respondent's exhibit six. The Division thus advised

2088the Petitioner that it was proceeding under Section 112.3173(3),

2097Florida Statutes, which provides that a public employee who is

2107convicted of specified offenses committed prior to retirement, or

2116who is terminated by reason of admitted commission, aid, or

2126abetment of a specified offense, will forfeit all rights and

2136benefits under the FRS. The Notice went on to list the six

2148specified offenses in Section 112.3173(2)(e), Florida Statutes,

2155which provide for the forfeiture of retirement benefits. The

2164specified offenses include the committing, aiding, or abetting of

2173embezzlement of public funds; of theft by a public officer or

2184employee from his or her employer; bribery in connection with

2194public employment; any felony specified in Chapter 838, except

2203Sections 838.15 and 838.16, Florida Statutes; the committing of

2212an impeachable offense, or

2216The committing of any felony by a public

2224officer or employee who, willfully and with

2231intent to defraud the public or the public

2239agency for which the public officer or

2246employee acts or in which he or she is

2255employed of the right to receive the

2262faithful performance of his or her duty as a

2271public officer or employee, realizes or

2277obtains, or attempt to realize or obtain, a

2285profit, gain, or advantage for himself or

2292herself or for some other person through the

2300use or attempted use of the power, rights,

2308privileges, duties, or position of his or

2315her public office or employment position.

2321Ultimately, through the testimony of the Respondent's sole

2329witness, Mr. Gaines and through Respondent's concession in its

2338Proposed Recommended Order, the Division elected to proceed

2346against the Petitioner solely under Section 112.3173(2)(e)6.,

2353Florida Statutes, the above-quoted statutory provision, which is

2361the so-called "catch all" provision.

23665. After receiving this Notice from the Division the

2375Petitioner submitted a timely Petition challenging the forfeiture

2383of his retirement benefits on April 2, 2007. On April 26, 2007,

2395the Petitioner submitted an Amended Petition to the Division,

2404which was ultimately referred to the Division of Administrative

2413Hearings and the undersigned Administrative Law Judge, who

2421conducted the hearing on the above date.

24286. The Respondent Division, in essence, maintains that the

2437Petitioner, who was employed as a pharmacist by the Department of

2448Health, stole certain controlled substances or drugs from the

2457Department of Health pharmacy where he was employed, and was

2467convicted of illegal possession of controlled substances. It

2475contends that such conduct constitutes violation of paragraph six

2484of the above-quoted statutory provision, is the commission of a

2494felony violative of that provision, and that forfeiture of his

2504retirement benefits is appropriate.

25087. At the hearing the Respondent sought to introduce the

2518following documents into evidence: the arrest and booking report

2527dated December 31, 2003, (Respondent's Exhibit one); the state

2536attorney's information dated January 16, 2004, as Respondent's

2544Exhibit two; the plea of guilty entered by the Petitioner in that

2556underlying criminal case, and the negotiated sentence, which is

2565one document, dated March 14, 2004, as Respondent's Exhibit

2574three; the Judgment of Conviction dated March 15, 2004, as

2584Exhibit four and the related Judgment and Restitution Order of

2594April 5, 2004, as Respondent's exhibit five.

26018. The Respondent was not the custodian of the records for

2612the Respondent's Exhibits one, two, three, four, and five, which

2622were obtained from the Clerk of Circuit Court in and for Duval

2634County, Florida, and not from the Respondent's own maintained

2643records. No foundation was laid for their admission under the

2653business records exception to the hearsay rule, because no

2662witness was called who could lay such a foundation. Moreover,

2672they were clearly and admittedly acquired by the Respondent

2681Division solely for the purpose of pursuing the forfeiture action

2691against the Petitioner, the instant litigation. They were not

2700shown to be business records maintained in the regular course of

2711business by an appropriate foundation witness. They are also

2720proffered as being admissible within the public records exception

2729to the hearsay rule contained in Section 90.803(4), Florida

2738Statutes, and as party admissions and, for that reason,

2747admissible over hearsay objection.

27519. The admissibility issues are dealt with in the

2760Preliminary Statement and in the Conclusions of Law below.

2769Respondent's Exhibits one and two are inadmissible for the

2778reasons delineated herein. Respondent's Exhibits three, four,

2785and five have limited admissibility. Exhibit three, the Plea of

2795Guilty and Negotiated Sentence is admissible as a party

2804admission. The Judgment of Conviction, Respondent's Exhibit

2811four, and the related Judgment and Restitution Order,

2819Respondent's Exhibit five, are deemed, under Florida law, to be

2829inadmissible under the public records exception to the hearsay

2838rule contained in Section 90.803(4), Florida Statutes. They are

2847not admissible to show the underlying facts upon which they are

2858based or rendered. As judgments they have specific limited

2867statutory admissibility under Section 92.05, Florida Statutes,

2874merely to show that they were entered and they are valid. There

2886is also limited authority to the effect that the Judgment of

2897Conviction, to the extent that it is based upon the Guilty Plea,

2909and therefore subsumes it, presumably can be admitted as a party

2920admission. Since the guilty plea in the underlying criminal case

2930related to this proceeding has been admitted as a party

2940admission, such in this case is a distinction without any

2950evidential or legal difference.

295410. The Respondent also proffered into evidence the

2962deposition transcript of Deputy Chris Lavalley who is an officer

2972of the Duval County Sheriff's Office. The deposition was noticed

2982on July 19, 2007, with the deposition to be conducted (which it

2994was) on August 13, 2007. The notice advised the Petitioner that

3005the deposition was being taken for purposes of discovery, for use

3016at trial, or for any other purpose for which it may be used under

3030the applicable laws of Florida. On July 23, 2007, the Respondent

3041noticed its serving of Answers to the Petitioner's

3049Interrogatories in which the Respondent did not list Deputy

3058Lavalley as a witness in that discovery response. During the

3068deposition and thereafter the Respondent never notified the

3076Petitioner's counsel that Detective Lavalley would not be called

3085or available as a witness at the hearing, which was scheduled for

3097August 22, 2007.

310011. Detective Lavalley was the author of the arrest and

3110booking report contained in Respondent's exhibit one and was the

3120arresting officer in the underlying criminal proceeding related

3128to this forfeiture proceeding. The Respondent and Respondent's

3136counsel made no showing before, during, or after the hearing in

3147this case that Detective Lavalley was an unavailable witness as a

3158predicate to an attempted introduction of Detective Lavalley's

3166deposition (Respondent's Exhibit seven). The record reflects

3173that Detective Lavalley is, or was, at times pertinent, an

3183officer of the Duval County Sheriff's Office and this hearing was

3194conducted in Jacksonville, in Duval County, Florida. There was

3203no showing that he was beyond 100 miles from the hearing site or

3216any other reason why he would be an unavailable witness. 12.

