17-001318 Javier Cuenca vs. State Board Of Administration Status: Closed Recommended Order on Tuesday, January 9, 2018.

Summary: Petitioner's felony convictions are not "specified offenses" pursuant to section 112.3173(2)(e)6. and, therefore, his FRS benefits and rights are not forfeited.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAVIER CUENCA,

Petitioner,

vs. Case No. 17 - 1318

STATE BOARD OF ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

October 9, 2017, 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 Petitioner: James C. Casey, Esquire

Law Offices of Slesnick and Casey, LLP

2701 Ponce De Leon Boulevard, Suite 200

Coral Gables, F lorida 33134

For Respondent: Brian A. Newman, Esquire

Pennington, P.A.

Po st Office Box 10095

Tallahassee, Florida 32302 - 2095

STATEMENT OF THE ISSUE

Whether Petitioner forfeits his rights and benefits under

the Florida Retirement System Investment Plan.

PRELIMINARY STATEMENT

By letter dated February 7, 2017, the State Board of

Administration ( " SBA " ) notified Javier Cuenca ( " Cuenca " or

" Petitioner " ) that his rights and benefits under the Florida

Retirement System were " forfeited as a result of your plea of

nolo contendere in the Circuit Court of the Eleventh Ju dicial

Circuit, in and for Miami - Dade County, Florida, for acts

committed while employed with the Miami - Dade County School

Board. "

Petitioner filed a timely Petition for Hearing contesting

the notice. Subsequently, the case was referred to the Division

of Administrative Hearings ( " DOAH " ). Pursuant to notice, a final

hearing was scheduled for May 17, 2017. After several

continuances for good cause, the matter proceeded to hearing on

October 9, 2017.

At the final hearing, Petitioner testified on his own be half

and presented two witnesses: Idolidia Baluja and Kimberly

Gaines. Petitioner ' s Exhibits numbered 1 through 24 were

admitted into evidence.

Respondent presented the testimony of Laura Adams; Mini

Watson; Idolidia Baluja; and Kimberly Gaines. Respon dent ' s

Exhibits numbered 1 through 12 were admitted into evidence.

Petitioner objected to the admissibility of Respondent ' s

Exhibit 1 and Exhibit 5 based on hearsay. The undersigned notes

that both were admitted over objection. However, neither

Exhibit 1 nor Exhibit 5 were considered and used to find any fact

in this matter.

The one - volume Transcript was file d on October 27, 2017, and

the parties timely filed their proposed recommended o rders, which

have been considered in the preparation of this Recommen ded

Order.

FINDING S OF FACT

1. In 2003, Petitioner started his employment with Miami -

Dade County Public Schools ( " MDCPS " or " District " ) as a part - time

substitute teacher.

2. Since his initial employment with MDCPS, Petitioner has

held positions that were par t - time and full - time , as well as held

hourly teacher positions, teacher positions, a Community School

Act Leader III position, and assistant basketball coach

positions.

3. Petitioner took a leave of absence from MDCPS from

August 23, 2010 , to August 1 5, 2012.

4. While on leave of absence the first year, Petitioner

worked at Mater Academy Charter School as a middle school math

teacher from September 2010 to August 2011.

5. During the 2010 - 2011 school year, Cuenca worked for his

private tutoring compan y, Professional Tutors Academy. Cuenca

also was a part - time assistant basketball coach at Hialeah

Gardens Senior High School from October 2011 through March 2012.

6. From August 2012 through September 2012, MDCPS assigned

Petitioner to Hammocks Middle Sc hool full - time , while he took and

exhausted all of his sick and personal leave.

7. From October 2012 to Februa ry 2013, Petitioner worked

part - time as an assistant basketball coach for the varsity team

at Hialeah Gardens Senior High School.

8. Petitioner ' s employment made him eligible to participate

in the Florida Retirement System ( " FRS " ) Investment Plan.

