17-000662 Myron Rosner vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, June 15, 2017.

Summary: Respondent met its burden and proved Petitioner's rights and benefits should be forfeited under the Florida Retirement System.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MYRON ROSNER ,

Petitioner,

vs. Case No. 1 7 - 0662

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 3 , 201 7 , by video teleconference at sites in Miami

and Tallahassee, Florida, before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings.

APPEARANCES

For P etitio ner: Benedict P. Kuehne , Esquire

Law Office of Benedict P. Kuehne, P.A.

1 00 S outheast 2nd Street, Suite 3550

Miami , Florida 33 131 - 2154

For Respondent: Thomas E. Wright , Esquire

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner forfeits his rights to benefits under

the Florida Retirement System.

P RELIMINARY STATEMENT

By letter dated April 20, 2016 , Department of Management

Services, D ivision of Retirement ( " Division " or " Respondent " ),

notified Myron Rosner ( " Rosner " or " Petitioner " ) that his rights

and benefits under the Florida Retirement System w ere forfeited

pursuant to section 112.3173(3), Florida Statutes , because

Petitioner entered a guilty plea for one count of Unlawful

Compensation or Reward for O fficial B ehavior, a second degree

felony in violation of section 838.016(2) , Florida Statutes .

Petitioner filed a timely Petition for Formal

Administrative Hearing contesting the notice . Subsequently, the

case was referred to the Division of Administrative Hearings

( " DOAH " ). Pursuant to notice, a final hearing proceeded as

scheduled on May 3 , 201 7 .

At the final hearing, Petitioner did not present any

witnesses . Petitioner ' s Exhibits numbered 1 through 13 were

admitted in to evidence. Respondent presented the testimony of

Allison Olson, benefits administrator for the Respondent .

Respondent ' s Exhi bits numbered 1 through 5 were admitted into

evidence.

The parties did not order a transcript of the hearing. The

parties availed themselves of the right to submit proposed

recommended orders 10 days after the final hearing. Both

parties filed timely p ro posed r ecommended o rders, which have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. On May 5 , 2011 , Petitioner was m ayor of North Miami

Beach , Florida .

2. During Petitioner Ós employment as mayor with North

Miami Beach, he was a member of the Florida Retirement System .

3. On or about October 17, 2 012, Petitioner was charged by

I nformation with nine criminal counts in the Circuit Court of

the Eleventh Judicial Circuit in and for Miami - Dade County,

Florida.

4. On Februa ry 24, 2016, pursuant to a written Plea

Agreement, Rosner entered a plea of guilty to Count 1 1 / Unlawful

C ompensation [or] Re w ard for Official Behavior , in violation of

s ection 838.016(2), in Eleventh Circuit case F12023663 .

5. That same day in the Eleven th Circuit case F12023663,

Judge Martin Bidwill issued the following orders : a n Order

Ratifying Terms of Plea Agreement ; a Disposition Order

specifying RosnerÓs plea to Count 1 Unlawful Compensation [or]

Reward for Official Behavior ; and a Finding of Guil t Order to

Count 1 Compensation [or] Reward for Official

Behav [ior] /Influence .

6. The October 17, 2012, Information detailed the factual

basis of RosnerÓs plea and conviction in Count 1 . 2 / Petitioner

illegally received unpaid campaign advertising f rom M artin

Outdoor Media , which had a continuing c ontract with the C ity of

North Miami Beach while Petitioner served as m ayor. Count 1

provide s in relevant part, the following:

COUNT 1

MYRON JOEL ROSNER, on or about May 5, 2011,

in the County and State aforesa id, being a

public servant to wit: MAYOR OF NORTH MIAMI

BEACH did un lawfully, feloniously, and

corruptly request, solicit, accept, or agree

to accept any pecuniary or other benefit not

authorized by law, to wit; UNPAID CAMPAIGN

ADS, for the past, future, or future

exertion of any influence upon or with any

other public servant regarding any act or

omission which said public servant

represented as being within the official

discretion of a public servant, to wit:

CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS

W ITH THE CITY OF NORTH MIAMI BEACH, in

violation of s. 838.016(2), Fla. Stat.,

contrary to the form of the Statute in such

cases made and provided, and against the

peace and dignity of the State of Florida. 3 /

7. Rosner was notified by certified letter dat ed April 20,

2016, of the D ivision's proposed action to forfeit his F lorida

R etirement S ystem rights and benefits pursuant to sections

112.3173 and 121.091(5) (f) . The notice provided the following

basis for the proposed action:

. . . . a s a result of your guilty plea in

the Circuit Court of the Eleventh Judicial

Circui t, in and for Miami - Dade C ounty,

Florida, for acts committed in connection

with your employment with the City of North

Miami Beach. Specifically, on or about

October 18, 2012, in Case Number F12 - 023663

(2012 - CF_023663) , y ou were charged by

information, in relevant part, with unlawful

compensation or award for official behavior,

a second degree felony in violation of

section 838.016(2), Florida S tatutes, based

on conduct which occurred on or a bout May 5,

2011. On or about February 24, 2016, you

entered a guilty plea for one count of

unlawful compensation or award for official

behavior, a second degree felony in

violation of section 838.016(2), Florida

Statutes, and adjudication of guilt was

wi thheld.

8. By Petition dated May 9, 2016, Rosner contested the

N otice and challenged the forfeiture.

CONCLUSIONS OF LAW

9. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Flor ida Statutes (2016) . 4 /

10. The Florida R etirement System is governed by the

provisions of Chapter 121, Florida Statutes.

