14-000870 John Zeh vs. Board Of Trustees Of The City Of Longwood Police Officers' And Firefighters' Pension Trust Fund Status: Closed Recommended Order on Monday, June 30, 2014.

Summary: Petitioner forfeited his rights and benefits under pension plan by committing two felonies while on duty as a police officer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN W. ZEH,

Petitioner,

vs. Case No. 1 4 - 0870

BOARD OF TRUSTEES OF THE CITY OF

LONGWOOD POLICE OFFICERS' AND

FIREFIGHTERS' PENSION TRUST

FUND,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Administrative Law Judge of the Division

of Administrative Hearings (DOAH) , conducted the final hearing

on April 29, 2014, in Longwood, Florida .

APPEARANCES

For Petitioner : Jammison Jessup , qualified represent ative

557 Noremac Avenue

Deltona, Florida 32738 - 7313

For Respondent : Ch r istopher R. Conley, Esquire

Daniel W. Langley, Esquire

Fishback, Dominick, Bennett, Ardaman ,

Ahlers, Langley & Geller LLP

1947 Lee Road

Winter Park, Florida 32789 - 1834

STATEMENT OF THE ISSUE

The issue is whether , pursuant to section 112.3173, Florida

Statutes, Petitioner forf eited his retirement benefits under the

City of Longwood's (City's) Police Officers' and Firefighters'

Pension Trust Fund (Pension Fund) by having pled nolo contendere

to felony counts of burglary with assault/battery while armed

(firearm) and aggravated a ssault with a firearm while on duty.

PRELIMINARY STATEMENT

By letter dated October 21, 2013, the Pension Fund notified

Petitioner , a former police officer with the City , that he had

forfeited his rights and benefits under the Pension Fund by

reason of his admitted commission and conviction of certain

felonies in 2011. Petitioner timely requested a hearing, and

pursuant to a contract, the matter was referred by the City to

DOAH to conduct a formal hearing.

Without objection by the Respondent, Petitioner w as

represented at the final hearing by Jamison Jessup, a s his

qualified representative. Petitioner's Exhibit 1 was admitted

into evidence. Respondent presented the testimony of

Petitioner. Also, Respondent's Exhibits 1 - 7 were admitted into

evidence.

A one - volume T ra nscript of the hearing has been prepared.

Proposed Findings of Fact and Conclusions of Law were filed by

the parties on June 12 and 16, 2014, and have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Cit y is a small municipality in southwestern

Seminole County lying just north of Altamonte Springs and west

of Winter Springs. Petitioner was employed as a patrol corporal

by the City P olice Department and was a member of the Pension

Fund.

2. On January 29, 2011, while on duty, Petitioner was

involved in an incident at a residence in the City where his

former wife, Kimberly Zeh, also a police officer and then

separated but not yet divorced from Petitioner , was temporarily

living with a friend , Carol Ericson . At the time of the

incident, Petitioner was on duty, in uniform , and in possession

of City issued equipment, including a firearm.

3. Around 4:00 p.m. that day, Pet itioner drove to the

residence in his police cruiser and first attempted to telephone

hi s wife, then rang the door bell , and finally knocked on the

door. When the re was no response, without permission Petitioner

entered the dwelling through a sliding glass door in the

kitchen . He did not have a warrant relating to the residence

and there we re no exigent circumstances that warranted his entry

into the residence. Petitioner's mannerisms upon entering the

home demonstrated and were consistent with the emotion of anger.

4. After entering the dwelling, Petitioner observed his

former wife "walk [ing] across the hallway partially dressed" and

Bennett Feld in the bedroom . Mr. Feld is a physician assistant

then employed by the Ze h 's family physician. Petitioner

believed Mr. Feld was having an affair with his wife.

5. Petitioner drew his servic e weapon , entered the

bedroom, and pushed Mr. Feld against a wall . He then pointed

his service weapon at Mr. Feld's head and asked: "Do you think

you're going to take my wife?" He also stated that if his

former wife did not move back home then three dea d bodies would

be found at the residence. After holstering the weapon, he

struck Mr. Feld in the face.

6. Prior to leaving the residence, Petitioner requested

that his former wife return home and stated that the incident

that just took place would be for given.

7. On March 1, 2011, an Information was filed in State of

Florida v. John W. Zeh , Case No. 2011 - 00503 - CFA, in the Circuit

Court of the Eighteenth Judicial Circuit, in and for Seminole

County, charging Petitioner for the incident occurring on

Janu ary 29, 2011. In relevant part, the Information states:

Count I: In that John W. Zeh, on or about

January 29, 2011, in the County of Seminole

and State of Florida, did violate F.S.

