20-004311 William F. Davis, Jr. vs. Village Of Palm Springs General Employees? Pension Plan, Board Of Trustees Status: Closed Recommended Order on Friday, March 26, 2021.

Summary: Respondent proved that Petitioner was convicted of a specified criminal offense requiring forfeiture of his rights and benefits under the Village's pension plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

W ILLIAM F. D AVIS , J R . ,

Petitioner ,

vs. Case No. 20 - 4311

V ILLAGE OF P ALM S PRINGS G ENERAL

E MPLOYEES Ô P ENSION P LAN , B OARD OF

T RUSTEES ,

Respondent

and

V ILLAGE OF P ALM S PRINGS ,

Intervenor .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was conducted in this case by video

conference via Zoom on January 26, 2021, before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings ( Ñ DOAH Ò ) .

A PPEARANCES

For Petitioner: Craig A. Boudreau, Esquire

2161 Palm Beach Lakes Boulevard , Suite 204

West Palm Beach, Florida 33409 - 6611

For Respondent: Glenn E. Thomas, Esquire

Lewis, Lo ngman & Walker, P.A.

315 South Calhoun Street, Suite 830

Tallahassee, Florida 32301

Bonni Spatara Jensen, Esquire

Klausner, Kaufman, Jensen & Levinson

7080 Northwest 4th Street

Plantation, Florida 33317

For Interveno r: David Clayton Miller, Esquire

Elizabeth W. Neiberger, Esquire

Bryant Miller Olive, P.A.

One Southeast Third Avenue , Suite 2200

Miami, Florida 33131

S TATEMENT OF T HE I SSUE S

Whether PetitionerÔs rights, privileges, and benefits to which he is , or

may be entitled to , or has previously received from the Village of Palm

Springs General EmployeeÔs Pension Fund should be forfeited pursuant to

section 112.3173, Florida Statutes .

P RELIMINARY S TATEMENT

On August 19, 2020, the Village o f Palm Springs General EmployeesÔ

Pension Plan, Board of Trustees ( Ñ Respondent Ò or Ñ Pension Board Ò ) , emailed

a Notice of Proposed Agency Action ( Ñ Proposed Action Ò ) to William F. Davis,

Jr.Ôs ( Ñ Petitioner Ò or Ñ Davis Ò ) counsel to inform Petitioner that his r ights and

benefits under the pension plan were forfeited pursuant to section 112.3173 .

Petitioner filed a timely Petition for Formal Administrative Hearing

( Ñ Petition Ò ). Subsequently, the case was referred to DOAH. The Petition was

assigned to the undersi gned administrative law judge.

By Order dated October 29, 2020, Village of Palm Springs ( Ñ Intervenor Ò or

Ñ Village Ò ) was permitted to intervene in the proceedings.

The case was noticed for hearing on December 4 and 8, 2020. The parties

stipulated to co ntinue the final hearing. Pursuant to notice, the final hearing

proceeded as rescheduled on January 26, 2021.

The parties filed a Joint Pre - hearing Stipulation in which they identified

stipulated facts for which no further proof would be necessary, and th e

relevant facts stipulated therein are accepted and made part of the Findings

of Fact below.

At the final hearing, Petitioner was the only witness to testify. PetitionerÔs

Exhibits numbered 1 through 11 were admitted into evidence. RespondentÔs

Exhibits numbered 1 through 5 and 7 through 15 were admitted into

evidence. IntervenorÔs Exhibits numbered 1 through 9 were admitted into

evidence.

At the conclusion of the hearing, the parties agreed to file their proposed

recommended orders within 15 days of the filing of the transcript. The

proceedings were recorded and transcribed. A one - volume Transcript of the

hearing was filed at DOAH on February 9, 2021. The parties filed timely

proposed recommended orders, which the undersigned has considered in the

prepar ation of this Recommended Order.

F INDINGS OF F ACT

1. The Village of Palm Springs General EmployeesÔ Pension Plan

( Ñ Pension Plan Ò ) is a defined benefit plan, supported in whole or part by

public funds.

2. The Pension Plan was created in 1970.

3. The Pens ion Plan is a public retirement system or plan to which the

provisions of part VII of c hapter 112 apply.

4. The Pension Board is charged with governing, managing, and

administering the Pension Plan on behalf of the Village.

5. The Village is a public body , political subdivision, or public

instrumentality within the State of Florida.

6. In 1976, the Florida Constitution was amended to add Article 2,

Section 8 , titled Ñ Ethics in Government, Ò which provided for pension

forfeiture for public employees convicte d of a felony involving breach of the

public trust.

