16-006669 City Of Tampa General Employees Retirement Fund vs. Priscilla Phillips Status: Closed Recommended Order on Thursday, March 30, 2017.

Summary: City proved by clear & convincing evidence that employee disclosed confidential information intending to impede an investigation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 16 - 6669

PRISCILLA PHILLIPS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrat ive Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) heard this case by

video tele conference between sites in Tallahassee and Tampa,

Florida , on January 20, 2017.

APPEARANCES

For Petitioner: Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: Priscilla Phillips , pro se

1719 West St. Joseph Street

Tampa, Florida 33607

STATEMENT OF THE ISSUE

Should Respondent, Priscilla Phillips, forfeit her

rights and benefits under the retirement system of the City of

Tampa (Tampa) on account of the termination of her employment

because she admitted aiding or abetting a Ðspecified offense?Ñ

PRELIMINARY STATEMENT

Tampa terminated Ms. PhillipsÓ employment , effective

September 1, 2011. The Board of Petitioner, City of Tampa

General Employees Retirement Fund (Retirement Fund), referred the

issue of whether Tampa terminated Ms. PhillipsÓ employment for

admittedly aiding or abetting a specified felony that would

require forfeiture of her retirement benefits to DOAH.

The Retirement Fund submitted testimony from two witnesses.

It entered five exhibits into evidence. Ms. Phi llips testified

on her own behalf. A T ranscript of the hearing was filed. Both

parties timely submitted Proposed Recommended Orders. They have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

Background

1. Ms. Phillips wor ked for Tampa from December 10, 1984 , to

September 1, 2011 . In 2007 , Tampa suspended Ms. Phillips for one

day for violating computer use policies. Otherwise,

Ms. PhillipsÓ employment history is discipline - free.

2. Throughout her employment , Ms. Phillips worked for the

Tampa Police Department as a Data Terminal Operator. Her

responsibilities included identifying stolen goods in pawn shops.

Ms. Phillips was a public employee of Tampa and a participant in

the City of Tampa General Employees Retirement Fun d. The

Retirement Fund is a public retirement system.

3. On September 1, 2011, Tampa terminated Ms. PhillipsÓ

employment for violating the following provisions of TampaÓs

Manual of Regulations: #1814 - Restrictions on Revealing

Information, #1104 - Interfer ence with Cases, and #1005 - Standard of

Conduct. Tampa relied also on violations of the following

provisions of its Personnel Manual as a basis for termination:

ÐB28.2A(3)c(11), Neglect of Duty - Unauthorized release of

information or recordsÑ and Ð B28.2A(3 )d(2), Moral Turpitude -

Violation of City Code or other City policies relating to

impartiality, use of public property, conflict of interest,

disclosure and/or confidentiality.Ñ

Facts Admitted by Ms. Phillips

4. On January 22, 2011, Ms. Phillips received and reviewed

a confidential Officer Safety Alert issued by the police

departmentÓs Strategic Investigations Bureau.

5. The Strategic Investigation Bureau is responsible for

undercover investigations. Ms. Phillips knew this.

6. The Officer Safety Alert i ncluded names and pictures of

three subjects of an investigation. One was Reginald Preston.

Ms. Phillips knew Mr. Preston and had met him about five times.

She knew that he was a convicted felon who had been recently

released from incarceration. Mr. Pr eston is the nephew of

Ms. PhillipsÓ friend Beverly Harvin. At the time , Ms. Harvin

worked for the police department as a Community Service Officer.

7. The Officer Safety Alert stated:

The above listed subjects are part of an on

going [sic] 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 this time due to the ongoing nature

of the i nvestigation. Use caution when

coming into contact with the listed subjects

and vehicles. Also use caution if responding

to calls at the listed addresses.

Due to the ongoing investigations, only

distribute to TPD Personnel.

