18-000067 Heike Stoll vs. State Board Of Administration Status: Closed Recommended Order on Wednesday, May 23, 2018.

Summary: Petitioner is not entitled to former spouse's FRS Retirement benefits; former spouse forfeited the benefits upon commission of crimes. "Innocent spouse" theory is not applicable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEIKE STOLL,

Petitioner,

vs. Case No. 18 - 0067

STATE BOARD OF ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing w as held in this case

on March 7, 2018, by video teleconference at sites in Sarasota

and Tallahassee, Florida, before Administrative Law Judge Lynne

A. Quimby - Pennock of the Division of Administrative Hearings

("DOAH").

APPEARANCES

For Petitioner: William Matthew Kowtko , Esquire

Kowtko Law Group

Suite 882

1800 Second Street

Sarsot a, Florida 34236

For Respondent: Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Petitioner, Heike Stoll (f/k/a Heike Bybee) , has

standing to assert a claim or right to any portion of he r former

husbandÓs Florida Retirement System ( Ð FRS Ñ ) benefits as an

Ðinnocent spouseÑ pursuant to Article II, Section 8(d) of the

Florida Constitution , and section 112.3173, Florida Statutes

(2017). 1/

PRELIMINARY STATEMENT

By letter dated November 9, 2017, the State Board of

Administration ( Ð SBA Ñ ) notified Frankie Bybee that his rights

and benefits under the FRS were "forfeited as a result of [his]

plea of guilty in the Circuit Court of the Twelfth Judicial

Circuit, in and for Sarasota County, Florida, for acts committed

while employed with [the] Sarasota County SheriffÓs Office."

Mr. Bybee was found guilty of certain felony charges and is

currently incarcerated. Ms. Stoll filed a n ÐFRS Investment Plan

Petition for HearingÑ contesting the notice asserting that she

Ðdid not commit the crimes that caused my husbandÓs Retirement

Benefits to be forfeitedÑ and that she was entitled to Ða

marital interest in these Retirement Benefits through my 23

years years (sic) of marriage and my husband is the father of

our three children.Ñ Subsequently, the case was referred to

DOAH. Pursuant to notice, a final hearing was scheduled for and

held on March 7, 2018.

On February 26, 2018, the parties filed a Pre - hearing

Stipulation that contained ten stipulated facts. As war ranted,

these statements have been incorporated into the Findings of

Fact set forth below.

At the final hearing, Petitioner testified on her own

behalf. Petitioner requested and Respondent did not object to

keeping the record open to allow PetitionerÓs Ex hibit 2, the

ÐFinal Judgment of Dissolution of MarriageÑ to be filed. The

undersigned granted the request , and on April 18, 2018,

PetitionerÓs Exhibit 2 was filed. The hearing record was then

closed.

Respondent's Exhibits 1 through 8 were admitted into

evidence. Respondent did not present any witnesses, but did

cross - examine Ms. Stoll.

The one - volume Transcript was filed on April 25, 2018, and

the parties timely filed their proposed recommended orders,

which have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Mr. Bybee is a member of the FRS Investment Plan by

virtue of his former employment as a deputy with the Sarasota

County Sheriff, an FRS participating employer.

2. On October 6, 2017, in Sarasota County Circui t Court

Case Number 2017CF001018, Mr. Bybee was found guilty by jury

verdict of the following felonies under Florida law: Kidnap -

Commit or Facilitate Commission of Felony ; Crimes Against

Person - Exploitation Elderly or Disabled Adult $20,000 to

$100,000 do llars ; Fraudulent Use of Personal Identifying

Information (8 counts) ; and Computer Crime to Defraud or Obtain

Property (3 Counts) (referred to collectively as the Ðfelony

convictionsÑ).

3. On October 6, 2017, judgment was entered against

Mr. Bybee adjudi cating him guilty of the felo n y convictions.

4. The SBA notified Mr. Bybee that his felony convictions

required forfeiture of his FRS benefits under section

112.3173(2)(e), Florida Statutes. Mr. Bybee did not file a

petition for hearing to challenge the Notice of Forfeiture or

otherwise assert that his felony convictions did not warrant

forfeiture of his FRS benefits under the forfeiture statute.

