17-005785 David Moran vs. State Board Of Administration Status: Closed Recommended Order on Tuesday, May 15, 2018.

Summary: Resp. proved there was a nexus between Pet.'s employment as a DOC sargeant and his felony conviction; and that Pet.'s offense warrants forfeiture of his FRS rights and benefits pursuant to sec. 112.3713.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID MORAN,

Petitioner,

vs. Case No. 17 - 5785

STATE BOARD OF ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Hetal Desai, a duly - designated Admini strative Law Judge of

the Division of Administrative Hearings (DOAH), held a final

hearing on February 20, 2018, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Anthony Rush, Esquire

Robert A. Rush, P.A.

11 So utheast Second Avenue

Gainesville, Florida 32601

For Respondent: Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tall ahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is whether, pursuant to section 112.3173, Florida

Statutes (2017), 1/ Petitioner forfeited his Florida Retirement

System Investment Plan account after he was found guilty by a jury

of conspiracy to c ommit first degree murder.

PRELIMINARY STATEMENT

On August 11, 2017, Petitioner, David Moran, was found

guilty by a jury of a first degree felony, Ð Conspiracy to Commit

Murder, Ñ in violation of sections 777.04(3), (4)(a) and (4)(b) ,

and 782.01(1)(a), Flori da Statutes (conspiracy). The crime

involved Petitioner -- a former Florida Department of Corrections

(DOC) employee -- and other former and current DOC employees

plotting to kill a former inmate.

On October 10, 2017, Respondent, the State Board of

Administr ation (SBA), notified Petitioner that his rights and

benefits under the Florida Retirement System Investment Plan had

been forfeited based on the conviction of conspiracy. On October

13, 2017, Petitioner filed a timely Petition for H earing in

response to the SBA Ó s letter and asserted the SBA Ó s determination

should be reversed. Petitioner requested a formal administrative

hearing and asserted the crime for which he was convicted did not

fall within the scope of section 112.3173(2)(e); and the

conspiracy wa s not related to or associated with his employment

at DOC, but rather related to his activity in the Traditional

American Knights of the Ku Klux Klan ( KKK) and, therefore, did

not amount to a v iolation of the public trust.

On October 18, 2017, the SBA ref erred the matter to DOAH.

The matter was assigned to an Administrative Law Judge and

noticed for a final hearing. After being continued once, a final

hearing was noticed for February 20, 2018.

The parties filed a Joint Pre - hearing Stipulation and agreed

to 11 facts, all of which ha ve been incorporated into this

R ecommended O rder.

A pre - hearing conference was held on February 13, 2018. The

parties discussed, am ong other things, the joint pre - hearing

stipulation and Petitioner Ó s objections to SBA Ó s exhib its.

Specifically, the parties discussed the use of Petitioner Ó s

criminal trial transcript as evidence at the final hearing.

Ultimately, the parties came to a resolution and agreed to allow

the criminal trial transcript to be admitted, with the caveat

th at only the testimony portion of the transcripts cited to by

the parties would be considered for the purposes of proposed

recommended orders (PROs) and the recommended order. As a

result, the undersigned has reviewed the criminal trial

transcript, but has not considered the pretrial criminal

documentation such as the arrest warrant, amended information, or

Uniform commitment; or portions of the trial transcript

reflecting voir dire, opening or closing arguments by counsel, or

any sidebar discussions unless related to evidentiary rulings.

Petitioner was the only witness at the final hearing.

Petitioner Ó s E xhibits P1 through P16 were offered and accepted

into evidence without objection; Respondent Ó s E xhibits R1

through R5 and R7 through R18 were also offere d and accepted,

without objection. As mentioned above, Petitioner reserved his

right to object to portions of the criminal trial transcript,

Exhibit R6, but did not object to it in the entirety. As such,

Exhibit R6 was also admitted into evidence.

The T ranscript of the final hearing was filed on March 20,

2018. Petitioner requested and was granted two extensions for

the parties to file their PROs. Petitioner did not timely file

its PRO, but because there has been no objection to the late -

filed PRO, it too has been considered. Respondent timely filed

its PRO and it has been considered.

FINDING S OF FACT

1. The Florida Retirement System (FRS) is a public

retirement system as defined by Florida law. See § 121.021(3),

Fla. Stat.

