15-006633 Charles Combs vs. State Board Of Administration Status: Closed Recommended Order on Tuesday, May 10, 2016.

Summary: The circumstance associated with Petitioner's purchases of Oxycodone demonstrates that there is a nexus between his DOC employment and his crime.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES COMBS ,

Petitioner ,

vs. Case No. 15 - 6633

STATE BOARD OF ADMINISTRATION ,

Respondent .

/

RECOMMENDE D ORDER

Pursuant to notice, a final hearing was held in this case on

February 2 6 , 2016, in Tallahassee, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Frank E. Maloney, Jr. , Esquire

Frank E. Maloney, Jr., P.A.

445 East Macclenny Avenue

Macclenny, Florida 32063

For Respondent: Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

STATEMENT OF THE ISSUE

The issue is whether, pursuant to section 112.3173, Florida

Statutes (2015), 1/ Petitioner forfeited his Florida Retirement

System (ÐFRSÑ) Investment Plan account by enter ing a nolo

contendere plea to two counts of violating section

893.13(2) ( a )1 . , Florida Statutes, a second - degree felony.

PRELIMINARY STATEMENT

On August 25, 2015, Charles G. Combs (ÐMr. CombsÑ or

ÐPetitionerÑ) pled nolo contendere to two counts of purchasing

O xycodone, a violation of section 893.13(2)( a )1 . , and a second -

degree felony. The Bradford County Circuit Court accepted the

plea but withheld adjudication.

Via a lette r dated September 3, 2015, the State Board of

Administration (Ðthe SBAÑ) notified Mr. Combs that his rights and

benefits under the FR S Investment Plan had been forfeited as a

result of his nolo contendere plea for acts committed while

employed with the Dep artment of Corrections (ÐDOCÑ). In support

thereof, the SBA noted that Article II, s ection 8(d) , Florida

Constitution , provides that Ð[a]ny public officer or employee who

is convicted of a felony involving a breach of public trust shall

be subject to forf eiture of rights and privileges under a public

retirement system or pension plan in such manner as may be

provided by law.Ñ

Mr. Combs responded to the SBAÓs letter by requesting an

administrative hearing and asserting that the SBAÓs determination

should be reversed because the allegations to which he pled nolo

contendere had nothing to do with his position at DOC. Thus,

Mr. Combs asserts there was no breach of the public trust .

The SBA referred th e matter to DOAH , and the undersigned

scheduled a formal administrative hearing for February 26, 2016.

Mr. Combs filed a Motion in Limine on February 16, 2016,

seeking to preclude two of the SBAÓs proposed exhibits from being

accepted into evidence. The proposed exhibits in question were

an arrest warrant and a warrant a ffidavit. With regard to the

arrest warrant, Mr. Combs argued it was irrelevant because he had

not been convicted of any of the six counts set forth in the

arrest warrant. As for the warrant affidavit, Mr. Combs argued

that it contained irrele vant hearsay.

On February 23, 2016, Mr. Combs filed a second Motion in

Limine seeking to preclude two audio recordings and a deposition

from being accepted into evidence. The audio recordings

memorialized the Bradford County Sheriff OfficeÓs interrogation s

of Mr. Combs. Mr. Combs asserted that the audio recordings and

the deposition were irrelevant and would serve no purpose other

than to inflame the finder of fact.

