08-001829 Kenneth Jenne vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, March 3, 2009.

Summary: Petitioner used his position as sheriff to receive money and benefits that he failed to report. He committed crimes and the acts associated with those crime constitute a felony under Florida law warranting the forfeiture of his FRS benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH JENNE, )

)

Petitioner, )

)

vs. ) Case No. 08-1829

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

A formal hearing was not held in this case. The parties

entered a Joint Stipulation of Facts and Joint Exhibits on

November 10, 2008. In accordance with their agreement the

parties filed Proposed Recommended Orders to be considered in

the preparation of a Recommended Order. This Recommended Order

is entered in accordance with the agreement of the parties.

APPEARANCES

For Petitioner: Mark Herron, Esquire

Thomas M. Findley, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317-5579

For Respondent: Clifford A. Taylor, Esquire

Barbara M. Crosier, Esquire

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

Whether the Petition has forfeited his rights and benefits

under the Florida Retirement System (FRS) as a result of a

guilty plea in the United States District Court, Southern

District of Florida, for acts committed in connection with

Petitioner's employment with the Broward County Sheriff's

Department.

PRELIMINARY STATEMENT

On April 14, 2008, the Petition for Formal Administrative

Hearing (the Petition) was filed with the Division of

Administrative Hearing for formal proceedings. The Petition

challenged the decision of the Department of Management

Services, Division of Retirement (Respondent or Department)

dated January 24, 2008, that notified Petitioner, Kenneth Jenne

(Petitioner), that his retirement benefits had been forfeited in

accordance with Florida law. More specifically, the notice

claimed that in accordance with forfeiture statutes, Sections

112.3173 and 121.091(5), Florida Statutes (2008), Petitioner had

pled guilty to crimes that required the forfeiture of this

retirement benefits. The Petition timely challenged that

decision.

In accordance with the Joint Response to the Initial Order

(and because Petitioner was incarcerated and unavailable to

meaningfully contribute to the preparation for hearing) the

hearing was scheduled for formal proceedings for October 14-15,

2008. On September 22, 2008, Petitioner filed a Motion for

Continuance of Final Hearing. Additionally, the Respondent

filed a Motion for Order Determining That No Genuine Issue as to

Any Material Fact Exists. A telephone conference call was

conducted with the parties on October 9, 2008, to afford the

parties with an opportunity to comment on the pending motions.

Subsequently, the hearing was cancelled and the parties'

stipulation regarding the submission of evidence in this cause

was entered into the record.

In essence, the parties agreed to submit a statement of

facts along with exhibits upon which the undersigned would enter

a recommended order. Although the Respondent maintained that

there were no disputed issues of material fact to be resolved by

an administrative hearing, Petitioner contended that there are

issues that preclude an informal proceeding. Nevertheless, the

parties represented that the case should proceed with the entry

of a recommended order based upon a record that the parties

would jointly submit.

Respondent requested, and official recognition has been

taken of the following case law pertinent to this matter:

Shields v. Smith , 404 So. 2d 1106 (Fla. 1st DCA 1981); Russell

v. State , 675 So. 2d 961 (Fla. 1st DCA 1996);

Busbee v. State, Division of Retirement , 685 So. 2d 914 (Fla.

1st DCA 1996); Newmans v. State, Division of Retirement , 701 So.

2d 573 (Fla. 1st DCA 1997); Jacobo v. Board of Trustees of Miami

Police , 788 So. 2d 362 (Fla. 3rd DCA 2001); Desoto v. Hialeah

Police Pension Fund Board of Trustees , 870 So. 2d 844 (Fla. 3rd

DCA 2003); Warshaw v. City of Miami Firefighters' & Police

Officers' Retirement Trust , 885 So. 2d 892 (Fla. 3rd DCA 2004);

Hames v. City of Miami Firefighters' & Police Officers'

Retirement Trust , 980 So. 2d 1112 (Fla. 3rd DCA 2008); and

Simcox v. City of Hollywood Police Officers' Retirement System ,

988 So. 2d 731 (Fla. 4th DCA 2008).

The parties submitted the Joint Stipulation of Facts and

the Joint Exhibits on November 10, 2008. The Proposed

Recommended Orders were filed a week later. The stipulations of

fact, all exhibits referenced by the stipulation, and the

parties' proposed orders have been fully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

From the Joint Stipulation of Facts:

1. The Florida Retirement System (FRS) is a public

retirement system as defined by Florida law.

