13-004172 Nancy Maradey vs. State Board Of Administration Status: Closed Recommended Order on Thursday, January 16, 2014.

Summary: Respondent proved by a preponderance of the evidence that Petitioner committed specified offenses warranting forfeiture of her Florida Retirement System rights and benefits pursuant to section 112.3713.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY MARADEY,

Petitioner,

vs. Case No. 13 - 4172

STATE BOARD OF ADMINISTRATION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was con ducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2013), before Cathy M. Sellers, an Administrative Law Judge of

the Division of Administrative Hearings ( " DOAH " ), on

December 9, 2013, by video teleconference at sites in Mia mi and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Marc Chattah, Esquire

815 Ponce de Leon Boulevard

Suite 203

Coral Gables , Florida 3313 4

For Respondent: Brandice P. Dickson, Esquire

Pennington, Moore, Wilkinson, Bel l

and Dunbar, P.A.

215 South Monroe Street

Second Floor

Post Office Box 10095

Tallahassee , Florida 3 2302 - 2095

STATEMENT OF THE ISSUE

The issue in this case is whether, pursuant to section

112.3173, Florida Statutes (201 2 ), 1 / Petitioner forfeited her

Florida Retirement System ( " FRS " ) Investment Plan account by

having pled guilty/ nolo contendere to felony counts of insurance

fraud, grand theft, and patient brokering.

PRELIMINARY STATEMENT

On or about July 22, 2013, Respondent, t he State Board of

Admini stration of Florida ( " SBA " ) , notified Petitioner , Nancy

Maradey, that pursuant to section 112.3173, s he had forfeited

her rights and benefits under the FRS as a result of having pled

guilty to insurance fraud, grand theft in the s econd degree, and

patient brokering for acts committed while employed with Miami -

Dade County. Petitioner timely requested an administrative

hearing and the matter was referred to DOAH for assignment of an

Administrative Law Judge ("ALJ") and conduct of a hearing

pursuant to sections 120.569 and 120.57(1).

The final hearing was held on December 9, 2013. Respondent

presented Petitioner ' s testimony in its case - in - chief.

Petitioner did not call any witnesses in her case - in - chief .

Joint Exhibits 1 , 2, and 3 were admitted into evidence pursuant

to the parties ' stipulation. Respondent ' s Exhibit 1 was

admitted into evidence without objection and Respondent ' s

Exhibit 2 was admitted into evidence over objection.

Petitioner ' s Exhibit 2, a late - filed exhibit, w as admitted into

evidence without objection. Petitioner ' s Exhibit 1, also a

late - filed exhibit, was not filed with the court and therefore

was not admitted into evidence .

The one - volume Transcript was filed on December 27 , 2013 ,

and the parties were g iven ten days, until January 6, 2014, in

which to file their proposed recommended orders. The p arties

timely filed their Proposed Recommended Orders , which were duly

considered in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Pe titioner , Nancy Maradey, was employed as a bus driver

by Miami - Dade Transit ( " MDT " ), a unit of Miami - Dade County

government , between January 2003 and July 2012 .

2. Respondent, SBA, is the entity of Florida state

government that administers the FRS Inv estment Plan , a defined

retirement benefits contribution plan. 2 / § 121.4501(1), Fla.

Stat.

II. Events Giving Rise to this Proceeding

3. While Petitioner was employed at MDT, she participated

in the FRS Investment Plan through her employment with MDT. 3 /

4. Petitioner worked a split shift at MDT. This meant

that she would punch in her time card in the morning, drive a

route, return to the bus station , punch out her time card,

return in the afternoon, punch in her time card again, and drive

another r oute.

5 . While Petitioner was employed at MDT, a co - worker

approached her regarding obtaining treatment at AJZ Medical

Center ("AJZ") , a clinic located in close proximity to the MDT

bus station . This co - worker told Petitioner that if she went to

AJZ , s he could receive therapy and be paid money for it.