The SBA responded to Mr. CombsÓ Motions in Limine on

February 25, 2016, by noting that h earsay is admissible in

administrative proceedings and that Ðto the extent any hearsay is

offered, it should be admitted to support findings based on other

direct evidence and in this case is necessary to provide context

to the events that led to Mr. Combs Ó arrest and conviction.Ñ As

for the relevancy of the exhibits in question, the SBA noted that

there can be no forfeiture of retirement benefits unless there is

a nexus between a public employeeÓs crime(s) and his or her state

employment. According to th e SBA, the exhibits in question

pertain Ðdirectly to the heart of this matter and will be used to

show that a sufficient nexus exists between PetitionerÓs state

employment and his crimes.Ñ

The undersigned addressed Mr. CombsÓ Motions in Limine at

the sta rt of the February 26, 2016, hearing. The SBA announced

that it was withdrawing the deposition as a potential exhibit,

but the SBA still wanted to have the arrest affidavit att a ched to

the deposition accepted into evidence. 2/ After hearing argument

from counsel, the undersigned ruled that the two audio recordings

were hearsay but noted that hearsay is admissible in

administrative proceedings. Nevertheless , it was noted that

findings of fact cannot be based on hearsay unless the hearsay

supplements or cor roborates other non - hearsay evidence. It was

also noted that the audio recordings could possibly fall under

the hea rsay exception in section 90.803 (18), Florida Statutes,

pertaining to a partyÓs own statement that is offered against

that party . See gener ally State v. Elkin , 595 So. 2d 119, 120

(Fla. 3d DCA 1992)(noting that Ð[r]elevant, out - of - court

statements of a party opponent, as is the statement at issue, are

admissible in evidence pursuant to section 90.803(18), Florida

Statutes (1989), and thus are an exception to the hearsay

rule.Ñ).

With regard to Mr. CombsÓ assertion that the arrest warrant

and the arrest affidavit were irrelevant , the undersigned

deferred ruling on the ir relevancy until they could be considered

in context with all of the evide nce and testimony to be presented

at the final hearing .

Prior to hearing any testimo ny, the undersigned granted

Mr. Combs a standing objection to any testimony regarding alleged

wrongdoing by Mr. Combs , other than the two charges to which he

pled nolo con tendere.

Mr. Combs was the only witness at the final hearing.

As for exhibits at the final hearing, t he undersigned

accepted Joint Exhibits J - 2 through J - 9 into evidence. As noted

above, the audio recordings marked as RespondentÓs Exhibits R - 2a

and R - 2b were a ccepted into evidence. Joint Exhibit 1 (which was

marked as J - 1 and just consisted of the arrest affidavit) and the

arrest warrant , RespondentÓs Exhibit R - 1 , were also accepted

subject to further consideration of Mr. CombsÓ relevancy

objection.

As explained more fully below, Mr. CombsÓ objections based

on relevancy are overruled. The subjects of his objections

pertain to the circumstances associated with the Oxycodone

purchases which led to Mr. CombsÓ nolo contendere plea and the

SBAÓs subsequen t determination that Mr. Combs had forfeited his

rights and benefits under the FRS.

The one - volume T ranscript was filed on March 30, 2016, and

t he Parties timely filed their Proposed Recommended Orders . T he

undersigned gave due consideration to both of those Proposed

Recommended Orders .

FINDING S OF FACT

I. The Events Giving Rise to this Proceeding

1. Mr. Combs began working for DOC on May 25, 2001, as a

Correctional Officer Level 1 at the Union Correctional

Institution (ÐUnion CorrectionalÑ) in Raifo rd, Florida.

2 . Union Correctional is a maximum security facility

housing approximately 2,000 inmates, and Mr. Combs assisted with

their care and custody.

3 . In January of 2006, Mr. Combs earned a promotion to

Correctional Officer, Sergeant. While h is responsibilities were

very similar to those of his previous position, Mr. Combs was n ow

supervising other correctional officers .

4 . In October of 2011, Mr. Combs earned a promotion to

Correctional Officer, Lieutenant , and was responsible for

supervis ing 5 0 to 7 0 correctional officers at Union Correctional .

5 . In April of 2013, Mr. Combs earned a promotion to

Correctional Officer, Captain , and transferred to Florida State

Prison in Starke, Florida .

6 . A captain is the highest ranking correction al o fficer on

a given shift, and Mr. Combs supervi sed approximately 50

correctional officers at a time , including sergeants and

lieutenants .

7 . Like Union Correctional, Florida State Prison is a

maximum security facility hous ing approximately 2,000 prisoners .

8 . A colonel manages Florida State Prison , and it has two

separate units. One of those units is a work camp hous ing lower -

custody inmates who may work outside the facility , and t he main

prison is the other unit . E ach of the units is run by its own

ma jor.

9 . In February of 2015, Mr. Combs was promoted to Major and

took charge of the work camp at Florida State Prison.

1 0 . At some point in 2014 and p rior to his promotion to

Major , Mr. Combs had beg u n taking O xycodone recreationally.

1 1 . Mr. Combs ty pically purchased one O xycodone pill three

to four times a week , and D ylan Hill i ard ( a Correctional

Officer 1 at Florida State Prison ) was Mr. CombsÓ primary source

of Oxycodone .

12. Mr. Hillia r d usually worked at the main prison, but he

occasionally wo rked at the work camp .

