08-004385 Arthur J. Marsland, Jr. vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, December 15, 2008.

Summary: Respondent proved that Petitioner should forfeit his rights and benefits under the Florida Retirement System.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR J. MARSLAND, JR., )

)

Petitioner, )

)

vs. ) Case No. 08-4385

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on November 12, 2008, in Green Cove Springs, Florida, before

Suzanne F. Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Arthur J. Marsland, Jr., pro se

1856-B Hereford Road

Middleburg, Florida 32068

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner has forfeited his rights and

benefits under the Florida Retirement System (FRS) pursuant to

Section 112.3173, Florida Statutes.

PRELIMINARY STATEMENT

Pursuant to notice, Respondent Department of Management

Services, Division of Retirement (Respondent) advised Petitioner

Arthur J. Marsland, Jr. (Petitioner) that he had forfeited his

FRS rights and benefits under Section 112.3173, Florida Statutes.

Respondent made this determination based on Petitioner’s plea of

guilty in a state criminal court proceeding.

Petitioner timely filed a request for an administrative

hearing to challenge Respondent's decision. Respondent

subsequently referred Petitioner's hearing request to the

Division of Administrative Hearings.

The matter was ultimately heard on November 12, 2008.

Respondent requested and was granted official recognition of the

matters addressed in pleadings filed on September 29 and

November 7, 2008.

The parties offered 11 joint exhibits that were accepted as

evidence. The parties submitted 32 joint stipulations of facts.

Petitioner testified on his own behalf. Respondent presented the

testimony of one witness.

A transcript of the proceedings was not ordered. The

parties’ proposed recommended orders were timely filed and were

duly considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

hearing, on the stipulations of the parties, and on the entire

record of this proceeding, the following factual findings are

made:

1. Respondent is charged with managing, governing, and

administering the FRS. The FRS is a public retirement system as

defined by Florida law.

2. The Duval County School Board (DCSB) employed Petitioner

as a teacher at Ribault High School. As a teacher, Petitioner

was subject to the Code of Ethics of the Education Profession in

Florida found in Florida Administrative Code Rule 6B-1.001.

Petitioner also was subject to the Principles of Professional

Conduct for the Education Profession in Florida found in Florida

Administrative Code Rule 6B-1.006.

3. Petitioner’s employment with the DCSB began on or about

August 19, 1986. By reason of this employment, Petitioner was

enrolled in the FRS as a Regular Class member.

4. On or about December 7, 2001, Petitioner was arrested in

connection with Officer David Coarsey's sworn information, which

provided as follows in relevant part:

On 12-07-01, Lt. Remolde called the

Jacksonville Sheriff’s Office Sex Crimes

Office and stated that a student at Ribault

High School had reported to the principal,

Mr. Ken Brockington, that she had

penile/vaginal intercourse with this suspect.

On 12-07-01, I arrived at Ribault High

School and interviewed the victim. She

stated that approximately three weeks ago,

she went to the suspect’s classroom at his

request after school hours. The suspect

asked the victim to help him with some of his

work. While she was there, the suspect put

his arm around the victim and began rubbing

her waist. The suspect then began talking to

the victim about sex. The suspect then put

his hand up the victim’s skirt and inserted

his finger in her vagina. The suspect also

pulled the victim’s shirt and bra down and

“sucked” on her breast. The victim said that

she did not attempt to stop the suspect. The

victim then told the suspect, “I don't think

we should do this”, and she walked out of the

room.

Approximately one week later, the

suspect asked the victim to come back to his

classroom after school. When the victim

arrived at the room, the suspect began

“rubbing” on the victim’s body. The victim

stated that the suspect retrieved a condom

from a “grey file cabinet” and then sat down

in a chair. The suspect pulled his penis out

and the victim put the condom on his penis.

The victim pulled her shorts down and sat on

the suspect’s lap, at which time the suspect

put his penis in the victim’s vagina. After

having penile/vaginal intercourse with the

suspect for a short period of time, the

victim stood up and the suspect masturbated

until he ejaculated.