3227The Respondent presented as its sole witness Mr. Ira Gaines, a

3238benefits administrator in the Division's Bureau of Benefits

3246Calculation. Mr. Gaines had no personal knowledge or competency

3255to testify concerning any facts underlying the acts for which the

3266Petitioner received the felony conviction at issue. He was not

3276the custodian of the records of the Duval County Clerk or Circuit

3288Court. He did establish he validly had access to the Division's

3299own records in the pursuit of his regular duties and business for

3311the Division and his bureau. He thus was able to establish that

3323the name of the Petitioner and the Petitioner's Social Security

3333number in the records of the Division, of which he had direct

3345knowledge and access to, were the same as those depicted on the

3357Respondent's exhibits. It was thus established that the

3365defendant in the underlying criminal proceeding at issue is the

3375same Russell S. Lawler as the Petitioner in this case, who is

3387subject to this forfeiture proceeding.

339213. Mr. Gaines testified that in order for a retiree's

3402benefits to be subject to forfeiture, that the retiree must be

3413convicted of "a felony that related with the employment of that

3424employer . . ." He also established, as the Respondent has

3435conceded, that Section 112.3173(2)(e)6., Florida Statutes, is the

3443specific and only offense for which forfeiture of the

3452Petitioner's retirement benefits is sought in this proceeding.

346014. The Petitioner pled guilty to possession, actual or

3469constructive, of a controlled substance (codeine) and is shown by

3479the related judgment of conviction to be convicted of a third-

3490degree felony in violation of Section 893.13(6)(a), Florida

3498Statutes. Exhibit four shows that he was adjudicated guilty of

3508such. The plea of guilty and negotiated sentence contained in

3518Respondent's Exhibit three also shows that the court was to

3528reserve jurisdiction for restitution. Respondent's Exhibit five,

3535the Judgment and Restitution Order, shows restitution in the

3544amount of $860.00 was to be made to the Department of Health and

3557the Victim Compensation Trust Fund of the Office of the Attorney

3568General.

356915. The above findings are all that the Respondent's

3578evidence shows concerning the felony of which the Petitioner was

3588convicted. The Respondent did not adduce any substantial,

3596persuasive evidence or witnesses concerning the nature of the

3605Petitioner's duties at the Department of Health or how those

3615duties had any relationship to the crime the Respondent alleges

3625to be the basis for the forfeiture action herein.

363416. The above admissible evidence does not show, for

3643instance, where the Petitioner obtained the illegal controlled

3651substances, possession of which, actual or constructive, he was

3660convicted of, nor is there preponderant, persuasive evidence to

3669show that, even though the order in exhibit five requires

3679restitution to the Department of Health, what the restitution was

3689for or for what purpose it was to be made. To presume more facts

3703than shown on the face of that order would be speculation, and

3715would not be based on admissible evidence. It could be for a

3727number of reasons, such as to pay investigative costs to the

3738Department of Health, or for other reasons, since it was based on

3750a negotiated plea and restitution.

375517. Even if Exhibit five could be deemed to show that the

3767Department of Health was a victim of a crime committed by the

3779Petitioner, there was no preponderant, persuasive evidence by

3787which it might be found that the Petitioner actually deprived his

3798employer of anything of value, or acted at any time with the

3810intent to defraud his employer, the public, and the Department of

3821Health of the right to receive the faithful performance of his

3832duties as a public officer or employee. There was no

3842preponderant, persuasive evidence to show that the Petitioner

3850realized, obtained, or attempted to realize or obtain a profit,

3860gain, or advantage for himself or for some other person, by the

3872use or attempted use of the power, rights, privileges, duties, or

3883position of his public office or employment position.

389118. There was simply no evidence adduced to show what his

3902duties were or to show how the function of his duties or his

3915employment position might have a relationship to the crime for

3925which he pled guilty and was convicted. Thus, there is no

3936preponderant, persuasive, admissible evidence which is competent

3943to show that a specified offense, as contemplated in Section

3953112.3173(2)(e)1-6, Florida Statutes, was committed.

395819. The Petitioner has filed a Motion for Attorney's Fees

3968pursuant to Section 57.105, Florida Statutes, and provided the

3977Respondent notice of his intent to seek attorney's fees under

3987that section.

3989CONCLUSIONS OF LAW

399220. The Division of Administrative Hearings has

3999jurisdiction of the subject matter of and the parties to this

4010proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

401821. Article II, Subsection 8(d), Florida Constitution

4025(1976), provides in pertinent part:

4030SECTION 8: Ethics in government.--A public

4036office is a public trust. The people shall

4044have the right to secure and sustain that

4052trust against abuse. To assure this right:

4059* * *

4062(d) Any public officer or employee who is

4070convicted of a felony involving a breach of

4078public trust shall be subject to forfeiture

4085of rights and privileges under a public

4092retirement system or pension plan in such

4099manner as may be provided by law.

410622. Section 112.311, provides in pertinent part:

4113(1) INTENT.--It is the intent of the

4120Legislature to implement the provisions of

4126s. 8(d), Art. II of the State Constitution.

4134(2) DEFINITIONS.--As used in this section,

4140unless the context otherwise requires, the

4146term:

4147(a) 'Conviction' and 'convicted' mean an

4153adjudication of guilt by a court of

4160competent jurisdiction; a plea of

4165guilty or of nolo contendere; a jury verdict

4173of guilty when adjudication of guilt is

4180withheld and the accused is placed on

4187probation; or a conviction by the Senate of

4195an impeachable offense.

4198(b) 'Court' means any state of federal

4205court of competent jurisdiction which is

4211exercising its jurisdiction to consider a

4217proceeding involving the alleged commission

4222of a specified offense.

4226(c) 'Public officer or employee' means a

4233officer or employee of any public body,

4240political subdivision, or public

4244instrumentality within the state.

4248(d) 'Public retirement system' means any

4254retirement system or plan to which the

4261provisions of part VII of this chapter

4268apply.

