21-002327 Matthew J. Hale vs. State Board Of Administration Status: Closed Recommended Order on Thursday, February 3, 2022.

Summary: SBA proved all factors demonstrating that Petitioner committed a "specified offense" warranting forfeiture of his retirement benefits.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ATTHEW J. H ALE ,

Petitioner ,

vs. Case No. 21 - 2327

S TATE B OARD OF A DMINISTRATION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on

November 17, 2021, via Zoom teleconference, before Lawrence P. Stevenson,

a duly - designated Administrative Law Judge (ÑALJÒ) of the Division of

Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Matthew J. Hale, pro se

Madison Correctional Institution

382 Southwest MCI Way

Madison, Florida 32340

For Respondent: Jonathan W. Taylor, Esquire

Moffa, Sutton, & Donnini, P.A.

100 West Cypress Creek Road, Suite 930

Fort Lauderdal e, Florida 33309

Rex D. Ware, Esquire

Moffa, Sutton & Donnini, P.A.

Suite 330

3500 Financial Plaza

Tallahassee, Florida 32312

S TATEMENT OF T HE I SSUE

The issue is whether, by operation of section 112.3173, Florida Statutes, 1

Petitioner has forfeited h is Florida Retirement System (ÑFRSÒ) Investment

Plan account by being found guilty of two felony counts of traveling to meet a

minor for sexual activity.

P RELIMINARY S TATEMENT

On January 30, 2019, Petitioner, Matthew J. Hale, was found guilty by a

jury of two counts of ÑTraveling to Meet a Minor for Unlawful Sexual

Conduct,Ò each a second degree felony in violation of section 847.0135(4),

Florida Statutes, and two counts of ÑCommitting an Unnatural and

Lascivious Act,Ò each a second degree misdemeanor in v iolation of section

800.02, Florida Statutes. Petitioner was a teacher in the Bay County School

District and the victim was a 16 - year - old female student whom Petitioner

met while teaching at her high school.

On July 7, 2021, Respondent, the State Board of Administration (ÑSBAÒ),

notified Petitioner that his rights and benefits under the Florida Retirement

System Investment Plan had been forfeited based on the felony convictions.

In a Petition for Hearing signed by Petitioner on July 15, 2021, 2 Petitioner

d isputed whether his crimes fell within the scope of section 112.3173.

Petitioner contended that he was between contracts with the Bay County

School District at the time his crimes were committed and therefore was not

a Ñpublic officer or employeeÒ as defin ed in the statute.

1 References to the Florida Statutes are to the 2018 edition, the version in effect at the time

of PetitionerÔ s conviction. Section 112.3173, the only statute directly involved in this

proceeding, has not been amended since 2012.

2 At all times relevant to this proceeding, Petitioner has been incarcerated at the Madison

Correctional Institution. This situation ha s required the SBA and this tribunal to grant

Petitioner some leeway as to compliance with discovery and other deadlines, because

PetitionerÔs incoming and outgoing mail must be screened by prison personnel.

On July 28, 2021, the SBA referred the case to DOAH for the assignment

of an ALJ and the conduct of a formal hearing.

The final hearing was scheduled for October 6, 2021. By Order dated

September 16, 2021, RespondentÔs Unopposed Moti on to Continue Final

Hearing was granted, and the hearing was rescheduled for November 17,

2021, on which date it was convened and completed.

At the hearing, the SBA presented the testimony of Allison Olson,

Director of Policy, Risk Management and Complia nce for the SBAÔs Office of

Defined Contribution Programs. The SBAÔs Exhibits 1 through 15 were

admitted into evidence.

Mr. Hale testified on his own behalf. Mr. HaleÔs Exhibits 1 through 3 were

admitted into evidence.

The one - volume Transcript of the f inal hearing was filed with DOAH on

December 16, 2021. At the conclusion of the hearing, the parties agreed that

30 days would be allotted for the filing of p roposed r ecommended o rders.

Respondent timely filed its P roposed R ecommended O rder on January 14,

2022. Mr. Hale filed his Proposed Recommended Order on January 21, 2022,

outside of the agreed time for the filing of proposed orders. Respondent did

not object to the late filing and PetitionerÔs Proposed Recommended Order

has therefore been considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. The SBA is the governmental entity that administers the FRS

Investment Plan, a d efined retirement benefits contribution plan.

§ 121.4501(1), Fla. Stat.