2. Petitioner was a state employee and a special risk class

member of the FRS.

Work History

3. Petitioner was a 20 - year DOC employee. Since 2004, he

served as a sergeant at the Reception and Medical Center at Lake

Butler, Florida (Center).

4 . A sergeant is a supervisory positi on whose duties

include the Ð care, custody and control of inmates. Ñ

5 . R etaliating against an inmate is a violation of DOC

policy and the oath administered to correction officers . 2 /

W itness ing or having knowledge of a DOC officer Ós conspiracy to

murder a former inmate , and failing to report that conspiracy

would also be a violation of a DOC sergeantÓs duties . As

explained by Petitioner, s uch conduct would be, Ð outside the

guidelines. That Ó s not the rules. That Ó s not what [a DOC

sergeant is] supposed to do. Ñ

Underlying Crime

6 . On August 4, 2013, Thomas Driver, a DOC corrections

officer who worked at the Center at the same time as Petitioner,

was involved in an altercation with an inmate (referred to as

Mr. Williams). During that altercation Mr. Willi ams bit

Mr. Driver.

7 . Charles Newcomb was a former DOC employee who knew

Petitioner from the Center and also about Mr. Driver Ó s incident

with Mr. Williams. All of the DOC employees at the Center knew

about the incident between Mr. Williams and Mr. Driv er.

8 . Based on information they gathered f rom work ing at the

Center , Mr. Driver, Mr. Newcomb and Petitioner (collectively

referred to as the conspirators) believed Mr. Williams had a

contagious medical condition and intentionally bit Mr. Driver to

infec t him. After the incident Mr. Driver was subject to

treatment for a possible infection.

9 . Mr. Williams was African - American.

10 . Although their race is not apparent from the record, in

December 2014, the conspirators were members of a local chapter

K KK.

11 . Joe Moore, served as a Knighthawk for the KKK. A

Knighthawk is the person responsible for security at KKK events

and traditionally is responsible for the security and protection

of the KKK Grand Dragon (the leader of the local KKK chapter).

12 . Petitioner and his fellow KKK members (also referred to

as Ð klansmen Ñ ) knew that Mr. Moore was a veteran and had training

as a sniper. Unbeknownst to the conspirators, however, Mr. Moore

was a undercover informant for the F ederal B ureau of

I nvestigation s (FBI) .

13 . Although Mr. Newcomb and Mr. Driver referred to each

other and Mr. Moore as Ð Brother, Ñ they referred to and addressed

Petitioner as Ð Sarge Ñ based on his position as a DOC sergeant at

the Center.

14 . On December 6, 2014, Mr. Driver and Peti tioner

approached Mr. Moore at a KKK event. As they spoke, Mr. Newcomb

stood nearby to ensure that the other klansmen would not

interrupt or overhear the conversation. Mr. Driver and

Petitioner showed Mr. Moore a picture of an African - American

male. The picture was on an 8 Ñ x 10 Ñ piece of paper that looked

as if it had been printed from a database. It was apparent to

Mr. Moore at the time that it was a picture of an inmate. After

speaking with Petitioner and Mr. Driver, Mr. Moore believed they

wanted h is help to harm or kill Mr. Williams.

15. Mr. Moore immediately notified the FBI of his

conversation with Petitio ner and Mr. Driver. At the FBIÓs

request, Mr. Moore began wearing a microphone and secretly, but

legally, taping and transmitting his conver sations with the

conspirators.

16 . Eventuall y, it was confirmed that the conspirators

wanted Mr. Williams put Ð six - feet under. Ñ Mr. Driver explained

to Mr. Moore the graphic nature of the altercation, his

subsequent blood treatment as a result of Mr. W illiams Ó attack,

and the fact Mr. Williams served very little time for the attack

before he was release d on probation. Mr. Driver clearly wanted

revenge.

Mr. Driver: Yeah, it pissed me off. If I

could I Ó d kick his fricking throat out.

Mr. Moore: That Ó s not necessary . . . . I Ó m

all over it we Ó re all over . . . how do you

want [it] done?

Mr. Driver: Well. I Ó m going to tell you

like this: If it was me personally and I had

another chance at him I Ó d stomp his larynx.

