16-006664 City Of Tampa General Employees Retirement Fund vs. Tonia Bright Status: Closed Recommended Order on Monday, September 18, 2017.

Summary: Resp. convicted of 2 felonies for obtaining information from a protected computer, admittedly committed for personal profit by abusing computer access entrusted to her as a public employee. Forfeiture of pension benefits required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 16 - 6664

TONIA BRIGHT,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 25 , 2017, the evidentiary hearing in this cause was

held before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH), by video

teleconference with sites in Tampa and Tallahassee, Florida.

APPEARANCES

For Petitioner: Luis A. S antos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: No A ppearance

STATEMENT OF THE ISSUE

The issue in this case is whether Resp ondentÓs rights and

benefits under the City of Tampa General EmployeesÓ Retirement

Fund are required to be forfeited pursuant to article II,

section 8(a) of the Florida Constitution and the implementing

statute.

PRELIMINARY STATEMENT

On January 28, 2016, Respondent Tonia Bright (Respondent)

pled guilty to two felony counts of obtaining information from a

protected computer in violation of 18 U.S.C. § 1030(a)(2) and

( c)(2)(B)(ii). Judgment was rendered against Respondent in May

2016, adjudicating her guilt y of the two offenses, sentencing her

to 24 months in prison, imposing a fine, and ordering

restitution.

On November 4, 2016, Petitioner City of Tampa General

EmployeesÓ Retirement Fund (the Fund or Petitioner) requested

that DOAH assign an administrative law judge to conduct

proceedings under chapter 120, Florida Statutes, regarding the

potential forfeiture of RespondentÓs pension benefits.

An Initial Order sought input from the parties regarding the

scheduling of the evidentiary hearing. There was some d elay in a

joint response, because Respondent was incarcerated in a federal

prison camp in West Virginia. The hearing was set for June 1,

2017, based on RespondentÓs expected release date, to allow

Respondent the opportunity to participate in the hearing. By

Motion to Continue Final Hearing, counsel for Petitioner relayed

information from Respondent that her release date had been pushed

back to June 21, 2017, and that Respondent requested that the

hearing be rescheduled for July 2017. Petitioner did not o bject

to the request, and provided dates when both parties were

available for a rescheduled hearing. The motion was granted and

the hearing was reset for July 25, 2017.

Although the hearing was delayed at RespondentÓs request to

await her release from inc arceration so she could participate,

Respondent did not appear at the rescheduled hearing. Respondent

did not provide DOAH with an updated address after her release,

but Petitioner provided her updated contact information. The

undersignedÓs assistant cal led Respondent shortly before the

hearing, and Respondent advised that she was aware of the

scheduled hearing, but did not intend to make an appearance.

At the hearing, Petitioner presented the testimony of

Kimberly Marple, an employee relations specialist supervisor for

the City of Tampa (City), in the human resources division.

PetitionerÓs Exhibits 1 through 7 were admitted in evidence. A

court reporter recorded the hearing and a transcript was ordere d.

At the conclusion of the evidence, the deadline fo r filing

proposed recommended orders (PROs) was set for ten days after the

filing of the transcript. A Post - hearing Order was issued on

July 25, 2017, to inform Respondent of that filing deadline.

The one - volume Transcript of the hearing was filed at DOAH

on August 17, 2017. A Notice of Filing Transcript was issued on

August 18, 2017, to inform the parties that with the filing of

the Transcript, the PRO deadline would be August 28, 2017.

On the deadline day, Petitioner filed a motion for a two - day

extensi on of the PRO deadline due to a family medical emergency.

The extension was granted. Petitioner timely filed its PRO

before the extended deadline. Respondent did not file a PRO or

any other filing before, during, or after the hearing.

PetitionerÓs PRO a nd the evidentiary record created at the

July 25, 2017, hearing have been considered in the preparation of

this Recommended Order.

FINDING S OF FACT

1. The Fund is a public retirement system as defined by

Florida law. The Fund is charged with administerin g and managing

a pe nsion plan for City employees.

2. Respondent was an employee of the Tampa Police

Department. She worked there for approximately 31 years until

her employment ended on April 9, 2014.