9. In 2014, Petitioner was arrested and charged with

felonies, which included charges of " lewd and lascivious

molestation on a child 12 - 16 years/attem pt or lewd & lascivious

on child over 16 by defendant over 18 " .

10. Laura Adams ( " Adams " ), c hief of Sexual Battery and

Child Abuse Unit for Miami - Dade State Attorney ' s Office was

assigned to prosecute Petitioner who ended up with four cases.

Adams char ged each case by information based on her victims, four

former male basketball players, that each claimed Petitioner

coached and sexually harassed and/or assaulted the m .

11. On October 4, 2016, Adams negotiated a plea agreement

with Petitioner and his tw o attorneys for all four cases. Adams

and Petitioner reached a compromise to resolve the charges that

Petitioner had inappropriate contact with the four students. The

agreement included that the state would dismiss two of the four

cases and Petitioner wo uld plea to two felony battery charges,

one felony battery for victim D.F. and one felony battery for

victim O.Q. 1/

12. At Petitioner ' s plea hearing before Judge Milton

Hirsch, Adams consolidated all of Petitioner ' s four cases into a

single case with four counts on one charging document. During

the hearing, Adams orally reduced c ount 2 and c ount 4 of the lewd

and lascivious molestation on a child 12 - 16 years/attempt charges

each t o a felony battery and dismissed c ount 1 and c ount 3.

13. Adams also wrote the negotiated plea terms on the

information and agreed to supplement the file for the clerk

later. The initialed handwritten information provided:

[1]. . . .amended to felony battery

784.03

Nolle pros LA 10/4/16

2. Lewd Lascivious Mol on Ch ild <>

but older than 12 F2 (14 - 25627)

vic. D.F.

Felony Battery 784.03 LA

3. Lewd Lascivious

Conduct On Child < 16="" by="">

F2 (vic D.N.)(F14 - 25629)

Nolle pros 10/4/16 LA

4. Lewd Lascivious Molest.

On child < 16="" by="">

Then 12 (vic. O.Q>)

(F16 - 14811)

Felony Battery 784.03

LA 10/4/16

14. Petitioner pled to the negotiated settlement at the

plea hearing. Judge Hirsch placed Petitioner under oath and went

over the plea agreement with Petitioner in d etail including

informing Cuenc a that:

[Y]our at torney has worked out a plea for

your benefit pursuant to which cases F14 -

25627 and F16 - 14 - 14811 have been joined by

the office of the state attorney in a single

charging document now charging two counts of

felony battery.

15. The judge also ordered Pet itioner not to have any

unsupervised contact with minors, not to reside with minors, nor

teach or coach minors.

16. Petitioner accepted the negotiated plea to two felony

battery charges and informed the judge that he understood the

terms and conditions. 2/

17. Neither the Petitioner nor his attorneys objected when

Adams waived the defects in the charging document 3/ relating to

the two felony battery charges.

18. After Petitioner ' s plea hearing, Judge Hirsch issued a

written O rder dated October 4, 2016, fi nding Petitioner guilt y of

two felony battery charges , 4/ which were outlined in the O rder as:

COUNT CRIME DEGREE

2 BATTERY/FELONY 3/F

4 BATTERY/FELONY 3/F

19. On October 11, 2016, Adams filed a type written amended

information in the Miami - Dade Circuit Court docket to supplement

the record as she had been instructed to do by the clerk during

Petitioner ' s plea hearing on October 4, 2016. The amended

inform ation lists c ount 2 was reduced to BATTERY/ FEL ONY 784.041

Fel 3D and that c ount 4 was reduced to BATTERY/FELONY 784.041

Fel 3D.

20. In the information, Adams provided the time period

for victim D.F. Ós allegations as: " And the aforesaid Assistant

State Attorney, under oath, further information makes Javier

Alejandra Cuenca, on or between August 01, 2012 and December 31,

2012. . . . "

21. To date no post - conviction pleadings have been filed to

vacate the plea.