On 12-07-01, the victim met the suspect

in the “Book Room”. The suspect pulled the

victim’s shirt and bra down and “sucked” on

her breast. The suspect then pulled his

penis out of his pants and asked the victim

to masturbate him. The victim masturbated

the suspect until he ejaculated. The victim

wiped the suspect’s semen off of her hands

with a paper towel and threw it in the trash

can in the “Book Room”. The victim then left

the room and reported the incident to a

substitute teacher, Mr. Carlos Bowers (12-25-

59, 3701 Winton Dr., B/M), who in turn,

reported it to the principal, Mr.

Brockington. The victim stated to me that

all of the sexual encounters with the suspect

were consensual.

I retrieved the trash bag that contained

the above mentioned paper towel from the

“Book Room” and put it in the JSO Property

Room.

The suspect was transported to the JSO

Sex Crimes Office by Officer D.W. Holsey

#6044 and I transported the victim to the Sex

Crimes Office. I contacted the victim’s

mother and asked her to come to the JSO Sex

Crimes Office. When she arrived, she

transported the victim to the Child Crisis

Center for a medical exam (swabs of the

victim’s breasts).

I advised the suspect of his

constitutional rights and asked him to sign

the rights form. The suspect signed the form

and agreed to speak to me and Det. Romano

#7527 about the allegations. The suspect

admitted to having penile/vaginal intercourse

with victim one time, “sucking” on the

victim’s breast on two different occasions,

and rubbing on her vagina once. The suspect

stated that all of the sexual encounters

happened at the school. The suspect stated,

“It was a huge mistake, my life is fucked”.

The suspect gave a written statement in

regards to having penile/vaginal intercourse

with the victim.

The suspect was arrested and transported

to the PTDF.

5. The information reported in the sworn information truly

and accurately recounts the events that occurred and to which

Petitioner admitted.

6. The arrest and booking report is filed in the Circuit

Court of the Fourth Judicial Circuit, in and for Duval County,

Florida, in the case styled and numbered State of Florida v.

Arthur John Marsland, Jr. , Case No. 2002-599-CFA.

7. Petitioner resigned his employment with the DCSB on or

about December 27, 2001, effective on or about January 15, 2002.

8. By reason of his employment with DCSB, Petitioner earned

approximately 15.80 years of service credit in the FRS.

9. On or about February 14, 2002, Petitioner was charged,

by amended information, in the Circuit Court of the Fourth

Judicial Circuit, in and for Duval County, Florida, in case

number 2002-599-CFA, with (a) one count of sexual battery, a

second-degree felony, in violation of Section 794.011(8)(b),

Florida Statutes; and (b) one count of lewd or lascivious

molestation, a second-degree felony, in violation of Section

800.04(5)(c)2., Florida Statutes.

10. The amended information provided in relevant part:

HARRY.L. SHORSTEIN, State Attorney for

the Fourth Judicial Circuit of the State of

Florida, in and for Duval County, charges

that ARTHUR JOHN MARSLAND, JR, on or between

the 1st day of November, 2001 and the 7th day

of December, 2001, in the County of Duval and

the State of Florida, did, while in a

position of familial or custodial authority,

engage in an act which constitutes Sexual

Battery with * * * a person 12 years of age

or older, but less than 18 years of age, by

placing his penis in or upon the vagina of *

* * contrary to the provisions of Section

794.011(8)(b), Florida Statutes.

SECOND COUNT

And for the second count of this

information, your informant further charges

that ARTHUR JOHN MARSLAND, JR., a person 18

years of age or older, on or between the 1st

day of November, 2001 and the 7th day. Of

December, 2001, in the County of Duval and

the State of Florida, did in a lewd or

lascivious manner force or entice * * * a

child l2 years of age or older, but less than

16 years of age, to touch the genital area or

clothing covering the genital area of

Defendant, contrary to the provisions of

Section 800.04(5)(c)2, Florida Statutes.