2. Mr. Hale is a former employee of Bay District Schools in Bay County,

Florida. As an employee of Bay District Schools, Mr. Hale was eligible to

participate in the FRS Investment Plan and , in fact , received distributions

from that plan. Mr. Hale received a total distribution of $3,541.27, of which

$1,705.80 were his own employee contributions.

3. Mr. Hale was employed by Bay District Schools for the 2015 - 2016

school year from August 18 , 2015, through June 3, 2016. The victim in

Mr. HaleÔs criminal case was a student at the high school where Mr. Hale

taught. Mr. Hale met the victim at the school during the 2015 - 2016 school

year.

4. Mr. Hale was never assigned to teach the student, but h e did

occasionally help the student with math problems while he was on morning

Ñbus dutyÒ in the school cafeteria. Mr. Hale credibly testified that he gave

such help to any student who approached him during bus duty.

5. The student made no secret of her at traction to Mr. Hale during the

2015 - 2016 school year, but he was always quick to stop her flirting and to

admonish her to behave in an appropriate manner.

6. Mr. Hale testified that he learned in mid - May 2016 that Bay District

Schools would not be renewi ng his contract.

7. Mr. Hale was eventually re - employed by Bay District Schools for the

2016 - 2017 school year. He was employed from August 8, 2016, to

November 8, 2016. During the 2016 - 2017 school year, Mr. Hale worked at a

middle school. The victim was s till enrolled in Bay District Schools during the

2016 - 2017 school year but did not attend the school at which Mr. Hale was

working.

8. Bay District Schools policy 3.141, in effect at all times of Mr. HaleÔs

employment, stated that employees , such as Mr. Ha le , had a duty to refrain

from inappropriately associating with students, from engaging in

unacceptable relationships with students, and from engaging in unacceptable

communications with students. The prohibitions included any sexual

behavior or sexual com ments and applied regardless of where the teacher

was employed, or the student was enrolled.

9. As a teacher, Mr. Hale was also subject to the Principles of Professional

Conduct for the Education Profession in Florida, found in Florida

Administrative Code R ule 6A - 10.081. The Principles of Professional Conduct

expressly state that an educator is obligated to Ñmake reasonable effort to

protect the student from conditions harmful to learning and/or to the

studentÔs mental and/or physical health and/or safetyÒ and to Ñnot exploit a

relationship with a student for personal gain or advantage.Ò Fla. Admin.

Code R. 6A - 10.081(2)(a)1. and 8. 3

10. Despite these responsibilities, Mr. Hale exchanged contact information

with the victim on or about June 1, 2016, the last d ay of the 2015 - 2016 school

year and two days prior to the expiration of his contract with Bay District

Schools. Mr. Hale denied that he made this exchange with any idea of

engaging in a romantic or sexual relationship with the student, but he

admitted that he had no legitimate reason to exchange personal contact

information with the student.

11. Mr. Hale began exchanging text messages with the student. By

June 8, 2016, the relationship had progressed to the point where Mr. Hale

and the student met in person . Mr. Hale admitted that he kissed the student

3 Mr. Hale argues that the SBA failed to prove t hat he was aware of either rule 6A - 10.081 or

Bay District Schools policy 3.141 at the time he committed his crimes. The general rule is

that every person is presumed to know the law and ignorance of the law is no excuse. Davis

v. State , 928 So. 2d 442, 448 (Fla. 5 th DCA 2006). Likewise, a professional should be

presumed to know the rules of his profession and an employee should be presumed to know

the policies of his employer. The undersigned finds some precedent in professional discipline

cases for conside ring ignorance of the law as a ground for a reduced penalty where the

violation was technical, or the professional was acting on advice of counsel. See, e.g., Fla.

Real Estate Comm. v. Royce , Case No. 76 - 1181 (Fla. DOAH Oct. 18, 1976; Fla. Real Estate

Comm . June 22, 1977). However, the undersigned finds no authority for ignorance of the law

as a defense where the offense is malum in se , as is the case here.

on that occasion and thereafter began exchanging sexually explicit messages

with the student.

12. Mr. Hale credibly testified that the student was the instigator and the

aggressor in starting the relationship. He also conceded that as the

responsible adult involved, he was at fault for everything that transpired.