22. D.F. was a student and varsity basketball player at

Hialeah Gardens High School during the 2012 - 2013 school year.

23. Petitioner was the varsity assistant basketball coach

and coached D.F. at Hialeah Gardens High School during the 2012 -

2013 school year.

24. Petitioner received wages in August, October, and

December of 2012 , but not in Nov ember 2012. Petitioner also

earned credible service from August 2012 through December 2012

because he was employed with MDCPS.

25. During Petitioner ' s employment, he utilized sick and

personal leave from August 2012 to September 2012. Subsequently,

ba sketball season started on October 10, 2012 , and ended

February 201 3. Petitioner worked as a part - time employee

coaching D.F. ' s varsity basketball team during the basketball

season , even though Petitioner did not receive any wages in

November 2012.

26. P etitioner was paid a lump sum in the amount of

$1,473.00 in March 2013 for his services of coaching the varsity

team D.F. played on during the 2012 - 2013 basketball season.

27. Ev en though Petitioner was a part - time assistant

basketball coach for the vars ity basketball team, Petitioner

earned credible service for all the months he coached,

October 2012 through February 2013.

28. Petitioner is the same Javier Cuenca that is the

Defendant in Miami - Dade Circuit Court , case F14025627.

29. FRS credible servi ce is calculated based on an

employee ' s position and the days worked , not whether the employee

is paid wages. Employees can earn service credit even if not

receiving wages during a particular month because the employee is

employed that month.

30. In Oct ober 2014, Petitioner withdrew all of his

investment plan funds from his account and h e has never reported

that he was overpaid or contested the amount received .

31. Mini Watson ( " Watson " ), d irector of Compliance over

Investment Plans for the SBA , review ed Petitioner ' s payroll

reports and credible service report to ensure that he received

the service credit to which he was entitled.

32. Watson determined that Petitioner ' s coaching stipend

was a salary after evaluating how MDCPS utilized its discretion

a s an agency and determined that Petitioner ' s part - time coaching

position qualified for FRS. Watson also concluded MDCPS properly

reported credible serv ice for Petitioner from August 2 012 through

December 2012.

33. After the review, SBA concluded that Pe titioner ' s

rights and benefits should be " forfeited as a result of [his]

plea of nolo contendere in the Circuit Court of the Eleventh

Judicial Circuit, in and for Miami - Dade County, Florida, for acts

committed while employed with the Miami - Dade County Scho ol Board "

and informed Petitioner by letter dated February 7, 201 7.

Petitioner is protesting Respondent ' s notice of forfeiture

letter.

Findings of Ultimate Fact

34. Upon careful consideration of the entire record, it is

determined that the competent evid ence at hearing demonstrates

that Petitioner was an employee of MDCPS from August 2012 to

December 2012 because he received credible service during that

period.

35. Specifically, the record supports that Petitioner was

an employee when he was utilizing h is sick and personal leave

during August 2012 and September 2012 or he would not have been

able to take the leave. 5/ Watson ' s nearly 30 years of experience

verifying agencies ' compliance in reporting FRS members for

determination of service credit entitle ment allowed her to

credibly assess that MDCPS properly categorized Petitioner ' s

part - time assistant coach position as a FRS - eligible or credible

service position from October 2012 to December 2012. Moreover,

no competent evidence was presented to demonst rate Petitioner ' s

lump sum salary paid in March 2013 was a bonus as asserted by

Petitioner. Therefore, Respondent has proven that Petitioner

occupied an FRS - eligible position during the time period that

PetitionerÓs information alleged his conduct took pl ace for the

underlying felony conviction.

36. The undersigned further finds the compelling evidence

as a whole demonstrates that Petitioner was found guilty of two

felony battery charges, and count 2 related to the victim ,

student D.F. Specifically, th e handwritt en information, plea

colloquy, O rder, and amended information substantiate Petitioner

pled to two counts of felony battery.

CONCLUSIONS OF LAW

3 7 . DOAH has jurisdiction over the subject matter of the

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes.