3. By reason of her employment with the CityÓs polic e

department, Respondent was enrolled in the pension plan

administered by the Fund. She was employed long enough to be a

vested participant.

4. At the time her employment ended, Respondent was a

police community service officer, a position she had held s ince

September 2007.

5. Shortly before her employment ended, Respondent became

one of the subjects of a criminal investigation regarding Tampa

Police Department employees using their access to restricted

computer databases to obtain personally identifiabl e information

of individuals, such as social security numbers and birth dates.

The personal information was passed on to a former police

informant, Rita Girven, who was using the information to

fraudulently obtain federal income tax returns. Respondent, a

friend of Ms. GirvenÓs, was identified in the investigation as

one of three employees using their access to restricted databases

to obtain personally identifiable information to provide to

Ms. Girven.

6. During the course of the investigation, the City

suspended Respondent and subsequently gave her the option to

resign in lieu of termination, which she accepted. Respondent

resigned effective April 9, 2014.

7. The investigation culminated in a federal indictment

against Respondent on multiple counts. Respondent was

represented by an attorney in the federal criminal proceedings.

Respondent ultimately entered into a plea agreement to plead

guilty to two counts (counts two and five of the indictment) of

obtaining information from a protected computer in violation of

18 U.S.C. § 1030(a)(2) and (c) (2)(B)(ii). The crimes to which

Respon dent pled guilty are felonies.

8. In the plea agreement executed by both Respondent and

her attorney, Respondent admitted the following facts:

Defendant is pleading guilty b ecause

defendant is in fact guilty. The defendant

certifies that defendant does hereby admit

that the facts set forth below are true, and

were this case to go to trial, the United

States would be able to prove those specific

facts and others beyond a reas onable doubt.

FACTS

Tonia Bright was a civilian employee of the

Tampa Police Department (TPD) working as a

community service officer in TPDÓs District 3

station. As part of her authorized duties,

Bright took reports from citizens, over the

telephone or in person, related to any

incident not requiring the response of a

sworn police officer. In this capacity,

Bright had access to local, state, and

federal law enforcement databases, including

the National Crime Information Center (NCIC)

computerized index, but her authorized use

was restricted to the performance of her

official duties.

NCIC was a computerized index of criminal

justice information maintained by the Federal

Bureau of Investigation that was available to

federal, state, and local law enforceme nt

agencies and other criminal justice

employees. The purpose of NCIC was to assist

criminal justice professionals in

apprehending fugitives, locating missing

persons, recovering stolen property, and

otherwise performing their official duties.

NCIC conta ined personally identifiable

information (PII), including names, dates of

birth, and social security numbers of

millions of individuals. As an employee of

TPD, Bright was provided a secure and

individualized user name and password that

allowed her to acce ss NCIC strictly for the

purposes of carrying out her official duties.

Rita Monique Girven . . . was . . . a friend

of Tonia Bright. Rita Girven pleaded guilty

[ to ] one count of conspiracy to commit wire

fraud in a related case . . . in connection

with G irven electronically filing fraudulent

federal income tax returns using stolen PII,

some of which she obtained from one or more

coconspirators, including Bright, who had

access to law enforcement databases,

including NCIC, for the purpose of carrying

out t heir official duties.

From an unknown date, but at least in or

around 2009, and continuing through and

including in or around 2014, Tonia Bright

accessed NCIC and other password - protected

law enforcement databases for a prohibited

purpose, specifically, t o obtain PII , which

she provided to Girven on at least ten

occasions so that Girven could use the PII to

file fraudulent federal income tax returns

and/or establish, change, or access accounts

to receive fraudulently obtained federal

income tax refunds. W hen Girven received the

fraudulently obtained refunds, she shared

some of the proceeds with Bright. (Pet.

Exh. 3, ¶ 11, at 17 - 19).

