18-000054 Susan Painter vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, September 25, 2018.

Summary: Department failed to prove that Petitioner's no contest plea to a charge of grand theft established a "specified offense" justifying forfeiture of her pension benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN PAINTER,

Petitioner,

vs. Case No. 18 - 0054

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

A forma l hearing was conduc ted in this case on June 20

and 21, 2018, in Tallahassee, Florida, before Lawrence P.

Stevenson, a duly - designated Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven R. Andrews, Es quire

Ryan Andrews, Esquire

Brian O. Finnerty, Esquire

The Law Offices of Steven R. Andrews, P.A.

822 North Monroe Street

Tallahassee, Florida 32 303

For Respondent: Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 323 99

STATEMENT OF THE ISSUE

The issue is whether Petitioner has forfeited her rights

and benefits under the Florida Retirement System (ÐFRSÑ)

pursuant to section 112.3173, Florida Statutes (2017). 1/

PRELIMINARY STATEMENT

In a certified letter dated Octob er 27, 2016, Respondent ,

Department of Management Services, Division of Retirement (the

ÐDepartmentÑ) , notified Petitioner Susan Painter, the former

softball coach at Gulf Coast State College (ÐGulf CoastÑ), that

her rights and benefits under the FRS were forfeited as a result

of her no contest plea to one count of grand theft, in violation

of section 812.014, Florida Statutes, Ðfor acts committed in

connection withÑ her employment at Gulf Coast. The certified

mail receipt indicated that Ms. Painter receiv ed the letter on

January 14, 2017.

In an Order of Waiver entered on October 3, 2017, the

Department found that Ms. Painter had failed to exercise her

right to request a hearing within 21 days of receiving the

certified letter. The Order of Waiver made fin al the

D epartment Ós preliminary decision to find that Ms. Painter had

forfeited her rights and benefits under the FRS.

The Department entered an Order Rescinding Final Order on

December 11, 2017, finding that an Ðerror in communicationÑ

between Ms. Painter Ós attorney and the Department had prevented

Ms. PainterÓs timely petition from being received by the

Department.

On January 5, 2018, the Department referred the case to the

Division of Administrative Hearings ("DOAH") for assignment of

an A dministrative L aw J udge and the conduct of a formal

evidentiary hearing. The case was initially scheduled for

hearing on March 21 and 22, 2018. On February 22, 2018, an

O rder was entered granting PetitionerÓs consented motion for

continuance. The case was rescheduled for June 20 and 21, 2018,

on which dates it was convened and completed.

The parties submitted a Joint Pre - h earing Stipulation. The

stipulated facts from that document are included in the Findings

of Fact in this Recommended Order.

At the hearing, the Depa rtment presented the testimony of

Ms. Painter and of Allison Olson, a Benefits Administrator in

the Division of RetirementÓs Bureau of Retirement Calculations.

The DepartmentÓs Exhibits 1 through 3 and 6 were entered into

evidence. The Department recalle d Ms. Olson as a rebuttal

witness. Petitioner presented the testimony of Ms. Painter.

PetitionerÓs Exhibits 1 through 12 and 14 through 18 were

entered into evidence.

At the close of the hearing, the parties stipulated that

their proposed recommended ord ers would be filed within 20 days

of the filing of the Transcript at DOAH. The two - volume

Transcript of the hearing was filed at DOAH on July 24, 2018.

Both parties timely filed their Proposed Recommended Orders on

August 13, 2018.

FINDING S OF FACT

Bas ed on the record in this proceeding, including the

evidence presented at the formal hearing and the stipulation of

the parties in the Joint Response to Pre - hearing Order, the

following Findings of Fact are made:

1. The F RS is a public retirement system as defined by

Florida law.

2. The Florida Division of Retirement is charged with

managing, governing, and administering the FRS on behalf of the

Florida Department of Management Services.

3. For over 21 years, Ms. Painter was the head softball

coach for Gu lf Coast, an FRS - participating employer. By virtue

of her employment, Ms. Painter was enrolled in the FRS.

4. On May 5, 2014, the Bay County SheriffÓs Office

commenced an investigation into allegations that Ms. Painter had

misappropriated cash that had b een provided to her to pay for

playersÓ meals during a softball tournament in Las Vegas and

that Ms. Painter was collecting and keeping rent money from

softball players who were on full room - and - board scholarships

and had their rent paid by the college.