17 . O n January 30, 2015, Petition er, Mr. Newcomb , and

Mr. Moore met at a pre arranged location and time to drive to the

area of Mr. Williams Ó home. Mr. Williams had been released and

was no longer in custody at the Center.

18 . Mr. Driver was intentionally absent from this drive so

that he would not come under suspicion for the actions Petitioner

and Mr. Newcomb were planning to take that night. In fact, based

on his knowledge from working at the Center, Petitioner assured

the group that Mr. Driver was working the night shift at the

Cen ter and, therefore, had an alibi.

19 . Petitioner clearly knew the purpose of the drive was to

attempt to kill Mr. Williams. Prior to the drive , Petitioner

asked when they were going to Ð grab him Ñ and discussed with the

others whether he should bring his gun on the ride. He told the

others that he had obtained the gun, a nine - millimeter, from Ð the

guy that I work with. Ñ Petitioner also wanted to wear protective

clothing because he knew, presumably from his work as a DOC

sergeant at the Center, that Mr. W illiams had a contagious

infection or disease.

20 . During the car ride, Petitioner discussed the best way

to terminat e Mr. Williams without raising suspicion . Mr. Newcomb

suggested abducting Mr. Williams , injecting him with insulin, and

leaving him near the water with a fishing pole . Petitioner said

this would look suspicious unless Mr. Williams was known to go

fishing.

21 . The men also discussed how to dispose of Mr. Williams Ó

body. Petitioner suggested a Ð complete disposal Ñ by chopping up

the body.

22 . At some point that night Mr. Newcomb indicated a recent

picture of Mr. Williams would be helpful; Petitioner agreed to

Ð go to work and pull up [Mr. Williams Ó ] picture. Ñ

23 . When they arrived in Mr. Williams Ó neighborhood,

Petitioner made numerous o ffensive and stereotypical remarks

about African - Americans.

24 . Neither Petitioner nor the others took any action

against Mr. Williams the night of the January 30 drive ; and

Mr. Williams was never harmed. 3/

25 . On March 19, 2015, Mr. Moore met with Pet itioner and

showed him a staged picture of Mr. Williams Ó body lying on the

ground in a pool of blood. Upon seeing the photo of what he

believed was Mr. Williams Ó dead body, Petitioner laughed and

stated, Ð I love it. F Ï king p - d on himself . . . good f - kin g

job. Ñ

26 . During that same meeting , Mr. Moore asked Petitioner if

he was happy with the resu lts . Petitioner seemed elated:

Mr. Moore: And, we need to make sure that

everybody was happy with it.

Petitioner: Hell yeah . . . uh Brother I

love you, man . . . . I will call

[Mr. Driver] as soon as I get Î dude you

don Ó t know how happy . . . I love you,

brother. I love you, brother. I love you

brother.

27 . At the final hearing , Petitioner claimed he did not

intend to hurt Mr. Williams, but only went along with the others

because he believed it was part of the KKK initiation process; and

that he was entrapped by the FBI. He also argued he did not know

the victim was Mr. Williams or that he was a former inmate.

Petitioner Ó s assertions are not credibl e and his testimony is

unbelievable for a number of reasons.

28 . First, the evidence at the underlying criminal trial

established the conspirators did not want KKK leaders to know

about the plan to attack Mr. Williams. Petitioner admitted the

KKK oath includes a promise not to commit acts of violence. These

facts contradict the assertion that Petitioner was pretending to

plan the death of an African - American (who coincidentally happened

to be a former inmate) just to prove his loyalty to the KKK.

29 . Second, although he claimed he was unaware of the

purpose of the January 30 car ride or that Mr. Williams was a

former inmate, the transcripts of the taped recordings clearly

establish this is not true. In fact, Petitioner not only knew who

the intended v ictim was, but knew he had attacked Mr. Driver and

that he allegedly had an infectious disease.

30 . Third, Petitioner Ó s testimony that he was a passive

participant induced by the FBI informant into planning the death

of Mr. Williams is also implausible. Again, Petitioner offered to

bring a gun along on the ride, offered advice on how to possibly

set up the attack so that it looked like an accident, and

suggested how to dispose of Mr. Williams Ó body. PetitionerÓs

reaction to seeing Mr. Williams Ó body in the photo also

co ntradicts any contention that he did not intend harm to

Mr. Williams or that he did not derive any pleasure from his

death.