7. In 1984, the Florida Legislature first enacted section 112.3173.

8. On September 6, 1989, Davis started his employment with the Village

and also initiated his participation as a member in the Pension P lan.

9. While employed for the Village, Davis maintained his membership in

the Pension Plan.

10. On March 2, 2005, Davis was promoted from Assistant Public Works

Director to Public Works Director. His duties included overseeing several

departments includ ing maintenance, sanitation, water, plants, and building.

11. On April 10, 2015, Davis Ôs employment with the Village ended.

12. On June 1, 2015, Davis started receiving his retirement benefits from

the Pension Plan.

13. On or about November 29, 2016, Davi s was charged, by Information,

in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, with

eight counts of unlawful compensation for official behavior and one count of

petit theft in Case Number 50 - 2016 - CF011665.

14. At the times relevant to the charges in the Information, Davis was

actively employed with the Village and served as Director of Public Works.

The charges were also related to DavisÔ s employment with the Village.

15. The Information for Case No. 50 - 2016 - CF011665 detailed the ch arges

and alleged in relevant part, the following:

COUNT 1: WILLIAM FRANK DAVIS, on or about

July 6, 2010, in the County of Palm Beach and

State of Florida, did knowingly and intentionally

request, solicit, accept or agree to accept, any

pecuniary or other benefit not authorized by law,

for the past, present, or future performance,

nonperformance, or violation of any act or omission

which AKA SERVICES and/or LUIGI BASILE,

believed to have been, or WILLIAM FRANK

DAVIS, JR, a public servant represented as hav ing

been, either within his official discretion, in

violation of a public duty, or in performance of a

public duty, contrary to Florida Statute 838.016(1)

and (4). (2 DEG FEL)

[COUNT 2 È ] accept, any pecuniary or other

benefit not authorized by law, for the past, present,

or future performance, nonperformance, or

violation of any act or omission which AKA

SERVICES and/or LUIGI BASILE, believed to

have been, or WILLIAM FRANK DAVIS, JR, a

public servant represented as having been, either

within his official discretion, in violation of a public

duty, or in performance of a public duty, contrary to

Florida Statute 838.016(1) and (4). (2 DEG FEL) 1

***

COUNT 9: WILLIAM FRANK DAVIS, on or

between July 6, 2010 and December 2, 2013, in the

County of Palm Beach an d State of Florida, did

engage in a scheme to defraud constituting a

systematic, ongoing course of conduct with intent to

defraud one or more persons, or with intent to

obtain property from one or more persons, by false

or fraudulent pretenses, representat ions, or

promises, or willful misrepresentations of a future

act and did obtain property from one or more of

such persons, contrary to Florida Statutes,

817.034(4)(a)3. (3 DEG FEL.)

16. On or about November 30, 2017, Davis pled guilty to two felony counts

of unlawful compensation for official behavior and one misdemeanor count of

petit theft in Case No. 50 - 2016 - CF011665.

17. That same day, Davis was sentenced in Case No. 50 - 2016 - CF011665 .

He was adjudicated guilty of section 812.014 , Florida Statutes, for a single

pet it theft count and adjudication was withheld for the two section 838.016 ,

Florida Statutes, counts of unlawful compensation for official behavior.

1 The quot e is incomplete because the Information cut off the complete language for Count 2.

18. Afterwards, Davis attempted to get the judgment vacated. On

August 3, 2018, Davis filed a V erified Motion for Postconviction Relief

( Ñ Motion Ò ) before the Fifteenth Judicial Circuit in and for Palm Beach

County, Florida, requesting the c ircuit c ourt to set aside the judgement and

sentence imposed in Case No. 50 - 2016 - CF011665.

19. Davis maintained in his Motion that his guilty plea in Case No. 50 -

2016 - CF011665 was unlawfully induced or not made voluntarily with an

understanding of the nature of the charge and the consequences of the plea.

20. On May 21, 2019, Judge Joseph Marx of the Circuit Court of the

Fifteenth Judicial Circuit in and for Palm Beach County, Florida, held an

evidentiary hearing on PetitionerÔs Motion.

21. By order signed June 10, 2019, and filed on June 12, 20 19 , Judge

Joseph Marx denied PetitionerÔs Motion.

22. Davis appealed th e StateÔs Order Denying DefendantÔs Verified Motion

for Postconviction Relief Following Evidentiary Hearing ( Ñ Order Denying

Verified Motion Ò ) to the Fourth District Court of Appeal.

23. On March 12, 2020, the Fourth District Court of Appeal affirmed, per

curiam, the c ircuit c ourtÔs Order Denying Verified Motion. A Mandate was

issued by the Fourth District Court of Appeal on April 8, 2020.