13. Mr. Hale testified that he put a halt to the relationship on June 13,

2016, and that he had no further communication with the student until mid -

Se ptember, after the start of the 2016 - 2017 school year. At that time, the

victim reached out to Mr. Hale and the text messaging between Mr. Hale and

the victim recommenced. They met in person and their romantic relationship

was rekindled. They remained in c ontact through at least mid - October 2016. 4

14. Law enforcement was eventually alerted to the relationship. The cell

phones of both Mr. Hale and the victim were obtained by the police, which led

to Mr. Hale being criminally charged.

15. In an Amended Infor mation filed by the State Attorney for the

Fourteenth Judicial Circuit, Mr. Hale was charged as follows:

Count I: Matthew Jay Hale, from on or about

May 1, 2016 and continuing through on or about

October 25, 2016, in the County of Bay and State of

Florida, knowingly and unlawfully utilized a

computer on - line service, Internet service or local

bulletin board service or any other device capable of

electronic data storage or transmission to seduce,

solicit, lure or entice or attempt to seduce, solicit,

lure or entice a child or another person believed by

Matthew Jay Hale to be a child to commit any

illegal act described in Chapter 794, Chapter 800,

or Chapter 827, or to otherwise engage in any other

unlawful sexual conduct, contrary to Florida

Statute 847.0135( 3).

Count II: Matthew Jay Hale, from on or about

May 1, 2016 and continuing through on or about

October 25, 2016, in the County of Bay and State of

4 Mr. Hale testified without contradiction in the record that the victim was unaware he had

been reh ired by Bay District Schools at the time they recommenced their relationship.

Florida, did travel to, from or within this state for

the purpose of engaging in any illegal act described

in Chapter 794, Chapter 800, or Chapter 827, or to

otherwise engage in any other unlawful sexual

conduct with a child or with another person

believed by Matthew Jay Hale to be a child after

using a computer on - line service, Internet service

or local bullet in board service or any other device

capable of electronic data storage or transmission

to seduce, solicit, lure, or entice or attempt to

seduce, solicit, lure, or entice a child or another

person believed by Matthew Jay Hale to be a child,

to engage in an y illegal act described in

Chapter 794, Chapter 800, or Chapter 827, or to

otherwise engage in other unlawful sexual conduct

with a child, contrary to Florida

Statute 847.0135(4).

Count III: Matthew Jay Hale, on October 10, 2016,

in the County of Bay and State of Florida, did

travel to, from or within this state for the purpose

of engaging in any illegal act described in

Chapter 794, Chapter 800, or Chapter 827, or to

otherwise engage in any other unlawful sexual

conduct with a child or with another person

believed by Matthew Jay Hale to be a child after

using a computer on - line service, Internet service

or local bulletin board service or any other device

capable of electronic data storage or transmission

to seduce, solicit, lure, or entice or attempt to

se duce, solicit, lure, or entice or attempt to seduce,

solicit, lure, or entice a child or another person

believed by Matthew Jay Hale to be a child, to

engage in any illegal act described in Chapter 794,

Chapter 800, or Chapter 827, or to otherwise

engage i n other unlawful sexual conduct with a

child, contrary to Florida Statute 847.0135(4).

Count IV: Matthew Jay Hale, from on or about

May 1, 2016 and continuing through on or about

October 25, 2016, in the County of Bay and State of

Florida, did unlawfully engage in sexual activity

with ____, a person 12 years of age or older but less

than 16 years of age, by penetrating or having

union with the victimÔs mouth with his penis,

contrary to Florida Statute 800.04(4)(a).

Count V: Matthew Jay Hale, from on or ab out

May 1, 2016 and continuing through on or about

October 25, 2016, in the County of Bay and State of

Florida, did unlawfully engage in sexual activity

with ____, a person 12 years of age or older but less

than 16 years of age, by penetrating or having

un ion with the vagina of the victim with the mouth

of Matthew Jay Hale, contrary to Florida Statute

800.04(4)(a).

Count VI: Matthew Jay Hale, from on or about

May 1, 2016 and continuing through on or about

October 25, 2016, in the County of Bay and State of

Florida, did unlawfully engage in sexual activity

with ____, a person 12 years of age or older but less

than 16 years of age, by penetrating or having

union with the victimÔs vagina with his penis,

contrary to Florida Statute 800.04(4)(a).

16. Mr. HaleÔ s criminal trial was held on January 30, 2019. Mr. Hale was

found guilty as to Counts II and III, Traveling to Meet a Minor to Commit

Unlawful Sexual Conduct, each of which was a second degree felony. He was

also found guilty of Committing Unnatural and La scivious Acts, lesser

included crimes as to Counts IV and V, each of which was a second degree

misdemeanor.