1 3 . Mr. Combs knew Mr. Hilliard because of their employment

with DOC .

1 4 . Mr. Combs purchased Oxycodone from Mr. Hilliard at the

latterÓs home in Lawtey, Florida. However, some transactions

occurred in Mr. CombsÓ state - issued housing on the ground s of

Florida State Prison.

1 5 . Mr. Hilliard charged Mr. Combs $35 for an Oxycodone

pill, and that was a discount from the $38 price Mr. Hilliard

charged others .

1 6 . Mr. Combs allowed his subordinates (Sergeants Jesse

Oleveros and Evan Williams) to leave Florida State Prison during

their shifts in order to purchase illegal drugs from

Mr. Hilliard.

1 7 . After returning f rom their transactions with

Mr. Hilliard, Mr. Oleveros and Mr. Williams would give Mr. Combs

an Oxycodone pill fre e of charge.

1 8 . Operation Checkered Flag was a joint task force led by

the Bradford County SheriffÓs Office, and its purpose was to

arrest individuals involved with the distribution and use of

illegal drugs.

19 . The authorities arrested Mr. Hilliar d after he engaged

in an illegal drug transaction with an undercover agent from the

Florida Departmen t of Law Enforcement.

2 0 . A subsequent search of Mr. HilliardÓs cell phone

revealed text messages between Mr. Hilliard and several other DOC

employees, in cluding Mr. Combs.

2 1 . Mr. Hilliard referred to Mr. Combs as ÐChicken - H awkÑ or

ÐHawkÑ in those text messages, and the two of them used car part

terminology as a code for different milligram sizes of Oxycodone.

2 2 . Operation Checkered Flag ultimately resulted in the

arrest of 10 DOC employees.

2 3 . The authorities arrested Mr. Combs on July 1, 2015,

based on allegations that he had committ ed six felonies relating

to the alleged unlawful and illegal purchase and distribution of

Oxycodone .

2 4 . DOC f ired Mr. Combs on approximately July 1, 2015.

2 5 . Mr. Combs initially denied all of the allegations.

However, after spending nearly 56 days in j ail , Mr. Combs reached

an agreement with the State AttorneyÓs Office in Bradford County

that called for his cr iminal charges to be reduced in exchange

for his cooperation with Operation Checkered Flag.

2 6 . During an interview on August 20, 2015 , with members of

Operation Checkered Flag , Mr. Combs admitt ed that he had

pu rchased O xycodone from Mr. Hilli ard.

2 7 . In addition, Mr. Combs admitted that on six or seven

occasions he allowed Mr. Oleveros and Mr. Williams to leave the

prison grounds so that they co uld purchase Oxycodone from

Mr. Hilliard.

28 . The State AttorneyÓs Office in Bradford County chose to

di smiss most of the charges against Mr. Combs. The Information

ultimately filed against Mr. Combs set f orth two counts alleging

that he violated section 893.13(2)(a)1 . , by illegally purchasing

Oxycodone on March 23, 2015, and March 31, 2015.

29 . Those pu rchases occurred approximately 10 miles from

Florida State Prison at Mr. HilliardÓs residence in Lawtey,

Florida. Neither Mr. Combs nor Mr. Hilliar d was on duty during

those transactions.

3 0 . On August 25, 2015, Mr. Combs pled nolo contendere .

3 1 . T he Bradford County Circuit Court entered judgment

against Mr. Combs based on the two violations of section

893.13(2)(a)1 . , but withheld adjudication.

3 2 . All of the conduct underlying Mr. CombsÓ nolo

contendere plea occurred while he was employed by DOC.

II. The SBA Determines that Mr. Combs Forfeited his FRS Benefits

3 3 . At all times relevant to the instant case, Mr. Combs

was a member of the FRS.

3 4 . The FRS is the legislatively - created general retirement

system established by chapter 121, Flor ida Statutes. See

§ 121.021(3), Fla. Stat.

3 5 . The SBA is the governmental entity that administers the

FRS Investment Plan, a defined retirement benefits contribution

pla n. § 121.4501(1), Fla. Stat.

3 6 . Via a letter dated Augus t 3, 2015, the SBA no tified

Mr. Combs that a hold had been placed on his FRS account due to

the criminal charges. As a result, no distribution of employer

contributions from Mr. CombsÓ account would be permitted until

the SBA had evaluated the final disposition of those crimi nal

charges.

