13-002396 Stephen J. Gonot vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, December 13, 2013.

Summary: Petitioner forfeited his rights and benefits under the FRS pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because he was convicted of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. GONOT ,

Petitioner ,

vs. Case No. 13 - 2396

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT ,

Respondent .

/

RECOMMENDED ORDER

This c ase came before Administrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on November 5,

2013, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Lawrence R. Metsch, Esquire

Su ite 308

20801 Biscayne Boulevard

Aventura, Florida 33180 - 1423

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services

Suite 106

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner has forfeited his rights and benefits

under the Florida Retirement System (FRS), pursuant to

section s 112.3173 and 121.091(5)(f) , Florida Statutes, because of

his conviction for official misconduct, a third degree felony

under section 838.022(1), Florida Statutes.

PRELIMINARY STATEMENT

By certified letter dated May 13, 2013, the Department of

Management Services, Division of Retirement ( " Respondent " or " the

Division " ), notified Stephen J. Gonot ( " Petitioner " ), that his

rights and benefits under the FRS are forfeited as a result of

his unsuccessful appeal of a conviction in the Circuit Court of

the Seventeenth Judicial Circuit, in and for Broward County,

Flori da, for official misconduct, a third degree felony, in

violation of secti on 838.022(1), Florida Statutes; and grand

theft, a third degree felony, in violation of sections

812.014(1)(a),(b), and (2)(c) 2., Florida Statutes.

Petitioner challenged the propos ed forfeiture an d timely

requested an administrative hearing. S ubsequently, Respondent

referred the matter to the Division of Administrative Hearings

( " DOAH " ) to assign an Administrative Law Judge to conduct the

final hearing. This case was initially ass igned to

Administrative Law Judge Claude B. Arrington . On September 3,

2013, this case was transferred to the undersigned for all

further proceedings.

On June 28, 2013, Respondent served a Request for Admissions

( " RFA " ) upon Petitioner ' s counsel. The R FA consists of 25

separately numbered requests. After Petitioner did not timely

respond to the RFA, Respondent filed a Motion to Deem Facts

Admitted, Motion to Relinquish Jurisdiction, and Motion to Compel

Discovery ( " Motions " ) , which Respondent filed on August 28, 2013.

Petitioner ' s counse l did not timely respond to the M otions . On

September 9, 2013, t he undersigned entered an Order on the

M otion s , ruling that the matters set forth in the RFA " are deemed

technically admitted due to Gonot ' s failure to ob ject or

otherwise respond to such requests " in accordance with the

applicable Florida Rules of Civil Procedure and case law. The

Order, however, allowed Petitioner the opportunity, pursuant to

Fla. R. Civ. P. 1.370(b), to file by September 20, 2013, a mot ion

to withdraw or amend the technical admissions, accompanied by

responses to the RFA, unless the privilege against

self - incrimination is asserted. Petitioner did not file a motion

to withdraw or amend the technical admissions. Indeed, on

September 22 , 2013, Petitioner filed a r esponse to the M otions

and, in doing so, " acknowledged that the statements set forth in

the Division ' s requests for admissions and official recognition

are accurate. "

Based upon the agreement of counsel for the parti es during

the Octo ber 28, 2013 , telephone status conference, the final

hearing was rescheduled for November 5, 2013, via video

teleconference, with sites in Tallahassee and Lauderdale Lakes,

Florida.

Petitioner did not attend the final hearing. At heari ng,

Petitioner was represented by legal counsel, who presented no

testimony or exhibits. Respondent presented the testimony of one

witness, Richard Clifford, B enefits A dministrator , and offered

Exhibits 1 - 8, all of which were admitted into evidence upon

s tipulation of the parties .