17. Mr. HaleÔs convictions were affirmed on appeal. Hale v. State , 316 So.

3d 679 (Fla. 1 st DCA 2021)( per curiam ).

18. Because of his felony convict ions, Mr. Hale was notified by the SBA

that his rights and benefits to the FRS Investment Plan were forfeited,

except for accumulated contributions.

19. The first defense asserted by Mr. Hale in the instant case is that he

was not an employee of Bay Distr ict Schools at the time his crimes were

committed. His last day of work under his 2015 - 2016 contract was June 3,

2016, and his first day of work under his 2016 - 2017 contract was August 8,

2016. Mr. Hale contends that his crimes were committed during the su mmer

interim period when he was out - of - contract. Therefore, the terms of section

112.3173(2)(e)6. would not apply because they require that the felony have

been committed Ñby a public employee.Ò

20. Whatever the legal merit of Mr. HaleÔs first defense, the facts do not

support it. Count III of the Amended Information specifically alleged that

Mr. Hale traveled to engage in unlawful sexual conduct with a child on

October 10, 2016. Mr. Hale was an employee of Bay District Schools, and

thus a Ñpublic employee, Ò on October 10, 2016. Mr. Hale was found guilty of

committing the crime alleged in Count III.

21. The SBA contends that Mr. Hale should also be found to have

committed the crime alleged in Count II of the Amended I nformation while

an employee of Bay Dist rict Schools. The SBA bases this contention on the

fact that Count II alleges that Mr. Hale traveled to engage in unlawful sexual

conduct with a child Ñfrom on or about May 1, 2016 and continuing through

on or about October 25, 2016.Ò Mr. Hale worked for B ay District Schools

during some portion of the period of May 1, 2016 , through October 25, 2016 ,

and therefore should be deemed to have committed the crime alleged in

Count II while an employee. The undersigned finds this contention

unpersuasive. Despite th e catch - all form of the allegation in the Amended

I nformation, the evidence produced in both the criminal trial and the hearing

in the instant case established that Mr. HaleÔs physical relationship with the

student did not commence until his 2015 - 2016 cont ract had expired and he no

longer worked for Bay District Schools. He did not travel to engage in

unlawful sexual conduct with the victim prior to June 3, 2016. The

October 10, 2016 , incident covered by Count III was the only felony that was

shown to ha ve occurred during Mr. HaleÔs employment. 5

22. Mr. Hale argues that a distinction should be drawn between the time

during which he taught at the school attended by his victim and the later

time during which he taught at a middle school with no connectio n to the

victim. The statute requires that the public employee use or attempt to use

Ñthe power, rights, privileges, duties, or position of his or her public office or

employment positionÒ to obtain a forbidden benefit. Mr. Hale argues that he

was in a pos ition to use his official authority over the victim only when he

worked at the school she attended. Because his romantic relationship with

the victim began only after he left that school, Mr. Hale argues that he

cannot be found to have used or attempted to use power of his official position

to influence the actions of the victim.

23. In support of his argument, Mr. Hale points out that all the meetings

between the victim and him occurred off campus and outside of school hours.

No school resources were used to advance his relationship with the victim.

Mr. Hale held no leverage over the victim that could be attributed to his

public employment.

24. Mr. Hale testified that the idea of pursuing a romantic relationship

with the student did not occur to him until a fter his employment at her high

school ended. The victim made multiple overtures to Mr. Hale while he was

working at the high school, but he consistently declined her advances and

advised the victim that such behavior was inappropriate.

5 It is not unreasonable to argue, as the SBA does, that the October 10, 2016, incident also

bring s Mr. HaleÔs conduct as a Ñpublic employeeÒ within the ambit of the broad time p eriod

alleged in Count II. The undersigned has declined to accept this argument because, in the

context of this forfeiture proceeding, it smacks of punishing Mr. Hale twice for the same

incident. Mr. HaleÔs actions during the summer of 2016 were relevant t o his criminal trial

and thus justified his conviction under Count II, but those actions do not necessarily lead to a

finding that Mr. Hale committed the felony alleged in Count II while he was a Ñpublic

employeeÒ under section 112.317 3 (2)(e)6. The result of the instant case is the same whether

or not Mr. Hale is found to have committed the crime alleged in Count II while an employee

of Bay District Schools.