37 . Via a letter dated September 3, 2015, the SBA notified

Mr. Combs that he had forfeited his FRS benefits as a result of

his nolo contendere plea. In support thereof, the SBA cited

section 112.3173, Florida Statutes, which provides for the

forfeiture of a public employeeÓs FRS retirement benefits upon

the entry of a nolo contendere plea to certain types of offenses.

38 . The SBAÓs letter closed by notifying Mr. Combs of his

right to challenge the SBAÓs proposed action through an

administ rative hearing.

39 . Mr. Combs requested a formal administrative hearing and

asserted that the crimes for which he was convicted did not fall

within the scope of section 112.3173(2)(e). In other words,

Mr. Combs argued that his convictions were not asso ciated with

his employment at DOC and thus did not amount to a violation of

the public trust.

III. Testimony Adduced at the Final Hearing

4 0 . Mr. Combs testified that he was responsible for the

work camp and th e supervision of the correctional officers

assigned there. He also testified that he would occasionally

supervise correctional officers who normally worked in the main

prison.

4 1 . Mr. Combs testified that Mr. Hilliard was his primary

source of Oxycodone and that Mr. Hilliard occasionally work ed at

the work camp.

4 2 . Mr. Combs was aware that two Florida State Prison

employees who worked directly under him ( Sergeant Jesse Oleveros

and Sergeant Evan Williams ) w ere purchas ing Oxycodone fro m

Mr. Hilliard.

4 3 . Mr. Combs testified that he allowed M r. Oleveros and

Mr. Williams to leave Florida State Prison grounds six or seven

times in order to purchase Oxycodone from Mr. Hilliard.

44. Mr. Combs testified that Mr. Oleveros and Mr. Williams

would give him an Oxycodone pill after returning from thei r

transactions with Mr. Hilliard.

4 5 . Mr. Combs acknowledged during his testimony that DOC

policy prohibits correctional officers from leaving pris on

grounds during their shift.

4 6 . Mr. Combs acknowledged that it was a violation of DOC

policy and Flori da l aw to allow a correctional officer to leave

prison grounds during a shift for the purpose of purchasing

illegal narcotics.

47 . Mr. Combs also acknowledged that it was a violation of

DOC policy and Florida l aw to allow a correctional officer to be

on p rison grounds with illegal narcotics.

48 . Finally, Mr. Combs acknowledged that as a sworn officer

with the Department of Correction s , he had an obligation to

report any criminal activity committed by a correctional officer

working at Florida State Prison , regardless of whether that

correctional officer reported to him.

I V . Findings of Ultimate Fact

49 . An examination of the ci rcumstances associated with

Mr. CombsÓ Oxycodone purchases from Mr. Hilliard demonstrates

that there is a nexus between Mr. CombsÓ employment as a

correctional officer with DOC and his commissio n of the crimes to

which he ple d nolo contendere.

5 0 . For instance, Mr. Combs came to know his primary source

of Oxycodone (Mr. Hilliard) through their mutual employment with

DOC. Inde ed, Mr. Combs supervised Mr. Hilliard when the latter

was assigned to the work camp at Florida State Prison .

5 1 . Also, Mr. Combs knew that these transactions were

illegal . As noted above, he and Mr. Hilliard used a code based

on car part references to di sguise the actual subject of their

co mmunications .

5 2 . Contrary to DOC policy and Florida Law, Mr. Combs

allowed two of his subordinates (Mr. Oleveros and Mr. Williams)

to leave Florida State Prison during their duty shifts in order

to purchase illegal drugs from Mr. Hilliard. Mr. Combs would

then receive a free pill from M r. Oleveros and Mr. Williams.

5 3 . Mr. Hilliard sold Oxycodone to Mr. Combs at a reduced

price. It is reasonable to infer that Mr. Combs received this

discount due to his high - rankin g position at Mr. HilliardÓs place

of employment and because Mr. Combs facilitated Mr. Oleveros and

Mr . WilliamsÓ purchases of Oxycodon e from Mr. Hilliard.

5 4 . Mr. Combs willfully violated DOC policy and Florida l aw

by allowing correctional officer s to leave prison grounds during

a shift for the purpose of purchasing illegal narcotics.

