16-006666 City Of Tampa General Employees Retirement Fund vs. Rodnick Boyd Status: Closed Recommended Order on Wednesday, February 22, 2017.

Summary: Petitioner proved that Respondent pled nolo contendere to a charge of petit theft, and as directed in section 112.3173, he forfeited his rights and benefits under the General Employees Retirement Fund.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 16 - 6666

RODNICK BOYD,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notic e, a final hearin g in this cause was

conducted via video teleconferencing site s in Tampa and

Tallahassee, Florida, on January 19, 2017, before Administrative

Law Judge Lynne A. Quimby - Pennock of the Division of

Administrative Hearings.

APPEARANCES

For Peti tioner: Luis A. Santos, Esquire

Daniel K. Miles, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: No appearance

S TATEMENT OF THE ISSUE

Whether RespondentÓs pension should be forfeited based on

his conviction for petit theft, a violation of the City of Tampa

personnel manual .

PRELIMINARY STATEMENT

By notice of D isciplinary A ction dated September 7, 2012,

the City of T ampa ( the City ) n otified Respondent Rodnick Boyd of

its intention to terminate his employment as a Parks and

Recreation Services Attendant II. In accordance with the terms

of the ÐAdministrative Law Judge Se rvices ContractÑ (the

Contract) entered into bet ween the City of Tampa General

Employees Retirement Fund (Petitioner) and the Division of

Administrative Hearings (DOAH), Petition er requested DOAH to

assign an Administrative Law J udge to conduct Ðall necessary

proceedings required under the law and submi t recommende d

findings to the Fund.Ñ

At the final hearing, Petitioner called two witnesses:

Adriana Colina, Employee Relations Specialist, and Dan Hinsz,

a retired Tampa Police Department detective. PetitionerÓs

Exhibits 1 through 8 were admitted into e vidence. 1/ Respondent

did not appear and was not represented by counsel.

The T ranscript of the proceeding was filed on January 31,

2017. A Notice of Filing was issued advising the parties to

file their proposed recommended orders (PRO) no later than

Feb ruary 10, 2017. Petitioner timely filed its PRO which has

been considered in the rendering of this Order. Respondent has

not filed any post - hearing pleadings.

Unless otherwise indicated, all statutory references are to

the versions in effect at the time of the alleged violations.

FINDING S OF FACT

1. Respondent was employed by the City as a Parks and

Recreation Services Attendant II be ginning in June 1999 through

notification of his employment termination in 2012.

2. At the time of his employment and on each three - year

anniversary of the Union renegotiation of its contract with the

City, Respondent was provided a copy of the CityÓs personnel

manual. Specifically, Respondent was provided ÐPolicy B28.2

Discipline Administration Î Cause for Dismissal.Ñ The manual

states, in relevant part:

2. Employees may be dismissed from

employment for a variety of causes. The

examples of misconduct and/or unsatisfactory

performance enumerated in this policy for

which dismissal is considered appropriate are

not all incl usive. . . .

3. The City of Tampa Civil Service Rules and

Regulations authorize the City to dismiss

employees due to incompetence,

insubordination, neglect of duty, moral

turpitude, and/or breach of peace (Article J.

Section 4.a.). The types of conduct and/or

performance which fall into these categories

which may be considered cause for dismissal

are listed below. As stated above, these

lists are not all - inclusive.

* * *

c. Neglect of Duty

* * *

9) Use of City equipment, including

vehicles, for any unauthorized purpose.

* * *

d. Moral Turpitude

* * *

2) Violation of City Code or other City

policies relating to impartiality, use of

public property, conflict of interest,

disclosure and/or confidentiality.

* * *

11) Theft or unauthorized removal or use of

City property.

3. The City has a program to recycle metal through a

specific pre - selected vendor. All employees are advised of the

process by which recycle materials are to be disposed. Should a

Ci ty employee dispose of City property in a method not contracted

for, that employee must secure a letter and additional

documentation for the different method of disposal.

4. In or about July 2012, Respondent and a coworker removed

at minimum five metal tr ash cans from the NFL - YET Center, which

is City property. Respondent and the coworker, while in their

City uniforms, loaded the metal trash cans into a marked City

truck. They proceeded to a non - authorized metal recycling center

and attempted to sell the five metal trash cans. That metal

recycling center declined to buy the trash cans as Respondent and

his coworker did not have the appropriate letter or other

documentation. Respondent and his coworker returned the metal

trash cans to the NFL - YET Center.

5. On July 11, 2012, Respondent and the co worker, while in

civilian clothes, returned to the NFL - YET Center and loaded five

metal trash cans belonging to the City into a private vehicle.