4269(e) 'Specified offense' means:

4273* * *

42761. The committing , aiding, or abetting of

4283an embezzlement of public funds;

42882. The committing, aiding, or abetting of

4295any theft by a public officer or employee

4303from his or her employer;

43083. bribery, in connection with the

4314employment of a public officer or employee;

43214. Any felony specified in Chapter 838,

4328except ss. 838.15 and 838.16;

43335. The committing of an impeachable

4339offense; or

43416. The committing of any felony by a public

4350officer or employee who, willfully and with

4357intent to defraud the public or the public

4365agency for which the public officer or

4372employee acts or in which he or she is

4381employed of the right to receive the

4388faithful performance of his or her duty as a

4397public officer or employee, realizes or

4403obtains, or attempts to realize or obtain, a

4411profit, gain, or advantage for himself or

4418herself or for some other person through the

4426use or attempted use of the power, rights,

4434privileges, duties, or position of his or

4441her public office or employment position.

4447(3) FORFEITURE.--Any public officer or

4452employee who is convicted of a specified

4459offense committed prior to retirement, or

4465whose office or employment is terminated by

4472reason of his or her admitted commission,

4479aid, or abetment of a specified offense,

4486shall forfeit all rights and benefits under

4493any public retirement system of which he or

4501she is a member, except for the return of

4510his or her accumulated contributions as of

4517the date of termination.

452123. The Division contends that all of Mr. Lawler's rights

4531and benefits under the FRS must be forfeited pursuant to Section

4542112.3173(2)(e)6. It asserts that Mr. Lawler was convicted of a

4552felony as a public employee whereby he willfully and with intent

4563to defraud the public or the public agency for which he was

4575employed of the " . . . right to receive the faithful performance

4587of his her or duty as a public officer or employee," and that he

4601realized, obtained or attempted to realize or obtain a profit,

4611gain, or advantage for himself through the use or attempted use

4622of the power, rights, privileges, and duties of his employment

4632position. The Division has taken the position during the

4641testimony at hearing, and in its proposed recommended order, that

4651it is proceeding under sub-paragraph six of the above-quoted

4660statutory definitions of "specified offense," the so-called

"4667catch all provision." It is not contending that the

4676Petitioner has committed a felony involving the offenses listed

4685in paragraph 1-5 of the above-quoted statute.

469224. The Division, as the party asserting that Mr. Lawler's

4702rights and benefits under the FRS should be forfeited bears the

4713burden of proof during this proceeding. See Florida Department

4722of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778, 788

4733(Fla. 1st DCA 1981)("In accordance with the general rule,

4743applicable in court proceedings, 'the burden of proof, apart from

4753statute, is on the party asserting the affirmative of an issue

4764before an administrative tribunal.' Balino v. Department of

4772Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

47831977)").

478525. The statutory forfeiture provision at issue in this

4794case is not penal and does not involve disciplinary action

4804against a licensee. See Busbee v. State, Division of Retirement ,

4814685 So. 2d 914, 918 (Fla. 1st DCA 1986)(Statutory FRS pension

4825forfeiture provision does not impose punishment or involve

4833disciplinary action). The standard of proof, therefore, is

"4841preponderance of the evidence." See § 120.57(1)(j), Fla. Stat.

4850(2007) ("Findings of fact should be based upon a preponderance of

4862the evidence, except in penal and licensure disciplinary

4870proceedings or except as otherwise provided by statute . . .").

488226. The Respondent agency has failed to meet that burden

4892and prove facts which would demonstrate that the Petitioner has

4902committed a specified offense, as enumerated and described in the

4912above statutory authority under which the Respondent is

4920proceeding. This is because, after allowing the parties to brief

4930the hearsay, relevance and authentication issues, raised by

4938objection as to the Respondent's exhibits, or most of them, the

4949Respondent's Exhibits one, two, and seven are deemed inadmissible

4958based upon being inadmissible hearsay or irrelevant. Exhibits

4966four and five, the judgments, are not admissible for proof of the

4978truth of the facts underlying the rendition of the judgments.

4988Petitioner's Exhibit three, the Plea of Guilty and Negotiated

4997Sentence is deemed admissible based on being a party admission,

5007as an exception of the hearsay rule. The reasons are delineated

5018below:

5019Detective Lavalley's deposition (Respondent's Exhibit 7)

502527. Detective Lavalley's deposition, the deposition of the

5033arresting officer concerning the underlying criminal matter is

5041inadmissible hearsay. The Florida Rules of Civil Procedure,

50491.330(a)(3), prohibits the introduction of a deposition at a

5058trial or hearing unless the witness is unavailable or upon other

5069exceptional circumstances. See State of Florida Agency for

5077Health Care Administration, Board of Medicine v. Peter Alagona,

5086M.D. , DOAH Case No. 95-2467 (1996). The circumstances whereby a

5096deposition may be permitted under Florida Rule of Civil

5105Procedure 1.330(a)(3) concern witness unavailability due to

5112illness, age, and infirmity, or imprisonment, or if "the witness

5122is at a greater distance than 100 miles from the place of trial

5135or hearing." Moreover, a deposition is admissible under this

5144rule only insofar as it is admissible under the rules of

5155evidence. The deposition is hearsay and must comport with the

5165two hearsay exceptions contained in Section 90.804(2)(a),

5172Florida Statutes, and 90.803(22), Florida Statutes, concerning

5179when the deposition might be admissible as "Former Testimony."

518828. Pursuant to Section 90.804(2)(a), a deposition may be

5197introduced into evidence only upon a showing that the witness is

5208unavailable. Conversely, Section 90.803(22) requires no showing

5215of witness unavailability before a deposition may be admitted as

5225former testimony, but both hearsay rules apply to a deposition

5235taken in the same or another proceeding and require that the

5246party against whom the deposition is offered be identical to the

5257party with the same interest in the prior proceeding or

5267deposition or its successor in interest, and that it had "an

5278opportunity or similar motive to develop the testimony by

5287direct, cross, or re-direct examination."

529229. In the case of Grabau v. Department of Health, Board

5303of Psychology , 816 So. 2d 701, 709 (Fla. 1st DCA 2002), the

5315court found that Section 90.803(22), is unconstitutional because

5323it violates the separation of powers by usurping the Florida

5333Supreme Court's constitutional authority to implement rules of

5341procedure for courts. Thus, the court held that the

5350introduction of a deposition as former testimony in a hearing

5360without a showing of the witness's unavailability, would violate

5369due process of law because of conflict with Florida Rules of

5380Civil Procedure 1.330. The Florida courts have also ruled that

5390depositions violative of Rule 1.330 are inadmissible in civil

5399proceedings. See Jones v. R.J. Reynolds Tobacco Co. , 830 So. 2d

5410854, 855 (Fla. 2d DCA 2002)(trial court did not err in finding

5422depositions introduced under hearsay rule 90.803(22)

5428inadmissible in a civil trial); Collins v. Timber , 536 So. 2d

5439351, 352 (Fla. 1st DCA 1988)(error for court to rely upon

5450deposition testimony where deponent's absence at hearing "not

5458shown to be excused" by Rule 1.330(a)(3); Friedman v. Friedman ,

5468764 So. 2d 754, 755 (Fla. 2d DCA 2000)(discovery deposition

5478inadmissible as substantive evidence unless it satisfies

5485requirements of Rule 1.330(a)(3), which governs former testimony

5493hearsay rule 90.803(22).