2. Respondent is charged with managing, governing, and

administering the FRS on behalf of the Department of Management

Services.

3. Petitioner was employed as an Assistant State Attorney

by the State Attorney's Office from December 1972 to January

1974. During this time, Petitioner was a member of the FRS and

this service is credited as service under the FRS.

4. Petitioner was employed as Executive Director of the

Broward County Charter Commission from January 1974 to November

1974. During this time, Petitioner was a member of the FRS and

this service is credited as service under the FRS.

5. Petitioner was employed by the Broward County Board of

County Commissioners from March 1975 to November 1978. During

this time, Petitioner was a member of the FRS, and this service

is credited as service under the FRS.

6. In November 1978, Petitioner was elected to serve as a

member of the Florida Legislature; he continued to serve as a

state legislator for approximately 18 years. As a state

legislator, Petitioner was a member of the FRS class of State

Elected Officers, and this service is credited service under the

FRS.

7. Most recently, Petitioner was the elected Sheriff of

Broward County.

8. By reason of his service as Sheriff, Petitioner was a

member of the FRS.

9. Petitioner was initially appointed Sheriff in January

1998 by then-Governor Lawton Chiles.

10. Petitioner was subsequently elected Sheriff in 1998

and reelected in 2000 and 2004.

11. As Sheriff of Broward County, Petitioner was Broward

County's chief law enforcement officer and was responsible for

directing the Broward County Sheriff's Office ("BSO"), a law

enforcement agency that currently employs over 6,000 employees.

12. The office of Sheriff is a constitutional office

established under Article VIII, Section 1(d), Constitution of

Florida.

13. Upon assuming his duties as Sheriff of Broward County,

Petitioner took an oath to support, protect, and defend the

Constitution and Government of the United States and the State

of Florida and to faithfully perform the duties of sheriff

pursuant to Article II, Section 5(b), Constitution of Florida.

14. On or about September 4, 2007, Petitioner wrote a

letter to Governor Charlie Crist notifying him of his

resignation from the office of Sheriff of Broward County.

15. By reply letter of the same date, Governor Crist

accepted Petitioner's resignation.

16. Petitioner is not retired from the FRS and currently

does not receive FRS retirement benefits.

17. On or about September 4, 2007, Petitioner was charged,

by information, in the United States District Court for the

Southern District of Florida, in case number 0:07-cr-60209-WPB,

with one count of conspiracy to commit mail fraud, in violation

of Title 18, United States Code, Section 371, and three counts

of filing a false tax return, in violation of Title 26, United

States Code, Section 7206(1). The same four-count information

is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-

60209-WPB as document 1.

18. At all times relevant to the information, Petitioner

was the Sheriff of Broward County.

19. The section of the information entitled "General

Allegations" contains numerous references to Petitioner's

service as Sheriff of Broward County and the power and authority

vested in that position.

20. The "Objects of the Conspiracy" contained in count one

of the information states:

An object of the conspiracy was for JENNE to

unlawfully enrich himself by obtaining

monies from P.P. and L.N., who were Broward

Sheriff's Office vendors, by making false

representations, omitting to state material

facts, and concealing material facts

concerning, among other things, the ultimate

destination of monies that JENNE asked P.P.

and L.N. to give to his secretaries, A.V.

and M.Y. It was further an object of the

scheme for JENNE to perpetuate and conceal

the scheme and the actions taken in

furtherance of it by, among other things,

making false, misleading, and incomplete

statements in public filings and to

investigators.