38. The FRS is a public retirement system as defined by

Florida law and, as such, SBA ' s proposed action to forfeit

Petitioner ' s FRS rights and benefits is subject to administrative

review. See § 112.3 173(5)(a), Fla. Stat.

39. Respondent has the burden of proving by a preponderance

of the evidence that Petitioner has forfeited his FRS retirement

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

139 (Fla. 4th DCA 1989).

40. Article II, se ction 8(d) of the Florida Constitution

provides:

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.

41. This section of t he Constitution is codified in

c hapter 112, Part III, of the Florida Statutes. Section

112.3173(3), Florida Statutes, provides in relevant part:

(3) FORFEITURE. Ï Any public officer or

employee who is convicted of a specified

offense committed prior to ret irement . . .

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 contributions as of the

date of termination.

42. Section 112.3173(2)(a) provides in re levant part:

" Conviction " and " convicted " mean an

adjudication of guilty 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.

43. In this matter, Peti tioner pled nolo contendere in

circuit c ourt to two felony battery counts. He was adjudicated

guilty by the judge. This constitutes being " convicted " pursuant

to section 112.3173(2)(a).

44. Not every crime committed by a public officer or

employee gives rise to forfeiture of FRS rights and benefits

under section 112.3173. To result in forfeiture, the crime must

be a " specified offense " as defined in section 112.3173(2)(e )1.

through 7.

45. A " specified offense " is defined in the forfeiture

statute in part as certain felonies under c hapter 838, Florida

Statutes, as well as certain felonies relating to bribery,

embezzlement, and theft of public funds or an impeachable

offen se. See § 112.3173(2)(e)1. - 5. , Fla. Stat. Petitioner was

not convicted of any of these offenses.

46. The forfeiture statute also contains a so - called

" catch - all " provision which can subject a public officer or

employee to the forfeiture of his or her ri ghts and benefits.

The undersigned must consider section 112.3173(2)(e)6., which

further defines a " specified offense " and provides:

( 2)(e) " Specified offense " means:

* * *

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

employed of the right to receive the faithful

performance of his or her duty as a public

officer or employee, reali zes 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 o ffice or employment position.

§ 112.3173(2)(e)6., Fla. Stat.

47. In other words, to constitu te a specified offense under

section 112.3173(2)(e)6., the criminal act must be (a) any

felony; (b) committed by a public employee; (c) willfully and

with intent to defraud the pub lic or the employee ' s public

employer of the right to receive the faithful performance of the

employee ' s duty; (d) to obtain a profit, gain or advantage for

the employee or some other person; and (e) by use of the power,

rights, privileges, duties, or posi tion of the employment

position.

48. By this language, any felony can qualify as a specified

offense so long as the remaining conditions in the statute have

been met. Based on the facts herein, the record shows that

Petitioner was a public employee work ing as a coach for the

school district, a member of the FRS, and that prior to

retirement, Petitioner pled no contest and was adjudicated guilty

to two felony battery counts. Therefore, the issue here is

whether the other conditions of section 112.3173(2) (e)6. have

been met.

49. The First District Court of Appeal has concluded that

whether a particular crime falls under the " catch - all " provision

" depends on the way in which the crime was committed. " Jenne v.

Dep ' t of Mgmt. Servs. , 36 So. 2d 738, 742 (Fla . 1st DCA 2010).

See Bollone v. Dep ' t of Mgmt. Servs ., 100 So. 3d at 1280 (citing

Jenne and stating " this Court has held that the term Òspecified

offense ' is defined by the conduct of the public official, not by

the elements of the crime for which the offi cial was

convicted. " ).

50. Respondent contends in its Proposed Recommended Order

that the nexus requirement has been established for forfeiture in

this matter because Petitioner ' s position as a basketball coach

provided him access to student victim, D.F., and the crime was

committed on a student on school property. The undersigned

rejects such an assertion because it is unsubstantiated. The

record lacks competent substantial evidence of Petitioner ' s

conduct, the circumstances, and location associated wit h

Petitioner ' s crimes.

