10-010704 John F. Koons vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, August 9, 2011.

Summary: Agency failed to prove that county commissioner forfeited his FRS pension when he pleaded guilty to extortion because he did not commit the crime for profit, gain, or advantage to himself or any other person.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN F. KOONS, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10704

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

_____________________________ ___)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Tallahassee, Florida, on May 18, 2011. By videoconference, one

witness testified in West Palm Beach, where the c ourt reporter

was located. Otherwise, the parties, witnesses, and counsel

appeared in Tallahassee.

APPEARANCES

For Petitioner: Mark A. Emanuele, Esq uire

Panza, Maurer and Maynard, P.A.

Bank of America Building , Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

For Respondent: Geoffrey M. Christian, Esq uire

Assistant General Counsel

Department of Manag ement Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner must forfeit his vested

b enefits in the Florida Retirement System (FRS) , pursuant to

section 112.3173(3), Florida Statutes, due to Respondent ' s

commission of an act of extortion , as defined in section 836.05,

Florida Statutes .

PRELIMINARY STATEMENT

By letter dated November 8, 201 0, Respondent advised

Petitioner that he had forfeited his FRS benefits due to his

guilty plea to the felony of extortion, as provided in section

836.05, Florida Statutes. The letter cites article III, section

8(d), Florida Constitution, and sections 112. 3173 and

121.091(5), Florida Statutes.

By Petition for Formal Administrative Hearing dated

November 24, 2010, Petitioner requested a formal administrative

hearing on the ground that the felony of extortion was not a

"specified offense," under section 112. 3173, so as to justify

the forfeiture of his FRS benefits.

At the hearing, Petitioner called two witnesses and offered

into evidence six exhibits : Petitioner Exhibits 1 - 6 .

Respondent called one witness and offered into evidence 14

exhibits : Respondent Exhibits 1 - 7, 9, and 11 - 14 . All exhibits

were admitted except Respondent Exhibit 5 . Respondent Exhibit 6

was admitted, but only to the extent that it contains a

description of the duties of a county commissioner. Respondent

withdrew Respondent Exhibit 8 , but proffered two parts of the

exhibit.

The Administrative Law Judge ' s failure to admit Respondent

Exhibit 5 during the hearing was an oversight on his part ,

although inconsequential because both parties referred to

portions of this exhibit in the findi ngs of facts within their

P roposed R ecommended O rders .

Exhibit 5 is the probable cause affidavit underlying the

criminal charges against Petitioner . Prior to the hearing,

Administrative Law Judge Hunter had declined to take official

notice of the exhibit . However, after a long discussion of its

admissibility during the hearing , the Administrative Law Judge

required Petitioner ' s counsel to identi fy the portions of the

exhibit to which he objected. (Tr., pp. 23 - 24.) T he

Administrative Law Judge sta ted th at, after Petitioner advised

him of each provision of the affidavit to which he objected, the

Administrative Law Judge would rule on Petitioner ' s objection s .

The flaw in this procedure emerged when Petitioner ' s counsel

failed to file his objections , and, thus, the Administrative Law

Judge never rule d to admit or exclude the exhibit.

The Administrative Law Judge admits Respondent Exhibit 5 at

this time. During the hearing, Petitioner objected to two

specific provisions of the affidavit. First, Petitione r

objected that the affidavit states that the Johnson family, whom

Petitioner extorted, and their agent failed to appear at a

June 17, 2010, meeting of the West Palm Beach City Commission.

(Tr., pp. 17 - 19.) Without regard to the relevance of this fact,

i t is admitted by Petitioner in his sworn statement , which was

admitted . Respondent Exhibit 9, p. 97.

Second, Petitioner objects to the telephone message left on

the voicemail of counsel for the Johnson family; this is the

voice message that constitutes t he act of extortion that took

place on May 6, 2010, as described below . (Tr. pp. 19 - 21.)

Again, in his sworn statement, Petitioner listen ed to the

message, which is recorded in the statement, and admitted that

he made these statements. Respondent Exhibi t 9, pp. 69 - 70.