21. The "Manner and Means of the Conspiracy" contained in

count one of the information states:

a. JENNE and M.Y. arranged for JENNE to

receive $20,000 from P.P. by having the

money transferred from P.P. through JENNE's

secretary, M.Y., to JENNE. JENNE and M.Y.

did this in order to conceal that JENNE was

the true recipient of the funds.

b. JENNE provided L.N. with access to off-

duty Broward Sheriff's Office deputies, who

L.N. hired to do work for his companies. On

two different occasions, in exchange for the

access to the deputies, JENNE instructed

L.N. to pay money to JENNE's secretary,

A.V., purportedly to compensate A.V. for

work done for L.N. JENNE instructed A.V. to

cash checks given to her by L.N. and to have

the cash deposited into JENNE's bank

account. JENNE and A.V. did this in order

to conceal that JENNE was the true recipient

of the funds, which totaled $5,500.

c. JENNE perpetuated this fraud and

attempted to prevent its detection by

mailing incomplete and misleading annual

financial disclosure forms, which did not

list his receipt of the payments from P.P.

and L.N., to the Florida Commission on

Ethics.

22. On or about September 5, 2007, after being advised of

the nature of the charges against him, the above-referenced

information, and of his rights, Petitioner waived in open court

prosecution by indictment and consented to proceeding by

information. The same waiver of indictment is filed in U.S.

District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as

document 13.

23. On or about September 5, 2007, Petitioner entered into

an agreement with the United States of America to plead guilty

as charged in the four-count information. The same plea

agreement is filed in U.S. District Court (S.D. Fla.) case

number 0:07-cr-60209-WPB as document 3.

24. Paragraph 7.c. of the plea agreement provides:

7. The United States and the defendant

agree that, although not binding on the

probation office or the court, they will

jointly recommend that the court make the

following findings and conclusions as to the

sentence to be imposed:

* * *

c. Advisory sentencing range on the

conspiracy to commit mail fraud count:

That, pursuant to U.S.S.G. § 2X1.1, the

applicable guideline to be used in

calculating the defendant's advisory

sentencing range on the conspiracy to commit

mail fraud count is § 2B1.1; that under §

2B1.1(a)(1), the Base Offense Level is 7;

that under § 2B1.1(b)(1)(C), four levels are

added because the loss was between $10,000

and $30,000; that under § 3B1.3, two levels

are added because of the defendant's abuse

of his position of public trust; and that

under § 3E1.1(b), two levels are subtracted

for acceptance of responsibility . . .

The United States Sentencing Guide, Section 3B1.3, referenced in

paragraph 7.c of the plea agreement, provides in relevant part

that "[i]f the defendant abused a position of public . . . trust

. . . in a manner that significantly facilitated the commission

or concealment of the offense, increase by 2 levels." USSG §

3B1.3.

25. Paragraphs 10. and 12. of the plea agreement provide:

10. The defendant confirms that he is

guilty of the offenses to which he is

pleading guilty; that his decision to plead

guilty is the decision that he has made; and

that nobody has forced, threatened, or

coerced him into pleading guilty. The

defendant affirms that he has discussed this

matter thoroughly with his attorneys. The

defendant further affirms that his

discussions with his attorneys have included

discussion of possible defenses that he may

raise if the case were to go to trial, as

well as possible issues and arguments that

he may raise at sentencing. The defendant

additionally affirms that he is satisfied

with the representation provided by his

attorneys. The defendant accordingly

affirms that he is entering into this

agreement knowingly, voluntarily, and

intelligently, and with the benefit of full,

complete, and effective assistance by his

attorneys.

* * *

12. This is the entire agreement and

understanding between the United States and

the defendant. There are no other

agreements, promises, representations, or

understandings.

26. On or about September 5, 2007, Petitioner entered a

statement of factual basis for guilty plea with the United

States of America (hereinafter "factual proffer"), wherein he

agreed that, if the case went to trial, the government would

have been able to establish the facts recited therein beyond a

reasonable doubt. The same factual proffer is filed in U.S.

District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as

document 8.

27. On or about September 5, 2007, a hearing was held in

which Petitioner pled guilty as charged in the information.

