14-003094 Joseph Anthony Fuller vs. Board Of Trustees Of The City Of Jacksonville Retirement System Status: Closed Recommended Order on Wednesday, November 19, 2014.

Summary: City pension board failed to establish statutory grounds for forfeiture of former employee's retirement, where the employee was allowed to resign prior to termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH ANTHONY FULLER ,

Petitioner,

vs. Case No. 1 4 - 3094

BOARD OF TRUSTEES OF THE CITY

OF JACKSONVILLE RETIREMENT

SYSTEM ,

Respondent.

/

RECOMMENDED O RDER

On September 24, 2014 , an administrative hearing in this

case was held in Jacksonville , Florida, before Lawrence P.

Stevenson, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: T. A. Delegal, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville , Florida 32 202

For Respondent: Wendy E. Byndloss, Esquire

Office of General Counsel

City of Jacksonville

117 West Duval Street , Suite 480

Jacksonville , Florida 3 2 202

STATEMENT OF THE ISSUE

The issue in this case is whether , pursuant to section

112.3172, Florida Statutes, the pension rights and privileges of

Petitioner, Josep h Anthony Fuller, in the City of Jacksonville

Retirement System should be forfeited.

PRELIMINARY STATEMENT

By letter dated May 22, 2014, titled ÐNotice of Proposed

Final Agency Action,Ñ the Board of Pension Trustees of the City

of Jacksonville Retirement System (the ÐBoardÑ) notified

Petitioner Joseph Anthony Fuller of its intention to enter a

final order terminating the pension rights and privileges to

which Mr. Fuller would be entitled due to his forfeiture of

same. On June 13, 2014, Mr. Fuller timely f iled a written

request for a hearing. On June 27, 2014, the Board forwarded

th e notice and the hearing request to the Division of

Administrative Hearings ( " DOAH ").

The hearing was scheduled for September 24, 2014, on which

date it was convened and complet ed .

Mr. Fuller was not present at the hearing, appearing only

through his counsel.

Despite the style of the case, the parties agreed that the

Board had the burden of proving that Mr. Fuller had forfeited

his pension rights. The parties stipulated to t he admission of

the BoardÓs Exhibits 1, 2, 9 through 14, and 16.

At the hearing, the Board presented the testimony of Mark

Beebe, who was at all times relevant to this proceeding a

detective of the Jacksonville SheriffÓs Office (ÐJSOÑ) assigned

as a liaiso n to the Jacksonville Electric Authority (ÐJEAÑ);

Thomas Wigand, a labor relations specialist with the JEA; and

Raymond Ferngran, a pension administration manager for the City

of Jacksonville. In addition to the stipulated exhibits, t he

BoardÓs Exhibits 7 and 15 were admitted into evidence.

Petitioner offered no testimony or exhibits into evidence.

At the hearing, counsel for Petitioner objected to the

BoardÓs proposed Exhibits 3 through 6 on the ground that these

were uncorroborated hearsay documents, an d to the BoardÓs

Exhibit 15 on the ground that it contained coerced statements

forbidden by the rule of Garrity v. New Jersey , 385 U.S. 493

(1967). The undersigned withheld ruling on Exhibits 3 through 6

and allowed the parties ten days in which to file w ritten legal

argument on both of RespondentÓs objections. Both parties

timely filed their arg uments on October 6, 2014. By O rder dated

October 20, 2014, the undersigned ruled that the BoardÓs

Exhibits 3 through 6 would be admitted but treated as hearsay

that may be used only for the purpose of supplementing or

explaining other evidence, pursuant to section 120.57(1)(c),

Florida Statutes, and that the BoardÓs Exhibit 15 did not meet

the standard of Garrity and would remain admitted in evidence.

The one - vol ume T ranscript of the hearing was filed at DOAH

on October 14, 2014. The parties timely filed their Proposed

R ecommended O rders on October 24, 2014.

FINDINGS OF FACT

1. Petitioner, Joseph Anthony Fuller, was employed by the

JEA as a Senior Vehicle Coordi nator in the Fleet Services

Department. Mr. Fuller worked for the JEA for approximately 20

years.

2. In 2013, the JEA received reports from fellow employees

that Mr. Fuller was stealing gasoline from JEA fleet pumps.

3. Mark Beebe was a JSO detective assigned as full - time

liaison to the JEA. Pursuant to a contract between JSO and the

JEA, Det . Beebe investigated all criminal allegations related to

the JEA. Most of his investigations involved customer theft of

electricity, but he also investigated all egations of theft by

JEA employees. Det. Beebe investigated the allegations against

Mr. Fuller.