The court reporter filed the transcript on June 22, 2011 .

The parties filed their proposed recommended orders on August 1,

2011 .

FINDINGS OF FACT

1. Petitioner has lived for much of his life in West Palm

Beach. Petitioner ' s family ow ned a Pepsi - Cola bottling company

in West Palm Beach until selling it five or six years ago.

Petitioner started with the company as a truck driver and

eventually served as a vice - president.

2. Petitioner served as a locally elected official in West

Palm Beach for nearly 20 years. Petitioner was elected

commissioner of the Board of Commissioner s of the City of West

Palm Beach and served for 12 years. Subsequently, he was

elected and reelected commissioner of the Board of County

Commission er s of Palm Bea ch County. Petitioner was prevented by

term limits from serving beyond his second four - year term, which

was due to end in December 2010. However, Petitioner resigned

from the county commission five months earlier after he pleaded

guilty to, and was adjud icated guilty of, the extortion that is

described below.

3. Petitioner had planned to retire from public office

after finishing his term in December 2010. In his early 60s and

evidently secure financially , Petitioner looked forward to

retirement, during which he planned to volunteer in the

community and play with his grandchildren.

4. In the final year of his final term in public office,

Petitioner busied himself with -- or, perhaps more aptly, obsessed

over -- one major piece of unfinished business: the South Cove

Restoration Project. The South Cove Restoration Project is an

ecological restoration project in the Lake Worth Lagoon in

downtown West Palm Beach.

5. The Lake Worth Lagoon is a 20 - mile long body of water

in central Palm Beach County. Locat ed just east of Flagler

Drive and north of the Royal Park Bridge, the South Cove

Restoration P roject ' s primary sponsor is Palm Beach County,

although the state has provided funds and the City of West Palm

Beach and the Florida Inland Navigation District ar e also

identified as project "partners."

6. The project consists of the creation of two acres of

mangrove/spartina habitat, 3.5 acres of potential seagrass

habitat, and one acre o f rock revetment/oyster reef. The

project also includes a 565 - foot elevate d boardwalk running from

the sidewalk along Flagler Drive to the largest mangrove island

and a 16 - foot square observation deck. Lastly, the project

includes the capping of an o ld dredge hole with clean sand.

This will reduce turbidity in the adjacent wat er column by

preventing the continual resuspension of fine - grained particles

that tend to collect in the dredge hole.

7. For many years, w ater - quality issues in the Lake Worth

Lagoon have received the attention of stat e, regional, and local

officials, i ncluding Petitioner . For a couple of years,

Petitioner had served as the county representative to , and chair

of, a consortium of governmental entities that had formed the

Lake Worth Lagoon Initiative (Initiative) . Members of t he

Initiative have been draw n from the Florida Department of

Environmental Protection, the South Florida Water Management

District, the Palm Beach County chapter of the League of Cities,

and Palm Beach County.

8. The mission of the Initiative is to restore water

quality in the lago on by obtaining and providing funding from

various sources for projects to address such issues as water

quality, habitat, and pollution - control. The Initiative has

supported the South Cove Restoration Project , which is located

to the south of a larger pro ject recently undertaken by the City

of West Palm Beach to dredge the Intracoastal Waterway adjacent

to Flagler Drive as part of extensive renovations of an old city

marina . The dredge spoil from the city marina project will

provide the fill for the dredg e hole in the South Cove

Restoration Project.

9. The South Cove Restoration Project was first identified

in 1997 as a Surface Water Improvement and Management project .

In August 2008, the Department of Environmental Protection

proposed to issue the perm its necessary for the project ' s

construction and operation.

10. Trump Plaza challenged the proposed permits in DOAH

Case No. 08 - 4752 , and Flagler Center Properties, LLP, intervened

on the side of Trump Plaza. Trump Plaza is the owner -

association of two 30 - story condominium building s , and Flagler

Center Properties is the owner of two eight - or nine - story

office building s. Due to the proximity of their buildings to

the S outh Cove Restoration Project, both parties challenged the

project on the grounds of, among other things, the potential

obstruction of their view and the unreasonable infringement on

their q ualified right s to a dock. These properties and the

uplands adjoining the South Cove Restoration Project are all

entirely within the city limits of the City of West Palm Beach.

