16-006665 City Of Tampa General Employees Retirement Fund vs. Beverly Harvin Status: Closed Recommended Order on Monday, April 24, 2017.

Summary: Petitioner failed to prove Respondent admitted to conduct prohibited by section 838.21, Florida Statutes, and therefore forfeiture of Respondent's pension benefits is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 16 - 6665

BEVERLY HARVIN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to not ice, a final hearing in this cause was held

by video teleconference between sites in Tampa and Tallahassee,

Florida, on March 3, 2017 , before Linzie F. Bogan, Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Beverly Harvin, pro se

423 Benson Street

Valrico, Florida 33594

For Respondent: Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Petitioner has forfeited h er rights and benefits

under the City of Tampa General Employees Retirement Fund pursuant

to section 112.3173, Florida Statutes (20 10 ).

PRELIMINARY STATEMENT

On or about November 4, 2016, the City of Tampa General

Employees Retirement Fund (Petitioner) forwarded the instant

matter to the Division of Administrative Hearings for a disputed -

fact hearing. The case involves the potential forf eiture of

pension benefits by Beverly Harvin (Respondent).

During the hearing, Petitioner offered the testimony of

Respondent, Brent Holder , Natasha Wiederholt , and Kimberly

Marple. Respondent testified on h er own behalf and called no

other witnesses. P etitionerÓs Exhibits 6 through 11 were

admitted into evidence. RespondentÓs Exhibits 1, 2, 3, composite

Exhibit 4 , and 9 through 19 w ere also admitted into evidence.

A Transcript of the disputed - fact hearing was filed with the

Division of Administrative Hearings on March 24 , 2017.

Petitioner submitted a Proposed Recommended Order (PRO), but

Respondent did not. PetitionerÓs PRO was considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. On or about February 11, 1986, Respondent comm enced her

employment as a police community service officer with the City of

Tampa Police Department. As a city employee, Respondent was

eligible for, and participated in, the City of Tampa General

Employees Retirement Fund, which is a public retirement sy stem.

Respondent was continuously employed by the City of Tampa through

September 1, 2011.

2. Sometime around May 1994, Respondent was promoted to the

position of investigative assistant where she worked closely with

a team of detectives. RespondentÓs job duties as an

investigative assistant included interviewing crime victims,

witnesses, and individuals who were suspected of having engaged

in criminal activity. As an investigative assistant, Respondent

often had access to confidential information, and she understood

that confidential information was not to be disclosed to

unauthorized individuals.

3. An Ðofficer safety alertÑ is one such piece of

confidential information that Respondent had access to in her

position as an investigative assistant, and like other

confidential information, Respondent understood that an officer

safety alert should only be disclosed to authorized personnel.

4. Officer safety alerts are internal police department

missives that are often issued for the purpose of advising

officers to proceed with caution when encountering individuals

who may be under investigation, but who have not yet been charged

with a crime.

5. Around 7:50 a.m. on the morning of January 19, 2011,

RespondentÓs co - worker, Priscilla Phillips, reviewed an officer

safety alert that identified Reginald Dennard Preston as a

subject of an ongoing investigation. The officer safety alert

contained a picture of RespondentÓs nephew, and other

individuals, along with the following narrative:

The above listed subje cts are part of an

ongoing investigation. S.I.B./Enforcement

Group 2 has purchased firearms from these

subject(s) that were taken in a residential

burglary. The subjects are still in

possession of additional firearms. The

subjects are not wanted at thi s time due to

the ongoing nature of the investigation. Use

caution when coming into contact with the

listed subjects and vehicle. Also use

caution if responding to calls at the listed

addresses.

Due to ongoing investigations, only

distribute to TPD Pers onnel.

LAW ENFORCEMENT SENSITIVE

The information contained within this

bulletin is the property of the Tampa Police

Department and constitutes active criminal

intelligence information, and is exempt from

public record. The information has been

collected in accordance with 28 CFR Part 23

and Florida State Statute Chapter 119.

6. It is undisputed that Ms. Phillips knew that Mr. Preston

was RespondentÓs nephew and that within minutes of reviewing the

officer safety alert, she sent Respondent a text message

regarding the same. Respondent admits that she sent a reply text

message to Ms. Phillips within a minute or so of receiving the

initial message.