51. Contrarily, Petitioner relies on Rivera v. Board of

Trustees of the City of Tampa's Gen eral Empl oyment Ret irement

Fund , 189 So. 3d 207 (Fla. 2 d DCA 2016 ) , in its Proposed

Recommended Order and maintains that in this case no factu al

basis for Petitioner ' s plea exists and therefore Respondent

cannot meet its burden of proof. Such reliance on Rivera is

persuasive.

52. The record demonstrates Petitioner was a public

employee for MDCPS who coached the victim, student D.F., and

varsi ty basketball during the 2012 - 2013 basketball season. The

basketball season aligns with the time period the information

indicated the substantive offenses occurred. And, Petitioner had

a duty to the public to safeguard students. However, the record

fail s to meet the statutory requirement and demonstrate any nexus

between the crimes charged against Petitioner and his duties as a

coach because no factual basis was established in this case

between the offenses committed and Petitioner ' s position as a

coach. In this proceeding, no witnesses with first - hand

testimony provided either evidence regarding details or the

circumstances associated with the offense(s). Furthermore, the

record lacks any admissions to any facts regarding the underlying

charges. Addit ionally, during the plea colloquy when

Petitioner ' s four criminal cases were merged into one

information, no statement of facts was provided for Petitioner ' s

plea.

53. Hence, in this matter, the record is void of any

competent evidence to substantiate ho w and where the offense(s)

were committed and accordingly the evidence is insufficient to

demonstrate any credible nexus. As such, the requirements in

section 112.3173(2)(e)6. are not met. Accordingly, the felony

battery, to which Petitioner pled no cont est is not a " specified

offense " within the meaning of section 112.3173(2)(e)6.

Therefore, Petitioner ' s rights and benefits under the FRS are not

forfeited.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the State Board of Administration enter a

order finding that Petitioner pled to two felony counts, which

are not specified offenses under section 112.3173(2)(e)6. and do

not require forfeiture of his FRS rights and benefits pursuant to

section 112.31 73(3).

DONE AND ENTERED this 9th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 9th day of January , 2018 .

ENDNOTE S

1/ Petitioner asserts that he pled to a misdemeanor batt ery and a

felony battery . The undersigned rejects such assertion based o n

the handwritten information, O rder, plea colloquy, and amended

information that all indicate he pled to two felony battery

counts as Adams credibly testified.

2/ Petitioner ' s cont ention that he never agreed to felony battery

but agreed to a misdemeanor battery is not persuasive because the

compelling evidence of the plea colloquy states clearly that he

pled to two felony battery charges.

3/ Waiving the defects in the information is the terminology used

when the state attorney and defense attorney agree to set aside

the underlying facts, and accept a plea to a different charge

from the initial charge, even though the facts do not meet the

elements of the new charge for the agreed u pon plea.

4/ The undersigned finds Judge Hirsch ' s O rder, which specifically

lists two third degree felony battery charges, very compelling

persuasive evidence that Petitioner pled to two felony battery

charges , not the misdemeanor battery charge Petitio ner contends

he pled to on October 4, 2016.

5/ Individuals who are not employees are not entitled to leave.

Petitioner was only allowed to take the sick and annual leave

because he was an employee assigned to Hammocks Middle School

during August 2012 an d September 2012.

COPIES FURNISHED:

James C. Casey, Esquire

Law Offices of Slesnick and Casey, LLP

2701 Ponce de Leon Boulevard , Suite 200

Coral Gables, Florida 33134

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

Post Office Box 10095

Tallahasse e, Florida 32302 - 2095

(eServed)

Ash Williams, Exec utive Director

and Chief Investment Officer

State Board of Administration

1801 Hermitage Boulevard, Suite 100

Post Office Box 13300

Tallahassee, Florida 32317 - 3300

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.