09-000087 Johnson Holsberry, Jr. vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, July 24, 2009.

Summary: Petitioner forfeited rights and benefits in the retirement system because of a guilty plea to child abuse based on harmful contacts with a student at the school where he was employed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNSON HOLSBERRY, JR., )

)

Petitioner, )

)

vs. ) Case No. 09-0087

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case, as previously

scheduled, on May 8, 2009, by video teleconference between sites

in West Palm Beach and Tallahassee, Florida, before

Administrative Law Judge Eleanor M. Hunter of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32301

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 in this case is whether Petitioner has forfeited

his rights and benefits under the Florida Retirement System

pursuant to Section 112.3173, Florida Statutes (2008).

PRELIMINARY STATEMENT

In a certified letter dated June 13, 2008, Respondent

notified Petitioner, a former teacher, that his rights and

benefits under the Florida Retirement System were forfeited as a

result of his guilty plea to one count of child abuse, in

violation of Subsection 827.03(1), Florida Statutes (1999). A

Petition for Administrative Hearing dated July 3, 2008, was

filed to seek full reinstatement of Petitioner's retirement

benefits.

On January 8, 2009, the matter was transferred by the

Respondent to the Division of Administrative Hearings for the

assignment of an administrative law judge to resolve disputed

issues of fact. The hearing, initially scheduled for March 5,

2009, in Tallahassee, was re-scheduled for May 8, 2009, to allow

attendance by video at the Palm Beach site at the request of

Petitioner. At the formal hearing, Petitioner presented no

witnesses or exhibits. Respondent presented the testimony of

Petitioner and Angelette Green, and Respondent's Exhibits 2

through 9 that were received into evidence. The Transcript of

the formal hearing was received on May 15, 2009. After an

extension of time was granted on motion filed by Respondent,

proposed recommended orders were filed on June 26, 2009.

FINDINGS OF FACT

Based on the record in this proceeding, including the

evidence presented at the formal hearing and the joint pre-

hearing stipulation 1 of the parties, the following Findings of

Fact are made:

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

retirement system as defined by Florida law.

2. Respondent, Department of Management Services, Division

of Retirement (Respondent or Division), is charged with

managing, governing, and administering the FRS.

3. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or

Mr. Holsberry), was formerly employed as a teacher at the West

Area School of Choice by the Palm Beach County School Board

(PBCSB).

4. By reason of his employment with the PBCSB,

Mr. Holsberry became a member of the FRS.

5. As a teacher, Mr. Holsberry was subject to the Code of

Ethics of the Education Profession in Florida found in Rule 6B-

1.001, Florida Administrative Code.

6. As a teacher, Mr. Holsberry was subject to the

Principles of Professional Conduct for the Education Profession

in Florida found in Florida Administrative Code Rule 6B-1.006.

7. On or about December 5, 2000, Mr. Holsberry resigned

his teaching position with PBCSB.

8. On or about October 24, 2001, Mr. Holsberry was

charged, by amended information, in the Circuit Court of the

Fifteenth Judicial Circuit, in and for Palm Beach County,

Florida, with one count of child abuse, a third degree felony,

in violation of Section 827.03(1), Florida Statutes. The same

amended information is filed in the Circuit Court of the

Fifteenth Judicial Circuit, in and for Palm Beach County,

Florida, in State of Florida v. Johnson Leo Holsberry, Jr. , Case

No. Ol-CF-001185.

9. The victim of the alleged crime, R.D., was a female

student at the Area School of Choice.

10. In Palm Beach County, Florida, between the dates of

January 1, 1999, and December 31, 1999, Petitioner, while

teaching in a position of parental responsibility, was alleged

to have had contact with R.D. and to have acted in such a manner

as to cause mental injury to said child.

11. On or about October 24, 2001, Mr. Holsberry entered an

agreement with the State Attorney's Office wherein he agreed to

plead guilty as charged in the amended information. The same

plea agreement is filed in the Circuit Court of the Fifteenth

Judicial Circuit, in and for Palm Beach County, Florida, in

State of Florida v. Johnson Leo Holsberry, Jr. , Case No. Ol-CF-

001185.

12. Mr. Holsberry's guilty plea was made freely and

voluntarily.