25. The SBA respon ds that Mr. Hale, as a teacher with Bay District

Schools, had a duty to refrain from inappropriate conduct with students. This

duty applied regardless of where the student was enrolled. Mr. HaleÔs actions

with the victim were made possible because of his p osition as a teacher with

Bay District Schools. But for Mr. HaleÔs public employment with Bay District

Schools, he would not have had access to the victim, would not have met the

victim, would not have begun a relationship with the victim, and would not

ha ve committed the crimes against the victim. The SBA argues that

Mr. HaleÔs convictions stemming from his relationship with the victim are

thus Ñinseparably intertwinedÒ with his position as a teacher. Newmans v.

Div. of Ret. , 701 So. 2d 573, 577 (Fla. 1 st DCA 1997).

26. For reasons more fully explained below, the SBAÔs argument is correct

under the facts of this case. If Mr. Hale were accurate in his assertion that he

did nothing more than meet the victim while he was employed at her high

school, it would b e difficult to find that he committed his crimes Ñthrough the

use or attempted use of the power, rights, privileges, duties, or position of his

or her public office or employment positionÒ as required by section

112.3173(2)(e)6. The undersigned is cognizan t of case law stating that a

public employee has misused his position to commit a felony if the employee

could not have committed the crime Ñbut for the power, rights, privileges, or

dutiesÒ of his public employment. Nonetheless, the undersigned is

unpersu aded that the mere fact of Mr. HaleÔs meeting the victim at school

would be sufficient, standing alone, to meet the requirements of section

112.3176(2)(e)6. The case law implies at least that some overt act leading to

or forming part of the crime is requir ed of the public employee to satisfy the

Ñbut forÒ test.

27. However, Mr. Hale did more than merely meet the victim while he was

employed at the high school. On or about June 1, 2016, the last day of the

school year, while he was still an employee of Bay D istrict Schools, Mr. Hale

exchanged personal contact information with the victim. He denied that he

did so with any intention of starting a romantic relationship but he also

conceded that he had no legitimate reason to give the victim his contact

informati on. From his dealings with the victim at school, Mr. Hale knew that

she was attracted to him and seemed willing to pursue a romantic

relationship. He testified that he repeatedly had to Ñshut downÒ the student

when she began to speak inappropriately. Whate ver specific intention he had

formed in his mind, Mr. Hale had to know that he was playing with fire by

trading contact information and inviting the student to get in touch with him

over the summer. The facts establish that Mr. Hale set in motion the

seque nce of events that led to his imprisonment while he was still employed

by Bay District Schools. Mr. HaleÔs overt acts while still working for Bay

District Schools in early June 2016 satisfy the Ñbut forÒ test urged by the

SBA.

C ONCLUSIONS OF L AW

28. The D ivision 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.

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

eviden ce that Petitioner has forfeited his FRS retirement benefits. Wilson v.

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

30. Article II, section 8(d) of the Florida Constitution , provides as follows:

SECTION 8: Ethics in government. -- A pu blic 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.

31. This section of the Constitution is implemented in chapter 112,

part III, of the Florida Statutes. The applicable versi on 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). As noted in footnote 1, s ection 112.3173 has not been amended

si nce 2012. Therefore, the version in effect at the time of Mr. HaleÔs alleged

offenses in 2016 is the same as that currently in effect.

32. Because forfeitures are not favored in Florida, the pension forfeiture

statute should be strictly construed. Williams v. Christian , 335 So. 2d 358,

361 (Fla. 1st DCA 1976).

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

(3) FORFEITURE. -- Any public officer or employee

who is convicted of a specified offense 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.

34. Section 112.3173(2)(a) provides that Ñconviction Ò and Ñ convicted Ò mean

an adju dication 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.

35. Mr. Hale was found guilty by a jury of two counts of T raveling to M eet

a M inor to C ommit U nlawful S exual C onduct, a second degree felony under

section 847.0135(4). Mr. HaleÔs adjudication of guilt constitutes a ÑconvictionÒ

for purposes of section 112 .3173(2)(a).

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

(2)(e) ÑSpecified offenseÒ 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, 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 of ficer 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 publ ic 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.

37. The felonies for which Mr. Hale was convicted do not fit the definitions

set forth in sub paragraphs 1. through 5. or 7. of section 112.3173(2)(e). If

Mr. Hale is to be subjected to the forfeiture of his pension, his offense must be

found to meet the conditions of the Ñcatch - allÒ category set forth in

subparagraph 6. of section 112.3173(2)(e). Jenne v. State , 36 So. 3d 738, 742

(Fla. 1st DCA 2010).