7. During the morning hours of January 19, 2011, Respondent

was home from work on sick leave wh en, according to Respondent,

she received a message from Ms. Phillips informing her that

Reginald Preston was Ðwanted for questioning regarding a

burglary.Ñ According to Respondent, Ms. Phillips then took a

snapshot of Reginald PrestonÓs photograph and se nt it to

Respondent without including any other information from the

officer safety alert. In other words, Respondent claims that she

had no knowledge that Ms. Phillips had gleaned the information

regarding RespondentÓs nephew from an officer safety alert , and

that as far as she knew, the only issue, as conveyed by

Ms. Phillips, was that her nephew was Ðwanted for questioning

regarding a burglary.Ñ

8. RespondentÓs credible testimony regarding this issue is

as follows:

Q: Now, when Ms. Phillips contacte d you on

January 19th of 2011, she informed you that

Preston was part of this officer safety

alert; right?

A: She did not inform me that he was part of

an officer safety alert. She advised me that

they want [ed] to speak to my nephew in

reference to a bu rglary. She did not mention

an officer safety alert to me, sir.

Q: But she did inform you that there was an

investigation ongoing that had to do with

your nephew, Mr. Preston; right?

A: She did not mention an ongoing

investigation to me, sir. She ind icated that

they want [ed] to speak to my nephew in

reference to a burglary.

Q: You knew that there was an ongoing

investigation when you spoke to her regarding

your nephew; correct?

A: I was not at work, sir. I did not see

this bulletin.

Q: But my q uestion is: Did you know there

was an ongoing investigation at that point

regarding your nephew?

A: If they want [ed] to speak to him in

reference to a burglary, itÓs an

investigation; correct.

Q: Is that a yes, you knew there was an

ongoing investigat ion regarding your nephew;

correct?

A: It was an ongoing investigation. She

told me they wanted to speak to him in

reference to a burglary.

Tr . pp. 84 - 85.

9. Armed with the information from Ms. Phillips,

Respondent, over the course of about two hours , had multiple

conversations with her brother (Reginald PrestonÓs father), her

sister - in - law (Reginald PrestonÓs mom), and her nephew, Reginald

Preston. Respondent disclosed to her relatives that Reginald

Preston was Ðwanted for questioning regarding a bu rglaryÑ and she

told them that Mr. Preston (the nephew) needed to go to the

police station to address the situation.

10. As part of the investigation of this matter, the police

department secured phone records for both Ms. Phillips and

Respondent, and ac cording to the testimony of Brent Holder,

neither RespondentÓs nor Ms. PhillipsÓ phone records revealed the

substance of the text messages sent or received by either

individual. Ms. Phillips did not testify at the final hearing.

11. Also as part of the investigation, Brent Holder

conducted a recorded interview of Respondent. Neither the

recorded statement nor a transcript thereof was offered into

evidence.

12. Brent Holder was employed by the Tampa P olice

D epartment from 1987 until his retirement in 2 013. Mr. Holder

was a detective with the police department for many years.

Mr. Holder testified that when he interviewed Respondent on

August 24, 2011, she admitted to the following:

Q: What did you do next?

A: I then conducted an interview with

Ms. Harvin and showed her the same memo. And

during our interview I asked her questions

about it, had she had -- had she disclosed the

information, had she had conversation with

Mr. Preston.

I will go back on her cell phone records.

That morning after she re ceived the text

message from Ms. Phillips, there were

numerous calls to Ms. HarvinÓs brother, who

is the father of Reginald Preston, her

sister, and there actually were five phone

calls to Reginald Preston himself.

Q: From Ms. HarvinÓs cell phone?

A: F rom Ms. HarvinÓs cell phone, yes.

Q: And did she admit to all this during her

interview?

THE COURT: Did she admit to what?

A: She admitted to making the phone calls to

her brother, and during the conversation with

her brother she explained that this w as

regarding a burglary and some stolen firearms

and that Reginald Preston was the subject of

this investigation. And then she also in her

conversations with Reginald Preston admitted

to telling him that it was regarding firearms

taken in a burglary, and she said

Mr. PrestonÓs response was, ÐI didnÓt do

nothing.Ñ

Q: Did she admit to anything else?

A: She admitted to having conversation with

her sister.

Q: Let me ask you this question: Did

Ms. Harvin ever deny learning of the officer

safety alert?

A: She did not.

Q: Did she ever deny contacting Mr. Preston?

A: She did not.

Q: Did she ever deny informing Mr. Preston

of the officer safety alert?