11. Respondent has the burden of proving by a

preponderance of evidence that Petitioner has forfeited his

F lorida Retirement System b enefits. Wilson v . DepÓt of Admin.,

Div. of Ret. , 538 So. 2d 139 (Fla. 4th DCA 1989).

12. T he Florida Constitution sets forth ethical mandates to

protect Floridians from any abuse of the trust placed in the

public officers. Article II, S ection 8(d) prov ides:

Section 8 . Ethics in government . Ï A public

office is a public trust. The people shall

have the right to secure and sustain that

trust against 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 .

13. Section 112.3173 (3) provides in relevant part:

(3) FORFEITUR E. Ï 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 admitted commission,

aid, or abetment of a specified offense,

shall forfeit all rig hts 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.

14. Section 112.3173(2)(a) provides in relevant part:

(a) " Conviction " and " convicted " mean an

adjudication of guilt by a court of

competent jurisdiction; a plea of guilty or

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 Senate of an impeachable

offense.

15. Section 112.3173(2) ( e ) defines " specified offense " and

provides in relevant part :

(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

employment of a public officer or employee;

4. Any felony specified in chapter 838,

except ss. 838.15 and 838.16 ;

5. The committing of an impeachable

offense;

6. The committing of any felony by a public

officer or employee who, willfully and with

intent to defraud the public or the public

agency for which the public officer or

employee acts or in which he or she is

e mployed of the right to receive the

faithful performance of his or her duty as a

public officer or employee, realizes or

obtains, or attempts to realize or obtain, a

profit, gain, or advantage for himself or

herself or for some other person through the

use or attempted use of the power, rights,

privileges, duties, or position of his or

her public office or employment position .

16. Similarly, section 121.091(5)(f) provides in relevant

part :

(f) Any member who has been found guilty by

a verdict of a jury, or by the court trying

the case without a jury, of committing,

aiding, or abetting any embezzlement or

theft from his or her employer, bribery in

connection with the employment, or other

felony specified in chapter 838, except

ss. 838.15 and 838.16 , committed prior to

retirement, or who has entered a plea of

guilty or of nolo contendere to such crime,

or any member whose employment is terminated

by re ason of the memberÓs admitted

commitment, aiding, or abetting of an

embezzlement or theft from his or her

employer, bribery, or other felony specified

in chapter 838, except ss. 838.15 and

838.16 , shall forfeit a ll rights and

benefits under this chapter, except the

return of his or her accumulated

contributions as of the date of termination.

17. In this matter, Rosner pled guilty to a felony

Count 1 Unlawful Compensation [or] Reward for Official Behavior

in vio lation of section 838.016(2) in the Eleventh Circuit

case F12023663 . Such a " plea of guilty " constitutes a

conviction pursuant to section 112. 3173(2)(a) and meets the

criteria for a specified offense under section 112.3173(e)4 .

S ections 112.3173 and 121 .091(5)(f), both require forfeiture for

PetitionerÓs felony conviction of Unlawful Compensation [or]

Reward for Official Behavior in violation of section 838.016(2).

Therefore, PetitionerÓs rights and benefits must be forfeited

under the Florida Retiremen t System .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Management Services,

Division of Retirement enter a final order finding that

Petitioner was a public employee convicted of a specified offense

committed prior to retirement pursuant to section 112.3173,

Florida Statutes, and directing the forfeiture of his F lorida

Retirement System rights and benefits.

DONE AND ENTERED this 15 th day of J une , 2017 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

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 15 th day of J une , 2017 .

ENDNOTE S

1/ The undersigned rejects PetitionerÓs assertion that no

count in the Information was identified as a count to which

Petitioner pled guilty. On the contrary, RespondentÓs Exhibits

4, Disposition Order, and 5, Finding of Guilt Order, list

" Count 1 " clearly and match the plea agreement that identifies

section 838.016(2) as the felony as well as the Information

identifies 1 and also mirrors the statutory title Unlawful

Compensation or R eward for Official B ehavior. Additional ly, the

same crime name is also recorded and identified on each of

RespondentÓs Exhibits except the Order Ratifying Terms of Plea

Agreement.

2/ The undersigned rejects Pet itionerÓs contention that no

factual basis was presented at hearing to support PetitionerÓs

plea. Although a plea colloquy transcript was not provided, the

non - hearsay evidence of the certified copy of the Information

detailed the factual basis for Count 1. RespondentÓs Exhibit 4,

Disposition Order, specified that Rosner pled guilty to Count 1

of the Information Unlawful Compensation [or] Reward for

Official Behavior and the certified copy of the Finding of Guilt

Order provided that the defendant " has bee n found gui lty o f the

charge of Count 1 Crime Compensation [or] Reward for Official

Behav[ior]. Since no testimony was presented to contradict such

evidence, the undersigned finds such evidence persuasive to

provide the proof for the factual basis.

3/ RespondentÓs Exhibit 1, the certified copy of the Information

in the Eleventh Circuit case F12023663, detailed each of the

nine counts Petitioner was originally charged with including

Count 1 to which Petitioner entered a plea of guilty.

4/ All referenc es are to Florida Statutes 2016 unless otherwise

stated.

COPIES FURNISHED:

Benedict P. Kuehne, Esquire

Law Office of Benedict P. Kuehne, P.A.

100 Southeast 2nd Street , Suite 3550

Miami, Florida 33131 - 2154

(eServed)

Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

Elizabeth Stevens, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e 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.