5 5 . Mr. Combs knowingly violated his obligation as a sworn

correctional officer by not reporting the criminal activity

committed by Mr. H illiard.

5 6 . Mr. Combs defraud ed the public from receiving the

faithful performance of his duties as a correctional officer .

The public had a right to expect that one of its employees would

not purchase drugs from someone he supervised. The public also

had a right to expect that Mr. Combs would not use his authority

at Florida State Prison to facilitate Mr. HilliardÓs illegal drug

sales to other DOC employee s . In addition, the public had a

right to expect that Mr. Combs would not engage in illegal

transactions on the gr ounds of Flori da State Prison.

5 7 . Mr. Combs realized a profit, gain, or advantage through

the power or duties associated with his position as a Major at

DOC. Specifically, Mr. Combs satisfied his Oxycodone habit

through purchases made from a DOC employee who he supe rvised.

Also, Mr. Combs used his position to facilitate other sales by

Mr. Hilliard, and Mr. CombsÓ assistance led to him receiving free

Oxycodone and a discounted price on his Oxycodone purchases.

58 . T he findings set forth above in p aragraphs 49

t hrough 57 are the only ones needed t o establish a nexus between

Mr. CombsÓ public employment and the two counts to which he pled

nolo contendere. That nexus is evident from Mr. CombsÓ

testimony, Mr. CombsÓ Responses to the SBAÓs Request s for

Admissions, a nd the Stipulated Facts. It was not necessary to

consider the exhibits to which Mr. Combs raised objections, i.e.,

the arrest warrant, the warrant affid avit, and the audio

recordings.

CONCLUSIONS OF LAW

5 9. DOAH has jurisdiction over the parties to, an d subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

6 0. The FRS is a public retiremen t system as defined by

Florida L aw and, as such, the SBAÓs proposed action to forfeit

PetitionerÓs FRS rights and benefits is subject to adm inistrative

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

6 1. Article II, section 8 , 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 t hat 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 pensio n plan in such

manner as may be provided by law.

6 2. Section 112.3173 implements Article II, section 8 ,

Florida Constitution , and is part of the statutory code of ethics

for public officers and employees. The statute states in

pertinent part:

( 1) INT ENT. ÏÏ 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 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

offe nse.

* * *

(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, 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. Bri bery 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 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, realiz es 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 p osition; 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. ÏÏ Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

whose office or employment is terminated by

reason of his or her admitted commission,

aid, or abetment of a specified offense,

shall forfeit all rights and benefits under

any public retirement system of which he or

she is a member, except for the retur n of

his or her accumulated contributions as of

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 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.

6 3 . As the party asserting that Mr. Combs has forfeited h is

rights and benefits under the FRS pursuant to section

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

proceeding. See Fl a . Dep't of Transp. v. J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981) . S ee also Balino v. Dep't of HRS. , 348

So. 2d 349 (Fla. 1st DCA 1977) .

6 4 . The statutory forfeiture provision at issue, section

112.3173(3), is not penal and does not involve disciplinary

action against a license. Accordingly, the 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).

6 5 . Not eve ry 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 "specified offense" as defined in section 112.3173(2)(e)1.

through 7.

6 6 . The ille gal purchase of Oxycodone is not among the

specified offenses enumerated in paragraphs 1. thro ugh 5. or 7.

of section 112.3173 (2)(e). Accordingly, the issue is whether

Mr. Combs ' crimes fall within section 112.3173 (2)(e)6., which has

been called the "catc h - all" provision of the forfeiture statute.

See Bollone v. Dep't of Mgmt. Servs. , 100 So. 3d 1276, 1280 (Fla.

1st DCA 2012).

67 . Mr. Combs argues that the charges to which he pled nolo

contendere do not fall within the "catch - all" provision of the

forfei ture statute . In doing so, Mr. Comb s argues that the

analysis of th is issue must be limited to the fact that he

illegally purchased Oxycodone on March 23, 2015, and March 31,

2015 . Mr. CombsÓ hearing testimony, the arrest warrant, and the

arrest affidavi t are supposedly irrelevant. In other words, the

undersigned cannot consider the circumstances associated with the

Oxycodone purchases. If the analysis is so restricted, Mr. Combs

argues that the SBA cannot establish the required nexus between

his offens es and his former position as a M ajor at Florida State

Prison.