4. During his investigation, Det. Beebe found evidence

that Mr. Fuller had stolen from the JEA spools of copper wire

and other items that he then sold to meta l recyclers. These

thefts began in 2012 and carried on until late 2013.

5. After he was satisfied that he had proof sufficient to

establish Mr. FullerÓs guilt, Det. Beebe interviewed Mr. Fuller

on January 21, 2014. Det. Beebe gave Mr. Fuller his Miranda

warnings. Mr. Fuller signed a waiver and voluntarily submitted

to the interview.

6. During the interview, Mr. Fuller denied stealing gas

but admitted to taking and reselling the recyclable items.

Mr. Fuller denied taking the recyclable items from anywh ere

other than the Ðtras h pile,Ñ Ðthe big dumpsters , Ñ and the

recycling bins. Det. Beebe was understandably skeptical that

such a large quantity of unused copper wire and electrical items

could have been retrieved from the trash and the recycling bins

at JEA.

7. After the interview, Det. Beebe placed Mr. Fuller under

arrest and charged him with grand theft in violation of section

812.014(2)( c)2., Florida Statutes, a third - degree felony; giving

false verification of ownership of pawned items in violation of

section 539.001(8)(b) 8.a., Florida Statutes, a third - degree

felony; and dealing in stolen property in violation of section

812.019 (1), Florida Statutes, a second - degree felony.

8. Det. BeebeÓs arrest report noted that Mr. Fuller

received $3,097.10 for all of his illegal transactions, but that

the replacement cost of the lost items to JEA was $6,082.21.

The replacement cost was Det. BeebeÓ s estimate, based on

information provided by JEA.

9. Thomas Wigand is a Labor Relations Specialist with the

JEA. M r. Wigand is responsible for JEAÓs relations with

unionized employees, including civil service and disciplinary

matters. Mr. Wigand is the JEAÓs primary contact with the

International Brotherhood of Electrical Workers (ÐIBEWÑ), Local

2358, of which Mr. Fu ller was a member during his employment

with the JEA.

10. IBEW Local 2358 and JEA have entered into a collective

bargaining agreement (the ÐAgreementÑ). 1/ Under the Agreement,

Mr. Fuller had collective bargaining rights and was subject to

the AgreementÓs rules on discipline, which provided that union

member employees could be disciplined only for Ðjust cause.Ñ

11. As an employee of the JEA, Mr. Fuller was governed by

the City of JacksonvilleÓs Civil Service System , including the

City of JacksonvilleÓs C ivil Service and Personnel Rules and

Regulations (ÐCivil Service RulesÑ). Chapter Nine of the Civil

Service Rules covers disciplinary actions, grievances , and

appeals. Rule 9.05 provides that an employee with permanent

status in the Civil Service may onl y be dismissed Ðfor cause.Ñ

ÐCauseÑ includes, among other things, Ðwillful violation of the

provisions of law or department rules,Ñ Ðconduct unbecoming a

public employee which would affect the employeeÓs ability to

perform the duties and responsibilities of the employeeÓs job,Ñ

and Ðwillful falsification of records.Ñ An employee facing

disciplinary action is entitled to a hearing before the Civil

Service Board.

12. Petitioner was also subject to the JEAÓs company - wide

guidelines for disciplinary action, which generally prescribed

progressive disciplin e. However, the guidelines also provide d

that theft is a ground for immediate termination .

13. After Det . Beebe submitted his investigative report to

the JEA, Mr. Wigand convened a fact - f inding meeting on

January 29, 2014. Mr. Wigand testified that such a meeting was

standard procedure under the JEAÓs disciplinary process and was

designed to allow Mr. Fuller an opportunity to dispute the

report or explain his actions. Mr. Wigand explained that, given

the Ðcompelling natureÑ of Det. BeebeÓs report, it seemed likely

that the JEA would be seeki ng immediate termination of

Mr. FullerÓs employment after the f act - finding meeting, unless

Mr. Fuller came forward with Ðexonerating evidence.Ñ

14. Prior to the fact - finding meeting, Mr. Wigand prepared

a Ð notice of dismissal and immediate suspension Ñ and a Ð letter

of intent to discipline Ñ Mr. Fuller. The letter of intent to

discipline Mr. Fuller did not specify the nature of the

discipline being sought by the JEA. Mr. Wigand presented this

letter to Mr. Fuller for his signature at the outset of the

fact - finding meeting, in compliance with the Agreement. The

notice of dismissal and immediate suspension was more

forthright, commencing with the statement ÐYour conduct as an

employee of JEA has been unacceptable and requir es terminal

disciplinary action Ñ before reciting the specific factual

allegations and rule violations forming the basis of the

termination. There was no evidence indicating that Mr. Fuller

was shown t his notice at the meeting.