28. At the hearing, Petitioner admitted to committing the

acts set forth in the charges and to which he pled guilty.

29. In addition, at the hearing Petitioner admitted to the

following facts and to committing the following actions:

a. At no point in time did Petitioner ever disclose

to the public that he received an $8,130 benefit from P.P. in

November 2001 in connection with the demolition of a house he

owned in Lake Worth, Florida. Within P.P.'s internal accounting

system, the $8,130 check was attributed to the "HIDTA project"

(i.e., a lease committing BSO and HIDTA as tenants of an office

building owned by P.P.). Petitioner never reported the $8,130

benefit on any of his state ethics disclosure forms, nor did he

ever make a disclosure in any other fashion.

b. At no point in time did Petitioner ever disclose

to the public that, in September 2002, he had received $10,000

from P.P. as a reward for his work concerning a new company

called SuperTech Products, Inc. Petitioner never reported the

$10,000 payment on any of his state ethics disclosure forms, nor

did he ever make a disclosure in any other fashion.

c. Prior to becoming Sheriff, Petitioner was a

partner in Conrad, Scherer & Jenne, a law firm located in Fort

Lauderdale. Petitioner was with the firm from 1992 through the

beginning of 1998, when he left to become Sheriff. While

Petitioner was at the firm, he, like some other partners, drove

a car paid for by the firm's investment arm, CSJ Investments.

In October, 1997, at Petitioner's request, the law firm, through

CSJ Investments, bought a used 1994 Mercedes E320 convertible

for Petitioner to drive. The price of the Mercedes was $61,297.

Rather than pay for the car all at once, the firm financed the

car with a 60-month loan. When Petitioner left the firm in

early 1998 following his appointment as Sheriff, he took the

Mercedes with him. Despite the fact that Petitioner no longer

worked for the firm, the firm continued to pay off the Mercedes

loan for the balance of the loan term, making the final payment

in 2003. The loan payments were $1,320 per month, resulting in

a total eventual cost to the firm of approximately $79,234 in

loan payments, all but approximately $1,320, of which were made

after Petitioner had already left the firm to become Sheriff.

In addition, after Petitioner left the law firm, the firm

continued to pay for the insurance on the Mercedes. The

insurance payments continued even unto September 2007. At that

time, the firm had made a total of approximately $30,961 in

insurance payments on Petitioner's behalf, all but approximately

$880, of which were made after Petitioner had already left the

firm to become Sheriff. Petitioner never disclosed any of the

loan payments or insurance payments made by the firm on his

behalf on any state ethics filing. During the time that

Petitioner was receiving these undisclosed payments from Conrad,

Scherer, the firm was billing BCSO for legal work that it was

doing on its behalf.

30. At the hearing, Petitioner did not take any exception

or make any objections to the facts as summarized in the factual

proffer. In fact, with the exception of one non-substantive

addition, Petitioner accepted the factual proffer as indicated.

31. On or about November 16, 2007, a judgment was entered

on the aforesaid guilty plea, wherein Petitioner was adjudicated

guilty of all counts charged in the four-count information. The

same judgment is filed in U.S. District Court (S.D. Fla.) in

case number 0:07-cr-60209-WPB as document 59.

32. By certified letter dated January 24, 2008, Petitioner

was notified of Respondent's proposed action to forfeit his FRS

rights and benefits as a result of the aforesaid guilty plea.

The notice set forth the basis for the Division's decision and

informed Petitioner of his right to an administrative hearing.

33. Petitioner, by and through counsel, timely requested a

formal administrative hearing to challenge said proposed agency

action.

[End of Stipulated Facts]

34. The parties agreed that the following exhibits would

be considered in this cause:

a. Petitioner's resignation letter dated September 4,

2007;

b. Governor Crist's letter accepting Petitioner's

resignation dated September 4, 2007;

c. The Information filed against Petitioner on

September 4, 2007, in United States of America v. Kenneth C.