11. This litigation delayed the issuance of the permits by

15 months. However, i n September 2009, an Administrative Law

Judge issued a recommended order approving the per mits, and, in

November 2009, the Department of Environmen tal Protection issued

the final order issuing the permits.

12. Members of the Johnson family own Flagler Center

Properties . Like the Koons es , the Johnsons have lived in West

Palm Beach for many years. The eldest Johnson is of the age of

Petitioner ' s pa rents, and Petitioner knew the next generation of

Johnsons, as they grew up together in West Palm Beach. The

third generation of Johnsons and Koons es even attend the same

school. But all of these relationships notwithstanding, at

least certain members of the Johnson family with ownership

interests in Flagler Center Properties have opposed at least

certain aspects of the South Cove Restoration Project.

13 . T he extortion occurred late in the approval process

for the Sout h Cove Restoration Project. The tw o acts of

extortion took place in the six weeks before a vote by city

commissioners to allow a fourth wheelchair - ramp access to be

constructed from the existing sidewalk, over the seawall, and

onto the boardwalk.

14. The city commission vote took place o n June 17 or 19,

2010 . As expected , the city commissioners unanimously approved

the fourth wheelchair ramp . Within a few days after the city

vote, the last project sponsor to commit funds -- the board of the

Florida Inland Navigation District -- approved its $1.5 million

contribution. Evidently, the District vote was even more of a

certainty that the city vote because -- to the extent that

Petitioner ' s extortion was designed to ensure final passage of

the South Cove Restoration Project -- Petitioner ' s concern, a t the

time of the extortion, was the city vote , not the District vote.

15. In anticipation of the city vote, on May 6 , 2010, at

9:14 a.m . , Petitioner called the Johnson family attorney to

discuss the Johnson family ' s continued objection to the project,

e specially the boardwalk. Petitioner failed to reach the

attorney, so he left a voicemail. After a brief greeting,

Petitioner demanded that the attorney send Petitioner

immediately a memo outlining the remaining objections of the

Johnson family to the Sou th Cove Restoration Project.

And if you don ' t -- then I ' m going to do a

Public Records Request to the City of West

Palm Beach on this. Dean, just for the

heads up, good friend of mine, I ' m going to

work as hard as I ' ve ever worked in twenty

years of public service to take the Johnsons

through the ringer on this if they don ' t

support the City of West Palm Beach. I ' ll

have kids picketing at the building and what

I ' m going to say is they want [a] marina

instead of an island.

I told you, this is very personal for me.

Okay. This is something I really, really

want. After twenty years I want the

Johnsons to step away and congratulate me

personally on all the work I ' ve done. Okay?

I have no idea why they ' re trying to fuck me

on the deal but this is very person al. I ' m

going to work five [sic] hours a day for the

next six weeks. I ' m going to leverage every

possible person, program -- I have to get a

five - oh vote out of the City Commission.

It ' s very personal, Dean. So, I can ' t

understand why they want to do it

ultimately, I want them to say we ' ve [sic]

love to have this project. I ' m going to

door to door at every tenant in the building

and throw them under the fucking bus. I ' m

going to say they want a marina out here

versus a public island. I ' m going to the

F BI -- I ' m going to the Foundation. I ' m going

to every tenant in the building. I ' m going

to see if I have a banking relationship with

anybody in there. I want this done and it ' s

a personal thing for me.

16. Shortly after this voicemail, Petitioner instr ucted a

county employee to visit the Flagler Center Properties ' site and

photograph dead trees and the property ' s stormwater outfall.

The record is not reliably developed on these points, except to

the extent that these two issues are mentioned in Petitio ner ' s

next voicemail to the Johnson family attorney, which took place

after the photographs were taken.