31 . Finally, Petitioner testified he was not racist . This

was clearly contradicted by the statements he made abo ut African -

Americans during the January 30 car ride. Similarly, his

testimony that he was a passive KKK member who only participated

in its social aspects ( i.e. , picnics and Ð fellowship Ñ ) was belied

by his own acknowledgment that his wife did not want him to be a

member of the KKK , and that he participated in cross - burnings. 4 /

32 . O n August 11, 2017 , a jury found Mr. Moran guilty of

Conspiracy to Commit Murder in the First Degree. 5 /

Findings of Ultimate Fact

33 . The evidence clearly establishes there is a nexus

between Petitioner Ó s employment as a DOC correctional sergeant at

the Center and the commission of the felony of conspiracy to

commit murder.

34 . Petitioner Ó s actions were intentional and he knew his

participation in the conspiracy was illegal.

35 . Petitioner knowingly violated his obligation as a sworn

correctional officer by participating in the conspiracy and not

reporting the criminal activity committed by the other

conspirators.

36 . Petitioner defrauded the public from receiving the

faith ful performance of his duties as a DOC sergeant. The public

had a right to expect that one entrusted with guarding inmates

would not act as a violent vigilante to exact revenge for a fellow

correctional officer.

37 . Petitioner realized a profit, gain, o r advantage from

the commission of the crime in the form of self - gratification and

comradery with and respect from Mr. Driver.

38 . Petitioner used his power, rights, privileges, and the

knowledge accessible to him through his work as a correctional

offic er to facilitate his crime.

CONCLUSIONS OF LAW

39 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1) , Florida Statutes .

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

Flo rida law , and the SBA Ó s proposed action to forfeit Petitioner Ó s

FRS rights and benefits is subject to administrative review. See

§ 112.3173(5)(a), Fla. Stat.

41 . Article II, section 8, Florida Constitution, titled

Ð Ethics in Government, Ñ states in pertin ent part:

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

publ ic 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.

42 . Section 112.3173 implements Article II, section 8,

Florida Constitution, and is part of the st atutory code of ethics

for public officers and employees. The statute states in

pertinent part:

(1) INTENT. Ï It is the intent of the

Legislature to implement the provisions of

s. 8(d), Art. II of the State Constitution.

(2) DEFINITIONS. Ï As used in thi s section,

unless the context otherwise requires, the

term:

* * *

(e) Ð Specified offense Ñ 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, realizes or obtains, or

attempts to realize or obtain, a profit, gai n,

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

* * *

(3) FORFEITURE. 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 rights and benefits under a ny

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.

4 3 . As the party asserting that Petitioner has forfeited his

rights and benefits under the FRS pursua nt to section 112.3173(3),

the SBA bears the burden of proof in this proceeding. See Rivera

v. Bd. of Trs. of Tampa Ó s Gen. Emp Ó t Ret. Fund , 189 So. 3d 207,

210 (Fla. 2d DCA 2016).

44 . The statutory forfeiture provision at issue, section

112.3173(3), is n ot penal in nature . Therefore, the standard of

proof in this proceeding is a preponderance of the evidence.

§ 120.57(1)(j), Fla. Stat.; Combs v. State Bd. o f Admin. , Case

No. 15 - 6633 , 2016 Fla. Div. Admin. Hear. LEXIS 262, at *21 (Fla.

DOAH May 10, 201 6 ; SBA July 26, 2016 ).

45 . Where, as here, the crime committed by the public

officer is not a violation of a specific statute or type ( as

defined in section s 112.3173(2)(e)1. through 5. or subsection 7. ) ,

the question is whether the employee Ó s crime falls within section

112.3173(2)(e)6., which has been called the Ð catch - all Ñ provision

of the forfeiture statute. See Bollone v. Dep Ó t of Mgmt. Servs. ,

100 So. 3d 1276, 1280 (Fla. 1st DCA 2012). To fall under th is

Ðcatch - allÑ provision , the criminal act must be:

(a) a felony;

(b) committed by a public officer or employee;

(c) done willfully and with the intent to defraud the

employee Ó s public employer of the right to receive the faithful

performance of the employee Ó s duty;

(d) done to realize or obtain a profit, gain, or advantage

for the employee or some other person; and

(e) done through the use of the power, rights, privileges,

duties, or position of the employee Ó s public employment. See

Bollone , 100 So. 3d at 1280 - 81.