5. In the summer of 2014, Ms. Painter was charged by

information with on e count of grand theft, a third - degree

felony.

6. Gulf Coast did not terminate Ms. PainterÓs employment.

Gulf Coast allowed Ms. PainterÓs employment contract to expire

on June 20, 201 4.

7. On January 9, 2015, the information was amended to

include seven counts of grand t heft, each constituting a

third degree felony under section 812.014(1) and (2)(c), Florida

Statutes (2014). Though some counts dealt with other

allegations, for the purposes of this proceeding , the essential

charges involved the meal money and the rental payments.

8. Ms. Painter ultimately entered a plea of nolo

contendere to one count of grand theft. During the hearing

before the court, the state attorney specifie d that Ms. Painter

was pleading to Count IV, which alleged theft of the meal money.

The contemporaneous notes taken by the court clerk state that

Ms. Painter was pleading to ÐCount 4.Ñ The order of probation

states that she pled to ÐCount 4.Ñ

9. However , the actual written ÐPlea, Waiver and ConsentÑ

signed by Ms. Painter and the attorneys shows the numeral Ð1Ñ

under the heading, ÐCount.Ñ It is unclear from the document

whether Ms. Painter was pleading nolo contendere to one count of

grand theft, or to C ount I of the information. Count I involved

the allegation that Ms. Painter had improperly collected rent

from one of the scholarship players, Megan Griffith.

10. At the circuit court hearing, no mention was made of

the specific factual allega tions in th e count to which

Ms. Painter was pleading. The court made no findings of fact .

Ms. Painter was not required to allocute to any facts. 2/

11. Upon entry of the nolo contendere plea, the court

withheld adjudication. Ms. Painter was given two yearsÓ

probat ion and ordered to make restitution of $4,400 , perform

100 hours of community service, and was directed to have no

contact with Gulf Coast or her former players.

12. The undersigned finds that the understanding of all

parties, including the court, was t hat Ms. Painter was pleading

nolo contendere to Count IV of the information. The amount of

restitution ordered is roughly consistent with the amount of

meal money that was at issue in Count IV. The numeral Ð1Ñ on

the plea document is either a misprint or was intended to convey

that Ms. Painter was pleading to a single count of grand theft.

13. At the final hearing, Ms. Painter testified that she

was given $4,752 in cash to pay for meals during the Las Vegas

trip, which began on January 31, 2014, and ende d on February 4,

2014. Ms. Painter testified that if the girls were splitting up

to eat at different restaurants, she would dole out cash to each

group. If everyone was eating at the same restaurant, all the

girls would place their orders , and Ms. Painte r would pay the

entire tab.

14. Ms. Painter testified that this had been her practice

on team trips for some time. She stated that she used to give

each girl her portion of the total meal money at the start of a

trip. However, some girls would inevitab ly spend all of their

money before the end of the trip and Ms. Painter would have to

pay for their meals out of her own pocket. By doling out the

money one meal at a time, Ms. Painter ensured that it would last

the entire five days.

15. Ms. Painter denie d keeping any of the meal money for

herself. She admitted that she did no t keep receipts from each

meal she purchased, but testified that meal receipts were not

required on multiple day trips , such as the Las Vegas

tournament. Nothing she did on this tri p was different than her

usual practice. At the end of the trip, she returned $132 in

unspent meal money to the athletic department.

16. Ms. Painter testified that her nolo contendere plea

was made for financial and emotional reasons. The case had

dragg ed on for 17 months. The ordeal was humiliating and

exhausting. She stated that accepting the plea deal was the

hardest decision she had ever made, but that she did not in fact

take any of the meal money from her softball players.

17. The Department off ered no admissible direct evidence

to contradict Ms. PainterÓs version of events. The undersigned

did not admit the deposition of Gulf Coast Athletic Director

Gregg Wolfe because it was a di scovery deposition taken in

Ms. PainterÓs criminal case. The und ersigned did admit the Bay

County SheriffÓs Office case file on Ms. PainterÓs criminal

case, which included witness interviews and Ms. PainterÓs bank

statements. However, the case file was admitted on the

understanding that it was a hearsay document that could only be

used to supplement or explain other evidence. In the absence of

competent non - hearsay evidence, or any showing by the Department

that elements of the case file would be admissible over

objection in a civil trial, the case file was of no util ity.