9. In the plea agreement, Respondent also admitted to the

specific facts underlying the two counts to which she pled

guilt y, whereby Respondent conducted unauthorized searches in the

NCIC database to obtain personally identifiable information of

specific individuals, which was used by Girven to fraudulently

obtain federal income tax refunds. As to both counts, Respondent

adm itted that she had Ð no legitimate work - related reasonÑ and Ðno

legitimate law enforcement reasonÑ to run the searches that she

did in the NCIC database. (Pet. Exh. 3, ¶ 11, at 19, 21).

RespondentÓs unauthorized search of the NCIC database, as

described i n the admitted facts underlying count two, occurred on

or about June 27, 2011. RespondentÓs unauthorized search of the

NCIC database, as described in the admitted facts underlying

count five, occurred on or about March 13, 2013.

10. By Judgment in a Cri minal Case issued May 11, 2016, the

United States District Court for the Middle District of Florida

acknowledged RespondentÓs guilty plea to counts two and five of

the indictment, and the court adjudicated Respondent guilty of

the two felony offenses.

11. Respondent has thus admitted that beginning in June

2011, while employed as a police community service officer and

entrusted with access to protected computer databases for the

purpose of carrying out her job duties, she abused that trust and

misused her restricted access for prohibited purposes, resulting

in the two felony counts to which Respondent pled and was

adjudicated guilty. Respondent did not use the access to these

protected databases, which had been entrusted to her because of

her public posit ion, solely in the performance of her legitimate

job duties as a public employee. Instead, she used that access

for her own illegitimate purposes of misappropriating othersÓ

personally identifiable information to provide to her friend to

fraudulently obta in tax refunds, and to personally profit by

sharing in the proceeds of those fraudulently obtained tax

refunds.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding, pu rsuant to sections 120.569, 120.57(1), and

112.3173(5), Florida Statutes (2017). 1/

13. The Fund initiated this action to determine whether

RespondentÓs pension benefits must be forfeited under section

112.3173(3) based on her conviction of a specified off ense.

14. The Fund has the burden of proving that Respondent must

forfeit her retirement benefits. Rivera v. Bd. of Trs. o f

TampaÓs Gen Empl. Ret. Fund , 189 So. 3d 207, 210 (Fla. 2d DCA

2016).

15. The preponderance of the evidence standard is

applicable to this case. See § 120.57(1)(j), Fla. Stat.; DepÓt

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935

(Fla. 1996). Preponderance of the evidence is defined as Ðthe

greater weight of the evidence,Ñ or evidence that Ðmore likely

than notÑ tend s to prove a certain proposition. S. Fla. Water

Mgmt Dist. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014).

16. The Florida Constitution and implementing statutory law

provide the framework for forfeiture of retirement benefits.

Rivera , 189 So. 3d at 210; Simcox v. City of Hollywood Police

OfficersÓ Ret. Sys. , 988 So. 2d 731, 733 (Fla. 4th DCA 2008).

Since 1976, Article II, section 8(d) of the Florida Constitution

has provided:

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.

17. Section 112.3173(3) is the operative forfeiture law,

implementing the constitu tional provision as follows:

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 her

accumulated contributions as of the date of

termination.

18. ÐConvicted,Ñ as used in the operative forfeiture law,

is defined to include a plea of guilty as well as an adjudication

of guilt by a state or federal court of competent ju risdiction.

§ 112.3173(2)(a) & (b), Fla. Stat.

19. A Ðspecified offenseÑ is defined to include the

following:

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, 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[.]

§ 112.3173(2)(e)6., Fla. Stat.

20. The statutory provisions quo ted above have been in

place, without change, since before 2009. Compare

§ 112.3173(2)(a), (b), (e)6., and (3), Fla. Stat. (2008), with

§ 112.3173(2)(a), (b), (e)6., and (3), Fla. Stat. (2017).

21. RespondentÓs earliest actions taken in furtherance of

the crimes for which she was indicted were in 2009, according to

the facts admitted in her plea agreement. RespondentÓs specific

actions taken in furtherance of the crimes in counts two and five

to which she pled and was adjudicated guilty were in June 2 011

and March 2013, according to the facts admitted in her plea

agreement. Respondent committed the felonies while she was

employed as a public employee, prior to retirement. Thus, at the

time Respondent committed the felonies to which she pled and was

a djudicated guilty, she knew or should have known of the above -

quoted mandatory forfeiture provisions in the Florida

Constitution and implementing laws, and those laws apply. See

Busbee v. State Div. of Ret. , 685 So. 2d 914, 916 - 917 (Fla. 1st

DCA 1996) (th e applicable version of the pension forfeiture

statute is the one in effect at the time the offense is committed

that led to forfeiture).