810.02(1) by knowingly entering or remaining

in a dwelling, the property of Carol Ericson

as owner or Kimberly Zeh as custodian, with

the intent to commit an offense therein, and

in the course of committing the burglary

made an assault or battery upon Kimberly Zeh

and/or Bennett Feld, and during the

commission of the burglary J ohn Zeh was in

actual possession of a firearm, contrary to

Florida Statute 810.02(2)(a), 810. 0 2 (2 )(b)

and 775.087. (1 DEB FEL, PBL).

* * *

COUNT IV: In that John W. Zeh on or about

January 29, 2011, in the County of Seminole

and State of Florid a, while in possession of

a firearm, did intentionally and unlawfully

threaten by word or act to do violence to

the person of Bennett Feld, coupled with an

apparent ability to do so, which created

well - founded fear in that such violence was

imminent, and f urther did commit the assault

with a handgun, a firearm or deadly weapon,

contrary to Florida Statutes 784.021(1)(a)

and 775.087(2). (3 DEG FEL).

8. On October 11, 2011, Petitioner, represented by

counsel, entered a plea of nolo contendere to, in releva nt part,

the following: (1) burglary with assault/battery while armed

in violation of sections 810.02(2)(b) and 775.087(1)(a) ; and

(2) aggravated assault with a firearm in violation of

section 784.021(1)(a).

9. On January 4, 2012, Petitioner was adjudicated guilty

of the above crimes and was sentenced accordingly.

10. After the incident, Petitioner voluntarily resigned

from his position as a City police officer.

1 1 . Upon becoming aware of Petitioner's plea, the Pension

Fund initiated proceedings to determine whether Petitioner's

pension fund benefits should be forfeited pursuant to chapter

112 and/or the Pension Fund's terms and conditions.

1 2 . On October 15, 2013, the Pension Fund conducted a

probable cause hearing resulting in the determinatio n that

Petitioner's rights and benefits be forfeited under the Pension

Fund. Contrary to Petitioner's assertion, the Notice of that

decision was sufficient to apprise him of the intended action.

The Notice precipitated the filing of Mr. Zeh's request for a

hearing.

13 . Paragraphs A. - G. of section 21 of the Pension Plan are

identical with section 112.3173(2)(e), cited in the Conclusions

of Law, so the Plan provisions will not be restated here. Like

the cited statute, subsection ( 2) of section 21 provides in part

that "[c]onviction shall be defined as . . . a plea of guilty or

nolo contendere . "

CONCLUSIONS OF LAW

1 4 . By contract with Respondent, DOAH has agreed, on

request of Respondent, to assign Administrative Law Judges to

conduct hearings and issue re commended orders in cases of this

type.

1 5 . In this proceeding, Respondent asserts that Petitioner

has forfeited his rights and benefits under the Pension Plan

pursuant to section 112.3173.

1 6 . Section 112.3173(1) is part of the statutory code of

ethic s for public officers and employees. The statute states in

pertinent part:

(1) INTENT. Î It is the intent of the

Legislature to implement the provisions of

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

(2) DEFINITIONS. Î As used in this section,

unles s the context otherwise requires, the

term:

(a) "Conviction" and "convicted" mean an

adjudication of guilt by a court of

competent jurisdiction; a plea of nolo

contendere; 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) "Pu blic 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, aiding, or abetting of

an embezzlement of public funds;

2. T he 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 employer;

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 or the public

agency for which the public officer or

employee acts or in which he or she is

employed of the r ight 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 us e of the power, rights,

privileges, duties, or position of his or

her public office or employment position; or

* * *

(3) FORFEITURE. Î Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

who se office or employment is terminated by

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 is

member, except for the return of his or her

accumulated contributions as of the date of

termination.

17. Section 21 of the Pension Plan parallels the

forfeiture analysis and requirements set forth in the statute in

requiring that "[a]ny Member who is convicted" of the specified

offenses set forth "shall forfeit all rights and benefits under

this System."

18. As the party asserting that Petitioner has forfeited

his rights and benefits under the Pension Plan pursuant to

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

this proceeding. See , e.g. , Fla. Dep't of Transp. v . J.W.C.

Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

1 9 . Not every crime committed by a public officer or

employee gives rise to forfeiture of pension rights and benefits

under section 112.3173. To result in fo rfeiture, the crime must

be a specified offense as defined in section 112.3173(2)(e)1.

through 7.