549630. Detective Lavalley's deposition is not admissible

5503because Section 90.803(22) has been determined to violate the

5512Florida Constitutional provision that rules of procedure have to

5521be adopted by the Florida Supreme Court. See Grabau , 816 So. 2d

5533709 ("amended statute is unconstitutional as an infringement on

5543the authority conferred on the Florida Supreme Court . . . and

5555denies due process"); Jones , 830 So. 2d 855, citing In Re:

5567Amendments to the Florida Evidence Code, 782 So. 2d 339, 342

5578(Fla. 2000)(supreme court "refus[ed] to adopt section 90.803(22)

5586as a rule of evidence, expressing 'grave concerns' about the

5596statute's constitutionality"). Since evidence in an

5603administrative proceeding may support a finding of fact only if

5613admissible in Florida courts over objection, the

5620unconstitutionality of 90.803(22), as applied to the

5627circumstances surrounding the proffer of the deposition, would

5635prevent Detective Lavalley's deposition from being relied upon

5643as evidence by the administrative law judge in this proceeding.

565331. In this case, the deposition of Detective Lavalley's

5662was introduced by the Respondent without any showing that the

5672detective was unavailable under Rule 1.330(a)(3). Moreover,

5679although the deposition was reportedly noticed by the Respondent

5688for "purposes of discovery, for use at trial . . . " neither

5700Respondent's counsel nor Detective Lavalley indicated during the

5708deposition or afterward that he would not or could not be made

5720available at the hearing. In fact, the Respondent did not show

5731that any attempt was made to procure the appearance of Detective

5742Lavalley at the hearing, even though the hearing took place in

5753Jacksonville and Detective Lavalley at times pertinent hereto

5761has been a member or officer of the Jacksonville sheriff's

5771office, located in Duval County, well within 100 miles of the

5782hearing site. As of the time that Detective Lavalley was

5792deposed, Respondent had failed to name him as a witness in its

5804responses to interrogatories requesting the names of each

5812witness whom the Respondent expected to testify. See

5820Petitioner's Exhibit 3. The Respondent's responses to

5827interrogatories were served four days before the Respondent

5835issued the notice of Detective Lavalley's deposition, issued on

5844July 19, 2007. It is not necessary that a witness deposed for

5856discovery purposes also be used at trial, since deposition

5865testimony may also be used solely for impeachment or rebuttal of

5876a witness or in cases where the witness is unavailable. Thus,

5887the Respondent's noticing of the deposition for "purposes of

5896discovery, for use at trial . . ." did not give adequate notice

5909to the Petitioner that it did not plan to produce Detective

5920LaValley as a witness at the hearing.

592732. Inasmuch as the Petitioner's counsel was not informed

5936that Detective Lavalley would be unavailable or that the

5945Respondent's counsel did not intend to call him in person for

5956the hearing, the Petitioner's counsel is deemed to have lacked

5966the same "motive" to cross-examine him as he would have had in

5978circumstances where he knew that Detective Lavalley would be

5987unavailable at the hearing. See Bobby C. Billie and Shannon

5997Larsen v. St. Johns River Water Mgmt. Dist. and Marshall Creek

6008Cmty, Dev. Dist. , DOAH Case No. 03-1881 (2004)(party unaware

6017that expert witness would be unavailable at trial lacked same

6027motive to question expert as in circumstances where party seeks

6037to preserve testimony for trial); Friedman , 764 So. 2d 755

6047("attorney taking a discovery deposition does not approach the

6057examination of a witness with the same motive as one taking a

6069deposition for purpose of presenting testimony at trial"); Okan,

6079Inc., d/b/a Choice Pharmacy v. Agency for Health Care Admin. ,

6089DOAH Case No. 00-0113MPI (2002)(where deponent gave no

6097indication he would be unavailable for hearing, unsworn attorney

6106statements may be insufficient predicate for introduction of

6114deposition testimony); Paul Corbiey and Barbara Corbiey v.

6122Action Instant Concrete, LLC and Dep't of Envtl. Protec. , DOAH

6132Case No. 05-2891 (2006)(discovery deposition insufficient to

6139support finding where no predicate laid for unavailability of

6148witness under Rule 1.330(a)(3)(b) and both former testimony

6156hearsay exceptions require similar motive to develop deponent's

6164testimony on direct or cross-examination).

616933. Therefore, the introduction of Detective Lavalley's

6176deposition testimony, as former testimony, conflicts with Rule

61841.330(a)(3), Florida Rules of Civil Procedure, and, if allowed,

6193would amount to an unconstitutional employment of the hearsay

6202exception contained in Section 90.803(22), Florida Statutes,

6209based upon the interpretation of the court in the Grabau

6219decision. It would violate the Petitioner's due process right

6228to a fair hearing.

623234. Since Detective Lavalley's deposition is inadmissible,

6239Respondent's Exhibits one, two, three, four, and five cannot be

6249corroborative or explanatory hearsay, based upon the now-

6257determined inadmissibility of Detective Lavalley's testimony.

6263The admissibility of Exhibits one, two, three, four, and five

6273under the circumstances of the objections as to hearsay

6282concerning the public records exception, business records

6289exception, and the party admission or statement exception to the

6299hearsay rule, as well as the issues of relevancy and

6309authentication will next be addressed. It is noted that these

6319exhibits cannot be corroborative or explanatory hearsay pendant

6327to the testimony of Respondent's witness Gaines either, since

6336witness Gaines had no competency as a witness to testify to the

6348matters depicted in Respondent's Exhibits one, two, three, four,

6357and five or to those contained in Detective Lavalley's

6366deposition testimony in Respondent's Exhibit seven. Witness

6373Gaines only knew of these matters through obtaining the

6382documents which constitute these exhibits, when preparation for

6390the subject agency action was commenced at the agency during the

"6401free-form" stage of this proceeding. Witness Gaines had no

6410direct or personal knowledge of such matters.

6417Petitioner's Exhibits 1 and 2 - the Arrest and

6426Booking Report and the State Attorney's Information

643335. In an administrative hearing "irrelevant, immaterial,

6440or unduly repetitious evidence" should be excluded.