At hearing , t he undersigned granted Respondent ' s request for

official recognition of the following: 1) Part I, Art. III,

section 3.05 (Oath of office), Charter of the City of Deerfield

Beach, Florida; 2) Part I, Art. VIII, sect ion 8.01 (Standards of

ethics), Charter of the City of Deerfield Beach, Florida;

3) Information, State vs. Gonot , Case No. 08 - CF - 23813, Circuit

Court of the Seventeenth Judicial Circuit, in and for Broward

County, Florida, December 29, 2008; 4) Verdict, S tate vs. Gonot ,

Case No. 08 - CF - 23813, Circuit Court of the Seventh Judicial

Circuit, in and for Broward County, Florida, May 10, 2011;

5) Circuit Court Disposition Order, State vs. Gonot ,

Case No. 08 - CF - 23813, Circuit Court of the Seventeenth Judicial

Ci rcuit, in and for Broward County, Florida, May 10, 2011 ;

6) Circuit Court Disposition Order, State vs. Gonot ,

Case No. 08 - CF - 23813, Circuit Court of the Seventeenth Judicial

Circuit, in and for Broward County, Florida, July 29, 2011; and

7) Opinion, Gono t v. State , Case No. 4D11 - 2885, Court of Appeal

of Florida, Fourth District, May 1, 2013.

The final hearing T ranscript was filed on November 25, 2013 .

The parties were given ten days from the date the Transcript was

filed to submit proposed recomme nded orders. On December 6,

2013, one day late, Respondent filed its Proposed Recommended

Order, which was given consideration in the preparation of this

Recommended Order. Petitioner did not file a proposed

recommended order.

FINDING S OF FACT

1. T he FRS is a public retirement system as defined by

Florida law. Respondent is charged with managing, governing, and

administering the FRS.

2. In January 1987, Petitioner began employment with the

Florida Department of Transportation ( " DOT " ) , a n

FRS - participating employer. By reason of this employment,

Petitioner was enrolled in the FRS , and DOT made contribu tions to

the FRS on his behalf .

3 . In M arch 2001 and March 2005, Petitioner was elected to

separate four - year terms as a Commissioner on the City Commission

of the City of Deerfield Beach, Florida ( " City " ), a n

FRS - participating employer. By reason of his public office as a

City Commissioner, Petitioner was enrolled in the FRS , and the

City made contributions to the FRS on his behalf . Bef ore entering

upon the duties of his public office, pursuant to Florida law and

the City Charter, Petitioner was required to take and subscribe

substantially to the following oath:

I do solemnly swear or affirm that I am a

citizen of the State of Florida an d of the

United States of America and a registered

voter and resident of the City of Deerfield

Beach, as shown by the public records of

Broward County, Florida. I am being employed

as a Commissioner of the City of Deerfield

Beach and will be a recipient o f public funds.

As such Commissioner I further swear or affirm

that I will support the Charter of the City of

Deerfield Beach, the Constitution of the State

of Florida, and the Constitution of the United

States, and that I will well and faithfully

perform the duties of my office upon which I

am about to enter.

4 . All elected officials of the City were subject to the

standards of ethical conduct for public officers set by Florida

law and the City Charter. Effective December 11, 2008, Petitioner

resi gned his position as City Commissioner.

5 . On or about December 29, 2008, Petitioner was charged, by

information, with one count of grand theft, a third degree felony,

in violation of sections 812.014(1)(a) and (b) and (2)(c)2.,

Florida Statutes; one count of official misconduct, a third degree

felony, in violation of section 838.022(1), Florida Statutes; and

one count of falsifying records, a first degree misdemeanor, in

violation of section 839.13, Florida Statutes. The crimes with

which Petitioner was charged were alleged to have occurred between

October 6, 2007 and January 10, 2008.

6 . The basis for the official misconduct charge was that

Petitioner falsified a campaign treasurer ' s report as part of his

campaign for mayor of the City. The c ampaign treasurer ' s report

is an official record or document belonging to the office of the

City Clerk and/or the Florida Department of State , Division of

Elections.

7 . Petitioner is no longer employed by DOT or the City.

Petitioner is not retired f rom the FRS , and he has not received

FRS retirement benefits. On or about May 7, 2010, Petitioner

filed with the Division a completed FRS Pension Plan Application

for Service Retirement (Form FR - 11). By letter dated May 11,

2010, the Division advised Pet itioner i n relevant part as follows:

This letter is to advise you of the status of

your application for Florida Retirement System

benefits.