13. Mr. Holsberry pled guilty because he was in fact

guilty.

14. On or about October 24, 2001, Mr. Holsberry was

adjudicated guilty. The same judgment is filed in the Circuit

Court of the Fifteenth Judicial Circuit, in and for Palm Beach

County, Florida, in State of Florida v. Johnson Leo Holsberry,

Jr. , Case No. Ol-CF-001185.

15. On or about January 8, 2001, Mr. Holsberry applied to

the Division for early service retirement from the FRS and began

receiving retirement benefits.

16. The Division suspended payment of Mr. Holsberry's

monthly retirement benefits in June 2008.

17. By certified letter dated June 13, 2008, Mr. Holsberry

was notified of the Division's intended action to forfeit his

FRS rights and benefits as a result of his guilty plea in the

case styled and numbered State of Florida v. Johnson Leo

Holsberry, Jr. , Case No. Ol-CF-001185.

18. At the hearing, Mr. Holsberry testified that R.D. was

in his classroom a few times, but that he was not sure of the

year, frequency, or why she was there. He testified that he

does not remember taking a picture of R. D. sitting at his desk,

but that might have taken place. Mr. Holsberry also testified

that he does not recall permitting R. D. to access her email

from his classroom, or inviting her to join him on trips, to

come to his home, or otherwise to meet him any place outside of

the school. Mr. Holsberry testified that he does not recall

giving R. D. his home telephone number. He recalls having an

email screen name of Sameagle1, but does not recall whether he

emailed R. D. from that email address or whether he had another

screen name, Gutster. He testified that he does not recall

referring to himself as H-Man (although he said some students

called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In

general, Mr. Holsberry's testimony that he does not recall his

actions that ultimately ended his career as a teacher is not

credible.

19. Mr. Holsberry noted that R.D. was not officially

assigned to any of his classes, so that he was not responsible

for her education, nor was he involved with her in any after

school program that would have made him responsible for her

welfare.

20. Mr. Holsberry testified that he probably would not

have met R.D. but for his position as a teacher at her school.

He also recalled having being interviewed by an investigator

named Green.

21. Angelette Green, an employee of the Palm Beach County

School District for 15 years, was the investigator assigned to

Mr. Holsberry's case. Detective Green testified that

Mr. Holsberry admitted that he helped R. D. set up an email

account, communicated with her by email, including having sent

by internet a picture of her taken in his classroom. She also

testified that she remembers emails inviting R. D. to go

somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus"

after he sent her an email and she questioned who it was from.

22. On July 30, 2002, an Administrative Complaint was

filed by the Commissioner of Education seeking disciplinary

sanctions against Mr. Holsberry's license based on allegations

of professional misconduct.

23. Mr. Holsberry did not contest the disciplinary matter,

having already agreed to surrender permanently his teaching

certificate as a part of his plea agreement. The Education

Practices Commission entered a final order permanently revoking

his teaching certificate.

24. On October 24, 2001, a plea conference was held on the

following charge:

Amended Information For:

1) CHILD ABUSE

In the Name and by the Authority of the

State of Florida:

BARRY E. KRISCHER, State Attorney for the

Fifteenth Judicial Circuit, Palm Beach

County, Florida, by and through his

undersigned Assistant State Attorney,

charges that JOHNSON LEO HOLSBERRY JR. on or

between January 01, 1999 and December 31,

1999, in the County of Palm Beach and State

of Florida, did knowingly or willfully,

intentionally inflict physical or mental

injury upon R.D., a child, {or} did an

intentional act or actively encourage

another to do an act that results or could

reasonably be expected to result in physical

or mental injury to R.D., a child, contrary

to Florida Statute 827.03(1). (3 DEG FEL)

25. At the plea conference, the following exchange

occurred:

[By Mr. Jaegers, Assistant State

Attorney:] The defendant will be

adjudicated guilty of the offense; he will

be placed on five years probation. There

will be no early termination contemplated.

The defendant will be required to pay Court

costs in the amount of $261.00, $50.00 to

the Drug Trust Fund, $50.00 cost of

prosecution. The defendant must undergo a

psychological evaluation and successfully

complete any recommended treatment.

* * *

The defendant is to surrender all and not

seek at any time in the future any teaching

certificates in any jurisdiction in the

world. There will be no contact with

children under 18 unless they're in the

presence of an adult who is aware of these

charges.

