19-002747 City Of Tampa General Employees Retirement Fund vs. Deirdre Williams Status: Closed Recommended Order on Thursday, August 29, 2019.

Summary: Forfeiture of retirement benefits is required for Respondent who admitted to committing the specified act of theft.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TAMPA GENERAL EMPLOYEES

RETIREMENT FUND,

Petitioner,

vs. Case No. 19 - 2747

DEIRDRE WILLIAMS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 31, 2 019, Admini strative Law Judge Hetal Desai of

conducted a final hearing by video teleconference between sites

in Tampa and Tallahassee, Florida.

APPEARANCES

For Petitioner: Luis A. Santos, Esquire

Ford & Harrison LLP

Suite 900

101 E ast Kennedy Boulevard

Tampa, Florida 33602

For Respondent: Deirdre Williams , pro se

Apartment B

2426 East Harper Street

Tampa, Florida 33605

STATEMENT OF TH E ISSUE

Whether RespondentÓs rights and benefits under the City of

Tampa General EmployeesÓ Retirement Fund (the Fund) are required

to be forfeited pursuant to section 112.3173, Florida Statutes

(2018 ) . 1/

PRELIMINARY STATEMENT

On March 12, 2019, the City o f Tampa (City) issued a Notice

of Disciplinary Action to Respondent , Deirdre Williams

(Respondent), dismissing her from her employment for providing

false and misleading information during an investigation of City

funds, in violation of section s B28.2A(3)( d)(1) ( relating to

falsification of information related to employment ), and

B28.2A(3)(d)(11) ( relating to theft or unauthorized removal or

use of City property ) of the CityÓs Personnel Manual . Pursuant

to its ÐPolicies and Procedure s,Ñ on May 22, 2019, th e Fund

referred the matter to the Division of Administrative Hearings

and requested it be assigned to an administrative law judge to

conduct proceedings and submit recommended findings pursuant to

sections 120.57 and 1 12.3173, Florida Statutes , regarding t he

potential forfeiture of RespondentÓs pension benefits.

A pr e - hearing telephone conference was conducted on July 19,

2019, at which the burden of proof, presentation of evidence, and

general procedural issues regarding the final hearing were

addressed .

A t the final hearing, Petitioner presented the testimony of

Respondent, Michelle Keeler (a City Parks and Recreation

employee) , and Raymond Rodriguez (a City Human Resources

employee) . PetitionerÓs Exhibits 1 through 4 were admitted in

evidence. Responden t presented no witnesses and offered no

evidence.

On August 12, 2019, the Transcript of the hearing was filed

with DOAH. That same day, an Amended Notice of Filing Transcript

was issued informing the parties that they were to submit

proposed recommended orders (PROs) no later than August 22, 2019.

Petitioner timely filed its PRO, which has been considered in the

preparati on of this Recommended Order. Respondent did not file a

PRO.

FINDING S OF FACT

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

Florida law. The Fund is charged with administering and managing

a pension plan for City employees.

2 . Respondent was an employee of the CityÓs Parks and

Recreation Department. Although s he began working as a seasonal

employee during the summer s when s he was in college, Respondent

began in a permanent capacity as a recreation leader in October

2006.

3 . As part of her duties, Respondent was responsible for

working in the CityÓs afterschool and cheerleading program.

4 . In Fall 2018, Respondent was re sponsible for ordering

the uniforms for the participants in the cheerleading program.

The money for the uniforms was provided to the City by the

participantsÓ parents. Initially, the money was collected by a

parent representative who converted it to a pr e - paid purchasing

card in the amount of $762.00, and submitted the card to

Respondent. Respondent was to use the card to order the uniforms

for the cheerleaders, and the uniforms were to be delivered to

the CityÓs Parks and Recreation office.

5 . Michelle Keeler, RespondentÓs supervisor, noticed the

uniforms had not arrived at the expected date. On October 26,

2018, she questioned Respondent about the delay. Respondent

initially told Ms. Keeler there had been a mistake by the

delivery company. At this p oint, Ms. Keeler, who had supervised

Respondent since Respondent had started working at the City, had

no reason to suspect Respondent was lying.

6 . Over the next few weeks , Ms. Keeler periodically asked

Respondent about the sta tus of the cheerleading uni forms and was

told there was a problem with the delivery.

7 . By mid - November, Ms. Keeler became suspicious and again

asked Respondent about the uniforms. Respondent indicated t he

uniforms had been delivered and left in the office, but were now

missing. Respondent suggested to Ms. Keeler that the cleaning

crew may have thrown out the box of uniforms.

8 . On November 26, 2018, Ms. Keeler called the cheerleading

uniform company and discovered no uniforms had been ordered for

delivery to t he CityÓs Parks an d Recreation D epartment.

9 . The same day, Ms. Keeler confronted Respondent about the

uniforms. Respondent i nsist ed she had ordered them, but could

not produce any records to show that she had made the order. She

was also questioned by another Parks and Recreation supervisor,

and gave the same response.

10 . Upon f urther interrogation, Respondent changed her

story, admitting she had not actually ordered the uniforms . She

claimed the card had been stolen from her .