15. The fact - finding meeting was attended by Mr. Wigand,

Mr. Fuller, two IBEW union representatives, and JEA audit

manager Linda Schlager, who kept detailed notes of the meeting.

16. During the fact - finding portion of the me eting,

Mr. Fuller initially denied remembering much about his interview

with Det. Beebe. When he was specifically asked about the

copper and other materials allegedly sold to the scrap recycler,

Mr. Fuller continued to insist that he took the metal from a JEA

dumpster. He denied taking it from either the JEAÓs recycling

areas or from JEA trucks. He conceded only that he engaged in

Ðdumpster divingÑ while on the clock for JEA.

17. At this point, Mr. Wigand began showing Mr. Fuller

photos of specific item s sold to the recycler . 2/ Mr. Wigand also

stated that it is not JEAÓs practice to throw new spools of

copper wire into the dumpster. After viewing some of these

photos, Mr. Fuller requested a private conference with his union

representatives. Mr. Wigand and Ms. Schlager stepped out of the

conference room.

18. After approximately 15 minutes, one of the union

representatives emerged from the conference room and made a

proposition to Mr. Wigand to resolve the matter. Mr. Fuller

would be willing to resign and use his accumulated annual leave

to pay restitution to the JEA, in return for JEAÓs agreement not

to prosecute.

19. After some internal caucusing, the JEA agreed to allow

Mr. Fuller to resign, contingent on his making full restitution

to the JEA an d providing an accurate account of how he stole JEA

property. If Mr. Fuller complied with these conditions, the JEA

would inform the state attorney that it had been made whole by

Mr. Fuller and did not wish to prosecute. Mr. Wigand made it

clear to Mr. F uller that the JEA could not control whether the

state attorney decided to go forward with the case.

20. One of the union representatives asked about the post -

resignation status of Mr. FullerÓs pension. Mr. Wigand stated

that the JEA does not control t he pension or make pension

decisions.

21. Mr. Fuller agreed to the conditions and then admitted

the thefts. He detailed where and how he stole the materials,

and satisfied the JEA that he acted alone. He admitted to

stealing gas on several occasions. A t the JEA representativesÓ

request, Mr. Fuller even offered adv ice on how the JEA could

improve controls in order to prevent such thefts in the future.

22. At the conclusion of Mr. FullerÓs statement, the union

representatives, Mr. Fuller, and Mr . Wigand agreed that the

effective date and time of Mr. FullerÓs resignation was the

current date, January 29, 2014, at 1:00 p.m.

23. An irrevocable letter of resignation was submitted by

Mr. Fuller on the following day. The letter stated the date and

time of h is resignation and his agreement to reimburse the JEA

in the amount of $6,248.00. The letter also stated that the JEA

Ðhas agreed to accept this resignation in lieu of proceeding

with disciplinary action.Ñ

24. On a date unspecified in the record, the sta te

attorney declined to prosecute that case against Mr. Fuller, in

part due to the JEAÓs notice that it ha d received restitution

and did not wish for the matter to proceed.

25 . On January 24, 2014, Mr. Fuller had submitted a

ÐRetirement Information Reques tÑ to the City of Jacksonville

Retirement System, asking for a computation of the benefits he

would receive if he retired on that date. Counsel for

Mr. Fuller argues that this document establishes that Mr. Fuller

resigned on January 24, five days prior to the fact - finding

meeting. T he document is not a resignation letter under any

common understanding of that term. As titled, t he document is

an information request.

26. T he Board argues, for reasons explained in the

following Conclusions of Law, that Mr. FullerÓs resignation was

in fact a constructive discharge . The B oard contends that t he

JEA would have proceeded to terminat e Mr. FullerÓs employment if

the allegations against him were proven , and therefore that his

resignation under pressure was the fun ctional equivalent of

termination .