6447§ 120.569(2)(g), Fla. Stat. (2007). Under the subject forfeiture

6456statute, quoted above, an employee's pension may only be

6465forfeited for a conviction or plea to a specified offense under

6476that statute. Thus, documents such as the Petitioner's Arrest

6485and Booking Report and the charges, embodied in the state

6495attorney's Information, from the underlying criminal case, which

6503were offered into evidence are irrelevant in establishment of the

6513Petitioner's ultimate plea or conviction, concerning which the

6521Respondent is proceeding in this case. See Metropolitan Dade v.

6531Wilkey , 414 So. 2d 269, 271 (Fla. 3d DCA 1982), citing Stevens v.

6544Duke , 42 So. 2d 361 (Fla. 1949)("The fact that charges were filed

6557. . . was irrelevant to the issue of civil liability for actions

6570upon which the charges were originally founded. If a guilty

6580verdict cannot be introduced as evidence to prove liability and

6590the plea of guilty may be used only because it is an admission

6603against interest, it then falls that nothing less substantial,

6612i.e., indictment and dismissal, can be entered as evidence of

6622liability.") Thus, the Arrest and Booking Report in Respondent's

6632Exhibit one and the Information in Respondent's Exhibit two are

6642irrelevant and immaterial in establishing the relevant plea or

6651conviction of any specified offense under which forfeiture is

6660sought in this proceeding.

666436. The documents contained in Respondent's exhibits one

6672and two further are inadmissible hearsay. Though offered as

6681exceptions to the hearsay rule under the public records exception

6691contained in Section 90.803(8), Florida Statutes, they do not

6700qualify under that exception. In Florida, in criminal cases at

6710least, matters observed by police officers or other law

6719enforcement personnel are not admissible under the public records

6728exception to the hearsay rule. The limitation is based on the

6739belief by courts that observations by officers at the scene of a

6751crime or when a defendant is arrested are not as reliable as

6763observations by public officials in other cases or categories

6772because of the adversary nature of the confrontation between the

6782police and the defendant on such occasions. Be that as it may,

6794the more germaine reason the Respondent's Exhibits one and two

6804are inadmissible in this non-criminal proceeding, under the

6812public records exception to the hearsay rule is embodied in the

6823third reason, referenced in Ehrhardt, Florida Evidence , 2005

6831Edition, Section 803.8, p. 784, specifically and intentionally

6839omitted from the hearsay exception in Section 90.803(8) of the

6849Florida Evidence Code. Thus, records of a public body that rely

6860upon information supplied by outside sources, or records which

6869contain evaluations or statements of opinion by a public official

6879are inadmissible hearsay under the Florida Evidence Code. See

6888Lee v. Department of Health and Rehabilitative Services , 698 So.

68982d 1194, 1201 (Fla. 1987)(In an action alleging negligence of

6908HRS, a written report of HRS employee who investigated the

6918incident was inadmissible under Section 90.803(8):

6924Records that rely on information supplied by

6931outside sources or that contain evaluations

6937or statements of opinion by a public

6944official are inadmissible under . . .

6951[Section 90.803(8)]. 'In Florida, rather

6956than offering this type of record, a witness

6964must be called who has personal knowledge of

6972the facts.' (Quoting text).

6976Therefore, in addition to being irrelevant and immaterial,

6984Respondent's Exhibits one and two are inadmissible hearsay

6992because they contain an official's evaluations or statements of

7001opinion and do not qualify for admission under the public

7011records exception to the hearsay rule contained in Section

702090.803(8), Florida Statutes. The exhibits are not admissible

7028under the business records exception for the reasons determined

7037in the Preliminary Statement above.

704237. Respondent's Exhibit three consists of the plea of

7051guilty and negotiated sentence. The document consisting of

7059Respondent's exhibit three was not actually properly

7066authenticated because it was not certified by the clerk of the

7077circuit court for Duval County, custodian of that record. The

7087administrative law judge, however, exercised discretion and

7094ruled at the hearing that the circumstances appearing on the

7104face of the document, and the circumstances concerning how it

7114was obtained by the Respondent for offer into evidence, shows

7124circumstantial authenticity, sufficient to rule that the

7131document is authentic for propose of Section 90.901, Florida

7140Statutes. The plea of guilty and negotiated sentence is

7149admissible as an exception to the hearsay rule since it

7159constitutes a statement of a party or a party admission for

7170purposes of Section 90.803(18)(a), Florida Statutes.

717638. Respondent's Exhibit four consists of the Judgment of

7185Conviction entered in the underlying criminal case. That

7193Judgment was entered pursuant to the guilty plea of the

7203Petitioner herein. Under Florida law, a conviction is not

7212admissible in subsequent litigation to prove the truth of some

7222essential element in the conviction. The Judgment of Conviction

7231is hearsay and the evidence code does not contain an exception

7242to the hearsay rule. See § 90.803(22)(a), Fla. Stat.; Charles

7252Ehrhardt, Florida Evidence, 2005 Edition (no hearsay exception

7260is recognized in Florida for judgments of conviction). See

7269Boshnack v. Worldwide Rental Car , 195 So. 2d 216, 218 (Fla.

72801967)("A judgment of conviction in a criminal prosecution cannot

7290be given in evidence in an action to establish the truth of the

7303facts on which it is rendered . . . ."); Williams v. Castor , 613

7318So. 2d 97, 99 (Fla. 1st DCA 1993) ("The law is well established

7332that a judgment of conviction of a criminal offense, whether

7342based on a plea of guilty or nolo contendere , is not admissible

7354in a subsequent civil proceeding as proof of the facts on which

7366it is based."); Nunez v. Gonzales , 456 So. 2d 1336, 1338 (Fla.

73792d DCA 1984)(In suit to cover proceeds of insurance policy,

7389evidence of beneficiaries' guilty plea to manslaughter of

7397insured was inadmissible: "It is well settled that a judgment

7407of conviction cannot be introduced into evidence in a civil

7417action to establish the truth of the facts upon which it was

7429rendered."). Thus, the judgment of conviction in exhibit four

7439and the related judgment and restitution order in exhibit five

7449are hearsay and cannot be admitted in this proceeding for proof

7460of the facts underlying the entry of the judgments. Under

7470Section 92.05, Florida Statutes (2007), however, as a final

7479judgment or decree they are admissible only as prima facie

7489evidence of the entry and validity of the judgments.