17. To dispel any doubt of his seriousness, Petitioner

called the Johnson family attorney again on June 9, 2010, at

6:18 pm:

Hey, it ' s Koons. Just wo ndering, are the

Johnsons still fighting that island on the

maintenance issue? I was just wondering

because I don ' t know if you noticed the dead

trees that they have in their building in

downtown West Palm Beach. Can ' t even take

care of their own propert y with the dead

trees. I don ' t know why they ' re worrying

about maintenance on something else [the

South Cove Restoration Project].

Anyway, also, do you have a map of where

their stormwater goes ? I was just trying to

think i f they were ever under a pre -

t reatment of their stormwater that goes off,

I think, right where that island is going to

be. Anyway, just let me know. Let me know

if you want me to call Code Enforcement or

what you want me to do. Thanks.

18. By Information dated August 3, 2010, the State of

Florida alleged that Petitioner "on or between May 6, 2010, and

June 17, 2010, . . . did either verbally or by a written or

printed communication, maliciously threaten an injury to the

reputation of [the Johnson family] with intent to compel the

persons so threatened . . . to do any act or refrain from doing

any act against their will, contrary to Florida St atute 836.05

(2 DEG FEL) " . The Information also allege s two misdemeanors

that are irrelevant to this case.

19. After three i nterviews wit h the authorities ,

Petitioner resigned from the county commission on August 3,

2010 . The next day, Petitioner pleaded guilty to extor tion and

the two misdemeanors, and the court adjudicated Petitioner

guilty of all three offenses and sentenced him to five years '

county probation for the extortion and fined him $10,000 for the

extortion.

20. There is no evidence whatsoever that Petitioner

extorted the Johnson family for personal financial gain. He had

already declined to run for another elected office, so the

record does not support a finding that he engaged in this

extortion for his personal political gain. There is no evidence

whatsoever that Petitioner engaged in this extortion for any

other personal purposes, including obtaining wheelchair access

f or a family member or obtaining improper sexual advantage.

21. It is difficult to find that Petitioner engaged in

this extortion to cement some sort of personal legacy. The

South Cove Restoration Project is not an exceptionally large

project, in terms o f water quality impacts. It appears to have

already been named, so general naming rights -- to paraphrase a

theater critic , the graffiti of the political/philanthropic

class -- do not seem to be involved. ( Charles Isherwood, "The

Graffiti of the Philanthropi c Class," N . Y . Times, December 2,

2007, http://www.nytimes.com/2007/12/02/theater/02ishe.html ).

22. As noted above, the sole practical concern of

Petitioner, at the time of the acts of extortion, was the city

vote on the fourth wheelchair ramp. But this vote was a near

certainty and conc erned an inconsequential matter -- a fourth

wheelchair ramp -- that would not have prevented the project from

going forward. Some proponents of the project even believed

that the city vote was unnecessary, and a fourth ramp could have

been located nearby at a location not within the jurisdiction of

the city.

23. Almost all that is left to explain the extortion is

Petitioner ' s characterization of his acts, which he admitted

were driven by anger, frustration, and stupidity. The

narcissistic demands in the first voicemail that the Johnson

family pay public homage to Petitioner and the eerie passive -

aggressive nature of the second suggest pride to the point of

hubris. But nothing else -- except, of course, anger and

stupidity .

24. At all material times, Petitioner was in FRS - covered

employment, owned vested FRS benefits, and had not filed for FRS

retirement benefits. By letter dated November 8, 2010,

Respondent advised Petitioner that he had forfeited his FRS

benefits when he entered a guilty plea to the felony of

extortion. He timely requested a hearing.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 112.3173(5)(a),

120.569, and 120.57(1), Fla. Stat.

26. Any public officer or employee convicted of a

"specified offense" committed prior to retirement forfeits his

FRS benefits, except for the return of his accumulated

contributions. § 112.3173(3), Florida Statutes.

27. Pursuant to section 112.3173(2)(e), a "sp ecified

offense" is:

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 defr aud 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 rea lize 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 o n 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 u se of power, rights,

privileges, duties, or position of his or

her public office or employment position.

