16-006667 City Of Tampa General Employees Retirement Fund vs. Robert Ramshardt Status: Closed Recommended Order on Wednesday, February 22, 2017.

Summary: Petitioner proved that Respondent must forfeit all rights to pension benefits pursuant to s. 112.3173(3) by his admission to committing the specified offense of theft from his public employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 16 - 6667

ROBERT RAMSHARDT,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hea ring in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), on January 13, 2017, by video

teleconference sites in Tal lahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: Robert Ra mshardt , pro se

12925 McMullen Loop

Riverview, Florida 33569

STATEMENT OF THE ISSUE

The issue in this matter is whether Respondent has forfeited

his rights and benefits under the City of Tampa General Employees

Retiremen t Fund pursuant to section 112.3173, Florida Statutes

(2009). 1/

PRELIMINARY STATEMENT

On November 4, 2016, Petitioner, the City of Tampa General

Employees Retirement Fund (the ÐFundÑ), referred this matter to

the Division of Administrative Hearings (ÐDOAHÑ ) to conduct a

chapter 120 evidentiary hearing. At issue is whether Respondent,

Robert Ramshardt, should forfeit his rights and privileges to

retirement benefits under the Fun d pursuant to section 112.3173.

At the final hearing, the Fund offered the testi mony of

Kimberly Marple. The FundÓs Exhibits 2 through 8 were admitted

into evidence. Respondent testified on his own behalf and called

no other witnesses. RespondentÓs Exhibit 1 was admitted into

evidence. Respondent, with the undersignedÓs permission , filed

several performance evaluations after the final hearing. These

documents supplement RespondentÓs Exhibit 1 and will be

identified as Respon dentÓs Exhibit 2 in the record.

A court reporter recorded the final hearing. A one - volume

Transcript of the final hearing was filed with DOAH on

February 3, 2017. At the close of the hearing, the parties were

advised of a ten - day timeframe following receipt of the hearing

transcript at DOAH to file post - hearing submittals. The Fund

filed a Proposed Recommend ed Order which was duly considered in

preparing 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 administering and managing

a pension plan for employees of the City of Tampa (the ÐCityÑ).

2. Respondent was employed with the City from August 1,

1994, through March 16, 2009, when the City terminated his

employment. Respondent worked as an Automotive Equipment

Operator II in the CityÓs parks and recreation department.

Re spondent worked a total of 15 years for the City.

3. By reason of his employment with the City, Respondent was

enrolled in the pension plan administered by the Fund. After six

years of employment, Responde nt vested in the pension plan.

4. According to a Notice of Disciplinary Action, dated

March 16, 2009, the City terminated Respondent based on a

complaint that he had stolen City property. Specifically, in

February 2009, the City received information that Respond ent was

in possession of a City - owned la wn mower at his residence.

5. After receiving the complaint, the City notified the

Tampa Police Department (ÐTPDÑ). TPD searched RespondentÓs home.

TPD did not find a City lawn mower. However, during its search,

TPD did discover a spool of weed eater l ine on RespondentÓs porch

that he admitted belonged to the City. During a subsequent

interview with TPD, Respondent confessed to taking the spool from

the CityÓs supplies without permission. Respondent also divulged

that he did occasionally take a lawn m ower owned by the Cit y and

use it on his property.

6. Following the TPD interview, Respondent was arrested and

charged with theft of the City property under section 812.014 ,

Florida Statutes . Respondent, however, was never prosecuted for

the crime. Afte r completing a pre - trial intervention program,

Respondent Ós theft charge was dismissed.

7. The City, however, terminated RespondentÓs employment

based, in part, on his admission to stealing the weed eater line.

Kimberly Marple, an Employee Relations Spec ialist Supervisor for

the City, testified on behalf of the City and explained that the

City maintains a zero tolerance policy for removal of or taking

City property for personal use. Consequently, when the City

learned of RespondentÓs admission to TPD tha t he took City

property, he was fired.

8. At the final hearing, Petitioner admitted to ÐborrowingÑ

the City lawn mower from time to time to use at his home . He

expressed, however, that he always returned it to the City.

Respondent claimed that he never considered permanently taking the

lawn mower. Respondent did, however, confirm that he took the

weed eater line from the City, without authority, for personal use

and did not intend to return it. Respondent relayed that a spool

of weed eater line costs a pproximately $80.

9. Respondent voiced that he was an exemplary employee for

the City during his 15 years of employment. Respondent

represented that, prior to this incident, he had never received

any disciplinary action from the City. RespondentÓs testi mony is

supported by his annual performance evaluations which record that

he dependably and diligently performed his responsibilities for

the City parks and recreation department. RespondentÓs

performance was frequently marke d as excellent or outstanding.

10. Based on the evidence and testimony presented at the

final hearing, the preponderance of the evidence establishes that

the City terminated RespondentÓs employment by reason of his

admission to theft of City property. T herefore, the Fund met its

burd en of proving that Respondent must forfeit all rights and

benefi ts to the FundÓs pension plan.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sectio ns 120.569, 120.57(1), and

112.3173(5 ) , Florida Statutes (2016) .

12. The Fund initiated this action to determine whether

RespondentÓs pension benefits must be forfeited under section

112.3173(3) based on the termination of his employment by reason

of his admission to committing theft from the City.