6 . Petitioner claimed that she experienced back pain due

to having undergone gastric bypass surgery .

7. She sought and receive d treatment, consisting of

massage and electric shock or stimulation , at AJ Z on numerous

occasions . 4 /

8 . It was Petitioner ' s understanding that AJZ billed an

insurance company 5 / for the treatments. When the insurance

company paid AJZ, AJZ then pa id kickbacks to Petitioner .

9 . Petitioner estimated that she received between $5,000

and $6,000 in kickbacks from AJZ for receiving the treatments.

10 . An AJZ employee told Petitioner that if she referred

others to AJZ for treatment , she would receive additional money

from AJZ for those referrals.

11 . As a result of that communi cation, Petitioner referred

her co - workers at MDT to AJZ for treatment . She told them that

if they were treated at AJZ, they would receive money.

12 . Petitioner testified that it is common for bus drivers

to have back and knee pain. Petitioner refer red to AJZ only co -

workers who she knew h ad injuries.

1 3 . On one occasion, Petitioner accompanied a co - worker to

AJZ and informed AJZ personnel that the co - worker was there to

receive treatment.

1 4 . Petitioner recruited only her co - workers to receive

t reatment at AJZ. She did not recruit anyone for treatment at

AJZ who was not one of her co - workers at MDT .

1 5 . Petitioner claims that d espite being told she would

receive money for referring others to AJZ, in fact she did not

receive any money for the r eferrals. 6 /

1 6 . Petitioner and her co - workers were in the MDT bus

station when they had discussions during which she referred the m

to AJZ. 7 / Petitioner told her co - workers it would be easy for

them to seek treatment at AJZ because it was close to the bu s

station .

1 7 . Petitioner was arrested in August 2012 and charged

with felony counts of insurance fraud, grand theft, and patient

brokering.

1 8 . All of Petitioner ' s conduct underlying the cri minal

charges took place while she was employed at MDT.

1 9 . On February 19, 2013, Petitioner entered into a plea

agreement in Case No. F - 12 - 20328G, 8 / under which she pled guilty

to felony counts of insurance fraud, grand theft in the second

degree, and patient brokering for her actions in seeking

treatment and rece iving kickbacks from, and referring others to,

AJZ for money .

20 . One of the conditions of the plea agreement was that

Petitioner not seek future employment with state, county, or

municipal government.

21 . As a condition of the plea agreement, adjudi cation

would be withheld on the se offenses if Petitioner cooperated

with the State in investigating the matter .

2 2 . On July 22, 2013, Respondent formally notified

Petitioner that as a result of her having pled guilty to felony

counts of insurance fraud, grand theft, and patient brokering,

she violated section 112.3173, which provides for forfeiture of

the right to retirement benefits under the FRS upon a plea of

guilty or nolo contendere to a specified offense.

2 3 . Petitioner ' s guilty plea was changed to a plea of nolo

contendere on October 17, 2013. 9 /

24. Petitioner admitted that she knew, at the time she

committed the offenses to which she pled guilty/nolo contendere ,

that her actions were wrong.

III. Findings of Ultimate Fact

25. The evidence e stablishes the existence of a nexus

between Petitioner ' s employment as a bus driver with MDT and her

participation in the crimes to which she pled guilty/nolo

contendere.

26. Specifically, Petitioner used the personal and

professional relationships wit h her co - workers that she had

developed through her employment at MDT and her consequent

knowledge of their conditions ÏÏ i.e. back and neck pain ÏÏ to

recruit them for participation in the insurance fraud scheme by

referring them to AJZ. She recruited only h er co - workers at MDT

for participation in the scheme, and specifically recruited only

those who she knew had pain issues. She went so far as to

accompany one of her co - workers to AJZ and inform the staff at

AJZ that her co - worker was there for treatment. She engaged in

conversations with her co - workers while physically present on

the MDT premises during which she recruited them f or

participation in the scheme by referring them to AJZ .