LAW ENFORCEMENT SENSITIVE

T he information contained within this

bulletin is the property of the Tampa Police

Department and constitutes active criminal

intelligence information, and is exempt from

public records[.]

8. Ms. Phillips read the a lert when she received it. She

understo od that providing the information in the a lert to the

subjects identified in it could cause them to flee.

9. Ms. Phillips called Ms. Harvin after reading the alert.

Ms. Harvin was at home on medical leave recovering from a broken

collar bone. 1 / Ms. Phil lips told Ms. Harvin about the alert ,

including the fact that Ms. HarvinÓs nephew was identified in it.

Ms. Phillips photographed the alert with her cellphone and sent

the picture to Ms. Harvin.

10. Ms. Phillips asked Ms. Harvin Ðcould she get in touch

w ith him [Mr. Preston] to come down and talk with the police

officer.Ñ Ms. Phillips intended for Ms. Harvin to contact

Mr. Preston with the information that he was being investigated.

In her words, Ms. Phillips Ðwanted him to come down and clear

himself i f he was not involved in this.Ñ Ms. Harvin told

Ms. Phillips that she would contact Mr. Preston, and she did.

11. During the entire period of her employment with the

police department, Ms. Phillips knew of only one time when an

individual turned himsel f in after learning that he was wanted.

Additional Information

12. During an internal investigation of the incident ,

Ms. Phillips admitted the preceding facts to the investigating

officers. Her termination on September 1, 2011, followed.

13. The informa tion in the a lert about the stolen guns

investigation was not available to the general public.

Ms. Phillips obtained the information because she was a public

employee.

14. If Mr. Preston learned he was the subject of an

undercover investigation , that wou ld have obstructed and impeded

the investigation. It would also have endangered the lives of

the undercover officers.

CONCLUSIONS OF LAW

15. Sections 120.569 and 120.57, Florida Statutes (2016) ,

and the City of Tampa General Employees Retirement Fund

Forfeiting Pension Procedure give DOAH jurisdiction over this

proceeding.

16. The Retirement Fund, citing Wilson v. Dep artmen t of

Admin istration , Div ision of Ret irement , 538 So. 2d 139 (Fla. 4th

DCA 1989), asserts that it must prove by a preponderance of the

evidence that Ms. Phillips has forfeited her retirement benefits.

Loss of retirement benefits is as significant as loss of

livelihood due to revocation of a professional license.

Consequently , there are sound arguments for concluding that the

Retirem ent Fund must prove its allegations by clear and

convincing evidence. Latham v. Fla. Comm'n on Ethics , 694 So. 2d

83, 85 (Fla. 1st DCA 1997). The issue does not need to be

resolved in this case since the material facts are established by

clear and convin cing evidence. Byrd v. DepÓt of Mgmt. Serv s .,

Div. of Ret. , Case No. 07 - 5008 (Fla. DOAH Jan. 16, 2008; Fla. DMS

Feb. 21, 2008).

17. Section 112.3173(3), Florida Statutes (2011) , states:

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, 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 contr ibutions as of the date

of termination.

18. Ms. Phillips is a public employee. Her employment was

terminated. The Retirement Fund maintains that Ms. Phillips Ó

employment was terminated by reason of her admitted commission of

a Ðspecified offense . Ñ

19 . ÐSpecified offensesÑ include any felony specified in

chapter 838 of the Florida S tatutes, except for sections 838.15

and 838.16. § 112.3173(2)(e)4 . , Fla. Stat. (2011). Section

838.21, Florida Statu t es (2011) , makes it unlawful for a public

servant, su ch as Ms. Phillips, to disclose active criminal

investigative or intelligence information Ðwith intent to

obstruct, impede, or prevent a criminal investigationÑ if the

information is not available to the general public and was

obtained by reason of the pub lic employment. This is the

Ðspecified offenseÑ the Retirement Fund relies upon to forfeit

Ms. PhillipsÓ retirement benefits.