11 . Respondent later provided a writ t en statement to the

City, in which Respondent claimed she still had the pre - paid card

in her pos session, but that the card no longer had any funds.

12 . Eventually, Respondent admitted to City staff that she

no longer had the funds.

13 . O n November 30, 2018, the City placed Respondent on

suspen sion, pending an investigation. The City considered the

funds collected for the purchase of the uniforms to be City

property. Ultimately, t he City ordered the missing uniforms and

c over ed the cost .

14 . Based on the investigation, the City found Respondent

to be in violation of section B28.2A(3)(d)(1) of the CityÓs

Personnel Manual concerning ÐMoral Turpitude,Ñ prohibiting

Ð[f]alsification, misrepresentation, or material omission of

statements, testimony, or any d ocument or record completed in the

course of employment or in obtaining employment, including group

insurance claims.Ñ

15 . The City also found Respondent had violated section

B28.2A(3)(d)(11) of the Personnel Manual prohibiting theft or

unauthorized remov al or use of City property.

16 . As a result of its investigation and the violations,

the City terminated Respondent on March 12, 2019.

17 . At the hearing, Respondent admitted she collected the

money for the uniforms, misled City staff about the missing

u niforms, and was terminated for theft.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding, pursuant to sections 120. 569, 120.57(1), and

112.3173(5) , Florida Statute s.

19 . The Fund initiated this action to determine whether

RespondentÓs pension benefits must be forfeited under section

112.3173(3) based on her admission of a specified offense.

20 . The Fund has the burden of proof, by a preponderance of

the evidence, that Respondent must forfeit her retirement

benefits. See Rivera v. Bd. of Trs. o f TampaÓs Gen Empl. Ret.

Fund , 189 So. 3d 207, 210 (Fla. 2d DCA 2016); § 120.57(1)(j),

Fla. Stat. Preponderance of the evidence is defined as Ðthe

greater weight of the evide nce,Ñ or evidence that Ðmore likely

than notÑ tends to prove a certain proposition. S. Fla. Water

Mgmt . Dist. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla.

2014).

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

provides:

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.

22 . Section 112.3173(3) is the ope rative forfeiture law,

implementing the constitutional provision. Rivera , 189 So. 3d at

210; Simcox v. City of Hollywood Police OfficersÓ Ret. Sys. , 988

So. 2d 731, 733 (Fla. 4th DCA 2008). This section provides:

Any public officer or employee . . . whos e

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. (emphasis added).

23 . Applying the statutory framework to this matter,

Petitioner is required to prove: (1) Respondent was a public

employee; (2) Respondent admitted to committing a Ðspec ified

offenseÑ under section 112.3173(2)(e); and (3) RespondentÓs

employment was terminated because of her admission. See Rivera ,

189 So. 3d at 210.

24 . As an initial matter, there is no dispute Respondent

was a public employee.

25 . Second, section 112. 3173(2)(e) defines Ðspecified

offenseÑ to include theft: Ð[t]he committing, aiding, or abetting

of any theft by a public officer or employee from his or her

employer.Ñ § 112.3173(2) , Fla. Stat. ; se e also Newmans v. Div.

of Ret. , 701 So. 2d 573, 574 (Fla. 1st DCA 1997)(a Ðspecified

offenseÑ for purposes of forfeiture includes theft). Although

Respondent did not explicitly admit to committing a theft, during

the CityÓs investigation and at the final hearing Respondent

admitted she had misled Ms. Keeler and no longer had the funds on

the card. This constitutes an admission. See Hames v. City of

Miami FirefightersÓ & Police OfficersÓ Tr. , 980 So. 2d 1112, 1117

( Fla. 3d DCA 2008)(where respondent admitted to giving a false

sworn statement to investigators to hide his fellow officersÓ

actions, respondent breached the public trust in violation of a

Ðspecified offenseÑ requiring the forfeiture of retirement

benefits); Hayward v. State , 24 So. 3d 17, 39 (Fla. 2009)

(ÐEvidence of conduct or speech of the accused wh ich demonstrates

a consciousness of guilt . . . supplies the basis for an

inference that the accused is guilty of the offense .Ñ).

26 . Finally, the City terminated Respondent based on its

investigation and on RespondentÓs admission of her wrongful

conduc t. As such, forfeiture is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner , City of Tampa General

EmployeesÓ Retirement Fund enter a final order determining

Respondent, Deirdre W illiams, has forfeited all of her rights and

benefits in the pension plan administered by the Fund, except to

the extent of RespondentÓs accumulated contributions, if any, as

of March 12, 2019.

DONE AND ENTERED this 29th day of August , 2019 , in

Tallahassee , Leon County, Florida.

S

HETAL DESAI

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August , 2019 .

ENDNOTE

1/ References to Florida Statutes are to the 2018 version, unless

otherwise noted.

COPIES FURNISHED:

Luis A. Santos, Esquire

F ord & Harrison LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Deirdre Williams

Apartment B

2426 Harper Street

Tampa, Florida 33605

Natasha Wiederhold, CPA,

GE Pension Plan Supervisor

General Employees Retirement Fund

City o f Tampa

7th Floor East

306 East Jackson Street

Tampa, Florida 33602

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.