24. Davis did not appeal the Fourth District Court of AppealÔs M andate.

25. On August 4, 2020, after the Pension Board received notice that Davis

pled guilty to section 838.016, the Board unanimously voted to forfeit Davis Ôs

rights and benefits pursuant to section 112.3173.

26. Davis was notified by email dated August 19, 2020, of the Pension

BoardÔs proposed action to fo rfeit his rights and benefits.

27. Davis timely contested the notice and challenged the forfeiture.

Ultimate Findings of Fact

28. PetitionerÔs acts that were alleged in the Information formed the basis

for the charges against Petitioner to which he pled g uilty to the two violations

of section 838.016, unlawful compensation for official behavior, and a single

violation of section 812.014, petit theft , in Case No. 50 - 2016 - CF011665. Each

violation occurred during and was related to PetitionerÔs employment wit h

the Village.

C ONCLUSIONS OF L AW

29. DOAH has jurisdiction over the subject matter and the parties to this

action pursuant to section s 120.57(1) and 112.3173(5) , Florida Statutes .

30 . Respondent has the burden of proving by a preponderance of the

evidence that Petitioner has forfeited his retirement benefits. Wilson v. DepÔt

of Admin., Div. of Ret., 538 So. 2d 139 (Fla. 4th DCA 1989).

3 1 . Article II, section 8(d) of the Florida Constitution sets forth the ethical

standards for public officers and employee s in government and provides , in

pertinent part:

Section 8. Ethics in government Ð 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 em ployee 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.

3 2 . Section 112.3173 provides , in rel evant part:

(3) FORFEITURE. Ð 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 off ense,

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.

3 3 . Section 112.3173(2)(a) provides , in relevant p art:

(a) Ñ Conviction Ò and Ñ convicted Ò 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.

3 4 . The Florida Legislature enacted section 112.3173(2)(e) and entitled it

Ñ Felonies involving breach of public trust and other specified offenses by

public officers and employees; forfeiture of retirem ent benefits. Ò Section

112.3173(2)(e)4. , as it relates to this matter , defines Ñ specified offense Ò and

includes Ñ [a]ny felony specified in chapter 838, except ss. 838.15 and 838.16. Ò

Impairment of C ontract

3 5 . Petitioner alleges the Pension Plan is a contr act predating section

112.3173 and that the Pension Plan has not been amended to incorporate

section 112.3173, so any attempt by the Pension Board to enforce section

112.3173 against Petitioner is an impairment of contract. PetitionerÔs

contention that the Village Board has to take formal action and agree to be

governed by the general laws of the State of Florida is without merit. Article

VI, section 6.02 of the Village Charter, which was enacted in 1980 , prior to

PetitionerÔs employment, sets the standards of ethics for employees and

provides , in relevant part:

All elected officials and employees of the village

shall be subject to the standards of conduct set by

general law for public officers and employees in

addition, the council may, by ordinance, establ ish a

code of ethics for officials and employees of the

village which may be supplemental to general law,

but in no case may such ordinance diminish the

provisions of general law.

3 6 . By specifically setting the parameters of conduct according to general

law, the Village Charter is incorporating and applying section 112.3173 to all

its employees. The Supreme Court has held that general law controls local

law by determining that municipal ordinances are inferior to state laws.

Thomas v . Stat e, 614 So . 2d 4 68, 470 (Fla. 1993). Therefore, section 112.3173

is applicable general law providing authority regarding forfeiture for the

Pension Board in this matter.

3 7 . It is also important to note that a member of a public retirement plan

has a vested right of contr act when he or she retires or satisfies the

requirements necessary for retirement. City of Daytona Bch . v. Caradonna ,

456 So. 2d 565, 567 (Fla. 5th DCA 1984). However, if the member is not

retired, subsequent legislation can alter the memberÔs benefits. Se e

Caradonna , 456 So. 2d at 567 ( citing Fla. Sheriff's AssÔn v. DepÔt of Admin.,

Div. of Ret., 408 So. 2d 1033 (Fla. 1981))( Ñ [T]he legislature can alter

retirement benefits of active employees. Ò ). In this matter, PetitionerÔs

employment was terminated with the Village on April 10, 2015, and

Petitioner has been receiving the rights, benefits, and privileges under the

Pension Plan since June 1, 2015. Therefore, since section 112.3173 was

enacted in 1984 , prior to PetitionerÔs retirement , the Pension BoardÔs

Pr oposed Action is not an impairment of PetitionerÔs contract rights.