Our Legal office is reviewing your current

legal situation for a determination of whether

a forfeiture of benefits has

occurred. If the determination is that

forfeiture occurred, you will be notified and

given information if you wish to appeal that

determination.

Your retirement application is pending until

this review is complete.

8 . On May 10, 2011, a jury r endered a verdict which found

Petitioner guilty as charged in the information. On July 29,

2011, the court adjudicated Petitioner guilty of the crimes.

9 . On or about August 3, 2011, Petitioner filed a notice of

appeal in Florida ' s Fourth Dist rict Court of Appeal. On May 1,

2013, the Fourth District Court of Appeal affirmed Petitioner ' s

convictions for grand theft, official misconduct, and falsifying

records , and autho red an opinion which addressed Petitioner ' s

c ontention that he was entitled to a judgment of acquittal on the

count of official misconduct. The Court wrote in relevant part:

Section 838.022(1)(a), Florida Statutes

( 2007), makes it " unlawful for a public

servant, with corrupt intent to obtain a

benefit for any person or to cause harm to

another, to ... [f]alsify, or cause another

person to falsify, any official record or

official document. " In this case, the basis

for the official misconduct charge was that

appellant falsified a campaign report as part

of his campaign for mayor of Deerfield Beach.

On appeal, appellant focuses on section

838.022(2) ( a) , which defines " public servant "

as not " includ[ing] a candidate who does not

otherwise qualify as a public servant, " for

the argument that " he was not a public servant

at the time of t he alleged offense " but was

" merely a candidate for public office. "

However, as the State argues, at the time

appellant was a candidate for mayor, he

" otherwise qualif[ied] as a public servant " by

virtue of his status as a city

commissioner. Chapter 838 defines " pu blic

servant " as including " [ a ] ny officer or

employee of a state, county, municipal, or

special district agency or entity. " § 838.0 14

(6)(a), Fla. Stat. (2007). The statute

distinguishes a mere candidate from a public

job or office holder in o rder to reach the

evil of public servants misusing their office.

Here, appellant was not just a candidate at

the time of the offense; it was his dual

status as a candidate and an incumbent

commissioner that brought him within the ambit

of the statute. ...

Gonot v. State , 112 So. 3d 679, 680 (Fla. 4 th DCA 2013) (emphasis

in original) .

ULTIMATE FACTUAL FINDINGS

1 0 . Petitioner forfeited his rights and benefits under the

FRS pursuant to section s 112.3173 and 121.091(5)(f) , Florida

Statutes, because he was convicted of official misconduct, a third

degree felony, in violation of section 838.022(1), Florida

Statutes.

C ONCLUSIONS OF LAW

1 1 . DOAH has jurisdiction of the subject matter of and the

parties to this proceeding pursuant to sections 120. 569 and

120.57 (1), Florida Statutes.

1 2 . The Respondent has the burden of proving by a

preponderance of the evidence that Petitioner ' s rights and

benefits unde r the FRS have been forfeited. Wilson v. Dep ' t of

Admin., Div. of Ret . , 538 So. 2d 139, 141 - 42 (Fla. 4 th DCA 1989);

Dep ' t of Transp. V. J.W.C. Company, Inc ., 396 So. 2d 778 (Fla.

1 st DCA 1981).

1 3 . " It is in the public ' s interest that the retirement

system b e prevented from inducing to public service those

individuals inclined to breac h the public trust. " Childers v.

Dep ' t of Mgmt. Servs., Div. of Ret ., 989 So. 2d 716, 720 (Fla.

4 th DCA 2008).

1 4 . The Florida Constitution sets forth ethical mandates

designed to protect the people of Florida from abuse of the trust

they have plac ed in their public officers and employees. Fla.

Const., art. II, §8. This constitutional provision, entitled

" Ethics in government, " was enacted in 1976, and contains various

reforms related to public service. Brock v. Dep ' t of Mgmt.