18. The DepartmentÓs only witness aside from Ms. Painter

was its employee Allison Olson, the b enefits a dministrator in

the Bureau of Retirement Calculations. Ms. OlsonÓs knowledge of

the case was gleaned purely through her review of the paper

record , including the case file and the transcripts of

depositions taken in the criminal proceeding. She had no first -

hand knowledge of any of the events in question.

19. Ms. Painter offered the deposition testimony of Joanne

Booker, a member of Ms. PainterÓs softball team at the time of

the Las Vegas trip and currently an assistant basketball coach

for Gulf Coast. In most essentials, Ms. Booker corroborated

Ms. PainterÓs testimony. Ms. Booker did not recall many

particulars as to how the meals were purchase d, but testified

that at each meal the players were eit her given cash by

Ms. Painter or had their meal s paid for by Ms. Painter.

Ms. Booker recalled no problems as to meals and recalled no one

complaining about food on the Las Vegas trip.

20. Even if it were found that Ms. PainterÓs plea was

actually entered as to Count I, the findings would be much the

same. Ms. Painter testified that the ÐrentÑ she was accused of

collecting and pocketing from the scholarship players was

actually a voluntary contributio n toward the rent of the non -

scholarship players, to enable the entire team to live together

in the same apartment complex. Ms. Painter testified that any

money she collected was turned over to the lessor of the

apartments.

21. Again, the Department offe red no admissible direct

evidence to contradict Ms. Pai nterÓs version of events.

Ms. PainterÓs testimony was at least credible enough to be

accepted in the absence of any competent non - hearsay evidence to

the contrary.

CONCLUSIONS OF LAW

22. The Divi sion of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Florida Statutes.

23. Respondent has the burden of proving by a

preponderance of evidence t hat Petitioner has forfeited her FRS

retirement benefits. Wilson v. Dep't of Admin., Div. of Ret. ,

538 So. 2d 139 (Fla. 4th DCA 1989).

24. Article II, section 8(d) of the Florida Constitution

provides as follows:

SECTION 8: Ethics in government. -- A publ ic

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 subjec t to forfeiture

of rights and privileges under a public

retirement system or pension plan in such

manner as may be provided by law.

25. This section of the Constitution is implemented in

chapter 112, part III, of the Florida Statutes. The applicable

ver sion of the pension forfeiture statute is the one in effect

on the date of the criminal acts leading to forfeiture. See

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

DCA 1996). 3/

26. Because forfeitures are not favored in Florida, the

pe nsion forfeiture statute should be strictly construed.

Williams v. Christian , 335 So. 2d 358, 361 (Fla. 1st DCA 1976).

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

(3) FORFEITURE. -- Any public officer or

employee who is convicted of a specified

off ense committed prior to retirement . . .

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.

28. Section 112 .3173(2)(a) provides that Ðconviction" 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.

29. Ms. Painter pled nolo contendere to one count of gra nd

theft, a felony of the third - degree under section 812.014(1)

and (2)(c), Florida Statutes (2014). Ms. PainterÓs plea

constitute s a ÐconvictionÑ for purposes of section

112.3173(2)(a).

30. Section 112.3173(2)(e) provides:

(2) (e) ÐSpecified offenseÑ means:

1. The committing, aiding, or abetting of

an embezzlement of public funds;

2. The committing, aiding, or abetting of

any t heft 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

off ense;

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

fa ithful 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; or

7. The committing on or after October 1,

2008, of any felony defined in s. 800.04

against a victim younger than 16 years of

age, or any felony defined in chapter 794

against a victim younger than 18 years of

age, by a public officer or employee through

the use or attempted use of power, rights,

privileges, duties, or position of his or

her public office or employment position.