11. The amended information is filed in the Circuit Court

of the Fourth Judicial Circuit, in and for Duval County, Florida,

in the case styled and numbered State of Florida v. Arthur John

Marsland, Jr. , Case No. 2002-599-CFA.

12. The victim of the alleged crimes was a student at the

school where Petitioner taught. The alleged crimes took place in

Petitioner's classroom or in the book room at the school where

Petitioner taught.

13. On or about April 8, 2002, Petitioner entered a plea of

guilty to the second count of the amended information.

Petitioner pled guilty because he was in fact guilty. Petitioner

made the plea freely and voluntarily.

14. On or about April 29, 2002, judgment was entered on

Petitioner’s guilty plea. He was adjudicated guilty.

15. The judgment and corrected order of sex offender

probation are filed in the Circuit Court of the Fourth Judicial

Circuit, in and for Duval County, Florida, in the case styled and

numbered State of Florida v. Arthur John Marsland, Jr. , Case

No. 2002-599-CFA.

16. During the hearing, Petitioner admitted that, but for

an opportunity to have sexual relations with a student in the

school’s classroom or book room. Petitioner also admitted that

having sexual relations with one of his students was “obviously

not” one of his duties and responsibilities as a teacher.

17. Petitioner wrote three letters of apology in connection

with the matter. He apologized in writing to the victim, to his

spouse, and the DCSB.

18. On or about September 27, 2002, Charlie Crist, as

Commissioner of Education, filed an Administrative Complaint,

before the Education Practices Commission of the State of

Florida, in case number 02-0681-RT. The complaint sought

19. The Administrative Complaint charged Petitioner in part

with the following statutory and rule violations:

STATUTORY VIOLATIONS

COUNT 1: The allegations of misconduct

set forth herein are in violation of Section

1012.795(1)(c), Florida Statutes, in that

Respondent has been guilty of gross

immorality or an act involving moral

turpitude.

COUNT 2: The allegations of misconduct

set forth herein are in violation of Section

231.2615(1)(e), Florida Statutes, in that

Respondent has been convicted of a

misdemeanor, felony, or other criminal

charge, other than a minor traffic violation.

COUNT 3: The allegations of misconduct

set forth herein are in violation of Section

231.2615(1)(f), Florida Statutes, in that

Respondent, upon investigation, has been

found guilty of personal conduct which

seriously reduces his effectiveness as an

employee of the school board.

COUNT 4: The allegations of misconduct

set forth herein are in violation of Section

231.2615(1)(i), Florida Statutes, in that

Respondent has violated the Principles of

Professional Conduct for the Education

Profession in Florida prescribed by State

Board of Education.

COUNT 5: The allegations of misconduct

set forth herein are in violation of Section

231.2615(1)(j), Florida Statutes, in that

Respondent has otherwise violated the

provisions of law, the penalty for which is

the revocation of the teaching certificate.

COUNT 6: Section 231.2615(2), Florida

Statutes, provides that the plea of guilty in

any court or a decision of guilty by any

court is prima facie proof of grounds for the

revocation of the certificate.

RULE VIOLATIONS

COUNT 7: The allegations of misconduct

set forth herein are in violation of Rule 6B-

1.001(2), Florida Administrative Code, in

that Respondent has failed to have his

primary professional concern always be for

the student and for the development of the

student’s potential and has failed to seek to

exercise the best judgment and integrity.

COUNT 8: The allegations of misconduct

set forth herein are in violation of Rule 6B-

1.001(3), Florida Administrative Code, in the

Respondent has failed to be aware of the

importance of maintaining the respect and

confidence of his colleagues, of students, of

parents, and of other members of the

community and that Respondent has failed to

achieve and sustain the highest degree of

ethical conduct.

COUNT 9: The allegations of misconduct

set forth herein are in violation of Rule 6B-

1.006(3)(a), Florida Administrative Code, in

that Respondent has failed to make reasonable

effort to protect the student from conditions

harmful to learning and/or to the student’s

mental health and/or physical safety.