46 . Ultimately, whether a par ticular crime falls under the

Ð catch - all Ñ provision Ð depends on the way in which the crime was

committed. Ñ See Bollone , 100 So. 3d at 1280 ( Ð this Court has held

that the term Ò specified offense Ó is defined by the conduct of the

public official, not by the elements of the crime for which the

official was convicted. Ñ ).

47 . There is no dispute Petitioner was a public employee

when he committed the acts described above. There is a lso no

dispute Petitioner was found guilty of a felony by a jury. Thus,

the fi rst two criter ia for section 112.3173(2)(e)6. are satisfied.

48 . On t he question of whether Petitioner defrauded the

public or DOC, this requirement is satisfied if there is evidence

of a Ð nexus between the crimes charged against the public officer

and hi s or her duties and/or position. Ñ DeSoto v. Hialeah Police

Pension Fund Bd. of Trs. , 870 So. 2d 844, 846 (Fla. 3d DCA 2003).

The nexus is satisfied where a state employees violates his or her

duties as a public officer in failing to safeguard the public Ó s

faith in that public office or position. Id.

49. In DeSoto , the petitioner was a law enforcement officer

who had identified the victim through his role as an officer ; used

information about the victim he learned because of his role as an

officer; and provided his accomplice, another officer, information

about the victim Ó s whereabouts so that the crime could be

committed. Id. at 846 ( Ð DeSoto informed his accomplices that this

individual was a drug dealer, provided surveillance prior to the

robbery, con tacted a police officer accomplice to notify him that

the victim was leaving work so that the officer could conduct a

traffic stop, and provided the handcuffs used to restrain the

victim. Ñ ) . As in DeSoto , here the facts demonstrate there was a

nexus betwe en Petitioner Ó s role as a DOC sergeant and the

conspiracy to kill a former inmate. See also Maradey v. St. Bd.

of Admin. , Case No. 13 - 4172, 2014 Fla. Div. Admin. Hear. LEXIS 21,

22 (Fla. DOAH Jan. 16, 2014; Fla. SBA Apr. 7, 2014)(ÐBut for her

employment w ith MDT, petitioner would not have had access to, or

enjoyed the relationships with, the other MDT employees she

recruited for participation in the criminal scheme, and she would

not have had the knowledge of their conditions, which made them

targets for h er recruitment efforts.Ñ) .

50 . Moreover, the public and DOC had a right to expect that

Petitioner would not engage in plotting the murder of a former

inmate with other past and current co - workers. As a sworn

correctional officer, Petitioner had an obli gation to refrain from

getting revenge on former inmates. H e also had an obligation to

report criminal activity committed by another correctional

officer. Petitioner obviously violated his oath by not reporting

the illegal activity by Mr. Driver and Mr. Newcomb. That fact (in

and of itself) would be sufficient to establish the nexus between

Petitioner Ó s offense and his duties as a public employee. See

Zeh v. Bd. of Trs. of the City of Longwood Police Officers Ó and

Firefighters Ó Pension Trust Fund , Case No. 14 - 0870, 2014 Fla. Div.

Admin. Hear. LEXIS 355 (Fla. DOAH Jun e 30, 2014; Bd. of Trs.

Oct. 24, 2014)(evaluating the nexus between petitioner Ó s duties as

a police officer , noting employee took an oath which he violated

by committing the underlying felo nies) .

51 . As for the fourth criterion, while satisfying one Ó s

thirst for revenge is not a monetary gain, the personal gain

referenced in section 112.3173(2)(e)6. is not limited to finances.

