16-006668 City Of Tampa General Employees Retirement Fund vs. Bobby E. Richardson Status: Closed Recommended Order on Wednesday, February 8, 2017.

Summary: Petitioner failed to prove a nexus between Respondent's criminal conduct and his public employment, therefore, there should be no forfeiture of Respondent's pension benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 16 - 6668

BOBBY E. RICHARDSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant t o notice, a final hearing in this cause was held

by video teleconference between sites in Tampa and Tallahassee,

Florida, on December 29 , 2016, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Pet itioner: Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: Bobby E. Richardson, pro se

13103 Melissa Court

Riverview, Florida 33569

STATEMENT OF THE ISSUE

Whether Petitioner has forfeited his rights and benefits

under the City of Tampa General Employees Retirement Fund pursuant

to section 112.3173, Flor ida Statutes (2009).

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 involve s the potential forfeiture of

pension benefits by Bobby E. Richardson (Respondent).

During the hearing, Petitioner offered the testimony of

Respondent, Korey Diener, Michael Victor, and Kimberly Marple.

Respondent testifie d on his own behalf and called n o other

witnesses. Petitioner Ós Exhibits 3 through 6 , and 8 through 1 1 ,

were admitted into evidence . No exhibits were admitted into

evidence on behalf of Respondent .

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

Division of Administrative Hearings on January 17, 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. Respondent was a participant in Petitione rÓs retirement

benefits fund. The r etirement f und qualifies as a public

retirement system.

2. Respondent was hired by Petitioner on February 16, 1998,

and at the time of his termination from employment he worked as a

sewer operations team leader in Peti tionerÓs wastewater

collections department. According to the Notice of Disciplinary

Action dated July 8, 2010, RespondentÓs employment with the City

of Tampa was terminated based on the following:

During the course of an investigation by the

Tampa Police Department, report #2010 - 900187,

you admitted to the following violations of

City of Tampa policy:

Using a City issued cellular phone for non -

City related phone calls which furthered

illegal activity; and using a City issued

vehicle to participate in acti vities not

related to your employment; both of which are

violations of City of Tampa Personnel Manual,

Discipline Administration, B28.2,3(c)(9),

Neglect of Duty, Use of City equipment,

including vehicles, for any unauthorized

purpose.

Wearing a City issue d uniform while

conducting unauthorized and illegal

activities, violating City of Tampa Personnel

Manual, Discipline Administration,

B28.2,3(b)(8), Insubordination, Inappropriate

use of City identification, including

uniforms.

Further, your behaviors as r evealed in the

investigation by the Tampa Police Department,

are incompatible with the moral and ethical

standards expected of City of Tampa employees

and these behaviors are violations of City of

Tampa Personnel Manual, Discipline

Administration, B28.2,3( d)(9), Moral

Turpitude, Engaging in any employment,

activity or enterprise which is illegal,

incompatible or in technical conflict with

the employeeÓs duties and responsibilities as

a City employee.

3. The instant proceeding, as noted in PetitionerÓs P R O,

does not focus on whether RespondentÓs conduct violated the City

of TampaÓs Ðmoral and ethical standards,Ñ but instead focuses on

whether Respondent, during the course of an investigation by the

Tampa Police Department, admitted to wearing his city - issu ed

uniform, and using his city vehicle and cell phone in furtherance

of illegal activity. 1/

A. Background

4. In 2010, Detective Korey Diener of the Pinellas County

SheriffÓs Office , was involved in a long - term investigation

involving counterfeit checks . As part of th e investigation,

Detective Diener was monitoring a suspect by the name of Shannon

Edwards (Edwards) .

5. During a circuit court probation hearing on February 24,

2010, Edwards , who was acquainted with Respondent because they

hung out in th e same neighborhood, presented a State of Florida ,

Department of Corrections , Public Service Hours form, which

indicat ed that he (Edwards) had completed his court - ordered

community service hours. Another d etective , who was also

involved with the case, was present in the courtroom and knew

that the form was falsified based, in part, on a surveillance

conversation he heard between Edwards and his girlfriend, Chelsea

Niles (Niles). D uring the surveilled conversation, Edwards asked

Niles to contact Respondent so that he could secure for Edwards a

form showing that Edwards had performed the required community

service hours, when in actuality he (Edwards) had not.

6. According to Petitioner, Edwards, while using Niles as

his agent, reached out to Respondent be cause Respondent, as a

city employee, Ðknew somebodyÑ who could prepare the needed

community service form. Mr. Edwards did not testify during the

disputed - fact hearing, and his statement is not being accepted

for the truth of the matter stated therein.

7 . Ross Fabian (Fabian) was RespondentÓs contact person for

securing the fraudulent form. RespondentÓs undisputed, credible

testimony is that he knew Fabian because as a juvenile,

Respondent had gotten into trouble and performed his ordered

community serv ice hours under FabianÓs supervision. Respondent

maintained a relationship with Fabian throughout the years, but

there is no evidence that the relationship between the two was in

any way connected to RespondentÓs employment with the city.

8. Petitione r seeks to infer from EdwardsÓ statement that

Respondent was a Ðcity employee that knows somebody,Ñ the

existence of a nexus between RespondentÓs employment and the

securing of the fraudulent form. The evidence is insufficient to

support such an inference .

