14-002616 Charles Bullock vs. State Board Of Administration Status: Closed Recommended Order on Tuesday, September 30, 2014.

Summary: Deputy who molested juvenile at mall in a location open to the public was not in uniform, wearing a badge, carrying a weapon, and didn't identify self as a deputy; he didn't use his office to facilitate the crime and did not forfeit his retirement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES BULLOCK,

Petitioner,

vs. Case No. 14 - 2616

STATE BOARD OF ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton II , of the

Division of Administrative Hearings (DOAH), heard this case on

August 8, 2014, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard A. Greenberg, Esquire

Rumberger, Kirk and Caldwell

Suite 702

215 South Monroe Street

Tallahassee, Florida 32301 - 1858

For Respondent: Brian A. Newman, Esquire

Brandice D. Dickson, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

STATEMENT OF THE ISSUE

Should the benefits of the Petitioner, Charles Bullock,

under the Florida Retirement System Investment Plan , be forfeited

due to his plea of no contest and adjudication of guilt to two

felony counts of child abuse?

PRELIMINARY STATEMENT

The Respondent, State Boa rd of Administration (Board) , seek s

to forfeit Mr. Bullock ' s rights and benefits under the Florida

Retirement System I nvestment P lan because of his plea of no

contest and adjudication of guilt to two felony counts of child

abuse. Mr. Bullock timely reques ted a hearing. The Board

referred the matter to the Division of Administrative Hearings.

The undersigned conducted the hearing on August 8, 2014.

The Board presented testimony from Mr. Bullock. Board

Exhibits 1 through 5 were admitted into evidence.

M r. Bullock ' s Exhibits 1 through 5, deposition transcripts,

were accepted into evidence.

The parties provided a transcript , which was filed on

August 25, 2014 . Both parties timely filed proposed recommended

orders , which have been considered in the prepa ration of this

Recommended Order.

FINDING S OF FACT

1. The Collier County Sheriff ' s Office employed Mr. Bullock

as a law enforcement officer from 1994 through 2010. Due to his

employment , Mr. Bullock was a member of the Florida Retirement

System Investmen t Plan.

2. Mr. Bullock worked in the s heriff ' s o ffice ' s civil

process unit. He and the other civil process deputies routinely

met for coffee in the afternoon about 2:00 p.m. , to discuss

business. They usually met at the Starbucks in the Coastland

Mall i n Collier County. Sometimes they met at other locations to

avoid drawing public attention and adverse comment s . For the

same reason, after some unfavorable television coverage, they

often dispersed their cars in the parking lot , instead of parking

togeth er.

3. Mr. Bullock usually did not wear a uniform, badge, gun,

or anything else identifying him as a Collier County deputy or a

law enforcement officer.

4. On at least three occasions between November 2009 and

February 2010, while on duty, Mr. Bullock we nt to the food court

bathroom after these meetings. The evidence does not establish

that Mr. Bullock was wearing a uniform, badge, gun, or anything

else identifying him as a Collier County d eputy or law

enforcement officer on those occasions.

5. On the first two of those occasions , Mr. Bullock

sexually molested a male , under the age of 16 , by forcing him to

allow Mr. Bullock to perform oral sex.

6. On the third occasion , Mr. Bullock was approaching the

male minor by looking under and over the bathroo m stall divider ,

when he was interrupted by a mall employee.

7. The evidence does not establish that the minor knew on

any of the occasions that Mr. Bullock was a deputy or law

enforcement officer.

8. The evidence does not otherwise establish that

Mr. Bullock ' s position as a Collier County deputy facilitated,

contributed to, provided the opportunity for, or otherwise played

a role in his ability to commit the acts described on those three

occasions. He committed the offenses in a public place during

no rmal operating hours. His position as a deputy did not provide

access to the food court bathroom that any citizen would not have

had.

9. As a result of the interruption of the third encounter

and the information the mall employee was able to provide, law

enforcement conducted an investigation of Mr. Bullock ' s conduct

in the mall bathroom.

10. The investigation culminated on April 19, 2010, in a

w arrant to a rrest Mr. Bullock. The warrant charged Mr. Bullock

with lewd or lascivious battery (violation of se ction

80 0.04(4)(a) , Florida Statutes (201 0 ) ) , a second - degree felony ,

and official misconduct (violation of section 838.022 , Florida

Statutes (2010) ) , a third - degree felony.

11. On March 10, 2014, Mr. Bullock entered a plea of no

contest to a different cha rge based upon his sexual molestation

of the male under the age of 16.

12. The offense to which Mr. Bullock entered a plea of no

contest was child abuse, a violation of section 827.03 , Florida

Statutes (2010) , a third - degree felony . At the time of his ple a

and in this proceeding, Mr. Bullock maintained that he was not

guilty of the charges , but chose to plead no contest because of

concerns that the nature of the charges would inflame jurors.

13. The court adjudicated Mr. Bullock guilty of the charges

to wh ich he pled no contest. It imposed a sentence of two years '

probation, prohibited contact with the victim, required payment

of $151.00 in court costs, and required Mr. Bullock to give up

his law enforcement certification.

14. On March 20, 2014, the Board notified Mr. Bullock that

his rights and benefits under the Florida Retirement System were

forfeited as a result of his no contest plea to child abuse.

This proceeding followed.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the parties and the subje ct

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes (2014) . 1/

16. The Board maintains that Mr. Bullock has forfeited his

rights and benefits under the retirement system pursuant to

section 112.3173, Florida Statutes. The Board bears the burden

of proving its charges by a preponderance of the evidence.