2 7 . But for her employment with MDT, Petitioner would not

have had access to, or enjoyed the relationships with, the other

MDT employees she recruited for participation in the criminal

scheme, and she would not have had the knowledge of their

conditions which made them targets for her recruitment efforts.

2 8 . Through out all of this, Petitioner knew that her

actions were wrong ; nonetheless, she continued to engage in

t hose actions. H er actions were thus done willfully and with

intent to defraud the public of her faithful performance of her

duties as a bus driver emplo yed by MDT , her public employer .

Plainly put, the public had a right to expect that one of its

employees would not use the relationships, knowledge, and

physical access to public premises and other public employees

that she gained through h er public emplo yment to commit crimes.

The public was defrauded when Petitioner used the relatio nships,

knowledge, and access that she gained through her public

employment position to commit crimes.

29. T he evidence further establishes that through

Petitioner ' s use o f her public employment position, she

realized , obtained, and attempted to realize or obtain, a profit

and gain. As discussed above, Petitioner was recruited by a

fellow co - worker to seek and obtain treatments from AJZ in

exchange for monetary kickbacks . T hrough her employment, s he

became involved in the insurance fraud scheme and realized

financial profit and gain by receiving the kickbacks. She also

used her position as an MDT employee to recruit other MDT

employees for involvement in the scheme by ref erring them to

AJZ; s he did this for the specific purpose of realizing and

obtaining financial profit and gain through payments from AJZ in

exchange for referring co - workers for treatment .

CONCLUSIONS OF LAW

30 . DOAH has jurisdiction over the parties t o, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

31 . In this proceeding, Respondent asserts that Petitioner

has forfeited her rights and benefits under the FRS pursuant to

section 112.3173.

3 2 . Article II, section 8 of the Florida Constitution ,

titled " Ethics in Government, " states in pertinent part:

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.

3 3 . Section 112.3173 , which implements this constitutional

provision , is part of the statutory code of ethics for public

officers and employees. The statute states in pertinent part:

(1) INTENT. Ï Ï It is the intent of the

Legislature to implement the provisions of

s. 8(d), Art. II of the State Constitution.

( 2) DEFINITIONS. Ï 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 co ntendere; 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.

* * *

(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, a iding, 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 o r 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 Octo ber 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, ri ghts,

privileges, duties, or position of his or

her public office or employment position.

(3) FORFEITURE. ÏÏ Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

whose office or employment is terminated b y

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 o f

the date of termination.

* * *

(5) FORFEITURE DETERMINATION. Ï

(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 th e 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 privi leges 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.

3 4 . As the party asserting that Petitioner has f orfeited

her rights and benefits under the FRS pursuant to section

112.3173 (3) , Respondent bears the burden of proof in this

proceeding. See Florida Dep ' t of Transp. v. J.W.C. Co. , 396 So.

2d 778 (Fla. 1st DCA 1981); see also Balino v. Dep ' t of Health

and Rehab. Servs. , 348 So. 2d 349 (Fla. 1st DCA 1977)(party

asserting the affirmative of an issue bears the burden of

proof).

3 5 . The statutory forfeiture provision at issue in this

proceeding, section 112.3173(3), is not penal and does not

involve disc iplinary action against a license. Accordingly, t he

standard of proof in this proceeding is a preponderance of the

evidence. § 120.57(1)(j), Fla. Stat. ; Childers v. Dep ' t of

Mgmt. Servs. , Case No. 07 - 2128 (Fla. DOAH July 17, 2007) ,

modified in part , OGC Case No. 04 - 03615 (Fla. State Bd. of

Admin. Sept. 28, 2007).

36. Not every crime committed by a public officer or

employee gives rise to forfeiture of FRS rights and benefits

under section 112.3173. To result in forfeiture, the crime must

be a " specif ied offense " as defined in section 112.3173(2)(e) 1 .

through 7.

3 7 . The crimes to which Petitioner pled guilty/nolo

contendere are not among the specified offenses enumerated in

paragraphs 1 . through 5 . or 7 . of s ection 112.3171(2)(e).