Voluntary Nature of PetitionerÔs Guilty Plea

3 8 . Petitioner also maintains that his plea entered into was involuntary as

the result of misleading legal advice, a claim similar to ineffecti ve assistance

of counsel. Such an argument is misplaced regarding the forfeiture issue in

this matter. The undersigned only has the authority provided by statute.

Chapter 120 and c hapter 112 both lack any statutory authority for an

administrative law judge to overturn a judicial decision. Fla. Elections

CommÔn v. Davis , 44 So 3d 1211, 1215 (Fla. 1 st DCA 2010)(The Division of

Administrative Hearings is no exception to the rule that Ñ [a]dministrative

agencies are creatures of statute and have only such powers as statutes

confer. Ò ) (quoting Greenb[e]rg v. Fla. State Bd. of Dentistry , 297 So. 2d 628,

634 (Fla. 1st DCA 1974) ) . Therefore, DOAH lacks jurisdiction to negate the

effect of PetitionerÔs plea.

Constitutional Arguments

3 9 . Petitioner also contends there a re constitutional grounds that prohibit

forfeiture in this matter. As with any agency, DOAH i s an executive agency

created by section 120.65 and it does not possess the authority to determine

the constitutionality of statutes. Lennar Homes, Inc. v. Dep't o f Bus. & ProfÔl

Reg., 888 So. 2d 50, 53 (Fla. 1st DCA 2004); Dep't of Admin. v. Div. of Admin.

Hearings , 326 So. 2d 187, 189 (Fla. 1 st DCA 1976 ). Therefore, on this point,

the undersigned has no jurisdiction to make any determinations on

PetitionerÔs claim s based on constitutional arguments.

40 . In this matter, the parties stipulate that Petitioner pled guilty to two

felony counts of unlawful compensation for official behavior in violation of

section 838.016 in the Fifteenth Judicial Circuit Case No. 50 - 201 6 - CF011665.

Such a Ñ plea of guilty Ò constitutes a conviction pursuant to section

112.3173(2)(a) and meets the criteria for a specified offense under section

112.3173 (2) (e)4. Additionally, the acts to which Davis pled guilty occurred

during and were related to his public employment by the Village.

Accordingly, section 112.3173 requires forfeiture for PetitionerÔs felony

convictions of unlawful compensation for official behavior in violation of

section 838.016.

4 1 . The Florida Legislature has also directed t hat a person who receive s

benefits from the public retirement system in excess of his or her

accumulated contributions because of forfeiture shall pay them back.

Section 112.3173(5)(d) provides , in relevant part , that Ñ such person shall pay

back to the sys tem the amount of the benefits received in excess of his or her

accumulated contributions. Ò Accordingly, Petitioner shall repay any

retirement benefits received from the pension plan in excess of his

accumulated employee contributions.

R ECOMMENDATION

Bas ed on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Village of Palm Springs General EmployeesÔ Pension

Plan, Board of Trustees , enter a final order finding that :

1. Petitioner was a public employee convicted of specified offenses

committed prior to retirement and while employed with the Village pursuant

to section 112.3173, Florida Statutes, and directing the forfeiture of his rights

and benefits ; and

2. Petitioner be required to pay back to the Pension Plan an amount equ al

to the sum of all benefits paid by the Pension Plan to Petitioner, less the

amount of PetitionerÔs employee contribution to the Pension Plan .

D ONE A ND E NTERED this 2 6 th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

J UNE C. M CKINNEY

Adm inistrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of March , 2021 .

C OPIES F URNISHED :

Craig A. Boudreau, Esquire Bonni Spatara Jensen, Esquire

S uite 204 Klausner, Kaufman, Jensen & Levinson

2161 Palm Beach Lakes Boulevard 7080 Northwest 4th Street

West Palm Beach, Florida 33409 - 6611 Plantation, Florida 33317

Glenn E. Thomas, Esquire David Clayton Miller, Esquire

Lewis, Longman & Walker, P.A. Bryant Miller Olive, P.A.

Suite 830 Suite 2200

315 South Calhoun Street O ne Southeast Third Avenue

Tallahassee, Florida 32301 Miami, Florida 33131

Elizabeth W. Neiberger, Esquire Village of Palm Springs Pension Plan,

Bryant Miller Olive, P .A. Board of Trustees

Suite 2200 c/o Bonnie Spatara Jensen, Esquire

One Southeast Third Avenue Klausner, Kaufman, Jensen & Levinson

Miami, Florida 33131 7080 Northwest 4th Street

Plantation, Florida 33317

N OTICE OF R IGHT T O S UB MIT E XCEPTIONS

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.