Wilson v. Dep ' t of Admin., Div. of Ret. , 538 So. 2d 139, 141 - 142

(Fla. 4th DCA 1989); Dep ' t of Transp. v . J.W.C. Co. , 396 So. 2d

778, 788 (Fla. 1 st DCA 1981).

17. The r etirement system is a public retirement system as

defined by Florida law. The proposed forfeiture is subject to

administrative review. See § 112.3173(5)(a), Fla. Stat.

18. Article II, Section 8(d) , of the Florida Constitution

provides:

SECTION 8. Ethics in government. -- A public

office is a public trust. The people shall

have the right to secure and sustain that

trust against abuse. To assure this right:

* * *

(d) Any public officer or employee who is

convicted of a felony involving a breach of

public trust shall be subject to forfeiture

of rights and privileges under a public

retirement system or pension plan in such

manner as may be provided by law.

19. Section 112.3173(3) codifies this constitutional

provision and provides in relevant part:

(3) FOR FEITURE. -- Any public officer or

employee who is convicted of a specified

offense committed prior to retirement . . .

shall forfeit all rights and benefits under

any public retirement system of which he or

she is a member, except for the return of his

or he r accumulated contributions as of the

date of termination.

20. Section 112.3173 provides in part:

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

Legislature to implement the provisions of

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

(2) DEFINITIONS. -- As used in th is section,

unless the context otherwise requires, the

term:

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

adjudication of guilty by a court of

competent jurisdiction; a plea of guilty or

of nolo contender [no contest]; a jury

verdict of guilty when adjudicati on of guilt

is withheld and the accused is placed on

probation; or a conviction by the Senate of

an impeachable offense.

21. The forfeiture statute defines a " specified offense " to

include any felony under c hapter 838 (except s ections 838.15 and

838.16) , as well as certain felonies relating to bribery,

embezzlement, theft of public funds or an impeachable offense.

See § 112.3173(2)(e), Fla. Stat.

22. The forfeiture statute also contains a so - called

" catch - all " provision. It states:

(2)(e) " Specified off ense " means:

* * *

6. T he committing of any felony by a public

officer or employee who, willfully and with

intent to defraud the public or the public

agency for which the public officer or

employee acts or in which he or she is

employed of the right to receive the faithful

performance of his or her duty as a public

officer or employee, realizes o r obtains, or

attempts to realize or o btain, a profit,

gain, or advantage for himself or herself or

for some other person through the use or

attempted use of the power, rights,

privileges, duties, or position of his or her

public office or employment position .

§ 112.3173(2)(e)6., Fla. Stat. In other words, the elements of

s ection 112.3173(2)(e)6 . are: (a) any felony; (b) committed by a

public employee; (c) w illfully and with intent to defraud the

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

the faithful performance of the employee ' s duty; (d) to obtain a

profit, gain or advantage for the employee or some other person;

and (e) by use of the power, rights, privileges, duties, or

position of the employment position.

23. In this case, Mr. Bullock is a former public employee

and a member of a public retirement system. He pled no contest to

a crime committed before retirement, child abuse, a thir d - degree

felony, in violation of s ection 827.03(1) , Florida Statutes

(2010) .

24. The specified offenses listed in s ection 112.3173(2)(e)

do not apply. The only issue here is whether the elements of

section 112.3173(2)(e)6 . are satisfied by the acts that

Mr . Bullock pled no contest to committing and of which he was

adjudicated guilty.

25. The crime to which Mr. Bullock pled no contest is a

felon y . He co mmitted it while on duty. His actions were plainly

willful and deprived the public of the right to expec t that a law

enforcement office r w ould obey the law. Sexual gratification

amounts to a personal gain, benefit , or advantage. Bollone v.

Dep ' t of Mgmt. Servs. , 100 So. 3d 1276 (Fla. 1st DCA 2012);

Holsberry v. Dep ' t of Mgmt. Servs. , Case No. 09 - 00 87 (Fla. DOAH

July 24, 2009; DMS Oct . 19, 2009).

26. T he weight of the evidence does not prove that the " use

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

Mr. Bullock ' s position played any part in the commission of the

offenses. He did not identify h imself as a law enforcement

officer. He did not exercise the power of a law enforcement

officer. The victim did not know Mr. Bullock was a law

enforcement officer.

27. Mr. Bullock committed the acts in a public place. The

Board has not proven by a pre ponderance of the evidence that

Mr. Bullock committed an offense which forfeits his retirement

system rights and benefits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Respondent, State Board o f

Administration , enter a final order finding that the Petitioner,

Charles Bullock , was not convicted of a specified offense as

identified in section 112.3173, Florida S tatutes , and directing

that he not forfeit his rights and benefits under the Florida

Re tirement System.

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

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee 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 30th day of September , 2014 .

ENDNOTE

1/ All citations to the Florida Stat utes are to the 201 4

codification of the Florid Statutes , unless otherwise noted.

COPIES FURNISHED:

Ash Williams, Executive Director

and Chief Investment Officer

State Board of Administration

1801 Hermitage Boulevard , Suite 100

Post Office Box 13300

T allahassee, Florida 32317 - 3300

Inspector General

State Board of Administration

1801 Hermitage Boulevard , Suite 100

Post Office Box 13300

Tallahassee, Florida 32317 - 3300

Richard A. Greenberg, Esquire

Rumberger, Kirk and Caldwell

Suite 702

215 South Monroe Street

Tallahassee, Florida 32301 - 1858

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

(eServed)

Brandice D. Dickson, Esquire

Pennington, P.A.

215 S outh Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

(eServed)

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 e xceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.