31. The grand theft felony to which Ms. Painter pled nolo

contendere does not fit the definitions set forth in

subparagraphs 1 . thr ough 5 . or 7 . of section 112.3173(2)(e). If

Ms. Painter is to be subjected to the forfeiture of her pension,

her offense must be found to meet the conditions of the Ðcatch -

allÑ category set forth in subparagraph 6 . of section

112.3173(2)(e). Jenne v. Sta te , 36 So. 3d 738, 742 (Fla. 1st

DCA 2010).

32. To constitute a "specified offense" under s ection

112.3173(2)(e)6., the offense in question must meet all of the

following elements:

(a) It is a felony;

(b) It was committed by a public employee;

(c) It was done willfully and with intent

to defraud the public or the employee's

public employer of the right to receive the

faithful performance of the employee's duty;

(d) It was done to obtain a profit, gain or

advantage for the employee or some other

pers on; and

(e) It was done through the use or

attempted use of the power, rights,

privileges, duties, or position of her

public employment.

Bollone v. Dep't of Mgmt. Servs. , 100 So. 3d 1276, 1280 - 81 (Fla.

1st DCA 2012).

33. It is uncontested that Ms. Pain ter was a public

employee and that she pled no contest to on e count of grand

theft, a third - degree felony. Therefore, the issue is whether

the other three stated elements of the Ðcatch - allÑ provision

have been met.

34. No showing was made that Ms. Painte r acted willfully

and with intent to defraud the public or the public employer of

the right to receive faithful performance of her duties.

Ms. Painter denied actually committing the offense, testifying

that her plea was entered in order to end the financi al and

emotional burden of defending herself. The transcript of the

proceeding in circuit court shows that the court made no

findings of fact and that Ms. Painter was not required to

allocute to any specific facts. The bare fact of the no contest

plea do es not establish Ms. PainterÓs intent. The Department

presented no competent evidence tending to prove Ms. PainterÓs

willful intent to defraud Gulf Coast of its right to receive the

faithful performance of her duties.

35. No showing was made that Ms. Pai nter obtained a profit

through her actions. The case file included many pages of

Ms. PainterÓs bank records, but the Department presented no

witness to authenticate or explain them in any way, let alone

correlate them to the money Ms. Painter was alleged to have

stolen. Ms. Painter steadfastly denied taking and keeping any

money. Her testimony was credible enough to be accepted in the

absence of any competent evidence to the contrary.

36. In the absence of evidence establishing the specific

facts of Ms. PainterÓs offense, it cannot be said that she used

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

position of her employment in the commission of the offense.

37. In summary, the Department carried its burden as to

factors (a) and (b) set forth in Conclusion of Law 32, supra ,

but failed to present evidence to establish that Ms. PainterÓs

actions met the grounds set forth in factors (c), (d), and (e).

Therefore, Ms. Painter cannot be found to have been convicted of

a Ðspecified offenseÑ un der section 112.3173(3), and has not

forfeited her rights and benefits under the FRS.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Management Services,

Division of Retirement, en ter a final order restoring to Susan

Painter her rights and benefits under the Florida Retirement

System and providing for payment to her of any past due

benefits, together with interest at the statutory rate.

DONE AND ENTERED this 25th day of September , 2 018 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September , 2018 .

ENDNOTE S

1/ Citations shall be to Florida Statutes (2018) unless

otherwise specified.

2/ The official t ranscript of the court hearing was attached as

an exhibit to PetitionerÓs Seco nd Motion in Limine, filed

June 19, 2018. Both parties based arguments on the transcript.

The Department did not contest its genuineness, accuracy, or

completeness. The unders igned has therefore deemed it prudent

and in the interest of justice to take judicial notice of the

transcript.

3/ Section 112.3173 has not been amended since 2012. Therefore,

the version in effect at the time of Ms. PainterÓs alleged

offenses in 2014 i s the same as that currently in effect.

COPIES FURNISHED:

Steven R. Andrews, Esquire

The Law Offices of Steven R. Andrews, P.A.

822 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Ryan Andrews, Esquire

The Law Offices of Steven R. Andrews, P.A.

822 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

(eS erved)

Brian O. Finnerty, Esquire

The Law Offices of Steven R. Andrews, P.A.

822 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Bradley R. McVay, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 323 99

(eServed)

Elizabeth Stevens, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

Brittany Griffith, General Counsel

Office of General Counsel

Department of Management Servi ces

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.