5. Mr. BybeeÓs interest in his FRS benefits is subject to

forfeiture due to his commission of the crimes, and his felony

convictions.

6. Ms. Stoll was married to Mr. Bybee on August 27, 1994.

7. On or about May 9, 2017, Ms. Stoll filed her Petition

for Dissolution of Marriage in Manatee County (Circuit Court Case

Number 2017 - DR - 2067) asserting her interest in, inter alia,

Mr. BybeeÓs FRS benefits.

8. On December 8, 2017, Ms. Stoll filed an ÐFRS Investment

Plan Petition for HearingÑ asserting her claim of entitlement to

her spousal share of Mr. BybeeÓs FRS benefits as an Ðinnocent

spouse.Ñ

9. On February 26, 2018, Mr. Bybee and Ms. Stoll executed a

Marital Settlement Agreement. As to retirement accounts,

Mr. Bybee and Ms. Stoll agreed to the following:

Retirement Accounts/Pension. Wife shall

receive as her sole property, and all equity

and value therein, al l retirement accounts

and/or pensions in the HusbandÓs sole name,

in the joint name of the parties, and/or in

the WifeÓs sole name, free and clear of any

claims or interest which Husband may have

thereto. Specifically, Husband has a

pension and/or retirem ent account through

the County of Sarasota SheriffÓs Department,

State of Florida. Wife shall receive as her

sole property, and all equity and value

therein, in said pension and/or retirement

account, free and clear of any claims or

interest which Husband may have thereto.

Further, Husband assigns, transfers, and

relinquishes any legal or equitable claims,

causes of action, or remedies of any nature

against the pension and/or retirement

account through the County of Sarasota

SheriffÓs Department, State of Florida; and

Husband shall fully cooperate with Wife in

any and all respects as necessary for Wife

to pursue any such legal or equitable claims,

causes of action, or remedies related any

manner said pension and/or retirement

account.

10. Ms. Stoll was not charged with or convicted of any

crimes related to Mr. BybeeÓs felony convictions. Ms. StollÓs

testimony was credible that she was unaware of Mr. BybeeÓs

crimes, and had not benefited from them in any fashion.

11. On April 16, 2018, a Final Judgement of Dissolution of

Marriage was entered in Manatee County Circuit Court Case Number

2017 - DR - 2067 that Ðapproved, ratified and incorporatedÑ the

marital settlement agreement.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the subject matter of the

proc eeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes.

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

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

Mr. Bybee's FRS rights and benefits ( includin g the hearing

involving Ms. Stoll), is subject to a dministrative review. See

§ 112.3173(5)(a), Fla. Stat.

14. The FRS was created effective December 1, 1970. As

stated above, Mr. Bybee became a member of the FRS by virtue of

his employment with the c ounty sheriffÓs office. The pension

obligation is a contract which is governed by statute. The

forfeiture provision has been part of the governing statute

since its inception. See Busbee v. State, Div. of Ret. , 685

So . 2d 914 (Fla. 1st DCA 1996).

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

ÐEthics in Government,Ñ states in pertinent 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

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.

16. S ection 112.3173 implements Article II, section 8,

Florida Constitution, and is part of the statutory 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 this section,

unless the context otherwise requires, the

term:

(a) ÐConvictionÑ and ÐconvictedÑ 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.

* * *

(c) ÐPublic officer or employeeÑ means an

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

(d) ÐPublic retirement systemÑ means any

retirement system or plan to which the

provisions of part VII of th is chapter

apply.

( e) ÐSpecified offenseÑ means:

1. The committing, aiding, or abetting of

an embezzlement of public funds;

2. The committing, aiding, or abetting of

any theft 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

offense;

6. The committing of any felony by a public

officer or employee who, wi llfully 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, 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 pos ition; 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.

(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

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.