68 . However, Mr. CombsÓ argument is directly contrary to

previous cases dealing with whether an offense falls within the

Ðcatch - allÑ provision . The First District Court of Appeal has

conclu ded that whether a particular crime falls under the Ðcatch -

allÑ provision Ðdepends on the way in which the crime was

committed.Ñ J enne v. Dep't of Mgmt. Servs. , 36 So. 2d 738, 742

(Fla. 1st DCA 2010) (rejecting the AppellantÓs contention Ðthat

his convicti on for conspiracy to commit mail fraud does not meet

the definition of a specified offense because the elements

required to prove the offense do not match the elements of any of

the crimes described in the statute.Ñ) . See Bollone v. DepÓt of

Mgmt. Servs. , 100 So. 3d at 1280 ( citing Jenne and stating Ðthis

Court has held that the term Òspecified offenseÓ is defined by

the conduct of the public official, not by the elements of the

crime for which the official was convicted. Ñ).

69 . Therefore , the circumsta nces associated with an offense

are relevant to evaluating whether that offense amounts to a

specified offense under section 112 .3173 (2)(e)6. Th us, the

required analysis must take into account facts such as the

following : (a) Mr. Combs and Mr. Hilliard c a me to know each

other through their employment at DOC; (b) Mr. Combs supervised

Mr. Hilliard on the occasions when the latter w as assigned to the

work camp at Florida State Prison; (c) some of the transactions

between Mr. Combs and Mr. Hilliard occurred o n the grounds of

Florida State Prison; (d) Mr. Combs used his position at Florida

State Prison to facilitate other illegal transactions involving

Mr. Hilliard and other DOC employees; and (e) Mr. Combs obtained

a profit and/or gain by facilitating the afor ementioned

transactions.

70 . To constitute a specified offense under section

112.317 3 (2)(e)6., the criminal act must be: (a) a felony;

(b) committed by a public officer or employee; (c) done willfully

and with the intent to defraud the employee's publi c employer of

the right to receive the faithful performance of the employe e's

duty ; (d) done to realize or obtain a profit, gain, or advantage

for the employee or some other person; (e) and done through the

use of t he power, rights, privileges, duties, or position of the

employee's public employment. Bollone v. DepÓt of Mgmt. Servs. ,

100 So. 3d at 1280 - 81.

71 . When the above criteria are applied to the

circumstances associated with Mr. CombsÓ purchases of Oxycodone ,

it is readily apparent that he commit ted a specified offense.

72 . For instance, th ere is no dispute that Mr. Combs was a

public employee when he committed the acts described above.

There is also no dispute that Mr. Combs pled nolo contendere to

two counts of violatin g section 893.13(2)(a) 1 . , a second - degree

felony . Thus, the first two criteria for a specified offense

under section 112 .3173 (2)(e)6 . , are satisfied.

73 . As for whether Mr. Combs defraud ed the public or DOC ,

this requirement is satisfied if there is evidence of a Ðnexu s

betwe en the crimes charged against the public officer and his or

her duties and/or position.Ñ 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 of ficer in failing to safeguard the publicÓs faith in that

public office or position. Id.

7 4 . In the instant case, the facts demonstrate there was a

nexus between Mr. CombsÓ purchase of O xycodone from Mr. Hilliard

and Mr. CombsÓ duties as a correctional of ficer .

75 . For instance, Mr. Combs acknowledged during his

testimony that a sworn officer with D O C has an obligation to

report criminal activity c ommitted by another correctional

officer . Mr. Combs obviously violated that oath by not reporting

Mr. Hill ardÓs illegal activity . That fact (in and of itself)

would be sufficient to establish the nexus between Mr. CombsÓ

purchases of Oxycodone and his duties as a public employee.

See Zeh v. Bd. of Tr s . of the City of Longwood Pol ice OfficersÓ

and Firefigh tersÓ Pension Trust Fund , Case No. 14 - 0870, 2014 Fla.

Div. Adm. Hear. LEXIS 355 ( Fla. DOAH June 30, 2014 ; Bd. of Trs.

Oct. 24, 2014 )(evaluating the nexus between petitionerÓs duties

as a police officer and his nolo contendere ple a to burglary with

assault/ battery and aggravated assault and concluding petitioner

Ðtestified 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 equ ipment. Therefore, the nexus between the

crimes charged and the duties of the public officer has been

met.Ñ).