38. To constitute a Ñ specified offense Ò under section 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 oth er person; and

(e) It was done through the use or attempted use of

the power, rights, privileges, duties, or position of

his public employment.

Bollone v. Dep Ô t of Mgmt. Servs. , 100 So. 3d 1276, 1280 - 81 (Fla.1st DCA

2012).

39. The SBA is not required to re - prove the criminal conviction but simply

must show that a felony was committed by a public employee and the

employeeÔs conduct meets the remaining elements of section 112.3173(2)(e)6.

Cabezas v. Corcoran , 293 So. 3d 602, 604 (Fla. 1st DCA 2020)(holding that

Ñan administrative proceeding is not the forum to relitigate a criminal

conviction imposed by a court of competent jurisdiction.Ò); Bollone , 100 So. 3d

at 1280 ( ÑÓ specified offenseÔ is defined by the conduct of the public official, not

by the element s of the crime for which the official was convictedÒ) ( citing

Jenne , 36 So. 3d at 742 ) (Ñany felony could qualify as a specified offense, so

long as the remaining conditions in the statute have been metÒ).

40. It is uncontested that Mr. Hale was convicted of two second degree

felonies. Therefore, factor (a) of the Ñspecified offenseÒ test has been met.

41. Mr. Hale argues that he was not a Ñpublic employeeÒ at the time he

committed his offenses. However, as noted above, Count III of the Amended

Information sp ecifically alleged that Mr. Hale traveled to engage in unlawful

sexual conduct with a child on October 10, 2016. Mr. Hale was an employee of

Bay District Schools, and thus a Ñpublic employee,Ò on October 10, 2016.

Mr. Hale was found guilty of committing th e crime alleged in Count III.

Factor (b) of the Ñspecified offenseÒ test has been met.

42. Factor (c) requires a determination as to whether Mr. Hale committed

the felonies willfully and with intent to defraud the public or his employer of

the right to re ceive the faithful performance of his duty. An instructive case

on this factor is DeSoto v. Hialeah Police Pension B oard of Trustees , 870 So.

2d 844 (Fla. 3d DCA 2003). Mr. DeSoto was a Hialeah police officer who pled

guilty to several charges, including c onspiracy to possess and distribute

cocaine, to commit robbery, and to carry a firearm during a crime of violence,

as well as three robberies. In his appeal of the police pension boardÔs decision

that his benefits were subject to forfeiture, Mr. DeSoto arg ued that section

112.3173(2)(e)6. was inapplicable because his crimes were committed while

he was on suspension and thus could not be related to his duties as a police

officer.

43. The DeSoto court itemized Mr. DeSotoÔs extensive involvement in each

crime and ultimately held that whether Mr. DeSoto was on active duty as a

police officer was not controlling; rather, the statute requires establishment

of Ña nexus between the crimes charged against the public officer and his or

her duties and/or position.Ò Id. at 846. ÑÈ DeSoto clearly violated his duty as

a public officer to safeguard the public faith in his office. Although suspended

for a period of time, DeSoto remained a public servant.Ò Id. The court

affirmed the pension boardÔs determination that Mr. DeSo toÔs conviction

merited forfeiture of his pension rights.

44. Thus, violating a duty or oath can be sufficient to satisfy the nexus

requirement as to factor (c). See also Simcox v. City of Hollywood Police

OfficersÔ Ret. Sys. , 988 So. 2d 731, 734 (Fla. 4th DCA 2008)( ÑÓ Faithful

performanceÔ of a ÓdutyÔ as a police officer under [section 112.3173(2)(e)6.]

does not allow an officer to traffic in drugs when off duty.Ò) .

45. Unlike the officer in DeSoto , Mr. Hale was not on suspension but was

unemployed when at least some of his crimes were committed. Regardless of

his employment status, however, Mr. Hale was a licensed teacher and had a

professional duty to the public to refrain from inappropriate communications

and relationships with underage students. The Ñfa ithful performanceÒ of a

teacherÔs ÑdutyÒ does not allow the teacher to have romantic assignations

with a student, regardless of whether or where the teacher is employed or

where the student is enrolled. Bay District Schools and the public had the

right to expect that Mr. Hale would not be convicted of sex crimes based on

acts with a student. His actions were inimical to his professional status.

