17-002481 City Of Tampa General Employees Retirement Fund vs. Mario Perez Status: Closed Recommended Order on Wednesday, August 23, 2017.

Summary: Petitioner proved that Respondent must forfeit all rights and benefits 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. 17 - 2481

MARIO PEREZ,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing 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 (201 6 ), on June 22, 2017, by video

teleconference sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent: No A ppearance

ST ATEMENT OF THE ISSUE

The issue in this matter is whether Respondent has forfeited

his rights and benefits under the City of Tampa General Employees

Retirement Fund pursuant to section 112.3173, Florida Statutes

(2015). 1/

PRELIMINARY STATEMENT

On April 24, 2017, Petitioner, 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,

Mario Perez, forfeit ed his rights and privileges to retirement

benefits under the Fund pursuant to section 112.3173.

The final hearing was held on June 22, 2017. At the final

hearing, the Fund offered the testimony of Kimberley Marple. The

FundÓs Exhibits 1 through 12 were adm itted into evidence.

Respondent did not appear at the hearing.

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

Transcript of the final hearing was filed with DOAH on

July 24, 2017. At the close of the hearing, Petitioner was

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

T ranscript at DOAH to file a post - hearing submittal. The Fund

filed a Proposed Recommended Order , which was duly considered in

preparing this Recommended Order.

FINDING S OF FACT

1. The Fund is a public retir ement 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 most recently employed by the City

beginning on October 31, 2005. Respondent wo rked as a Fleet

Mechanic Supervisor I for the CityÓs Logistics and Asset

Management/Fleet Management department. The City terminated

Respondent on January 21, 2015, based on theft of City property.

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, Respondent vested in the pension plan.

4. According to the Notice of Disciplinary Action, dated

January 21, 2015, the City terminated Respondent based on his

admis sion to stealing certain property belonging to the City . On

January 5, 2015, Respondent was interviewed by the Tampa Police

Department (ÐTPDÑ) as part of an investigation into stolen

property. During this interview, Respondent confessed to

stealing a set of tires owned by the City and installing them on

his personal vehicle.

5. After the City learned of RespondentÓs admission to the

theft of City property, the City terminated RespondentÓs

employmen t .

6. Kimberley Marple, an Employee Relations Specialist

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, he was f ired.

7. 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

burden of proving a legal basis under section 112.3173 for

RespondentÓs forfeiture of all rights and benefits to the FundÓs

pension plan.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject ma tter of this proceeding

pursuant to sections 120.569, 120.57(1), and 112.3173(5), Florida

Statutes (2017).

9. The Fund initiated this action to determine whether

RespondentÓs pension benefits must be forfeited under section

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

of his admission to committing theft from the City.

10. The Florida Constitution and statutes provide the

framework for forfeiture of public retirement benefits. Simcox

v. City of Holl ywood Police OfficersÓ Ret. Sys. , 98 8 So. 2d 731,

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

article II, section 8 of the Florida Constitution, which provide s

for forfeiture of an employeeÓ s rights and privileges under a

public retirement system when that emplo yee violates the public

trust.

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

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

f orfeit 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.

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

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

public officer or employee from his or her employer.Ñ See also

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

1997)(a Ð specified offense Ñ for purposes of forfeiture includes

embezz lement, theft, and bribery).

13. 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 forf eiture 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).

14. Respondent, as the plan beneficiary, bears the burden

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

matter, where RespondentÓs eligibility to partic ipate in the

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

that Respondent forfeit ed all rights to his retirement benefits.

Wilson v. Dep Ó t of Admin., Div. of Ret. , 538 So. 2d 139 (Fla. 4th

DCA 1989). See also Rivera v. Bd. of Trs. of TampaÓ s Gen. Empl.

Ret. Fund , 189 So. 3d 207, 210 (Fla. 2d DCA 2016)( t he Fund had

the burden of proving that the former employeeÓs retirement

benefits should be forfeited).

15. The preponderance of the evidence standard is

applicable to this case. See § 120.57(1)(j), Fla. Stat.; and

DepÓ t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

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

the evidence is defined as Ð the greater weight of the evidence,Ñ

or evidence that Ð more likely t han not Ñ tends to prove a certain

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

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

16. 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); and (3) that the City

terminated RespondentÓs employment by reason of his admission.

See Rivera , 189 So. 3d at 210 .

17. Based upon the competent substantial eviden ce in the

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

the evidence, that Respondent forfeit ed his right to participate

in 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, without permission, certain

property that belonged to the City, and intended to appropriate

that property for his own use ( i.e. , he committed theft 2/ ).

Finally, the City credibly demonstrated that it terminated

RespondentÓs employment based on his admission that he committed

theft, a Ðspecified offenseÑ under section 112.3173(2)(e)2.

Accordingly, the City established that Respondent forfeit ed all

r ights to pension benefits from the Fund.

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 finding that Respondent,

Mario Perez, was a public employee who, by reason of his admitted

commission of a Ðspecified offenseÑ under section 112.3173(2)(e),

forfeited all rights and benefits in the pension plan

administered by the Fund.

DONE AND ENTERED this 2 3rd day of August, 2017 , in

Tallahas see, 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 2 3rd day of August, 2017 .

ENDNOTE S

1/ Unless otherwise noted, all references to the Florida

Constitution and Statutes are to the 2015 versions. See Busbee

v. State Div. of Ret. , 685 So. 2d 914, 916 - 17 (Fla. 1st DCA

1996)(The applicable version of the pension forfeiture statute is

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

to forfeiture) .

2 / See Section 812.014, Florida States, which st ates:

(1) A person commits theft if he or she

knowingly obtains or uses, or endeavors to

obtain or to use, the property of another with

intent to, either temporarily or permanently:

(a) Deprive the other person of a right to

the property or a benefit f rom 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:

Mario Perez

18910 Holden Drive

Spring Hill, Florida 34610

Luis A. Santos, Esquire

Ford & Har rison 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 R IGHT 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 cas e.