20 . The crimes to which Petitioner pled nolo contendere

are not among the specified offenses enumerated in paragraphs 1.

through 5. or 7. of section 112.317 3 (2)(e). Accordingly, the

issue is whether Petitioner's crimes fall within paragraph 6.,

which has been called the "catch - all" provision of the

forfeiture statute. See B o llone v. Dep't of Mgmt. Servs. ,

100 So. 3d 1276, 1280 (Fla. 1st DCA 2012).

2 1 . To constitute a specified offense under the catch - all

provision, the criminal act must be: a felony; committed by a

public employee; done willfully and with intent to defraud the

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

the faithfu l performance of the employe e's duty as a public

employee; done to realize or obtain, or attempt to realize or

obtain, a profit, gain, or advantage for the employee or some

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

the power, rights, pr ivileges, duties, or position of the

employee's public employment. B o llone at 1280 - 81.

2 2 . To determine whether section 112.317 3 (2)(e)6. applies

to a particular offense, these statutory conditions must be

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

B o llone at 1280. Whether 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. Servs. , 36 So. 3d 738, 742 (Fla. 1st DCA 2010).

2 3 . Th ere is no dispute that Petitioner was a public

employee at the time he committed the acts described above.

There also is no dispute that Petitioner pled nolo contendere to

one count of burglary with assault/battery with a firearm, one

count of battery, on e count of domestic battery, and one count

of aggravated assault with a firearm. Thus, by operation of

section 112.3173(2)(a), he is deemed as having been convicted of

these offenses, which are felonies.

2 4 . As to defrauding the public or the employee' s public

employer prong, this requirement is met where there is evidence

of a "nexus between the crimes charged against the public

officer and his or her duties and/or position." DeSoto v.

Hialeah Police Pension Fund Bd. of Trs. , 870 So. 2d 844, 846

(Fla. 3d DCA 2003). The nexus is satisfied where one violates

his or her duties as a public officer in failing to safeguard

the public's faith in that public office or position. Id.

2 5 . Here, Petitioner testified he took an oath, and he

violated such oath upon committing the felonies in question.

The acts were committed while he was on duty, in uniform, and in

possession of City police officer equipment. Therefore, the

nexus between the crimes charged and the duties of the public

officer ha s been met.

2 6 . As to the fourth prong, Petitioner contends that

Respondent has failed to show that the acts were committed to

obtain a profit, gain, or advantage for Petitioner or another

person. Notably, the statute does not provide that only

economic gain can be c onsidered personal gain. Bollone at 1281.

Here, the record demonstrates non - monetary personal gains or

advantages accruing to Petitioner, who believed that his conduct

against Mr. Feld would stop the affair, influence or otherwise

persuade his wife to re turn home, and allow the couple to

continue the marriage. Such personal benefits obtained while on

duty, in uniform, and while carrying and using a service weapon

are the types of profits and intended benefits chapter 112 was

enacted to prohibit. Bollone at 12 82 .

2 7 . Finally, the felonious conduct must be done through

the use or attempted use of the "powers, rights, privileges,

duties, or position of the employee's employment." Bollone at

1281. The record shows that Petitioner committed the felonies

wh ile on duty, while in uniform, and while carrying a City -

issued firearm. The felonies occurred after h e drove a police

cruiser to the location of the incident.

2 8 . In summary, the evidence establishes that the offenses

to which Petitioner pled nolo con tendere are "specified

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

such, all requirements in section 112.3173(3) for forfeiture are

met. While truly unfortunate, it is concluded that Mr. Zeh has

forfeited his rights and benefits under the Pension Plan , except

for the return of his accumulated contributions as of the date

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

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Tru stees for the City of

Longwood Police Officers' and Firefighters' Pension Trust Fund

enter a final order determining that Petitioner has forfeited

his rights and benefits under the Pension Fund , except for the

return of his accumulated contributions as of the date of his

termination.

DONE AND ENTERED this 30th day of June , 2014, in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 30th day of June , 2014.

COPIES FURNISHED:

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738 - 7313

S cott R. Christiansen, Esquire

Christiansen & Dehner, P.A.

Suite 107

63 Sarasota Center Boulevard

Sarasota, Florida 34240 - 9385

Christopher R. Conley , Esquire

Fishback, Dominick, Bennett, Ardaman,

Ahlers, Langley & Geller, LLP

1947 Lee Road

Winter Park, Florida 32789 - 1834

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

this Recommended Order should be filed with the agency that will

r ender a final order in this matter.