* * *

(5) FORFEITURE DETERMINATION. Ï

(a) Whenever the official or board

responsible for paying benefits under a

public retirement system receives notice

pursuant to subsection (4), or otherwise has

reason to believe that the rights and

privileges of any person un der such system

are required to be forfeited under this

section, such official or board shall give

notice and hold a hearing in accordance with

chapter 120 for the purpose of determining

whether such rights and privileges are

required to be forfeited. If the official

or board determines that such rights and

privileges are required to be forfeited, the

official or board shall order such rights

and privileges forfeited.

17. The statutory forfeiture provision at issue, section

112.3173(3), is not penal in n ature. Therefore, the standard of

proof in this proceeding is a preponderance of the evidence.

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

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

DOAH May 10, 2016; SBA July 2 6, 2016).

18. T he SBA bears the burden of proof in this proceeding

to establish that the FRS benefits have been forfeited. See Fla.

DepÓt of Trans. v. J. W. C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981); and Balino v . DepÓt of HRS , 348 So. 2d 349 (Fla. 1st DC A

1977).

19. The facts demonstrate that Mr. Bybee did not challenge

the SBAÓs notice of intent to forfeit his FRS benefits. There is

a stipulation that Mr. BybeeÓs felony convictions require

forfeiture of his FRS benefits. Once Mr. Bybee was convicted ,

the terms of the contract were broken and Mr. Bybee forfeited his

retirement benefits under the contract. As provided in Childers

v . DepÓt of Mgmt. Servs., Div. of Ret. , 989 So. 2d 716 (Fla. 4th

DCA 2008), the court found:

Here, the State entered into a contract with

the employee, promising to pay him benefits

upon his retirement. That contract included

a condition precedent: Թ the employee must

refrain from committing specified offenses

prior to retirement. The non - occurrence of

that condition foreclo sed the employee's

right to performance . It is as direct and to

the point as that . There simply is no

violatio n of the Excessive Fines Clause.

ÐThis is not a prosecution under Florida

criminal law for accepting a bribe, and it is

not a punishment for ac cepting a bribe. This

is an action to enforce the terms of the

pension contract and nothing more.Ñ Busbee ,

685 So. 2d at 917.

20. Ms. Stoll argues that she is entitled to her former

husbandÓs FRS benefits through an Ðinnocent spouseÑ theory. An

exh austive review of chapter 112, p art III, the Code of Ethics

for Public Officers and Employees, includi ng section 112.3173,

fails to provide support for that theory. The SBAÓs authority is

limited by the statute it applies. The SBA cannot add an

exception to the FRS forfeiture statute that does not exist. See

State, DepÓt of Env tl . Reg. v . Puckett Oil Co . , 577 So. 2d 988,

991 (Fla. 1st DCA 1991).

21. Mr. BybeeÓs claim to any FRS retirement benefits

vanished when he committed the crimes. See Garay v . DepÓt of

Mgmt. Servs., Div of Ret. , 46 So. 3d 1227 (Fla. 1st DCA 2010).

Mr. Bybee did not have any FRS benefits to transfer to Ms. Stoll,

marital agreement or not, because he was not entitled to the

benefits.

RECOMMENDATION

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 is not entitled to

her former husbandÓs retirement benefits, because he was a public

employee convicted of specified offenses; and pursuant to section

112.3173, he forfeited all of his rights an d benefits in his

Florida Retirement System Investment Plan account upon committing

the crimes.

DONE AND ENTERED this 2 3rd day of May , 2018 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 3 r d day of May , 2018 .

ENDNOTE

1/ All statutory references are to Florida Statutes (201 7 ),

unless otherwise noted.

COPIES FURNISHED:

Brandice Davidson Dickson, Esquire

Pennington, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahass ee, Florida 32302

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32302

(eServed)

William Matthew Kowtko , Esquire

Kowtko Law Group

Suite 882

1800 Second Street

Sarasot a, Florida 34236

(eServed)

Ash Williams, Executive Director

and Chief Investment Officer

State Boa r d of Administration

1801 Hermitage Boulevard , Suite 100

Post Office Box 13300

Tallahasse e , Florida 323 17 - 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.