Because Mr. Hale violated his direct duty to Bay District Schools as to his

October 10, 2016, offense and violate d his general duty to the public as a

licensed teacher by engaging in a romantic relationship with a student, the

nexus requirement is satisfied. Factor (c) of the Ñspecified offenseÒ test has

been met.

46. Factor (d) requires a determination as to whether Mr. Hale committed

the felonies to obtain a profit, gain , or advantage for himself or some other

person. Case law is clear that profit, gain , or advantage is not limited to

economic gain. A public employee commits a felony for profit, gain, or

advantage, when the felony is committed to satisfy the employeeÔs sexual or

emotional gratification. Cuenca v. State Bd. of Admin. , 259 So. 3d 253, 259

(Fla. 3d DCA 2018); Bollone , 100 So. 3d at 1281 - 82 (possession of child

pornography for personal gratification was Ñpersonal gainÒ for purposes of the

statute). There is no question that Mr. Hale committed his offenses for his

own sexual or emotional gratification. Factor (d) of the Ñspecific offenseÒ test

has been satisfied.

47. Factor (e) requires a determination as to whether Mr. Hale committed

the felonies through the use or attempted use of the power, rights, privileges,

duties, or position of his public employment. The SBA argues that but for his

public employment with Bay District Schools, Mr. Hale would not have met

the victim. Mr. HaleÔs ensuing actions, though having no direct connection to

his employment, are traced and attributed to his meeting the victim while he

was employed at her school. Thus, the SBA asserts that Mr. HaleÔs

convictions stemming from his relationship with the victim are Ñinseparably

intertwinedÒ with his position as a teacher.

48. At the outset, it is noted that the inquiry under factor (e) is narrower

than under factor (c), which considers whether the employee Ñwillfully and

with intent t o defraudÒ deprived the public or his employer of the right to

receive the Ñfaithful performanceÒ of his duties. Factor (e) does not include

language assessing the employeeÔs intent and does not require consideration

of the employeeÔs duties to the wider p ublic. Factor (e) focuses on the behavior

of the employee vis à vis his public employer: did the employee misuse the

Ñpower, rights, privileges, duties, or positionÒ of his public employment in the

commission of a felony?

49. The Bollone court stated, ÑIn fact, but for the power, rights, privileges,

or duties of Appellant's public employment, Appellant would not have been

able to use his TCC work computer to acquire, possess, or view child

pornography.Ò 100 So. 3d at 1282. As indicated by the quote, the cas e against

Mr. Bollone did not hinge entirely on the Ñbut forÒ statement; he clearly

misused property entrusted to him as a public employee to commit criminal

acts in the course of his employment.

50. Mr. Hale argues that the SBA has alleged no comparable misuse of his

position. He argues that the only direct connection between his crimes and

his employment is that he met the student while on the job and had some

casual, unobjectionable teacher - student interactions. The criminal activity

occurred after Mr. Hale was in any position to misuse his status as a teacher

in the school attended by his victim.

51. The SBA cites several prior DOAH orders as authority for its Ñbut forÒ

argument, correctly noting that in each case the ALJ concluded that but for

the fact of public employment, the perpetrator would not have been in a

position to commit his crime. However, in none of these cases was the mere

fact that the public employee met a victim while on the job found sufficient to

establish that the employee used the Ñpower, rights, privileges, duties, or

position of his public employmentÒ to commit his crime.

52. Moran v. State B oard of Admin istration , Case No. 17 - 5785 (Fla.

DOAH May 15, 2018; Fla . SBA July 3, 2018), involved a Department of

Corrections (ÑDOCÒ) corre ctions officer convicted of conspiracy to commit the

murder of a former inmate. The SBA contends that this case supports its Ñbut

forÒ argument because the forfeiture was ordered even though the corrections

officer conspired to kill the former inmate after the inmate was released and

no longer in custody.

53. Contra the SBA, the deciding factor is not the location of the victim or

his proximity to the public employeeÔs workplace. The deciding factor is

whether the public employee used his position in furthe rance of the felony he

committed. In Moran , the corrections officer was found to have conspired

with other DOC employees to commit the crime. He was also found to have

used his position to ensure that the crime would occur when Officer Thomas

Driver, whose grudge against the former inmate inspired the conspiracy,

would be at work and thereby have an alibi. Moran at ¶ 18. Mr. Hale argues

that the record in the instant case is bare of similar facts showing him using

his position to facilitate his crimes.