Accordingly, t he issue is whether Petitioner ' s crimes fall

within section 112.3171(2)(e)6 ., which has been called the

" catch - all " provision of the forfeiture statute. See Bollone v.

Dep ' t of Mgmt. Servs. , 100 So. 3d 1276 , 1280 (Fla. 1st DCA

2012).

3 8 . T o constitut e a specified offense under section

112.3171(2)(e) 6. , the criminal act must be : a felony; committed

by a public officer or employee; done willfully and with intent

to defraud the public or the officer ' s or employee ' s public

employer of the right to receiv e the faithful performance of the

officer ' s or empl oyee ' s duty as a public officer or employee ;

done to realize or obtain, or attempt to realize or obtain, a

profit, gain, or advantage for the officer or employee or some

other person ; and done through the use of or attempted use of

the power, rights, privileges, duties, or position of the

officer ' s or employee ' s public employment. Id. at 1280 - 81.

3 9 . To determin e whether section 112.3171(2)(e)6. a pplies

to a particular offense , the se statutory condition s must be

examined and applied in light of the employee ' s conduct. Id. at

1280. W hether a particular crime meets the definition of a

" specified offense " under this provision depends on the way in

which the crime was committed. Jenne v. Dep ' t of Mgmt. Se rvs .,

36 So. 2d 738, 742 (Fla. 1st DCA 2010).

40 . T here is no dispute that Petitioner was a public

employee at the time she committed the acts described above.

There also is no dispute that Petitioner pled guilty/nolo

contendere to insurance fraud, g rand theft in the second degree,

and patient brokering; thus, by operation of section

112.3173(2)(a), she is deemed as having been convicted of these

offenses, which are felonies. It also is und ispute d that

Petitioner committed the se criminal acts to real ize or obtain a

profit or gain ÏÏ specifically, the kickbacks that she received as

a result of having treatments at AJZ, and the promise of

monetary payments in exchange for refer ring others to receive

treatment at AJZ. 10 /

41 . Petitioner contends that tw o elements of the " catch -

all provision " ar e not satisfied in this case: the requirement

that she committed the offenses willfully and with intent to

defraud the public or her public employer of the right to

receive the faithful performance of her employme nt duty; and the

requirement that the profit, gain, or advantage she realized or

obtained , or attempted to realize or obtain, w as through the use

of the power, rights, privileges, duties, or position of her

public employment position.

4 2 . With respec t to the first of these d isputed elements,

Petitioner argues that the only connection between Petitioner ' s

crimes and her employment was that she told other bus drivers ,

while at the bus station, that they could receive kickbacks from

AJZ for obtaining tre atment . Petitioner asserts that she

committed the crimes while not working and that her employment

as a bus driver was not necessary for the completion of her

crimes. 11 / Petitioner argues that under these circumstances,

neither the public nor her employer was deprived of her faithful

performance of her duty as a bus driver. Petitioner further

contends that because the offenses she committed were not

" inseparably intertwined " with her position as a bus driver, her

employment was incidental to the commissio n of the crimes and

not necessary to successful commission of any criminal act .

Thus, Petitioner argues, she did not obtain a profit by use of

her position. Neither of these arguments is tenable .

4 3 . For the reasons discussed in detail above, the

evi dence establishes that Petitioner ' s actions were done

willfully and with intent to defraud the public of the faithful

performance of her duties as a public employee. Also as

discussed in detail above, the evidence demonstrates a clear

connection between P etitioner ' s employment as a bus driver with

MDT , the crimes to which she pled guilty/nolo contendere , and

the profit or gain she realized and obtained through committing

these crimes. Accordingly, these elements of section

112.3173(2)(e)6., which Petition er disputed, are satisfied.