And those are the terms of the negotiated

settlement.

The facts in this case, Judge, are that

the defendant, Johnson Leo Holsberry, Jr.,

did in Palm Beach County, Florida, on,

between the dates of January 1, 1999 and

December 31st, 1999, while teaching in a

position of parental responsibility, in that

capacity had contact with a juvenile female

by the name of, or by the initials of SRD, I

think it's on the plea sheet.

MR. WILINSKEY [Counsel for Mr. Holsberry]

That's right.

MR. JAEGERS: -- RD, and did act in a

manner such as to cause mental injury to

said child. The -- those are the facts that

occurred in Palm Beach County.

THE COURT: Sir, raise your right hand,

please.

JOHNSON LEO HOLSBERRY, JR.

BEING FIRST DULY SWORN BY THE COURT,

TESTIFIED AS FOLLOWS:

THE COURT: Your name?

THE DEFENDANT: Johnson Leo Holsberry, Jr.

THE COURT: How old are you?

THE DEFENDANT: 62

* * *

THE COURT: Do you understand what the

things are you have to do?

THE DEFENDANT: Yes, sir.

THE COURT: Are you pleading guilty

because you are guilty?

THE DEFENDANT: Yes.

THE COURT: Do you agree with the facts

the State Attorney gave me as the basis for

your plea of guilty?

THE DEFENDANT: Yes, sir.

CONCLUSIONS OF LAW

26. 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. (2008).

27. 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. (2008).

28. Respondent has the burden of proving by a

preponderance of the evidence 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).

29. 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.

30. 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.

31. Section 112.3173, Florida Statutes, provides in part:

(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 guilty by a court of

competent jurisdiction; a plea of guilty or

if nolo contender; 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.

32. A “specified offense” is 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. (2008).

33. The forfeiture statute also contains a so-called

“catch-all” provision which can also 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. (2008). In other words, the

elements of Section 112.3173(2)(e)6. are: (a) any felony; (b)

committed by a 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.

34. 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, e.g.: child abuse, a

third-degree felony, in violation of Section 827.03(1), Florida

Statutes.

35. The specified offenses proscribed in Section

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

then, is whether the elements of Subsection 112.3173(2)(e)6. are

satisfied by the acts that Petitioner admitted committing.

Petitioner was a public employee and a public school teacher, at

the time he committed the crime, a felony.

36. Petitioner acted willfully and with intent to defraud

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

performance of his duty as a teacher, using his position to have

contact with a student in a manner that he agreed was harmful to

her for his own personal gain and advantage. As conceded in

Petitioner's Proposed Recommended Order, personal gain and

advantage is not limited to economic benefit. See Arthur J.

Marsland, Jr. v. Dept. of Management Services, Division of

Retirement , DOAH Case No. 08-4385 (R.O. 12/15/08; F.O.

01/20/09).

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

privileges, duties, or position of his public office, and his

contact with R.D. was made possible only as a result of his

position as a teacher.

38. Sufficient facts to meet the statutory requirement of

a nexus between the crimes charged against the public employee

and his duties and/or position may be determined based on the

admissions during a plea colloquy. See Simcox v. City of

Hollywood Police Officers' Retirement System , 988 So. 2d 731

(Fla. 4th DCA 2008).

39. Therefore, it is concluded that Respondent has met its

burden by establishing that Petitioner committed a specified

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

Statutes, and, therefore, forfeited his FRS rights and benefits.

Petitioner argues that the undersigned should ignore precedent

and more strictly construe the forfeiture statute, as did Judge

Cope in his dissenting opinion in Warshaw v. City of Miami

Firefighters and Police Officers Retust , 885 So. 2d 892

(Fla. 3rd DCA 2004). An administrative law judge lacks the

jurisdiction to do so. Respondent is also without statutory

authority to permit otherwise. See § 112.3173(3), Fla. Stat.

(2008).

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 24th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 24th day of July, 2009.

ENDNOTE

1/ Findings of Fact 1 through 17 were stipulated by the parties.

See , Joint Stipulation in Compliance with Pre-Hearing Order,

filed on April 29, 2009.

COPIES FURNISHED :

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32301

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.