749839. Therefore, at most, the judgment of conviction shows

7507that the Petitioner was convicted of the original Count II in

7518the information filed in the underlying criminal proceeding,

7526which was simply actual or constructive possession of a

7535controlled substance, shown on the Judgment to be a third-degree

7545felony and in violation of Section 893.13(c)(a), Florida

7553Statutes. The judgment and restitution order in exhibit five

7562shows the Petitioner's name as defendant, his race, sex, and

7572social security number and shows that restitution in the amount

7582of $860.00 was ordered paid as "restitution costs" for the

7592benefit of the Department of Health. Thus, these judgments

7601stand, at most, for what it is depicted on the face of them,

7614without them constituting proof of any underlying facts

7622concerning the conviction and restitution order. Therefore, at

7630most, they show that the Petitioner was convicted of the third-

7641degree felony referenced and that restitution was ordered to the

7651Department of Health. There are no facts in this record to show

7663why restitution was ordered to the Department of Health. In the

7674negotiated plea process it may even have been a situation where

7685investigation costs were being reimbursed.

769040. In any event, neither of these judgments, or any other

7701admissible evidence of record, shows that the Petitioner

7709perpetrated acts which amount to facts showing that the above-

7719referenced statute, under which the Division is proceeding, has

7728been violated. He has been shown to have committed the third-

7739degree felony referenced, but there is no showing that he had

7750any intent or motivation to defraud the public or the public

7761agency for whom he was employed of the right to receive the

"7773faithful performance of his . . . duty" as a public officer or

7786employee, or that he realized or obtained, or attempted to

7796realize or obtain, a profit, gain or advantage for himself or

7807some other person. There is no actual showing by competent,

7817admissible evidence that the Petitioner took drugs unlawfully

7825from an employer or at the very least that he took them from the

7839Department of Health or the Department of Health's pharmacy. He

7849could have, for instance, been dually employed at some other

7859pharmacy, as well, and could have taken the drugs in question

7870(codeine) from such location or opportunity. There is no

7879admissible evidence as to who purloined the drugs from the

7889Department of Health or any other location for that matter. It

7900is worth noting that he was convicted of "actual or constructive

7911possession," to which he pled guilty. If he was charged with

7922actual or constructive possession it might even be the case that

7933some other person took the drugs and he was apprehended with

7944them in his vehicle or in some other way deemed to have them in

7958his constructive possession. The preponderant, persuasive

7964evidence of record simply does not prove facts to show that he

7976is in violation of Section 112.3173(2)(e)6., Florida Statutes,

7984under which the division is proceeding, nor, in a parenthetical

7994sense, that he committed any violation of paragraph 1-5 of that

8005statutory subsection because there are no facts established by

8014credible, persuasive evidence showing that he committed any

8022theft; bribery certainly was not at issue, nor was embezzlement.

803241. As the party seeking forfeiture of the Petitioner's

8041retirement benefits, the Respondent has the burden of producing

8050preponderant, credible evidence of a competent nature to prove

8059that the forfeiture is warranted. See Department of Banking and

8069Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

80801996). As forfeiture is considered a harsh remedy, the Florida

8090courts have consistently stated that forfeiture statutes must be

8099strictly construed, with doubt being resolved in favor of the

8109one who's rights are sought to be forfeited. Williams v.

8119Christian , 335 So. 2d 358, 361 (Fla. 1st DCA 1976). See also

8131Cabrera v. Department of Natural Resources , 478 So. 2d 454, 455-

8142456 (Fla. 3d DCA 1985). Under this principle, the Respondent

8152has failed to present preponderant, credible evidence that the

8161Petitioner's pension should be forfeited.

816642. Under the above-referenced statute, an employee's

8173pension may only be forfeited for a "specified offense" as

8183defined in the statute. It is not the crime with which a person

8196is arrested or charged that determines if the pension should be

8207forfeited, but rather the crime for which the Defendant pled

8217guilty or for which he was convicted, or the conduct which he

8229admitted committing. Other than a felony offense under Section

8238112.3173(2)(e)6., which relates to a public official or

8246employee's duties, the specified offenses for which a person's

8255pension can be forfeited are embezzlement, theft, bribery, and

8264an impeachable offense, or certain felonies contained in Chapter

8273838, Florida Statutes (Bribery or misuse of public office). In

8283this case, the Respondent did not present any competent evidence

8293that the Petitioner has been convicted of, pled guilty to, or

8304committed any of those specified offenses set forth in

8313Subsection 112.3173(2)(e)1-5, and has conceded it is not

8321proceeding under paragraph 1-5 of that subsection.

832843. Moreover, because the Respondent is proceeding, by its

8337own admission, only under Section 112.3173(2)(e)6., as the basis

8346for forfeiture, the Respondent had the burden of proving by a

8357preponderance of evidence that the conduct and conviction of the

8367Petitioner satisfied all elements of Section 112.3173(2)(e)6.

8374In addition to not proving that the Petitioner had the necessary

8385intent to defraud the public or the public agency for which he

8397acted or by which he was employed of the right to receive the

8410faithful performance of his duties, and in addition to failing

8420to prove that the Petitioner realized, obtained, or attempted to

8430realize or obtain any profit, gain or advantage for himself or

8441another through the use or attempted use of the powers and

8452duties of his employment position, the Respondent has failed to

8462present any credible, persuasive evidence of the Petitioner's

8470job duties or responsibilities. Thus, a nexus between those

8479duties and the relevant acts for which he was convicted has not

8491been proven.

849344. The Petitioner's job duties were not identified, nor

8502how he breached them. It was proved, at most, that the

8513Petitioner was a pharmacist employed by the Department of

8522Health, and was convicted of illegal drug possession and that

8532restitution was ordered. The Respondent did not establish

8540specifically where he was employed, or in what location his

8550duties were to be performed, or how he came into possession of

8562the codeine vis a vis his employment. The Respondent did not

8573establish that the Petitioner had the intent to defraud the

8583public or a public agency and the Respondent failed to meet the

8595statutory requirement of proof of a nexus between the crime and

8606the duties of his position. See Magyari v. City of Starke , DOAH

8618Case No. 06-3701 (2007); Page v. Department of Management

8627Services, Division of Retirement , DOAH Case No. 05-0532 (2005);

8636Ellis v. Division of Retirement , DOAH Case No. 97-1357 (1997);

8646and Warshaw v. City of Miami Firefighters and Police Officers

8656Retirement Trust , 885 So. 2d 892 (Fla. 3d DCA 2004) (concerning

8667the statutory requirement of proof of a nexus between the crimes

8678committed or convicted and a public employee and his duties and

8689position).