See Zeh v. Bd. of Trs. , 2014 Fla. Div. Admin. Hear . LEXIS 355,

at *10 (rejecting P etitioner Ó s argument that R espondent failed to

demonstrate that the offense was committed to obtain a profit by

concluding that Ð the statute does not provide that only economic

gain can be considered personal gain. Ñ )

52. In Bollone , pe titioner committed his crime for passion,

not money; he believed his conduct would stop an affair between

his wife and the victim of his crime, and save his marriage. Such

personal benefits obtained while employed as a law enforcement

officer Ð are the typ es of profits and intended benefits

chapter 112 was enacted to prohibit. Ñ Bollone , 100 So. 3d at 1282

(noting that Ð [n]umerous hearings under this forfeiture statute

and similar statutes have consistently concluded that sexual

gratification constitutes p ersonal gain. Ñ ). Here, based on his

reaction to the photograph of Mr. Williams Ó body, it is reasonable

to infer that Petitioner received gratification; and that he also

may have benefitted in his relationships with Mr. Driver and

Mr. Newcomb.

53 . The f ifth and final criterion for a specified offense

under section 112.3173(2)(e)6. requires that the felonious conduct

be done through the use or attempted use of the Ð powers, rights,

privileges, duties, or position of the employee Ó s environment. Ñ

Bollone v. Dep Ó t of Mgmt. Servs. , 100 So. 3d at 1281.

54 . As stated previously, there is no dispute Petitioner

conspired with another DOC employee and a former DOC employee to

plan the murder of a former inmate. There was no evidence that

Petitioner would have com e into contact with the victim inmate

through any other means other than his role as a DOC sergeant. In

other words, but for the knowledge, relationships and privileges

of his position, Petitioner would not have been involved in the

conspiracy to kill Mr. Williams. Under the circumstances of this

case, SBA has satisfied its burden of showing the required nexus.

See Maradey , 2014 Fla. Div. Admin. Hear. LEXIS at * 22 ( using the

Ðb u t for Ñ to establish nexus between position and disqualifying

offense); see al so Bollone , 2011 Fla. Div. Admin. Hear. LEXIS 259,

at *22 (concluding petitioner Ó s Ð gain or advantage to himself was

effected through the use of the power, rights, privileges and

position of his employment at [the community college]. His use of

the public computer was a power, right and privilege of his

position which he exercised to possess child pornography Ñ );

Holsberry v. Dep Ó t of Mgmt. Servs., Div. of Ret. , Case No. 09 -

0087, 2009 Fla. Div. Admin. Hear. LEXIS 933 (Fla. DOAH July 24,

2009; Fla. DMS Oct. 22, 2009)(concluding petitioner Ð used or

attempted to use the power, rights, privileges, duties, or

position of his public office, and his contact with R.D. was made

possible only as a result of his position as a teacher. Ñ );

Mar y land v. Dep Ó t of Mgmt. Serv s., Div. of Ret. , Case No. 08 - 4385,

2008 Fla. Div. Admin. Hear. LEXIS 294 , at *19 (DOAH Dec. 15, 2008;

Fla. DMS Jan. 20, 2009)(concluding the petitioner Ð used or

attempted to use the power, rights, privileges, duties, or

position of his public offic e. Pet itioner Ó s actions were made

possible only as a result of his position as a teacher. Ñ ). Based

on the facts cited above, this fifth criterion has been satisfied.

55 . Petitioner argues SBA failed to prove either the nexus

or the motive element of the Ðcat ch - allÑ provision at the hearing

and cites Rivera v. B oar d of Tr easurers of Tampa's Gen eral

Employment Retirement Fund . In Rivera , the employee pled guilty

to the underlying offense, and the only evidence as to why or how

the crimes were committed was in the form of police reports and

other documents, which were deemed inadmissible hearsay. Rivera ,

189 So. 3d at 2 12 - 213. In contrast, in this case there was a full

jury trial. The undersigned finds there was competent substantial

evidence supporting both a finding of PetitionerÓs benefit from

the conspiracy and the necessary nexus. This evidence was in the

form of PetitionerÓs own testimony at the final hearing; the eye -

witness testimony of the FBI informant ; and the taped FBI

recordings, which were admis sible as a party admission pursuant to

section 90.803(18)(a) , Florida Statutes.

56. Petitioner also relies on the case of Paul G. T illis v.

St ate Bd. of Admin . , S.B.A. Case No. 09 - 1581 (Apr. 19, 2010). 6 /

T he issue in Tillis , however, was whether the stat e employee Ó s

benefits could be forfeited for committing a federal crime.

