16-001987 Ronald J. Rosen vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, October 21, 2016.

Summary: Petitioner was convicted of felonies related to his employment and forfeited his FRS benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD J. ROSEN,

Petitioner,

vs. Case No. 16 - 1987

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Au gust 31, 2016, Administrative Law Judge J. Lawrence

Johnston held the final hearing in this case by video

teleconfer ence in Orlando and Tallahassee.

APPEARANCES

For Petitioner: Thomas D. Sommerville, Esquire

Law Offices of Thomas D. Somme rville, P.A.

820 N orth Thornton Avenue

Orlando, Florida 32803

For Respondent: Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether the Petitioner forfeited his

retirement benefits due to criminal convictions.

PRELIMINARY STATEMENT

In 2009, the Peti tioner applied for retirement benefits and

was notified by the Respondent that he forfeited them in 2005

when he was convicted of two counts of lewd or lascivious

molestation of a minor female student at the school where he was

employed. The Petitioner di sputed the forfeiture and asked for

a hearing.

The Petition for Hearing alleged that the Petitioner was an

educator employed with the Brevard County School Board and

taught in a public elementary school when he was charged with

lewdly molesting six minor female students during the 2000/2001

academic year by patting or touching them on their clothed

buttocks or clothed breasts; that he denied the charges and

stood trial rather than pleading guilty to one count of

misdemeanor battery, with no jail, no adjud ication of guilt, and

no probation if he resigned his teaching position; and that he

was found and adj udicated guilty on three second - degree felony

counts of lewd molestation and one first - degree felony count of

lewd molestation in violation of section 800 .04(5), Florida

Statutes.

The Petition for Hearing was referred to the Division of

Administrative Hearings (DOAH), where it was designated

DOAH C ase 10 - 0101 and placed in abeyance because a motion for

post - conviction relief was pending. In April 2013, the DOAH

case was closed and jurisdiction was relinquished to the

Respondent without prejudice to re - open the case if the matter

was not resolved after the post - conviction proceedings were

concluded.

On April 4, 2016, the Respondent moved to re - open the

proceeding at DOAH because the motion for post - conviction relief

had been denied. The case was re - opened and designated DOAH

C ase 16 - 1987. The parties filed a pre - hearing stipulation ,

which states the issue to be whether the criminal convictions

require forfeiture under sections 112.3173 or 121.091, Florida

Statutes.

At the final hearing, the Respondent called one witness,

Dale Young, a former investigator for the State AttorneyÓs

Office that prosecuted the Petitioner, and had certified copies

of the cr iminal court records admitted as Exhibits 1, 3, and 4.

The Petitioner did not appear at the final hearing, except

through counsel, and presented no evidence. The Petitioner

takes the position that the only evidence of a nexus between the

convictions and the RespondentÓs employment as a teacher for the

Brevard County School Board was hearsay to which the Petitioner

objected.

After the evidence w as presented, the parties were given

until September 12 , to file proposed recommended orders, or ten

days after the filing of a transcript of the final hearing, if

one was ordered. On September 12, the Petitioner filed a

Proposed Recommended Order, and the Respondent filed a notice

that it was ordering a Transcript. The Transcript was filed on

October 6. The Res pondentÓs Proposed Recommended Order was

filed on October 17. Both proposed recommended orders have been

considered.

FINDING S OF FACT

1. According to the Petition for Hearing, the Petitioner

was an educator employed with the Brevard County School Boar d

and taught in a public elementary school when he was charged

with lewdly molesting six minor female students during the

2000/2001 academic year by patting or touching them on their

clothed buttocks or clothed breasts.

2. The charges were filed in Mar ch 2001. The Petitioner

denied the charges and stood trial by jury. In January 2005,

the Petitioner was adj udicated guilty on three second - degree

felony counts of lewd molestation and one first - degree felony

count of lewd molestation in violation of sect ion 800.04(5),

Florida Statutes.

3. The former investigator for the State AttorneyÓs Office

that prosecuted the Petitioner testified at the final hearing in

this case that the alleged victims made statements to him about

the PetitionerÓs crime and its relation to his employment as a

teacher, and that he went to the school to document the setup of

the PetitionerÓs classroom. The investigator had no personal

knowledge, and it was unclear from his testimony whether he

received information about the Petiti onerÓs crime and its

relation to his employment from anyone other than the alleged

victims.

4. The Petitioner was a member of the Florida Retirement

System (FRS) at the time of the criminal charges against him and

would have been entitle d to retiremen t benefits if it were not

for the criminal convictions.

CONCLUSIONS OF LAW

5. At the time of the criminal charges against the

Respondent, section 112.3173(3), Florida Statutes (2000),

provided for the forfeiture of all rights and benefits accrued

by a m ember of any public retirement system, except for the

return of accumulated contributions, upon conviction of certain

specified criminal offenses, including Ðany felony by a public

officer or employee, who, willfully and with intent to defraud

the public o r the public agency for which the public officer or

employee acts or in which he or she is employed of the right to

receive the faithful performance of his or her duty as a public

officer or employee, realizes or obtains, or attempts to realize

or obtain, a profit, gain, or advantage for himself or herself

or for some other person through the use or attempted use of the

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

public office or employment position . Ñ £ 112.3173(2 ) ( e) 6, Fla.

Stat. Forfeit ure of retirement benefits under this statute has

been interpreted to require a nexus between the felony

convictions and the FRS employment. Rivera v. Bd. of Trustees

of the City of TampaÓs Gen. EmpÓt Ret. Fund , 189 So. 3d 207

(Fla. 2d DCA 2016).

6 . Th e Respondent has the burden to prove the elements of

forfeiture of retirement benefits by a preponderance of the

evidence. Wilson v. DepÓt of Admin., Div. of Ret. , 538 So. 2d

139, 141 - 142 (Fla. 4th DCA 1989); DepÓt of Transp. v. J.W.C.

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

contends that the Respondent failed to meet the burden of proof

because its proof was hearsay that would not be admissible over

objection in a civil action. See § 120 . 57(1)(c), Fla. Stat.

(2016). The PetitionerÓ s contention fails to take into account

his Petition for Hearing, which alleged the required nexus and

eliminated the requirement to introduce evidence to prove the

nexus.

7 . It appears that the Respondent also overlooked the

allegations in the Petition for Hearing, as it is not mentioned

in the RespondentÓs Proposed Recommended Order. However, the

RespondentÓs Proposed Recommended Order cites for the first time

the decision of the court in the PetitionerÓs appeal from his

criminal convictions. Rosen v . State , 940 So. 2d 1155 (Fla. 5th

DCA 2006). The courtÓs opinion recites the facts of the case,

including that the victims were the PetitionerÓs sixth grade

students , and ma de it clear that the PetitionerÓs crimes were

related to his FRS employment as a teacher.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMEND ED that the Respondent enter a final

o rder: denying the Petition for Hearing; and holding that the

Petitioner forfeited his retirement benefits, exc ept for the

return of any accumulated contributions, when he was convicted

of felonies for lewd or lascivious molestation of minor female

students at the school where he was employed.

DONE AND ENTERED this 21s t day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21s t day of October , 2016 .

COPIES FURNISHED:

Thomas D. Sommerville, Esquire

Law Offices of Thomas D. Sommerville, P.A.

820 North Thornton Avenue

Orlando, Florida 3 2803

(eServed)

Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Elizabeth Stevens, Director

Division of Retirement

Department of Management Servi ces

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIG HT TO SUBMIT EXCEPTIONS

All parties 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.