44. The circumstances in this case are comparable to those

in Bollone v. Dep ' t of Mgmt. Servs. , Case No. 11 - 3274 (Fla. DOAH

Oct. 19, 2011; Fla. DMS Dec. 22, 2011), aff ' d , 100 So. 3d 1276

(Fla. 1st DCA 2012) . In Bollone , a community college instructor

use d his work computer to access and download child pornography .

As a result of these actions, he pled no contest to possession

of child pornography. The Department of Management Services

( " DMS " ) determined that Bollone had forfeited his rights and

benefits under the FRS pursuant to section 112.3173(2)(e)6. , and

Bollone challenged that determination. In his Recommended

Order, 12 / the ALJ found that Bollone knew that use of his work

computer to access and downl oad child pornogr aphy was wrong and

v iolat ed the college ' s policies. Thus, Bollone ' s actions in

using the computer to commit the crime were done willfully and

with intent to defraud the public and community college of the

right to receive the faithful performance of his p ublic duty.

The ALJ found that the public and college had a right to expect

that Bollone would not use his work computer for criminal

activity, and that in doing so, Bollone had breached the public

trust. The ALJ also found that Bollone was able to posse ss

child pornography on the computer only through the power,

rights, privileges, and position of his employment at the

college. Accordingly, Bollone realized or obtained a profit,

gain, or advantage to himself through the use of the power,

rights, privile ges, duties, or position of his public

employment.

45. Here, through her employment with MDT, Petitioner had

access to, and developed personal and professional relationships

with, other MDT bus drivers. She used these relationships and

her knowledge of her co - workers ' conditions to engage in

criminal activity. Petitioner knew that her actions were wrong ,

but she did them anyway; in doing so, she willfully , and with

intent , defrauded the public of her faithful performance of her

duties as a bus driver em ployed by MDT, her public employer.

But for her employment with MDT, Petitioner would not have

become involved in the criminal activity to which she pled

guilty/nolo contendere, and she would not have had access to, or

enjoyed the relationships with, the other MDT employees who m she

recruited as part of her engagement in the criminal activity. 13 /

Further, Petitioner used her access to, knowledge of, and

relationships with other MDT employees specifically to realize

and obtain financial profit and gain by receiving kickbacks from

AJZ for fraudulent insurance billing , and she attempted to

realize or obtain a profit or gain for referring other MDT

employees to AJZ in exchange for money. A s in Bollone ,

Petitioner ' s offenses satisfy all elements of section

112 .3173(2)(e)6. and , thus , constitute a " specified offense, "

conviction of which constitutes grounds for forfeiture of her

FRS rights and benefits under section 112.3173(3).

46. T he conclusion that Petitioner ' s crimes constitute

" specified offenses " pur suant to section 112.3173(2)(e)6. is

also supported by other case law. In Newmans v. Division of

Ret irement , 701 So. 2d 573 (Fla. 1st DCA 1997) , the court held

that a sheriff ' s use of the knowledge and information he

obtained through his employment to eng age in drug trafficking

satisfied the requirement in section 112.3173(2)(e)6. that his

crime be related to his public employment position. Similarly,

in Simcox v. City of Hollywood Police Officers ' Retirement

Sys tem , 988 So. 2d 731 (Fla. 4th DCA 2008) and DeSoto v. Hialeah

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

DCA 2003), police officers used knowledge and information they

had gained through their employment positions to commit crimes ;

i n both of these cases, the use of this knowled ge to commit

crimes was deemed sufficient to establish the nexus between the

crimes charged and the officer ' s employment position requir ed by

section 112.3173(2)(e)6. Likewise, here Petitioner used the

relationships, knowledge , and access she gained throu gh her

employment with MDT to engage in the crimes to which she pled

guilty/nolo contendere. Pursuant to this authority , it is

determined that a nexus exists between Petitioner ' s employment

position and the crimes she committed sufficient to satisfy

sec tion 112.3173(2)(e)6.