There, the analysis involved a comparison of the elements of the

underlying federal crime and the equivalent crime under Florida

law. Additionally, unlike this case, in Tillis there was

insufficient evidence establishing the employeeÓs motivation or

the benefit derived from the underlying crime. As such, Tillis is

inapplicable and unpersuasive.

57 . In sum, the evidence establishes Petitioner (1) was

convicted of a felony; (2) was a public employee; (3) committed

the crime willfully and with intent to defraud the public of the

right to receive the faithful performance of his duty as a DOC

employee; (4) realized, obtained, and attempted to realize or

obtain, a profit or gain for hims elf; and (5) made his criminal

act possible through his public employment position.

58 . Accordingly, the offense to which Petitioner was found

guilty qualifies for the Ðcatch - allÑ provision under section

112.3173(2)(e)6. , and therefore falls under the def inition of

Ð specified offenses .Ñ

5 9 . As such, all of the requirements in section 112.3173(3)

for forfeiture are met. Petitioner is deemed to have forfeited

all of his rights and privileges in his FRS Investment Plan

account, except for the return of his accumulated contributions as

of the date of his termination.

RECOMMENDATION S

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the State Board of Administration

issue a final order finding that Petitioner was a publ ic employee

convicted of a specified offense committed prior to retirement ;

and that pursuant to section 112.3173 , he has forfeited all of his

rights and benefits in his Florida Retirement System Investment

Plan account, except for the return of his accumu lated

contributions as of the date of his termination.

DONE AND ENTERED this 15th day of May , 2018 , in Tallahassee,

Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 15th day of May , 2018 .

ENDNOTE S

1/ All statutory cit ations will be to the 2017 version of the

Florida Statutes unless indicated otherwise.

2/ Petitioner admitted that he was required to take an oath upon

becoming a DOC officer. Although not offered into evidence,

official recognition can be taken of the DOC Code of Conduct ,

which states:

I. I will never forget that I am a public

official sworn to uphold the Constitutions of

the United States and the State of Florida.

II. I am a professional committed to the

public safety, the support and protection of

my fellow officers, and co - workers, and the

supervision and care of those in my charge. I

am prepared to go in harm Ó s way in fulfillment

of these missions.

III. As a professional, I am skilled in the

performance of my duties and governed by a

code of ethics that demands integrity in word

and deed, fidelity to the lawful orders of

those appointed over me, and, above all,

allegiance to my oath of office and the laws

that govern our nation.

IV. I will seek neither personal favor nor

advantage in th e performance of my duties. I

will treat all with whom I come in contact

with civility and respect. I will lead by

example and conduct myself in a disciplined

manner at all times .

V. I am proud to selflessly serve my fellow

citizens as a member of th e Florida Department

of Corrections. (emphasis added ) .

3/ As a result of the FBI Ó s knowledge of the car ride and that

the men would be traveling to Mr. Williams Ó home to harm him, it

created a diversion to prevent any action from being taken that

night.

4 / Whether Petitioner was racist or a member of the KKK, or

whether the KKK is a white supremacy group is irrelevant and has

no bearing on whether he violated section 112.3173(2)(e). It is

mentioned here as a comment on PetitionerÓs credibility and

bec ause Petitioner made it the focus of his defense at the

hearing. As argued by his counsel, Ð [t]he fact that [Mr.]

Williams was an inmate at DOC a year before this happened had

nothing to do with a plan. It had to do with a black man

attacking a white man who is a member of a racist organization,

the KKK. Ñ

5 / The conspirators were all charged with conspiracy.

Mr. Newcomb was tried with Petitioner and found guilty; Mr. Driver

pled guilty prior to trial. Mr. Moran has appealed his

conviction.

6/ Tilli s was an informal unpublished admini strative opinion.

T he undersigned has taken official notice of the rec ommended and

final orders in Tillis which were submitted as an exhibit to the

Joint Pre - trial Stipulation.

COPIES FURNISHED:

Brian A. Newman, Esqu ire

Pennington, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32302

(eServed)

Robert Anthony Rush, Esquire

Robert A. Rush, P.A.

11 Southeast Second Avenue

Gainesville, Florida 32601

(eServed)

Ash Williams, Executiv e Director

& 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 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.