Servs ., 98 So. 3d 7 71, 772 (Fla. 4 th DCA 2012). Significantly,

section 8 provides:

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 of 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.

Art. II, §8(d), Fla. Const. (1976).

1 5 . Section 8(d) is not self - executing , and required

implementing legislation. Williams v. Smith , 360 So. 2d 417, 418

(Fla. 1978); Brock , 98 So. 3d at 773. In Williams , the court

explained the need for implementing legislation, stating t hat

section 8(d) " re quires so much in the way of definition,

delineation of time and procedural requirements, that the intent

of the people cannot be carried out without the aid of

legislative enactment. " Brock , 98 So. 3d at 773 ( quoting ,

Williams , 360 So. 2d at 420 ) .

1 6 . T he legislature enacted section 112.3173, Florida

Statutes to implement the provisions of Article II, section 8(d).

§ 112.3173(1) , Fla. Stat. (2007); Brock , 98 So. 3d at 773. 1/

1 7 . Section 112.3173(3), provides, in relevant part, as

follows:

( 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,

sha ll 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 contribution as of the

date of termination.

18. " Public officer or employee means an officer or

employee of any public body, political subdivision, or public

instrumentality within the state. " § 112.3173(2)(c) , Fla. Stat.

(2007).

1 9 . Convicted means " an adjudication of guilt by a court of

competent jurisdiction; a plea of guilty or nolo contendere; a

jur y 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. " § 112.3173(2)(a) , Fla. Stat. ( 2007).

20 . Section 112.3173 (2) (e) defines specified offense as

fo llows:

(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. Br i bery in conne ction 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;

or

6. The committing of any felony by a public

officer or employee who, wi llfully 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 pos ition.

21 . Similarly, section 121.091(5)(f) provides as follows:

(f) Any member who has been found guilty by

verdict of a jury . . . of committing,

aiding, or abetting any embezzlement or theft

from his or her employer, bribery in

connection with the employment, or other

felony specified in chapter 838, except ss.

838.15 and 838.16 , committed prior to

retirement, or who has entered a plea of

guilty or nolo contendere to such crime, or

any member whose employment is terminated by

reason of the membe r ' s admitted commitment,

aiding, or abetting of an embezzlement or

theft from his or her employer, bribery, or

other felony specified in chapter 838, except

ss. 838.15 and 838.16, shall forfeit all

rights and benefits under this chapter,

except the return of his or her accumulated

contributions as of the date of termination.

22. In the present case, Petitioner, a public officer or

employee, was convicted of official misconduct, a felony under

section 838.022(1), Florida Statutes. Because convict ion of a

felony under section 838.022(1), Florida Statutes , is a specified

offense pursuant to section 112.3173( 2 ) (e) , and both sections

112.3173 and 121.091(5)(f), Florida Statutes, require forfeiture

for a conviction of official misconduct under section 838.022(1),

Petitioner ' s FRS rights and benefits must be forfeited .

RECOMM ENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Management

Services, Division of Retirement, enter a final or der finding

that the Petitioner was convicted of a felony under section

838.022(1), Florida Statutes , and directing the forfeiture of his

FRS retirement rights and benefits.

DONE AND ENTERED this 1 3 th day of December , 2013 , in

Tallahassee, Leon County, Fl orida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of December , 2013 .

ENDNOTE

1/ Unless otherwise noted, all statutory references are to the

2007 versions of the statutes, the applicable statutes in effect

at the time when Petitioner committed the crime of official

misconduct. Busbee v. State , Div. of Ret . , 685 So. 2d 914, 917

(Fla. 1 st DCA 1996).

COPIES FURNISHED:

Geoffrey M. Christian, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallaha ssee, Florida 32399 - 0950

Lawrence R. Metsch, Esquire

The Metsch Law Firm, P.A.

Suite 308

Aventura Corporate Center

20801 Biscayne Boulevard

Aventura, Florida 33180 - 1423

Dan Drake, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

Jason Dimitris, General Counsel

D epartment of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit 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.