COUNT 10: The allegations of misconduct

set forth herein are in violation of Rule 6B-

1.006(3)(e), Florida Administrative Code, in

that Respondent has intentionally exposed a

student to unnecessary embarrassment or

disparagement.

COUNT 11: The allegations of misconduct

set forth herein are in violation of Rule 6B-

1.006(3)(h), Florida Administrative Code, in

that Respondent has exploited a relationship

with a student for personal gain or

advantage.

The Administrative Complaint is filed with the Education

Practices Commission of the State of Florida in case number

02-0681-RT.

20. In consideration of the Administrative Complaint, the

Education Practices Commission entered a Final Order permanently

filed with the Education Practices Commission of the State of

Florida in case number 02-0681-RT.

21. On or about October 20, 2003, Petitioner applied for

early service retirement. Petitioner’s effective date of

retirement was established as November 1, 2003.

22. By certified letter dated May 2, 2008, Respondent

notified Petitioner of the intended action to forfeit his FRS

rights and benefits as a result of his guilty plea. The Division

suspended payment of Petitioner’s monthly retirement benefits in

May 2008. Petitioner had received approximately $41,309.56 in

FRS retirement benefits from November 2003 through April 2008.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. See §§ 120.569 and 120.57(1), Fla. Stat.

24. The FRS is a public retirement system as defined by

Florida law and, as such, Respondent’s proposed action to forfeit

Petitioner’s FRS rights and benefits is subject to administrative

review. See § 112.3173(5)(a), Fla. Stat.

25. Respondent has the burden of proving that Petitioner

should forfeit his FRS retirement benefits. Wilson v. Dep’t of

Admin., Div. of Ret. , 538 So. 2d 139, 141-142 (Fla. 4th DCA

1989); Dep’t of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla.

1st DCA 1981). Because none of the material historical facts

relevant to the instant case is in dispute, there is no need to

address the applicable standard of proof.

26. Section 112.311(6), Florida Statutes, reflects the

state's policy relative to public officers and employees as

follows in pertinent part:

[P]ublic officers and employees, state and

local, are agents of the people and hold

their positions for the benefit of the

public. They are bound to uphold the

Constitution of the United States and the

State Constitution and to perform efficiently

and faithfully their duties under the laws of

the federal, state, and local governments.

Such officers and employees are bound to

observe, in their official acts, the highest

standards of ethics ... regardless of

personal considerations, recognizing that

promoting the public interest and maintaining

the respect of the people in their government

must be of foremost concern.

27. It is a “breach of the public trust” to violate any

provision of the Florida Constitution or Chapter 112, Florida

Statutes, “which establishes a standard of ethical conduct, a

disclosure requirement, or a prohibition applicable to public

officers or employees in order to avoid conflicts between public

duties and private interests ...” See § 112.312(3), Fla. Stat.

28. Article II, Section 8(d) of the Florida Constitution

provides:

SECTION 8. Ethics in government.--A public

office is a public trust. The people shall

have the right to secure and sustain that

trust against abuse. To assure this right:

* * *

(d) Any public officer or employee who is

convicted of a felony involving a breach of

public trust shall be subject to forfeiture

of rights and privileges under a public

retirement system or pension plan in such

manner as may be provided by law.

29. This section of the Constitution is codified in Chapter

112, Part III, of the Florida Statutes. Section 112.3173(3),

Florida Statutes, provides in relevant part:

(3) FORFEITURE.--Any public officer or

employee who is convicted of a specified

offense committed prior to retirement ...

shall forfeit all rights and benefits under

any public retirement system of which he or

she is a member, except for the return of his

or her accumulated contributions as of the

date of termination.

Pursuant to the above-described statutory mandate, if Petitioner

is found to be subject to the forfeiture statute, his FRS rights

and benefits must be forfeited. Id.