76 . Furthermore, there can be no reasonable dispute that

Mr. CombsÓ acted willfully given his acknowledgements during the

final hearing that DOC policy and/or Florida l aw prohibit a

correctional officer from : (a) leaving prison grounds during

their shift; (b) leaving prison grounds during a shift for the

purpose of purchasing illegal narcotics; and from (c) having

illegal narcotics on prison grou nds.

77. O ther circumstances associated with Mr. CombsÓ

purchases of Oxycodone also demonstrate that there is a nexus

between his offense and his duties as a public officer .

78 . For instance, the public and D O C had a right to expect

that Mr. Combs wo uld not engage in criminal activity with his co -

workers. See Bollone v. DepÓt of Mgmt. Serv. , Case No. 11 - 3274 ,

2011 Fla. Div. Admin. Hear. LEXIS 259 ( Fla. DOAH Oct. 19, 2011 ;

DMS Dec. 28, 2011 ) (concluding Ð[t]he public an d TCC had a right

to expect Mr. Bollone would not use the computer entrusted to him

for criminal activity. The public was defrauded when Petitioner

used that public property to further his private interest in the

possession of child pornography, a crime under the laws of

Florida, and a breach of the public trust.Ñ).

79 . The public and DOC had a right to expect that Mr. Combs

would not engage in illegal transactions with Mr. Hillard on the

grounds of Florida State Prison.

80. In addition, t he public and DOC had a right to expect

t hat Mr. Combs would not knowingly allow his subordinates to

leave their work stations (while on duty) in order to purchase

illegal narcotics.

8 1 . As for the fourth criterion for a specified offense

under section 112 .3173 (2)(e)6 . , Mr. CombsÓ position in the

Florida State Prison lead to him receiving a profit and/or gain

from his transactions with Mr. Hilliard. Mr. CombsÓ gain

resulted from the fact that he was able to facilitate his

recreational use of illegal narcotics thro ugh transactions with

Mr. Hill iard . While satisfying oneÓs addiction is not a monetary

gain, the personal gain referenced in section 112 .3173 (2)(e)6 . ,

is not limited to finances . See Zeh v. Bd. of Trs. , 2014 Fla.

Div. Admin. Hear. LEXIS 355 , at *10 (rejecting petitionerÓs

argument th at respondent failed to demonstrate that the offense

was committed to obtain a profit by concluding that Ðthe statute

does not provide that only economic gain can be considered

personal gain. Bollone v. DepÓt of Mgmt. Servs. , 100 So. 3d at

1281. Here, th e record demonstrates non - monetary personal gains

or advantages accruing to Petitioner, who believ ed that his

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

otherwise persuade his wife to return home, and allow the couple

to continue the marr iage. 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 1282. Ñ ) ; Bollone v. DepÓt of

Mgmt. Serv. , 2011 F la. Div. Adm. Hear. LEXIS 259 , at *22 (noting

that Ð[n]umerous hearings under this forfeiture statute and

similar statutes have consistently concluded that sexual

gratification constitutes personal gain.Ñ) .

8 2 . Nevertheless , Mr. Combs did receive a m onetary benefit

because Mr. Hilliard sold him oxycodone pills for $35 a pill when

others were paying $38 a pill. It is reasonable to infer that

Mr. Combs received a discount because he occasionally supervised

Mr. Hill i ard and facilitated Mr. HilliardÓs sa les to Mr. Oleveros

and Mr. Williams by allowing them to prematurely leave their duty

stations.

8 3 . The fifth and final criterion for a specified offense

under section 112 .3173 (2)(e)6 . , requires that the felonious

conduct be done through the use or attem pted use of the Ðpowers,

rights, privileges, duties, or position of the employeeÓs

environment.Ñ Bollone v. DepÓt of Mgmt. Servs. , 100 So. 3d at

1281.