27. Central to the BoardÓs argument is the assertion that

Mr. Fuller Ðvoluntarily admittedÑ to Det . Beebe that he had

stolen materials from the JEA, and that an evidentiary finding

of theft was thus a foregone conclusion . The evidence of this

ÐadmissionÑ is ambiguous at best. The interview with Det. Be ebe

consisted mostly of long monologues by the detective followed by

monosyllabic responses by Mr. Fuller. In his own words,

Mr. Fuller admitted only to taking materials from the Ðtrash

pile,Ñ Ðthe bin,Ñ and the Ðbig dumpsters.Ñ He described his

takings as Ðstuff they throw away over there.Ñ

28. Mr. FullerÓs counsel pointed out that there was no

evidence establishing that materials contained in the recycling

bins or tr ash dumpsters of the JEA remained the property of the

JEA or retained any value for the JEA. Even assuming that the

JEA could have established the value of the items and that

Mr. Fuller could not have obtained them from the trash, there

was no guarantee t hat a hearing before the Civi l Service Board

would have inevitably led to Mr. FullerÓs termination.

Mr. Wigand conceded under cross - examination that the outcome

might have been some lesser form of discipline such as

suspension. It is clear that as of Jan uary 29, 2014, the JEA

entertained doubts about its chances of success in a termination

hearing, else it would not have allowed Mr. Fuller to resign.

29 . The only full and unambiguous admission of guilt made

by Mr. Fuller was pursuant to the resignation deal brokered by

his union representatives on January 29, 2014. Mr. Fuller did

not resign his position as the result of an admitted commission

of a specified felony ; rather, he admitted the thefts only after

the JEA agreed to allow him to resign.

30 . T he resignation letter itself, which the January 29

meeting notes indicate was at least partially drafted by the

JEA, states that the JEA Ðhas agreed to accept this resignation

in lieu of proceeding with disciplinary action.Ñ Even accepting

that Mr. Fuller Ós statements to Det. Beebe were not credible and

that the JEA would likely have prevailed at an evidentiary

hearing before the Civil Service Board to terminate Mr. FullerÓs

employment on the ground of theft, there remains the problem of

the quid pro quo t hat was part of the resignation agreement. By

accepting Mr. FullerÓs resignation, the JEA was spared the time

and expense of litigating his termination and was afforded the

certainty of Mr. FullerÓs immediate and permanent removal from

the workplace . Mr. Fuller was not the only part y to benefit

from the agreement that the Board now seeks to nullify.

31 . It appears to the undersigned that if the Board were

to be allowed to effectively rescind Mr. FullerÓs letter of

resignation and treat him as a terminat ed employee, then

Mr. Fuller should be entitled to go back to square one and

invoke his right to challenge that termination before the Civil

Service Board . It is doubtful that anyone involved in these

events would desire such an outcome. The BoardÓs posi tion that

Mr. FullerÓs resignation from the JEA was tantamount to

termination is implausible on its face and lacks record support .

32 . The JEA was under no pressure to settle the case with

Mr. Fuller . It presumably made the deal with its eyes open and

aware of all the possible ram i fications. The JEA allowed

Mr. Fuller to retain his accumulated annual leave despite the

fact that section 11.6 of the Agreement calls for forfeiture of

unused annual leave by employees Ðwho are discharged for

stealing.Ñ Th e JEA plainly did not consider Mr. Fuller to have

been ÐdischargedÑ or Ðterminated.Ñ Though Mr. Wigand told the

union representative that the JEA does not make pension

decisions, the JEA in fact made such a decision when it allowed

Mr. Fuller to resign. The JEA benefitted from making a deal

with Mr. Fuller. The Board should not be permitted to step in

and rewrite th e deal after Mr. Fuller has given up his hearing

rights and fully performed his end of the bargain.

CONCLUSIONS OF LAW

3 3. The Division of A dministrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § § 120.569 and 120.57(1), Fla. Stat. (20 1 4 ). 3/

34 . Article II, section (8)(d) of the State Constitution

provides:

Ethics in government. Ï A public office i s 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.

35. Section 112.3173, Florida Statutes, provi des :

(1) INTENT. 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

te rm:

(a) ÐConvictionÑ and ÐconvictedÑ mean an

adjudication of guilt by a court of

competent jurisdiction; a plea of guilty or

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.

(b) ÐCourtÑ means any state or federal

court of competent jurisdiction which is

exercising its jurisdiction to consider a

proceeding involving the alleged commission

of a specified offense.

(c) ÐPubli c officer or employeeÑ means an

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

(d) ÐPublic retirement systemÑ means any

retirement system or plan to which the

provisions of part VII of this chapt er

apply.