20. ÐCriminal investigative informationÑ means information

about an identifiable person compiled by a criminal justice

agency in the course of a criminal investigation of a specific

act. § 119.011(3)(b), Fla. Stat. (2011) . The information about

Mr. Preston being the subject of an undercover investigation was

Ðcriminal investigative information.Ñ By asking Ms. Harvin to

tell Mr . Preston about the alert, Ms. Phillips acted to disclose

Ð criminal investigative information Ñ to an unauthorized person.

21. Determining that Ms. PhillipsÓ retirement benefits

should be terminated requires two conclusions. The first is that

she disclo sed information about the alert to Mr. Preston. The

second is that when Ms. Phillips asked Ms. Harvin to communicate

the information to Mr. Preston, Ms. Phillips intended to

Ðobstruct, impede, or prevent a criminal investigation.Ñ

22. T he following testi mony from Kimberly Marple, Employee

Relations Specialist Supervisor for TampaÓs Human Resources

Division, on page 26 of the T ranscript , is th e evidence that

Ms. Harvin conveyed the information to Mr. Preston as

Ms. Phillips requested.

Q: Do you know if Ms. Phillips admitted to

these allegations that are contained with

this document, Exhibit 5?

A: Yes she did.

23. Exhibit 5 is the Notice of Disciplinary Action. It

contains the following statement: ÐYou then took a picture of

the bulletin from the computer screen with your personal cell

phone and sent it to Beverly Harvin. Beverly Harvin then

contacted her relative and advised him of the information on the

bulletin.Ñ Testimony about Ms. Phillips Ó confirmation of the

statements in the Notice of Dis ciplinary Action and the

statements themselves are admissible under the hearsay exception

for admissions created by section 90.803(18), Florida Statutes

(2016). This evidence may be and is the basis of the finding

that Ms. Harvin told Mr. Preston that he was the subject of an

investigation as Ms. Phillips intended. § 120.57(1)(c), Fla.

Stat. (2016). This means that Ms. Phillips disclosed information

about the criminal investigation to Mr. Preston .

24. The remaining question is , did Ms. Phillips intend to

impede or obstruct the criminal investigation? Intent is a

question of fact.

The trier of fact has the opportunity to

observe the witnesses. From that

observation, the trier of fact may determine

the believability of that witness and the

weight to be given his testimony. The

demeanor of the witness, his frankness, or

lack of frankness, his intelligence, his

interest in the outcome of the case, and the

reasonableness of the testimony presented, in

the light of all the evidence in the case,

are but a fe w of those factors which may play

a part in making that determination.

State v. Franchi , 746 So. 2d 1126, 1128 - 29 (Fla. 4th DCA 1999) .

25. Ms. Phillips intended to disclose the information to

Mr. Preston and intended to take each action that led to the

d isclosure. She also intended for disclosure of the information

to affect the investigation. The most likely, if not only,

effect would be to impede or obstruct the investigation. The

police did not need assistance contacting Mr. Preston . They knew

how to do that. Mr. Preston was not wanted. So there was no

reason to turn himself in. The facts establish a violation of

section 838.21.

26. Section 112.3173(3) requires forfeiture of

Ms. PhillipsÓ retirement benefits.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, City of Tampa General

Employees Retirement Fund, enter a final order finding that the

employment of Respondent, Priscilla Phillips, with the City of

Tampa was terminated becaus e of her admission to committing the

commission of a Ð specified offense Ñ as identified in section

112.3173, Florida Statutes , and that she forfeit ed her rights and

benefits under the General Employees Retirement Fund.

DONE AND ENTERED this 30 th day of Marc h , 2017 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30 th day of March , 2017 .

ENDNOTE

1 / The record does not reveal whether Ms. Harvin would have

received the a lert had she been at work.

COPIES FURNISHED:

Priscilla Phillips

1719 West St. Joseph Street

Tampa, Florida 33607

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

7 th 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 this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.