8 4 . In the instant case, Mr. Combs was purchasing Oxycodone

from someone he knew through his employm ent at Florida State

Prison. There is no indication in the Record that Mr. Combs

would have come into contact with Mr. Hilliard through any other

means . See Holsberry v. DepÓt of Mgmt. S er vs., Div. of Ret . ,

Case No. 09 - 0087 , 2009 Fla. Div. Adm. Hear. LEX IS 933 (Fla. DOAH

July 24, 2009 ; Fla. DMS Oct. 22, 2009 )(concluding the petitioner

Ðused or attempted to use the power, rights, privileges, duties,

or position of his public office, and his contact with R.D. was

made possible only as a result of his positi on as a teacher.Ñ) ;

Marsland v. DepÓt of Mgmt. Serv s ., Div. of Ret . , Case No. 08 -

4385, 2008 Fla. Div. Adm. Hear. LEXIS 294 ( DOAH Dec. 15, 2008 ;

Fla. DMS Jan. 20, 2009 )( evaluating whether lewd or lascivious

2 6

molestation amounts to a specified offense and con cluding the

petitioner Ðused or attempted to use the power, rights,

privileges, duties, or position of his public office.

PetitionerÓs actions were made possible only as a result of his

position as a teacher.Ñ) .

8 5 . Moreover, it is reasonable to infer th at Petitioner

received a discount due to his status as a supervisor and/or

because of the fact that he facilitated other sales by

Mr. Hilliard. See Maradey v. St . Bd. of Adm in . , Case Number . 13 -

4172 , 2014 Fla. Div. Adm. Hear. LEXIS 21 (Fla. DOAH Jan. 16,

2014 ; Fla. SBA Apr. 7, 2014 ) ; Bollone v. DepÓt of Mgmt. Servs. ,

2011 Fla. Div. Adm. Hear. LEXIS 259 , at * 22 ( concluding that

petitionerÓs Ðgain or advantage to himself was effected through

the use of the power, rights, privileges and position of his

employ ment at TCC. His use of the public comp u ter was a power,

right and privilege of his position which he exercis ed to possess

child pornography Ñ).

8 6 . Furthermore, while the purchase s leading to Mr. CombsÓ

guilty plea w ere made in Mr. HillardÓs private re sidence, there

were occasions when the illegal transactions between Mr. Combs

and Mr. Hillard would occur on the grounds of Florida State

Prison . See Zeh v. Bd. of Trs. , 2014 Fla. Div. Adm. Hear LEXIS

355 , at * 12 (noting the felonious conduct must be done through

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

duties, or position of the employeeÓs employment and concluding

that criterion was satisfied because Ð[t]he record shows that

Petitioner committed the felonies while on duty, while in

uni form, and while carrying a City - issued firearm. The felonies

occurred after he drove a police cruiser to the location of the

incident.Ñ).

8 7 . In sum, the evidence establishes that Mr. Combs was

convicted of felonies; that he was a public employee; that he

committed the crimes willfully and with intent to defraud the

public of the right to receive the faithful performance of his

duty as a public employee; that he realized, obtained, and

attempted to realize or obtain, a profit or gain for himself; and

th at his criminal acts were committed through the use of his

public employment position.

8 8 . Accordingly, the offenses to which Mr. Combs pled nolo

contendere are Ðspecified offensesÑ within the meaning of section

112.3173(2)(e)6.

89 . As such, all of the requirements in section 112.3173(3)

for forfeiture are met. Mr. Combs is deemed to have forfeited

all of his rights and privileges in his Florida Retirement System

Investment Plan account , 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 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 he has

forfeited all of his rights and benefits in his Florida

Retirement System Investment Plan account , except for the return

of his accumulated contributions as of the date of his

termination.

DONE AND ENT ERED this 10 th day of May, 2016 , in Tallahassee,

Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10 th day of May , 2016 .

ENDNOTE S

1/ All statutory citations will be to the 2015 version of the

Florida Statutes unless indicated otherwise.

2/ The T ranscript from the final hearing indicates that the

undersigned misspoke by stating that the deposition would be

accepted into evidence eve n though the SBA had withdrawn it as a

potential exhibit. The undersigned did not intend to accept the

deposition into evidence and note s for the r ecord that the

deposition was not considered in the preparation of this

Recommended Order. In fact, the und ersigned clarified toward the

conclusion of the final hearing that only the arrest affidavit

attached to the deposition transcript was being moved into

evidence.

COPIES FURNISHED:

Frank E. Maloney, Jr., Esquire

Frank E. Maloney, Jr., P.A.

445 East Ma cclenny Avenue

Macclenny, Florida 32063

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

(eServed)

Ash Williams, Executive Director

and Chief Investment Officer

State Board of Administration

1801 Hermitage Boulevard, Suite 100

Post Office Box 133 00

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 o f this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.