30. A “specified offense” is particularly defined in the

forfeiture statute to include any felony under Chapter 838

(except Sections 838.15 and 838.16) as well as certain felonies

relating to bribery, embezzlement and theft of public funds or an

impeachable offense. See § 112.3173(2)(e), Fla. Stat.

31. The forfeiture statute also contains a “catch-all”

felony which can subject a public officer or employee to the

forfeiture of his or her rights and benefits and states as

follows:

(2)(e) “Specified offense” means:

* * *

6. The committing of any felony by a

public officer or employee who, willfully and

with intent to defraud the public or the

public agency for which the public officer or

employee acts or in which he or she is

employed of the right to receive the faithful

performance of his or her duty as a public

officer or employee, realizes or obtains, or

attempts to realize or obtain, a profit,

gain, or advantage for 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.

§ 112.3173(2)(e)6., Fla. Stat. In other words, the elements of

public employee; (c) willfully and with intent to defraud the

public or the employee’s public employer of the right to receive

the faithful performance of the employee’s duty; (d) to obtain a

profit, gain or advantage for the employee or some other person;

and (e) by use of the power, rights, privileges, duties, or

position of the employment position.

32. In this case, Petitioner is a former public employee

and a member of a public retirement system. He pled guilty to a

crime committed prior to retirement, to wit: lewd or lascivious

molestation, a second-degree felony, in violation of Section

800.04(5)(c)2., Florida Statutes. Petitioner’s guilty plea

constitutes a conviction under Section 112.3173(2)(a), Florida

Statutes. The issue, then, is whether Petitioner’s crime

constitutes a specified offense under Section 112.3173(2)(e),

Florida Statutes.

33. Clearly, the specified offenses proscribed in Section

112.3173(2)(e)1.-5., Florida Statutes, do not apply. However,

all elements of Subsection 112.3173(2)(e)6. are satisfied by the

acts that Petitioner admitted committing. The crime of lewd or

lascivious molestation is a second-degree felony under Section

800.04(5)(c)2., Florida Statutes. Petitioner was a public

employee at time he committed the crime. The acts which were the

basis of Petitioner’s plea occurred prior to retirement while he

was employed as a teacher.

34. Petitioner acted willfully and with intent to defraud

the public and the DCSB of the right to receive the faithful

performance of his duty as a public employee. He clearly acted

for his own profit, gain or advantage, to wit: his own personal

sexual gratification.

35. Petitioner used or attempted to use the power, rights,

privileges, duties, or position of his public office.

Petitioner’s actions were made possible only as a result of his

position as a teacher.

36. The foregoing factual scenario is sufficient to meet

the statutory requirement of a nexus between the crimes charged

against the public employee and his duties and/or position. See

DeSoto v. Hialeah Police Pension Fund Bd. of Trustees , 870 So. 2d

844 (Fla. 3rd DCA 2003) (sufficient nexus found between crimes

and duties of a police officer, who was convicted of conspiracy

to possess and distribute cocaine and to commit robbery, who

informed accomplices that an individual was a drug dealer,

provided surveillance prior to the robbery, contacted a police

officer accomplice to notify him that victim was leaving work so

the officer could conduct a traffic stop, and provided handcuffs

used to restrain the victim).

37. It is concluded that Petitioner committed a specified

offense as contemplated by Section 112.3173(2)(e)6., Florida

Statutes. Respondent has met its burden. When Petitioner pled

guilty to a specified offense, he forfeited all of his FRS rights

and benefits and Respondent is without statutory authority to

permit otherwise. See § 112.3173(3), Fla. Stat. Respondent is

required to act on said forfeiture at this time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order finding that Petitioner

was convicted of a specified offense pursuant to Section

112.3173, Florida Statutes, and directing the forfeiture of his

FRS rights and benefits.

DONE AND ENTERED this 15th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of December, 2008.

COPIES FURNISHED :

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Arthur J. Marsland, Jr.

1856 B Hereford Road

Middleburg, Florida 32068-3104

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee,, Florida 32315-9000

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.