13. The Florida Constitution and statutes provide the

framework for forfeiture of public retirement benefits. Simcox

v. City of Hollywood Police Officers' Ret. Sys. , 988 So. 2d 731,

733 (Fla. 4th DCA 2008). F orfeiture proceedings are based on

article II, section 8 of the Florida Constitution (2009), 2/ which

provides for forfeiture of an employee's rights and privileges

under a public retirement system when that employee violates the

public trust. Section 8, e ntitled Ethics in government, states:

A public office is a public trust. The

people shall have the right to secure and

sustain that trust agains t 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 pension plan in such

manner as may be provided by law.

14. Forfeiture is codified in section 112.3173(3), which

states:

Any pu blic officer or employee . . . 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 m ember, except for the return of his or

her accumulated contributions as of the date

of termination.

15. Section 112.3173(2)(e) defines Ðspecified offenseÑ to

include, Ð[t]he committing, aiding, or abetting of any theft by a

public officer or employee fro m his or her employer.Ñ See also

Newmans v. Div. of Ret. , 701 So. 2 d 573, 574 (Fla. 1st DCA

1997)(a "specified offense" for purposes of forfeiture includes

e mbezzlement, theft, and bribery ) .

16. Forfeiture statutes are not favored in Florida. ÐThey

are considered harsh exactions, odious, and to be avoided when

possible. Statutes imposing forfeiture will be strictly

construed in a manner such as to avoid the forfeiture and will be

liberally construed so as to avoid and relieve from forfeiture.Ñ

Williams v. Christian , 335 So. 2d 358, 361 (Fla. 1st DCA 1976).

Forfeiture statutes Ðare strictly construed in favor of the party

against whom the penalty is sought to be imposed.Ñ Cabrera v.

DepÓt of Nat . Res. , 478 So. 2d 454, 456 (Fla. 3d DCA 1985).

17. Respo ndent, as the plan beneficiary, bears the burden

of proving his entitlement to pension benefits. However, in this

matter, where RespondentÓs eligibility to participate in the

pension plan is not disputed, the Fund has the burden of proving

that Respondent must forfeit all rights to his retirement

benefits. Wilson v. Dep't of Admin., Div. of Ret. , 538 So. 2d

139 (Fla. 4th DCA 1989). See also Rivera v. Bd. of Trs. of

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

2016)(T he Fund had the burd en of proving that the former

employeeÓs retirement benefits should be forfeited.) .

18. The preponderance of the evidence standard is

applicable to this case. See § 120.57(1)(j), Fla. Stat.; Dep't

of Ban king & Fin., Div. of Sec. & Investo r Prot. v. Osbor ne Stern

& Co. , 670 So. 2d 932, 935 (Fla. 1996). Preponderance of the

evidence is defined as "the greater weight of the evidence," or

evidence that "more likely than not" tends to prove a certain

proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139

So. 3d 869, 872 (Fla. 2014).

19. Applying the statutory framework to this matter, the

Fund is required to prove: (1) that Respondent was a public

employee; (2) that Respondent admitted to committing a Ðspecified

offenseÑ under section 112.3173(2)(e); an d (3) that the City

terminated RespondentÓs employment by reason of his admission.

See Rivera , supra .

20. Based upon the competent substantial evidence in the

record, the Fund met its burden of proving, by a preponderance of

the evidence, that Respondent must forfeit his rights under the

FundÓs pension plan under section 112.3173(3). It is undisputed

that Respondent was a public employee. The evidence presented at

the final hearing also established that Respondent admitted to

TPD that he had taken, with out permission, certain property that

belonged to the City, and intended to appropriate that property

for his own use ( i.e. , he committed theft 3/ ). Finally, the City

credibly demonstrated that it terminated RespondentÓs employment

based on his admission t hat he committed theft, a Ðspecified

offenseÑ under section 112.3173(2)(e)2. Accordingly, the City

established that Respondent must forfeit all rights to pension

benefits from the Fund.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

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

Retirement Fund enter a final order finding that Respondent,

Robert Ramshardt, a public employee who, by reason of his

admitted c ommission of a Ðspecified offens eÑ under section

112.3173( 2)(e), forfeit ed all rights and benefits in the pension

plan administered by the Fund.

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

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

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 22nd day of February , 2017 .

ENDNOTE S

1/ Unless otherwise noted, all statutory references are to the

2009 codification of the Florida Statutes.

2/ The applicable version of the pension forfeiture statute is

the one in effect at the time the offense is committed that led to

forfeiture. See Busbee v. State Div. of Ret. , 685 So. 2d 914,

916 - 17 (Fla. 1st DCA 1996).

3/ See Section 812.014 , which states:

(1) A person commits theft if he or she

knowingly obtains or uses, or endeavors to

obtain or to use, the proper ty of another with

intent to, either temporarily or permanently:

(a) Deprive the other person of a right to

the property or a benefit from the property.

(b) Appropriate the property to his or her

own use or to the use of any person not

entitled to the use of the property.

COPIES FURNISHED:

Robert Ramshardt

12925 McMullen Loop

Riverview, Florida 33569

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 Street

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 th is Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.