Jenne , Case No. 0:07-cr-60209-WPB, United States District Court,

Southern District of Florida;

d. The Plea Agreement offered in United States of

America v. Kenneth C. Jenne , Case No. 0:07-cr-60209-WPB, United

States District Court, Southern District of Florida;

e. The Statement of Factual Basis for Guilty Plea of

Defendant Kenneth C. Jenne in United States of America v.

Kenneth C. Jenne , Case No. 0:07-cr-60209-WPB, United States

District Court, Southern District of Florida;

f. The Transcript of the Plea of Guilty before the

Honorable William P. Dimitrouleas, U.S. District Judge, United

States of America v. Kenneth C. Jenne , Case No. 0:07-cr-60209-

WPB, United States District Court, Southern District of Florida;

g. The Waiver of Indictment from United States of

America v. Kenneth C. Jenne , Case No. 0:07-cr-60209-WPB, United

States District Court, Southern District of Florida;

h. The Judgment in a Criminal Case from United States

of America v. Kenneth C. Jenne , Case No. 0:07-cr-60209-WPB,

United States District Court, Southern District of Florida;

i. The Agency Action letter dated January 24, 2008;

j. Form 6 Full and Public Disclosure of Financial

Interests 2001 (with attachments and amendments), Ken Jenne,

Sheriff, Broward County, Elected Constitutional Officer,

June 27, 2002;

k. Form 6 Full and Public Disclosure of Financial

Interests 2002 (with attachments), Ken Jenne, Sheriff, Broward

County, Elected Constitutional Officer, July 7, 2003; and

l. Form 6 Full and Public Disclosure of Financial

Interests 2004 (with attachments), Ken Jenne, Sheriff, Broward

County, Elected Constitutional Officer, July 1, 2005.

35. Petitioner did not have a trial on the merits of the

charges against him. Instead, he voluntarily accepted and

admitted to the factual allegations set forth in the charging

and plea documents. The factual statements set forth in those

documents are not subject to interpretation or conjecture. They

must be considered facts of this case based upon the stipulation

of the parties.

36. Petitioner was notified of the Department's

preliminary decision to forfeit the FRS benefits and rights and

Petitioner timely challenged that decision.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearing has

jurisdiction over the parties to, and the subject matter of

38. Chapter 121, Florida Statutes (2008), is known as the

"Florida Retirement System Act." This chapter governs the

general retirement system established and known in this record

as the FRS.

39. The Department is responsible for administering and

managing the FRS.

40. In this case, the Respondent has asserted that

Petitioner through his criminal activity has forfeited his

rights and benefits under the FRS. According, as the proponent

of the affirmative of the issue, the Department bears the burden

of proof in this matter to establish by a preponderance of the

evidence that Petitioner committed a disqualifying offense such

that his rights and benefits under the FRS must be forfeited.

See Haines v. Department of Children and Families , 983 So. 2d

602 (Fla. 5th DCA 2008); Department of Transportation v. J.W.C.

Co. , 396 So.2d 778 (Fla. 1st DCA 1981) and § 120.57(1)(j), Fla.

Stat. (2008).

41. Section 112.3173, Florida Statutes (2008), describes

the offenses and forfeiture of retirement benefits that result

when such offenses are committed. It provides:

(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 "convicted" mean an

adjudication of guilt by a court of

competent jurisdiction; a plea of guilty or

of nolo contendere ; a jury verdict of guilty

when adjudication of guilt is withheld and

the accused is placed on probation; or a

conviction by the Senate of an impeachable

offense.

(b) "Court" means any state or federal

court of competent jurisdiction which is

exercising its jurisdiction to consider a

proceeding involving the alleged commission

of a specified offense.