869045. The Respondent did not adduce any persuasive evidence

8699that the Petitioner deprived his employer of something of value

8709as required by the statute. The admissible evidence presented

8718by the Respondent simply did not make that connection. The

8728Respondent did not prove with any substantial, persuasive

8736evidence that the Petitioner acted "willfully with an intent to

8746defraud" the public or his employer, as is explicitly required

8756by the statute under which the Respondent is proceeding.

876546. The Respondent's only witness, Mr. Gaines, a division

8774benefits administrator, was not in a position to competently

8783testify regarding the Petitioner's duties at the Department of

8792Health and how his alleged crime related to those duties, nor

8803could he testify as to the Petitioner's conduct or how it

8814deprived the Department of Health of the right to "receive the

8825faithful performance of his duties." Mr. Gaines was unable to

8835testify as to the motives of the Petitioner and whether he acted

"8847willfully" or "with intent to defraud" his employer or the

8857public. The Respondent failed to put forth in any other

8867admissible evidence or witness who could testify regarding these

8876necessary statutory elements.

"8879Challenge" to the unpromulgated rule

888447. In its petition and its proposed recommended order,

8893the Petitioner raises the argument that the potential breadth of

8903the "catchall" provision (Section 112.3173(2)(e)6, Florida

8909Statutes), is "enormous" and without agency clarification would

8917permit the agency, in its unbridled discretion, to "forfeit

8926pensions for virtually any felony imaginable." The Petitioner

8934then contends that an agency rule should have been promulgated

8944to address the parameters of agency discretion and that the

8954failure to promulgate a rule or rules renders the agency without

8965legitimate legal authority to take action on the subject either

8975directly or through the adjudicatory process, citing Kerper v.

8984Department of Environmental Protection , 894 So. 2d 1006, 1010

8993(Fla. 5th DCA 2005).

899748. The Petitioner cites Section 120.54(1)(a), Florida

9004Statutes (2007), for the proposition that rulemaking is not a

9014matter of discretion for the agency and that each "agency

9024statement" defined as a rule in Section 120.52, Florida

9033Statutes, shall be adopted by rulemaking as soon as "feasible

9043and practicable." The Petitioner contends that if the agency

9052neglects to act on its rulemaking power and attempts to

9062promulgate policy of general applicability on an ad hoc basis,

9072by orders in particular cases, then rulemaking must be a

9082predicate for further action and, if necessary, agency action

9091should be invalidated if taken without rulemaking. The

9099Petitioner cites General Dev. Corp. v. Division of State

9108Planning, Department of Administration , 353 So. 2d 1199, 1209

9117(Fla. 1st DCA 1977), in furtherance of this argument.

912649. The Petitioner cannot prevail on this position for

9135several reasons. First, the Petitioner has not proven that the

9145agency here is seeking to implement or proceed under any "agency

9156statement of general applicability" in prosecuting this case and

9165in carrying out its duties under Section 112.3173(2)(3)6.,

9173Florida Statutes. It is not operating in this proceeding on an

9184ad hoc basis, seeking to promulgate a policy of general

9194applicability. Rather, the agency's position in this case,

9202regarding the statute it is attempting to enforce, is specific

9212to the facts it believed with regard to the Petitioner and his

9224employment position and duties, and the particular felony of

9233which he was convicted. There is no attempt here to establish,

9244employ, or apply any agency statement or policy of "general

9254applicability," so what the agency was attempting in this

9263proceeding does not constitute a rule, which would place the

9273duty on the agency to embark on rulemaking before enforcing

9283such.

928450. Moreover, this is not a properly pled and noticed rule

9295challenge proceeding. Although the Petitioner raised this

9302argument in its amended petition, and although it is possible to

9313hear a rule challenge proceeding in conjunction with Section

9322120.57 and Section 120.569 proceeding, the jurisdiction of the

9331Division of Administrative Hearings is different between the two

9340types of proceeding, the former requiring a final order on a

9351petition filed directly with the Division of Administrative

9359Hearings and the latter requiring a recommended order, with the

9369final order being entered by the referring agency.

937751. Even if the purported rule challenge allegation raised

9386in the amended petition could be deemed to be at issue herein,

9398with proper notice in this 120.57(1) proceeding, (which was

9407without objection) and even though it is possible to hear the

9418rule challenge and the "substantial interest" proceeding on a

9427consolidated record and to carve out the rule challenge issue

9437for entry of a separate final order, such is unnecessary. The

9448Petitioner failed to adduce any evidence whatever in support of

9458its position regarding the agency purportedly acting in this

9467proceeding based upon an unpromulgated policy of general

9475applicability. No evidence whatever was presented to show any

9484such policy being in existence or employed in this case. The

9495agency was simply acting with the factual evidence it believed

9505it could advance in order to attempt to show that the statutory

9517elements referenced above could be established. There is no

9526attempt by the agency to advance any generally applicable policy

9536shown by the evidence in this record.

954352. In spite of its argument in the proposed recommended

9553order to the contrary, the failure to advance any substantial

9563evidence of such a policy results in the effective abandonment

9573of this argument or allegation by the Petitioner. A rule

9583challenge must be initiated by the filing of a separate

9593petition, directly with the Division of Administrative Hearings.

9601It triggers its own discreet timeline for notice, hearing and

9611entry of a final order. Jurisdiction of an unpromulgated rule

9621challenge was not properly invoked.

962653. The Petitioner has moved for an award of attorney's

9636fees and costs pursuant to Section 57.105, Florida Statutes, and

9646has given the Respondent notice of such. In order for an award

9658of attorney's fees and costs to be at issue, stemming from a

9670proceeding such as this, the Petitioner must first become a

"9680prevailing party" under that section. That cannot occur in

9689this case until a final order has been entered by the Respondent

9701agency, and/or by an appellate court. Thus, the motion for

9711attorney's fees and costs pursuant to Section 57.105, Florida

9720Statutes (2007), must be the subject of a separate petition

9730filed once the Petitioner becomes a prevailing party, if he

9740does, upon conclusion of this proceeding.

974654. For purposes of the attorney's fee request or argument

9756regarding Section 120.569(2)(e), Florida Statutes, there has

9763been no proof that any pleading, motion or paper in this

9774proceeding has been filed or interposed for an improper purpose,

9784such as to harass or to cause unnecessary delay or for frivolous

9796purpose or for needlessly increasing the cost of litigation.

9805The motion for fees and costs pursuant to Section 120.569(2)(e),

9815Florida Statutes, is denied.