22. RespondentÓs admissions of the detailed facts

underlying her felony convictions conclusively establish that

Resp ondentÓs felony convictions meet the statutory definition of

Ðspecified offenseÑ in section 112.3173(e)6., in all respects.

RespondentÓs admissions establish that she acted willfully and

with intent to defraud the public and the Tampa Police Department

of Ðthe right to receive the faithful performance ofÑ her duty as

a public employee, by abusing the restricted computer access that

had been entrusted to her solely for the purpose of carrying out

her job duties. Instead of faithfully adhering to the access

restrictions by limiting her use solely for purposes of carrying

out her job duties, Respondent violated that trust by using her

restricted access for the illegitimate, unauthorized purpose of

obtaining personally identifiable information of individuals.

Respondent admitted that the personal information she

intentionally obtained was used for profit, shared by Respondent

and her friend Ms. Girven.

23. Just as in Jenne v. State , 36 So. 3d 738, 743 (Fla. 1st

DCA 2010), RespondentÓs plea of guilty and sign ed plea agreement

admitting all of the material facts -- matters of record in this

case -- establish that Respondent committed her crimes in a way

that made them specified offenses as defined in section

112.3173(2)(e)6. 2/ Accord Bollone v. DepÓt of Mgmt. Serv s. ,

100 So. 3d 1276, 1281 (Fla. 1st DCA 2012) (finding use of work

computer to commit a felony satisfied the elements of section

112.3173(2)(e)6.) .

24. The Fund clearly met -- indeed, exceeded -- its burden of

proof. The clear, convincing, and undisputed ev idence of record

establishes that Respondent committed a specified offense while

she was a public employee, and thus, prior to her retirement.

Accordingly, Respondent must forfeit her rights and benefits

under the FundÓs pension plan (except to the extent of

RespondentÓs accumulated contributions, if any, as of the date

her employment ended), pursuant to section 112.3173(3).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the City of Tampa General Emplo yeesÓ

Retirement Fund enter a final order determining that Respondent,

Tonia Bright, has forfeited all of her rights and benefits in the

pension plan administered by the Fund, except to the extent of

RespondentÓs accumulated contributions, if any, as of th e date

her employment ended.

DONE AND ENTERED this 1 8 th day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 18 th day September, 2017 .

ENDNOTE S

1/ As to procedural matter s, the law in effect at the time of the

hearing was applied. Substantively, the law in effect at the

time Respondent committed the acts resulting in the felony

conviction that gave rise to this proceeding was applied. As a

practical matter, there were no changes to procedural or

substantive law that would have any material effect on this

proceeding. In particular, as explained in paragraphs 20 and 21

of the Conclusions of Law, section 112.3173 has remained the same

in all material respects since 2008. T hus, references to Florida

Statutes herein are to the 2017 version, unless otherwise noted.

2 / In this regard, this case is unlike Rivera , where the court

found that there was no non - hearsay evidence to prove the

existence of a ÐnexusÑ between the offens es committed and

RiveraÓs position as a City employee. See Rivera , 189 So. 3d at

212 - 213. Here, RespondentÓs own statements offered against her

would be admissible over objection in a civil action, pursuant to

the hearsay exception codified in section 90 .803(18)(a), Florida

Statutes. As such, those statements are competent evidence that

may relied on as the sole evidentiary support for findings of

fact. § 120.57(1)(c), Fla. Stat.

COPIES FURNISHED:

Tonia Bright

2903 Kelley Ridge Lane

Tampa, Florida 3 3604

Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Natasha Wiederholt, CPA, GE

Pension Plan Supervisor

General Employees Retirement Fund

City of Tampa

7th Floor East

306 East Jackson Stre et

Tampa, Florida 33602

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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.