(e) ÐSpecified offenseÑ 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. 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 w ith

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 position; or

7. The committing on 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 use of

power, rights, privileges, duties, or

position of his or her public office or

employment position.

(3) FORFEITURE. Ï Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

whose of fice 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 or

she is a member, except for the return of

his or her accumulated contributions as of

the date of termination.

(4) NOTICE. Ï

(a) The clerk of a court in which a

proceeding involving a specified offense is

being conducted against a public officer or

employee shall furnish notice of the

proceeding to the Commission on Ethics after

the state attorney advises the clerk th at

the defendant is a public officer or

employee and that the defendant is alleged

to have committed a specified offense . Such

notice is sufficient if it is in the form of

a copy of the indictment, information, or

other document containing the charges . I n

addition, if a verdict of guilty is returned

by a jury or by the court trying the case

without a jury, or a plea of guilty or of

nolo contendere is entered in the court by

the public officer or employee, the clerk

shall furnish a copy thereof to the

Comm ission on Ethics.

(b) The Secretary of the Senate shall

furnish to the Commission on Ethics notice

of any proceeding of impeachment being

conducted by the Senate. In addition, if

such trial results in conviction, the

Secretary of the Senate shall furnis h notice

of the conviction to the commission.

(c) The employer of any member whose office

or employment is terminated by reason of his

or her admitted commission, aid, or abetment

of a specified offense shall forward notice

thereof to the commission.

(d ) The Commission on Ethics shall forward

any notice and any other document received

by it pursuant to this subsection to the

governing body of the public retirement

system of which the public officer or

employee is a member or from which the

public office r or employee may be entitled

to receive a benefit. When called on by the

Commission on Ethics, the Department of

Management Services shall assist the

commission in identifying the appropriate

public retirement system.

(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 the 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 privileges 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.

(b) Any order of forfeiture of retirement

system rights and privileges is appealable

to the district court of appeal.

(c) The payment of retirement benefits

ordered forfeited, except payments drawn

from nonemployer contributions to the

retireeÓs account, sh all be stayed pending

an appeal as to a felony conviction. If

such conviction is reversed, no retirement

benefits shall be forfeited. If such

conviction is affirmed, retirement benefits

shall be forfeited as ordered in this

section.

(d) If any personÓs rights and privileges

under a public retirement system are

forfeited pursuant to this section and that

person has received benefits from the system

in excess of his or her accumulated

contributions, such person shall pay back to

the system the amount of t he benefits

received in excess of his or her accumulated

contributions. If he or she fails to pay

back such amount, the official or board

responsible for paying benefits pursuant to

the retirement system or pension plan may

bring an action in circuit cour t to recover

such amount, plus court costs.

(6) FORFEITURE NONEXCLUSIVE. Ï

(a) The forfeiture of retirement rights and

privileges pursuant to this section is

supplemental to any other forfeiture

requirements provided by law.

(b) This section does not pr eclude or

otherwise limit the Commission on Ethics in

conducting under authority of other law an

independent investigation of a complaint

which it may receive against a public

officer or employee involving a specified

offense.

36. The City of Jacksonvill e Retirement System is a public

retirement system subject to the forfeiture determination

provisions of section 112.3173(5).

37. The Board is charged with managing and administering

the City of Jacksonville Retirement System. See ch. 120, pt. I,

Jacksonv ille, Florida Code of Ordinances (the Ð Ordinance CodeÑ).

38. While employed by the JEA , Mr. Fuller met the

definition of Ðpublic officer or employeeÑ found in section

112.3173(2)(c), Florida Statutes.

39. The general rule is that the burden of proof, apa rt

from a statutory directive, is on the party asserting the

affirmative of an issue before an administrative tribunal.

Young v. Dep't of Cmty. Aff. , 625 So. 2d 831, 833 - 834 (Fl a.

1993); Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla.

1st DCA 19 81); Balino v. Dep't of HRS , 348 So. 2d 349, 350 (Fla.

1st DCA 1977). As the part y seeking the forfeiture of

Mr. FullerÓs rights and benefits under the City of Jacksonville

Retirement System, the Board bear s the burden of proof by a

preponderance of the e vidence.

40. Section 112.3173(3) provides for the forfeiture of a

public employeeÓs accumulated rights and benefits under a public

retirement system under either of two circumstances. The first,

which the Board concedes is not applicable in this case, oc curs

when the employee is convicted of a specified offense committed

prior to retirement. Th e ÐconvictionÑ provision cannot be

applied to Mr. Fuller because he was never prosecuted for the

thefts in question.