28. Respondent has the burden of proof. Dep ' t. of Transp .

v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

The standard of proof is a preponderance of the evidence. §

120.57(1)(j), Fla. Stat.

29. Respondent ' s theory of this case is that Petitioner ' s

commission of extortion was a specified offense under section

112.3173(2)(e)6. There is no issue that Petitioner was a public

officer or employee when he committed a felony. There is no

issue that Petitioner committed the elements of the crime

willfully.

30. However, t hree requirements of section

112.3173(2)(e)6 . are problematic for Respondent. First, it is

unclear how Petitioner, a county commissioner, threatened to use

his office to punish the Johnson family, if they did not drop

their opposition to the project and pay public homage to

Petitione r. Petitioner was a county commissioner. The dead

trees and stormwater were in the city limits. Perhaps,

Petitioner would use his prestige as a county commissioner in

canvassing the tenants and stirring up trouble. But this

element is tenuous , as nothing in Petitioner ' s threats

particularly depends on his status as a county commissioner, a s

opposed to, say, a longtime resident with more money and time

than common sense . For example, the threat to interfere with

the Johnson family ' s banking relationships derived from

Petitioner ' s status as a bank customer, not a county

commissioner.

31. S econd, it is unclear whether there is an intent to

defraud the public or the county commission of the right to the

faithful performance of his duties as a county commissioner.

The county was the major sponsor of the South Cove Restoration

Project, and Pet itioner had obviously dedicated himself to the

realization of this project. Although Petitioner used means

that would not be endorsed by the County Commission, they both

were pursuing the same goal.

32. Ultimately, it is unnecessary to resolve these fir st

two issues because of the third issue. Petitioner ' s acts of

extortion did not produce any profit, gain, or advantage for

himself or anyone else. Respondent has argued that the gain or

advantage was some combination of aesthetic and ecological

benefits for the residents of West Palm Beach. That, of course,

is painting wi th an excessively broad brush; one hopes that most

acts of an elected official are for the benefit of her

constituents. More tellingly, this argument signals the

d ifficulty faced by Re spondent in trying to prove profit, gain,

or advantage.

33. Respondent argues more persuasively that profit, gain,

or advantage is not necessarily limited to economic benefit. If

a public official leverages his office for any meaningful and

measureable gain or advantage -- financial or otherwise -- section

112.3173(2)(e)6 . may apply. In an appropriate case , the gain or

advantage might be political or sexual.

34. But the statute requires some profit, gain, or

advantage. Acts grounded merely in pride , ange r, or stupidit y --

or, as here, all three -- are insufficient to cause forfeiture of

vested pension benefits under section 112.3173(2)(e)6 . The

extorter gains no meaningful or measureable benefit by indulging

his impulses toward pride, anger, or even stupidit y. He makes

his demands -- in this case , for withdrawn opposition and public

displays of honor -- and, even if the victim accedes to them, the

extorter is left with nothing as meaningful or measureable as

money, the political momentum to carry him into a high er elected

or appointed office, or even transient sexual gratification. To

the contrary, this extorter is left with t he bitter residue of

indulged pride, anger, and stupidity , which is neither

measureable nor meaningful as profit, gain, or advantage. To

prevail in this case , Respon dent must read out of section

112.3173(2)(e)6 . the requirement that the crime be for the

profit, gain, or advantage of the public official or anyone

else.

RECOMMENDATION

It is

RECOMMENDED that the Division of Retirement Servic es enter

a final order determining that Petitioner ' s acts of extortion,

described above, do not constitute grounds for forfeiture of his

FRS pension.

DONE AND ENTERED this 9 th day of August, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of August, 2011.

COPIES FURNISHED:

Sarabeth Snuggs, Director

Division of Reti rement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

Jason Dimitris, General Counsel

Department of Management Services

4050 Esplanade Way, S uite 160

Tallahassee, Florida 32399 - 0950

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

Mark A. Emanuele, Esquire

Panza, Maurer and Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 3 3308

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 must be filed with the agency that

will issue the final o rder in this case.