A: She did not.

* * *

Q: Did Ms. Harvin admit to knowing that

there was an ongoing investi gation?

A: She did. She admitted knowing it was an

ongoing investigation, that this was

confidential information, and that it was not

to be disclosed outside of the Tampa Police

Department.

* * *

Q: Did Ms. Harvin admit that the reason or

the wa y she found out [about] the officer

safety alert was through Ms. Phillips?

A: Yes.

Tr . pp. 29 - 31

13. As noted previously, Mr. Holder interviewed Respondent

on August 24, 2011. There is no indication in the record that

Mr. HolderÓs recollection as to the specifics of his interview

with Respondent from nearly five and a half years ago was

refreshed, and the undersigned is not persuaded that Mr. Holder

independently recalls, with the specificity testified to, the

details of his interview with Respondent .

14. Petitioner suggests that Respondent admitted during her

deposition that she received a copy of the officer safety alert

from Ms. Phillips and disclosed the contents of the alert to her

nephew. Contrary to PetitionerÓs assertion, RespondentÓs

depos ition testimony contains no such admission, but does contain

an acknowledgement by Respondent that she was confirming Ðwhat

they wrote upÑ on the notice of disciplinary action issued to her

by Petitioner.

CONCLUSIONS OF LAW

15. The Division of Administrat ive Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569, 120.57(1), and 112.3173(5),

Florida Statutes (2016).

16. Petitioner has the burden of proving by a preponderance

of evidence that Responden t has forfeited h er retirement benefits.

Wilson v. Dep't of Admin., Div. of Ret. , 538 So. 2d 139 (Fla. 4th

DCA 1989).

17. The applicable version of the pension forfeiture

statute is the one in effect on the date of the criminal acts

leading to forfeitur e. See Busbee v. State Div. of Ret. , 685 So.

2d 914, 916 - 17 (Fla. 1st DCA 1996).

18. Forfeitures are not favored in Florida, and the

retirement forfeiture statute should be strictly construed.

Williams v. Christian , 335 So. 2d 358, 361 (Fla. 1st DCA 19 76).

1 9 . Section 112.3173(3), Florida Statutes (20 10 ), provides,

in part, as follows:

Any public officer or employee . . . whose

office or employment is terminated by reason

of his or her admitted commission, aid, or

abetment of a specified offense, shal l

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.

20. In order to establish forfeiture under this statutory

f ramework, Petitioner must prove, based upon the specific

allegations made in the present case, that Respondent was a

public officer or employee, that RespondentÓs employment with the

City of Tampa was terminated by reason of h er admitted commission

of a sp ecified offense, and that Respondent committed the offense

in question through the use or attempted use of power, rights, or

duties associated with h er public employment.

21. It is undisputed that during all times material hereto,

Respondent was a public employee. Contrary to the allegations

however, Petitioner failed to prove that Respondent admitted to

disclosing information from the officer safety alert to

unauthorized individuals. Petitioner relies heavily on the

testimony of Mr. Holder, but his tes timony, regarding specific

admissions made by Respondent more than five and a half years

ago, is not sufficiently persuasive to meet PetitionerÓs burden.

Had Petitioner offered into evidence either RespondentÓs recorded

statement taken by Mr. Holder, or a transcript thereof, then it

is likely, assuming that Respondent admitted therein to the

underlying conduct, that Petitioner would have met its burden of

persuasion. In the absence of an admission to the alleged

conduct by Respondent, the forfeiture of Re spondentÓs pension

benefits is not warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the City of Tampa General Employees

Retirement Fund enter a final order:

1 . Finding that forfeiture of Res pondentÓs benefits under

the retirement plan is not authorized pursuant to section

112.3173, Florida Statutes (2010) ; and

2 . Dismissing the petition for forfeiture, with prejudice.

DONE AND ENTERED this 24th day of April , 2017 , in

Tallahassee, Leon County , Florida.

S

LINZIE F. BOGAN

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 24th day of April , 2017 .

COPIES FURNISHED:

Beverly Harvin

423 Benson Street

Valrico, Florida 33594

Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy B oulevard

Tampa, Florida 33602

(eServed)

Natasha Wiederholt, CPA

GE Pension Plan Supervisor

General Employee Retirement Fund

City of Tampa

306 East Jackson Street , 7th Floor

Tampa, Florida 33602

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he 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.