(c) "Public officer or employee" means an

officer or employee of any 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:

1. The committing, aiding, or abetting of

an embezzlement of public funds;

2. The committing, aiding, or abetting of

any theft by a public officer or employee

from his or her employer;

3. Bribery in connection with the

employment of a public officer or employee;

4. Any felony specified in chapter 838,

except ss. 838.15 and 838.16 ;

5. The committing of an impeachable

offense;

6. The committing of any felony by a public

officer or employee who, willfully and with

intent to defraud the public or the public

agency for which the public officer or

employee acts or in which he or she is

employed of the right to receive the

faithful performance of his or her duty as a

public officer or employee, realizes or

obtains, or attempts to realize or obtain, a

profit, gain, or advantage for himself or

herself or for some other person through the

use or attempted use of the power, rights,

privileges, duties, or position of his or

her public office or employment position; or

7. The committing on or after October 1,

2008, of any felony defined in s. 800.04

against a victim younger than 16 years of

age, or any felony defined in chapter 794

against a victim younger than 18 years of

age, by a public officer or employee through

the use or attempted use of power, rights,

privileges, duties, or position of his or

her public office or employment position.

(3) FORFEITURE.--Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

whose office or employment is terminated by

reason of his or her admitted commission,

aid, or abetment of a specified offense,

shall forfeit all rights and benefits under

any 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.

(4) NOTICE.--

(a) The clerk of a court in which a

proceeding involving a specified offense is

being conducted against a public officer or

employee shall furnish notice of the

proceeding to the Commission on Ethics.

Such notice is sufficient if it is in the

form of a copy of the indictment,

information, or other document containing

the charges. In addition, if a verdict of

guilty is returned by a jury or by the court

trying the case without a jury, or a plea of

guilty or of nolo contendere is entered in

the court by the public officer or employee,

the clerk shall furnish a copy thereof to

the Commission on Ethics.

(b) The Secretary of the Senate shall

furnish to the Commission on Ethics notice

of any proceeding of impeachment being

conducted by the Senate. In addition, if

such trial results in conviction, the

Secretary of the Senate shall furnish notice

of the conviction to the commission.

(c) The employer of any member whose office

or employment is terminated by reason of his

or her admitted commission, aid, or abetment

of a specified offense shall forward notice

thereof to the commission.

(d) The Commission on Ethics shall forward

any notice and any other document received

by it pursuant to this subsection to the

governing body of the public retirement

system of which the public officer or

employee is a member or from which the

public officer or employee may be entitled

to receive a benefit. When called on by the

Commission on Ethics, the Department of

Management Services shall assist the

commission in identifying the appropriate

public retirement system.

(5) FORFEITURE DETERMINATION.--

(a) Whenever the official or board

responsible for paying benefits under a

public retirement system receives notice

pursuant to subsection (4), or otherwise has

reason to believe that the rights and

privileges of any person under such system

are required to be forfeited under this

section, such official or board shall give

notice and hold a hearing in accordance with

chapter 120 for the purpose of determining

whether such rights and privileges are

required to be forfeited. If the official

or board determines that such rights and

privileges are required to be forfeited, the

official or board shall order such rights

and privileges forfeited.

(b) Any order of forfeiture of retirement

system rights and privileges is appealable

to the district court of appeal.

(c) The payment of retirement benefits

ordered forfeited, except payments drawn

from nonemployer contributions to the

retiree's account, shall be stayed pending

an appeal as to a felony conviction. If

such conviction is reversed, no retirement

benefits shall be forfeited. If such

conviction is affirmed, retirement benefits

shall be forfeited as ordered in this

section.

(d) If any person's rights and privileges

under a public retirement system are

forfeited pursuant to this section and that

person has received benefits from the system

in excess of his or her accumulated

contributions, such person shall pay back to

the system the amount of the benefits

received in excess of his or her accumulated

contributions. If he or she fails to pay

back such amount, the official or board

responsible for paying benefits pursuant to

the retirement system or pension plan may

bring an action in circuit court to recover

such amount, plus court costs.

(6) FORFEITURE NONEXCLUSIVE.--

(a) The forfeiture of retirement rights and

privileges pursuant to this section is

supplemental to any other forfeiture

requirements provided by law.

(b) This section does not preclude or

otherwise limit the Commission on Ethics in

conducting under authority of other law an

independent investigation of a complaint

which it may receive against a public

officer or employee involving a specified

offense.