47. In sum, the evidence in this case establishes that

Petitioner was convicted (by pleading guilty/nolo contendere) of

felonies; that she was a public employee; that she committed the

crimes willfully and with intent to defraud the public of the

right to receive the faithful performance of her duty as a

public employee; t hat she realized, obtained, and attempted to

realize or obtain, a profit and gain for herself; and that her

criminal acts were committed through the use of her publ ic

employment position .

48. Accordingly, the offenses to which Petitioner pled

guilty/nolo contendere in this case are " specified offenses "

within the meaning of section 112.3173(2)(e)6.

49. As such, all requirements in section 112.3173(3) for

forfei ture are met. P etitioner is deemed to have forfeited all

of her rights and privileges under the FRS Investment Fund,

except for the return of her accumulated contributions as of the

date of her termination. See § 112.3173(3), Fla. Stat.

RECOMMENDATION

Ba sed on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the State Board of Administration

issue a final order finding that Petitioner was a public

employee convicted of specified offenses that were committed

prior to retirement , and that pursuant to section 112.3173 she

has forfeit ed all of her rights and benefits under the FRS

Investment Fund, except for the return of her accumulated

contributions as of the date of her termination.

DONE AND ENTERED this 16 th day of January, 20 14, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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

t his 1 6 th day of January, 2014.

ENDNOTES

1 / SBA took proposed agency action regarding Petitioner ' s

retirement account on July 22, 2013, p rior to publication of the

2013 version of Florida Statutes. Section 112.3173 was not

amended during the 2013 Legislative Session.

2 / The FRS is the legislatively - created general retirement

system established by chapter 121, Florida Statutes. See §

121.021(3), Fla. Stat. Participants in the FRS include

employees of counties. See §§ 121 .021(10), 121.051, Fla. Stat.

3 / The FRS Investment Plan is a defined contribution program for

members of the FRS. The employer and employee each make

contributio ns to the FRS Investment Plan Trust Fund to fund the

employee ' s retirement benefits. See § 121.4501, Fla. Stat.

4 / Petitioner could not recall the precise number of times she

received therapy, but estimated that it was more than 50.

5 / Petitioner beli eves that AvMed was the insurance company

billed for the treatments she received at AJZ.

6 / It is immaterial that Petitioner was not actually paid for

referring her co - workers to AJZ. The persuasive evidence

established that she referred co - workers spe cifically so she

would receive money in exchange for the referrals. Section

113.3173(2)(e)6., expressly includes as an element of the " catch

all " provision the attempt to realize or obtain a profit, gain,

or advantage.

7 / Petitioner ' s testimony that she was always " off the clock "

when she had conversations with co - workers in which she referred

them to AJZ was not credible, but, in any event, was immaterial.

As discussed herein, Petitioner ' s use of the relationships,

knowledge, and access that she ob tained through her employment

as a bus driver for MDT to commit the crimes is determinative in

this case.

8 / The plea agreement was entered in the Eleventh Judicial

Circuit, in and for Miami - Dade County, Florida.

9 / Section 112.3173(2)(a) defin es the term " conviction " or

" convicted " to include a plea of guilty or nolo contendere.

10 / See supra note 6.

11 / Petitioner notes that there is no evidence in the record

that she stole passenger fares or failed to complete any

requirements associated with her job as a bus driver. For the

reasons discussed herein, this is not material to , or

determinative of , whether she used her public employment

position to realize a profit or gain.

12 / DMS adopted the Recommended Order in toto as its Final

Order. The f inal o rder was affirmed on appeal.

13 / Here, as in Bollone , Petitioner's employment provided the

necessary means for her to commit the crimes.

COPIES FURNISHED :

Marc Chattah, Esquire

Suite 203

815 Ponce de Leon Boulevard

Coral Gables, Florid a 33134

Brandice D. Dickson, Esquire

Pennington, Moore, Wilkinson,

Bell and Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

Ash Williams, Executive Director and Chief

Investment Officer

State Board of Administration

1801 Hermitage Boulevard, Suite 100

Post Office Box 13300

Tallahassee, Florida 32317 - 3300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.