981955. Further, to the extent the Petitioner seeks an award

9829of attorney's fees and costs under Section 120.595(4)(a),

9837Florida Statutes, there has been no substantial evidence to show

9847that such should be awarded. That statutory provision provides

9856that if, upon entry of a final order, all or part of an agency

9870statement violates 120.54(1)(a), Florida Statutes, then the

9877administrative law judge shall award reasonable costs and a

9886reasonable attorney's fee to the Petitioner. Even had a Section

9896120.54(1)(a) challenge been filed by appropriate petition, there

9904has been no proof that there is any agency statement of general

9916applicability being employed in this proceeding and therefore no

9925evidence to show that an unpromulgated, non-rule policy has been

9935used to support the forfeiture of retirement benefits.

9943Therefore, the request for attorney's fees for purposes of

9952Section 120.595(4), Florida Statutes (2007), is denied.

9959RECOMMENDATION

9960Having considered the foregoing Findings of Fact,

9967Conclusions of Law, the evidence of record, the candor and

9977demeanor of the witnesses, and the pleadings and the arguments of

9988the parties, it is, therefore,

9993RECOMMENDED that a final order be entered by the Department

10003of Management Services, Division of Retirement, finding that the

10012Petitioner's retirement benefits should not be forfeited and that

10021all such benefits be restored.

10026DONE AND ENTERED this 30th day of January, 2008, in

10036Tallahassee, Leon County, Florida.

10040S

10041___________________________________

10042P. MICHAEL RUFF

10045Administrative Law Judge

10048Division of Administrative Hearings

10052The DeSoto Building

100551230 Apalachee Parkway

10058Tallahassee, Florida 32399-3060

10061(850) 488-9675 SUNCOM 278-9675

10065Fax Filing (850) 921-6847

10069www.doah.state.fl.us

10070Filed with Clerk of the

10075Division of Administrative Hearings

10079this 30th day of January, 2008.

10085ENDNOTE

100861/ All statutory references are to Florida Statutes (2003),

10095unless otherwise noted.

10098COPIES FURNISHED :

10101Sarabeth Snuggs, Director

10104Division of Retirement

10107Department of Management Services

10111Post Office Box 9000

10115Tallahassee, Florida 32315-9000

10118John Brenneis, General Counsel

10122Division of Retirement

10125Department of Management Services

101294050 Esplanade Way

10132Tallahassee, Florida 32399-0950

10135Geoffrey M. Christian, Esquire

10139Department of Management Services

101434050 Esplanade Way, Suite 160

10148Tallahassee, Florida 32399-0950

10151Thomas A. Delegal, III, Esquire

10156Delegal Law Offices, P.A.

10160424 East Monroe Street

10164Jacksonville, Florida 32202

10167NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

10173All parties have the right to submit written exceptions within

1018315 days from the date of this Recommended Order. Any exceptions

10194to this Recommended Order should be filed with the agency that

10205will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/28/2008
Proceedings: Notice of Stipulated Settlement Agreement filed.
PDF:
Date: 01/30/2008
Proceedings: Recommended Order
PDF:
Date: 01/30/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/30/2008
Proceedings: Recommended Order (hearing held August 22, 2007). CASE CLOSED.
PDF:
Date: 10/11/2007
Proceedings: Petitioner`s Proposed Findings of Fact and Conclusion of Law and Supporting Memorandum of Law filed.
PDF:
Date: 10/11/2007
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 10/05/2007
Proceedings: Notice of Filing Petitioner`s Motion for Attorneys` Fees Pursuant to Section 57.105(5), Florida Statutes filed.
PDF:
Date: 10/05/2007
Proceedings: Petitioner`s Motion for Attorneys` Fees Pursuant to Section 57.105(5), Florida Statutes, Directed to Respondent`s Refusal to Withdraw its Opposition to His Petition Challenging Forfeiture of Retirement Benefits filed.
Date: 09/11/2007
Proceedings: Transcript filed.
Date: 08/22/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/20/2007
Proceedings: Notice of Filing List of Exhibits (exhibits not available for viewing).
PDF:
Date: 08/17/2007
Proceedings: Respondent`s Notice of Filing Exhibit (Exhibit Seven, exhibit not available for viewing).
PDF:
Date: 08/14/2007
Proceedings: Respondent`s Unilateral Pre-hearing Statement filed.
PDF:
Date: 08/13/2007
Proceedings: Index of Respondent`s Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 08/13/2007
Proceedings: Respondent`s Notice of Filing Exhibits filed.
PDF:
Date: 07/27/2007
Proceedings: Respondent`s Notice of Production of Documents filed.
PDF:
Date: 07/26/2007
Proceedings: Respondent`s Response to First Request for Admissions filed.
PDF:
Date: 07/23/2007
Proceedings: Respondent`s Notice of Serving Answers to Interrogatories filed.
PDF:
Date: 07/19/2007
Proceedings: Respondent`s Notice of Taking Telephonic Deposition filed.
PDF:
Date: 06/19/2007
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 22, 2007; 10:30 a.m.; Jacksonville, FL).
PDF:
Date: 06/15/2007
Proceedings: Amended Motion for Continuance filed.
PDF:
Date: 06/14/2007
Proceedings: Petitioner`s Notice of Service of Interrrogatories filed.
PDF:
Date: 06/14/2007
Proceedings: Petitioner`s First Request for Production of Documents to Respondent filed.
PDF:
Date: 06/14/2007
Proceedings: Petitioner`s First Request for Admissions to Respondent filed.
PDF:
Date: 06/14/2007
Proceedings: Agreed Motion for Continuance filed.
PDF:
Date: 06/11/2007
Proceedings: (Petitioner`s) Motion for Continuance filed.
PDF:
Date: 06/07/2007
Proceedings: Motion for Continuance filed.
PDF:
Date: 05/22/2007
Proceedings: Notice of Hearing (hearing set for July 18, 2007; 10:00 a.m.; Jacksonville, FL).
PDF:
Date: 05/22/2007
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/15/2007
Proceedings: Notice of Action to Forfeit Retirement Benefits filed.
PDF:
Date: 05/15/2007
Proceedings: Amended Petition Challenging Forfeiture of Retirement Benefits filed.
PDF:
Date: 05/15/2007
Proceedings: Respondent`s Notice of Election to Request for Assignment of Administrative Law Judge filed.
PDF:
Date: 05/15/2007
Proceedings: Initial Order.

Case Information

Judge:
P. MICHAEL RUFF
Date Filed:
05/15/2007
Date Assignment:
05/15/2007
Last Docket Entry:
04/28/2008
Location:
Jennings, Florida
District:
Northern
Agency:
Department of Management Services
 

Related DOAH Cases(s) (8):

Related Florida Statute(s) (15):