42. The foregoing law mandates the forfeiture of FRS

benefits when it is determined that the employee has committed

an offense within the provisions of law. Accordingly, the

forfeiture is not a matter of discretion when it is determined

the employee has committed a disqualifying offense.

43. Similarly, the foregoing law recognizes that federal

crimes may be the basis for a forfeiture of rights and benefits

under the FRS.

44. To determine whether or not a federal offense would

constitute a disqualifying crime it is necessary to match the

elements of the criminal acts committed by the employee with the

elements of a Florida crime. If the elements of the criminal

activity "match" a Florida felony, the forfeiture statute is

applicable. This "matching test" is best described in Shields

v. Smith , 404 So. 2d 1106 (Fla. 1st DCA 1981).

45. In Shields , supra , the employee was convicted of a

federal crime that did not match to a state felony.

Nevertheless, the court looked to the underlying acts in the

criminal conduct to ascertain whether the acts would be matched

to a felony under Florida law. In the instant case, Petitioner

maintains that the public employee was not convicted of a felony

under Florida law. The Shields court found at 1112 that:

[W]e find that the federal convictions

included all the elements necessary to prove

the Florida felony . . . . While this

laborious process of matching up elements of

a foreign crime with those of a Florida

felony is more difficult than simply

determining that under foreign law the

offense was a felony, this process is more

likely to ensure that disabilities are

imposed only for conduct the forum considers

reprehensible.

46. In this case Petitioner entered a plea based upon a

series of admissions of fact related to the criminal charges.

Those admissions are adequate to support findings and

conclusions that would match to a felony under Florida law.

47. It is concluded that at all times material to the

allegations of this case, Petitioner was a public officer. He

was obligated to comport his behavior to meet the highest

standard. The public may reasonably expect law enforcement

officers to be law abiding.

48. Secondly, it is concluded that Petitioner was

convicted of federal offenses that took place during his public

employment and prior to his retirement.

49. Finally, when matched under the guidelines of Shields ,

the criminal conduct in which Petitioner engaged constituted a

felony under Florida law. Pursuant to Section 112.3173(2)(e),

Florida Statutes, the acts to which Petitioner admitted

constitute a “specified offense.” Petitioner received unlawful

compensation and committed official misconduct. Simply stated,

Petitioner abused his position and violated the public trust by

using his position as sheriff for his personal financial gain.

He used his relationships to receive benefits that but for his

public role he would not have enjoyed or been able to exploit

for financial gain to himself. The Conclusions of Law proposed

by the Respondent in its assessment of the case are hereby

adopted as the standard of law application to this case. The

Conclusions of Law proposed by Petitioner inadequately address

the applicable law because the facts of Petitioner’s underlying

conduct are not speculative or so obscure as to raise any

question as to Petitioner’s participation in the unlawful acts.

The facts are unambiguously addressed in the court documents.

50. It is undisputed that Petitioner accepted unlawful

payments and benefits in exchange for services. Further that

his position as sheriff facilitated his conduct is also

undisputed. He failed to provide a full disclosure of the

financial interests and failed to disclose information fully to

investigators. All of this was part of a concerted effort to

secure benefits or profit, gain or advantage for himself. It is

concluded that these acts support a forfeiture of Petitioner’s

FRS benefits and rights. To allow Petitioner to abuse his

position of trust with the citizens of the state and yet reap

the contractual benefits of the FRS would defy logic and the

provisions of Sections 112.3173 and 121.091, Florida Statutes

(2008).

RECOMMENDATION

Based upon the Findings of Fact and the Conclusions of Law

set forth above, it is

RECOMMENDED that Respondent enter a final order finding

Petitioner was convicted of crimes that require the forfeiture

of his rights and benefits under the FRS, pursuant to Florida

law.

DONE AND ENTERED this 3rd day of March, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of March, 2009.

COPIES FURNISHED:

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

Mark Herron, Esquire

Thomas M. Findley, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317-5579

Clifford A. Taylor, Esquire

Barbara M. Crosier, Esquire

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160D

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.