17-002484 City Of Tampa General Employees Retirement Fund vs. Dwight Rivera Status: Closed Recommended Order on Friday, July 28, 2017.

Summary: Respondent forfeited retirement benefits with City by admitting he committed a specified act (bribery).

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL

EMPLOYEES RETIREMENT FUND,

Petitioner,

vs. Case No. 1 7 - 2484

DWIGHT RIVERA,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Administrative Law Judge of the Division

of Administrative Hearings (DOAH) , conducted the final hearing

in this matter in Tampa, Florida, on June 26 , 201 7 .

APPEARANCES

For Petitioner : Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa , Florida 33602 - 5133

For Respondent : N o appearance

STATEMENT OF THE ISSUE

The issue is whether , pursuant to section 112.3173, Florida

Statutes, Respondent has forfeited his rights and benefits under

the City of Tampa General Employees Retirement Plan (Fund).

PRELIMINARY STATEMENT

By letter dated October 21, 2013, the Fund notified

Respondent , a former emplo yee of the City of Tampa (City) and a

vested participant in the Fund , that he had forfeited his rights

and benefits under the Fund by reason of his admitted violation

of the City's Personnel Manual in 201 1 . On April 24, 2017, t he

matter was referred by th e Fund to DOAH to conduct a formal

hearing.

At the final hearing, t he Fund presented the testimony of

two witness es . Fund Exhibits 8 through 1 4 were accepted in

evidence. Respondent did not appear at the hearing.

A one - volume T ra nscript of the hearing has been prepared .

Proposed Findings of Fact and Conclusions of Law were filed by

the Fund and have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Fund is a public retirement system as defined by

Florida law and is charged with administering and managing a

pension fund for employees of the City.

2. Respondent was employed by the City from February 2,

2000, until April 18, 2012 , when he was terminated . He worked

in various positions, most recently as Acting Lead Sp ecialty

Equipment Op erator i n the Solid Waste and Environmental Program

Management/Quality Control program .

3. By reason of his employment with the City, Respondent

was enrolled in the pension plan administered by the F und and

was a vested participant .

4. On April 1 8 , 2012, the City terminated Respondent based

on a violation of three items in the City's Personnel Manual :

neglect of duty by using a City vehicle for an unauthorized

purpose ; moral turpitude involving the violation of the City

Code relat ing to use of public property; and moral turpitude by

engaging in an illegal enterprise. The events leading to his

termination are described below.

5. On July 11, 2011, City of Tampa Detective DeGagne was

investigating environmental crimes (illegal dumpi ng) in the East

Tampa area. After being alerted that illegal dumping had

occurred on a vacant lot in the Highland Pines neighborhood, and

the debris was immediately picked up by a City vehicle,

Detective DeGagne located the City truck involved. Because t he

truck was under the supervision of Respondent, Detective DeGagne

spoke to Respondent who initially explained that code

enforcement had told him to pick up the debris. Because

Respondent could not identify anyone in code enforcement who

gave him that in struction , he was arrested .

6. During a recorded interview with Detective DeGagne

later that day , Respondent admitted that on at least two

occasions, he was paid $40.00 to pick up the illegally - dumped

debris as a favor to a friend. This conduct is a v iol ation of

section 838.016(1), which makes it unlawful for a public

employee to receive compensation for performing an illicit act.

7. Based on his admission of guilt , the City terminated

Respondent effective April 18, 2012.

CONCLUSIONS OF LAW

8 . By contr act with Respondent, DOAH has agreed, on

request of the Fund, to assign Administrative Law Judges to

conduct hearings and issue recommended orders in cases of this

type.

9 . In this proceeding, Petitioner asserts that Respondent

has forfeited his rights an d benefits under the Fund pursuant to

section 112.3173 by reason of his admission to accepting money

for performing an illegal act. The City bears the burden of

proving by a preponderance of the evidence that this allegation

is true. Wilson v. Dep't of A dmin., Div. of Ret. , 538 So. 2d

139, 142 (Fla. 4th DCA 1989) ; .

1 0 . Respondent is a "public employee" within the meaning

of the law. § 112.3173(2)(c), Fla. Stat. He is also a member

of the City's retirement system . As such , Respondent is subject

to the pension forfeiture provisions in s ection 112.3173( 3) .

That provision provides as follows:

(3) FORFEITURE. Î 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 rights and benefits under

any public retirement system of which he is

member, except for the return of his or her

accumulated contributions as of the d ate of

termination. (emphasis added) .

11. The forfeiture statute defines a "specified offense"

to include any felony under chapter 838, except two provisions

not relevant here. See § 112.3173(2)(e)4., Fla. Stat.

12. Unlawful compensation or reward for official behavior ,

also known as bribery, is a felony covered by chapter 838.

Section 838.016(1) makes it unlawful for a public employee to

accept any money not authorized by law for the performance of an

act that violates his public duty.

13. The evi dence clearly establishes that Respondent

violated section 838.016(1) by accepting money from a third

party in exchange for using his position as the Acting Lead

Specialty Equipment Operator for the City to transport and

dispose of illegally - dumped debris. Therefore, Respondent has

forfeited his retirement rights and benefits. § 112.3173(3),

Fla. Stat .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the City of Tampa General Employees

Retirement Fun d enter a final order determining that Respondent

has forfeited his rights and benefits in the pension fund.

DONE AND ENTERED this 28th day of July , 201 7 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administ rative 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 28th day of July , 201 7 .

COPIES FURNISHED:

Luis A. S antos, Esquire

Ford & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602 - 5133

(eServed)

Natasha Wiederholt, CPA, GE

Pension Plan Supervisor

General Employees Retirement Fund

City of Tampa

7th Floor East

306 East Jackson Street

Tampa , Florida 3 3602 - 5208

Dwight Rivera

3324 West Kathleen Street

Tampa, Florida 33607 - 1840

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Orde r. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.