41. The second circumstance for forfeiture oc curs when the

public employeeÓs employment is Ðterminated by reason of his or

her admitted commission, aid, or abetment of a specified

offense.Ñ The Board contends that Mr. Fuller admitted

committing the specified offense of theft from his employer, as

de scribed in subsection (2)(e)2., and that he was effectively

terminated because of that admission.

42. Even if it were granted that his statements to

Det. Beebe constituted an admission that Mr. Fuller committed

theft from his employer, the fact remains th at Mr. FullerÓs

employment was not terminated by the JEA. He was allowed to

resign as the result of a negotiation between his union

representatives and the JEA.

43. Both parties benefitted from this resignation

agreement. Mr. Fuller received the JEAÓs assurance that it

would not seek prosecution for his actions and he was allowed to

retain his accumulated annual leave. The JEA was spared the

time and expense of proceedings before the Civil Service Board,

obtained Mr. FullerÓs full admission statement including the

assurance that he was working alone, received full restitution

for its property losses , and was assured that Mr. Fuller was

permanently removed from h is position with the JEA .

44. The statute requires that employment must be

terminated for forfeiture to occur. The Board argues that the

dictionary meaning of ÐterminatedÑ is ÐendedÑ or Ðconcluded,Ñ

and that Mr. FullerÓs resignation Ð concluded Ñ his emplo yment

with the JEA. This argument is disingenuous. Whatever the

general meaning of the word Ðterminate,Ñ in the employment

context its plain meaning is to fire or dismiss an employee.

The undersigned declines to adopt the BoardÓs strained attempt

to tre at Mr. FullerÓs resig nation as a Ðtermination.Ñ

Mr. Fuller was not terminated a nd therefore is not subject to

the forfeiture provisions of section 112.3173.

45. I n its P roposed Recommended O rder, t he Board notes

that s ubsection (6)(a) provides that the f orfeiture of

retirement rights and privileges pursuant to section 112.3173 is

supplemental to any other forfeiture provision provided by law,

and points out that section 120.209 of the Ordinance Code

provides its own forfeiture provision that applies to

Mr . Fuller . The undersigned declines to address this question,

for two reasons. First, the assertion in its Proposed

R ecommend ed O rder is the first time the Board has indicated an

intention to claim forfeiture of Mr. FullerÓs retirement

benefits under any provision other than section 112.3173. The

Notice of Proposed Final Agency Action is silent as to the

Ordinance Code. Section 120.209 of the Ordinance Code was not

mentioned at the evidentiary hearing. Fundamental fairness

dictates that Mr. Fuller recei ves notice and has an opportunity

to respond to this new claim of authority to order forfeiture of

his benefits .

46. Second, s ection 112.3173(5)(a) provides for a chapter

120 hearing when the board responsible for paying benefits under

a public retirement system Ðhas reason to believe that the

rights and privileges of any person under such system are

required to be forfeited under this section .Ñ (Emphasis added) .

Th e emphasized language limits the scope of this chapter 120

proceeding to the grounds for f orfeiture found in section

112.3173. The Ordinance Code is beyond the scope of this

proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Trustees of the City of

Jacksonville Retire ment System en ter a final order withdrawing

the Notice of Proposed Final Agency Action.

DONE AND ENTERED this 19 th day of November, 2014 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative He arings

this 19 th day of November, 2014 .

ENDNOTES

1 / The Agreement in effect at the time of the allegations

against Mr. Fuller was that for the years 2009 - 2012.

2 / These photos were part of the BoardÓs Exhibits 3 through 6

that were admitted as hearsa y evidence only. Because the Board

presented no admissible evidence that these exhibits could be

said to supplement or explain, and because of their prejudicial

effect in the absence of such evidence, the BoardÓs Exhibits 3

through 6 have not been conside red in the preparation of this

Recommended Order.

3 / References to Florida Statutes are to the 2014 version,

unless otherwise indicated.

COPIES FURNISHED :

Ray Ferngren , Pension Administrator

Jacksonville Retirement System

City of Jacksonville

117 West Duval Street , Suite 330

Jacksonville, Florida 32202

(eServed)

John Sawyer, Esquire

Office of the General Counsel

C ity of Jacksonville

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

T. A. Delegal, Esquire

Delegal Law Offices, P.A.

424 E ast Monroe Street

Jacksonville, Florida 32202

(eServed)

Wendy Byndloss, Esquire

Office of the General Counsel

City of Jacksonville

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es have the right to submit 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.