They also had other metal in the vehicle. They proceeded to

Trade mark Metal Recycling ( TMR ). At TMR, Respondent and the

coworker sold the five metal trash cans for $42.05. TMR staff

reported the transaction to the Tampa Police Department (TPD) as

the metal trash cans appeared to belong to the City. TPD

conducted a cr iminal investigation.

6. In July 2012, then TPD Detective Hinsz interviewed

Respondent. Respondent admitted that he sold the five metal

trash cans belonging to the City to TMR. Respondent further

admitted to Detective Hinsz that he knew he was not allow ed to

sell city property.

7. On July 12, 2012, Res pondent was arrested and charged

with petit theft and dealing in stolen property. On August 6,

2012, a Charge Sheet was filed in State of Florida v. Rodnick

Vincent Boyd , Case No. 12 - CM - 13833, in the Coun ty Court of the

Thirteenth Judicial Circuit in and for the County of

Hillsborough, State of Florida, charging Respondent with one

count of petit theft. In relevant part, the Charge Sheet :

RODNICK VINCENT BOYD, on the 11 th day of

July, 2012, in the County of Hillsborough and

State of Florida, did unlawfully obtain or

use, or endeavor to obtain or use certain

property of another, to - wit: trash cans, the

property of CITY OF TAMPA, the value of said

property being less than one hundred

($100.00) dollars in mo ney current in the

United State s of America; and in so doing the

defendant intended either to deprive the said

CITY OF TAMPA of a right to the property or

benefit there from, or to appropriate the

property to his own use or to the use of any

person not ent itled thereto.

8. On September 24, 2012, Petitioner entered a plea of nolo

contendere to count one, petit theft. The Court withheld

adjudication of guilt.

9. The CityÓs retirement system is a public retirement

system as defined by Florida law. See § 1 12.3173(5), Fl orida

Stat utes .

CONCLUSIONS OF LAW

10. By contract with Petitioner, DOAH has agreed to assign

Administrative Law Judges to conduct hearings and issue

recommended orders in cases of this nature. DOAH has

jurisdiction over the subject matter and the parties. §§ 120.569

and 120.570 , Fla . Stat. (2016).

11. In this proceeding, Petitioner asserts and has the

burden of proving by a preponderance of the evidence that

Respondent has forfeited his rights and benefits under the

Pension Plan. Wilson v. DepÓt of Admin., Div. of Ret. , 538

So. 2d 139, 141 - 142 (Fla. 4th DCA 1989).

12. Section 112.3173 is part of the statutory code of

ethics for public officers and employees. The statute states in

pertinent part:

(1) INTENT. Î It is the intent of the

Leg islature to implement the provisions of

s. 8(d), Art. II of the State Constitution.

(2) DEFINITIONS. Î 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 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 Se nate of an

impeachable offense.

* * *

(c) "Public officer or emp loyee" means an

officer or employee of any public body,

political subdivision, or public

in strumentality 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. Bribery in connection with the em ployment

of a public officer or employer; . . . .

* * *

(3) FORFEITURE. Î 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 adm itted commission,

aid, or abetment of a specified offense,

shall forfeit all rights and benefits under

any public retirement system of which he is

member, except for the return of his or her

accumulated contributions as of the date of

termination.

13. Th ere is no dispute that Respondent was a public

employee at the time he committed the acts described above.

There also is no dispute that Respondent pled nolo contendere to

one count of petit theft.

14. The evidence establishes that the offenses to which

Respondent pled nolo contendere are "specified offenses" within

the meaning of section 112.3173(2)(e)6. As such, all

requirements for forfeiture in section 112.3173(3) are met.

Respondent has forfeited his rights and benefits under the

Pension Plan. See § 112.3173(3), Fla. Stat .

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 determining that Respondent

has forfeited his rights an d benefits under the Retirement Fund.

DONE AND ENTERED this 22nd day of February , 2017 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 22nd day of February , 2017 .

ENDNOTE

1/ At the conclu sion of the hearing , PetitionerÓs counsel asked

that the last two pages of Exhibit 6 be struck. The undersigned

assented, and those two pages were not a part of the record and

were not reviewed in the preparation of this Recommended Order.

COPIES FURNIS HED:

Rodnick Boyd

Apartment 904

6727 South Lois Avenue

Tampa, Florida 33616 - 1600

Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Daniel K. Miles, 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 Street

Tampa, Florida 33602

NOTICE OF RIGHT TO SUBMIT EXCEPT IONS

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.