B. Police Interview

9. The predicate for the instant action lies in that

portion of the Notice of Disciplinary Action which provides that

during the course of an investigation by the Tampa Police

Department, Respondent ÐadmittedÑ to Ð[u]sing a City issued phone

for non - City related phone calls which furthered illegal

activity, using a City issued vehicle to participate in

activities not related to your employment, and [w]earing a City

issued uniform while conducting unauthorized and illegal

activitie s.Ñ The evidence of record does not establish that

Respondent admitted to the conduct as alleged.

10. On June 16, 2010, Respondent was interviewed by

Detective Mike Victor of the Tampa Police Department and

Detective K or e y Diener of the Pasco County She riffÓs Office. A

transcript of the audio recording was admitted into evidence.

11. During the interview, Respondent was asked about the

phone that he used when speaking with Edwards about the

fraudulent community service hours. In response to the que stion,

Respondent informed the detectives that he used his personal

phone when speaking with Edwards. At no point during his

interview with law enforcement did Respondent admit to using a

city - issued cell phone as part of the transactions related to the

f raudulent form.

12. Furthermore, in reviewing the transcript of audio

recording, Respondent was never asked if he used his city truck

or was wearing his city - issued uniform while interacting with

Edwards, Fabian, Niles, or anyone else who may have been i nvolved

with the execution of the fraudulent community service form.

Succinctly stated, the transcript of RespondentÓs recorded

interview does not in any way indicate that Respondent admitted

to using his city truck, or to wearing his city - issued uniform

while completing the transactions related to the execution of the

fraudulent community service form.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Florida Statutes (201 6 ).

14. Respondent has the burden of proving by a preponderance

of evidence that Petitioner has forfeited his retirement benefits.

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

DCA 1989).

15. The applicable version of the pension forfeiture

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

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

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

16. Forfeitures are not favored in Florida , and t he

retirement forfeiture statute should be strictly construed.

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

17. Section 112.3173(3), Florida Statutes (2009), provides,

in part, as follows:

Any public offi cer 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 member, ex cept for the return of his or

her accumulated contributions as of the date

of termination.

18. In order to establish forfeiture under this statutory

framework, Petitioner must prove, based upon the specific

allegations made in the present case, that Res pondent was a

public officer or employee, that RespondentÓs employment with the

City of Tampa was terminated by reason of his admitted commission

of a specified offense, and that Respondent committed the offense

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

duties associated with his public employment. In other words,

Petitioner has Ðto establish the existence of a ÒnexusÓ between

the offense or offenses committed and [RespondentÓs] position as

a City employee.Ñ Rivera v. Bd. of Trs. o f TampaÓs Gen. Empl.

Ret. Fund , 189 So. 3d 207, 210 - 211 (Fla. 2d DCA 2016).

19. It is undisputed that Respondent was a public employee

when he facilitated the execution of a fraudulent community

service form. However, as noted above, Petitioner failed to

offer competent, substantial evidence that Respondent admitted to

wearing his city - issued uniform, and to using his city vehicle

and cell phone in furtherance of illegal activity. Succinctly

stated, Petitioner failed to prove a nexus between Responden tÓs

activity and his position as a City of Tampa employee. 2/ The

forfeiture of RespondentÓs p ension 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 t hat there is no nexus between RespondentÓs

conduct and his public employment ;

2 . Finding t hat forfeiture of RespondentÓs benefits under

the retirement plan is not authorized pursuant to section

1 12.3173, Florida Statutes ; and

3. D ismissing the petition for forfeiture , with prejudice.

DONE AND ENTERED this 8 th day of February , 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 8 th day of February , 2017 .

ENDNOTES

1/ Respondent was arrested and charged with violating section

838.022, Florida Statutes (2009). RespondentÓs case was referred

for pre - trial intervention. Respondent successfully completed

the pre - trial intervention program, w hich resulted in dismissal

of the criminal charges. There is no evidence that Respondent

entered a plea, or otherwise admitted to, the charges as part of

the pre - trial intervention process. Accordingly, there is no

evidence that Respondent was convicted of a violation of section

838.022, and Petitioner does not argue to the contrary.

2/ In Rivera , the court noted, with great detail, the CityÓs

efforts to prove its case through inadmissible hearsay contained

in police investigative files. In the instant case, Petitioner

relied upon the same tactic, but took the extra step of having

certain law enforcement officials testify about the contents of

the files. What the law enforcement officials testified to in

the instant case was classic hearsay that did no t fit within the

business or public records exception to the hearsay rule. See

Lee v. DepÓt of HRS , 698 So. 2d 1194, 1201 (Fla. 1997)( I n

adopting section 90.803(8), Florida Statutes, the legislature

specifically excluded as admissible hearsay the correspo nding

federal rule which allows for Ða record setting forth factual

findings resulting from an investigation made pursuant to

authority granted by law.Ñ). It is not enough to have law

enforcement to testify regarding what they were told by a third

party, but instead, Ða witness must be called who has personal

knowledge of the facts.Ñ Id .

COPIES FURNISHED:

Bobby E. Richardson

13103 Melissa Court

Riverview, Florida 33569

Bobby E. Richardson

206 West North Bay Street

Tampa, Florida 33603

Luis A. Santo s, 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 E ast

306 E ast 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 this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Fin al Order in this case.