54. In Maradey v. State B oard of Admin istration , Case No. 13 - 4172 ( Fla.

DOAH Jan. 16, 2014; Fla. SBA Apr. 4, 2014), the ALJ concluded that Ñ[b]ut

for her employment with MDT [Miami - Dade Transit], Petitioner would not

have become involved in the criminal activi ty to which she pled guilty/nolo

contendereÈ.Ò Maradey at ¶ 45. The facts established that Ms. Maradey used

her position to recruit fellow MDT bus drivers to participate in an insurance

fraud scheme in which a medical provider paid patients kickbacks from

insurance payments. She exploited her knowledge of her fellow employeesÔ

physical and financial conditions to recruit them for the medical provider.

She was promised additional payments for this recruitment of her fellow bus

drivers. Mr. Hale contends that there is no evidence in the instant case of

him exploiting his position to further a criminal scheme.

55. Holsberry v. Dep artment of M anagement Ser vices , Case No. 09 - 0087

( Fla. DOAH July 24, 2009; Fla . DMS Oct. 19, 2009), involved a teacher who

pled guilt y to child abuse of a student at the school where he taught. The ALJ

concluded that his Ñcontact with [student] R.D. was made possible only as a

result of his position as a teacher.Ò Holsberry at ¶ 37. The facts established in

Holsberry are not detailed bu t do make it clear that whatever went on

between Mr. Holsberry and the student occurred at the school where he was

teaching, thus distinguishing that case from the instant proceeding.

56. Mr. Hale contends that the facts of the instant case do not establis h

that he was in a position of authority over his victim. He was not the victimÔs

teacher and his only at - school interaction with the victim was some

occasional math tutoring in the cafeteria. Nothing inappropriate happened at

the school or while Mr. Hale was employed by Bay District Schools, with the

exception of the October 10, 2016, incident, by which time Mr. Hale was

teaching at a different school.

57. Mr. Hale argues that Ñit is unreasonable to say the mere act of

meeting someone through oneÔs employm ent means that all future

interactions with that person occur through the use of the employment

position.Ò Mr. Hale presented a hypothetical to illustrate the

unreasonableness of the SBAÔs position. A public employee meets someone in

the course of his work . The two people pursue the relationship while the

employee is off duty and they eventually get married. After twenty years of

marriage, the employee is convicted of a felony against the spouse, entirely

unrelated to his role as a public employee. Followin g the SBAÔs logic, the

employeeÔs retirement benefits would be forfeit ed because the employee

would never have met the spouse but for his public employment, despite the

fact that such meeting was the sole connection between the crime and the

place of emplo yment.

58. The undersigned agrees that it is unreasonable to say that merely

meeting someone on the job means that all future interactions are

attributable to the use of the employment position. The undersigned agrees

that merely making the victimÔs acquai ntance while at work is too slender a

thread with which to establish that Mr. HaleÔs crimes were Ñinseparably

intertwinedÒ with his position as a teacher. Newmans , 701 So. 2d at 577. The

case law cited above supports the idea that the Ñbut forÒ test requir es some

overt act by the employee over and above simply meeting the victim at work.

59. Unfortunately for Mr. Hale, the facts of this case demonstrate that he

undertook such an overt act by exchanging personal contact information with

the victim while he was still employed by the high school at which the victim

was a student. Mr. Hale admitted there was no legitimate reason to do this.

He was aware that the student was attracted to him and still chose to give

her this encouragement. Despite his denial of a ny intent to pursue a romantic

relationship with the student, Mr. Hale had to know where his actions might

lead. If Mr. Hale had maintained a professional distance from the student

while he was still in a position of authority at her school, the subsequent

disaster might never have occurred. This was the act that began the cascade

of events that led to Mr. HaleÔs disgrace, criminal conviction, imprisonment,

and loss of career, and it occurred while Mr. Hale was a public employee. This

was the act that satis fied the Ñbut forÒ test and established that Mr. HaleÔs

crimes were inseparably intertwined with his position as a teacher.

60. It is concluded that factor (e) of the Ñspecific offenseÒ test has been

satisfied. The SBA has therefore proved by a prepondera nce of the evidence

that Petitioner has forfeited his FRS retirement benefits under section

112.3173(2)(e)6.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the State Board of Administration enter a final order

determining that Matthew J. Hale forfeited all his rights and benefits under

the Florida Retirement System, except for the return of any accumulated

contributions, when he was convicted of Ñspecified offensesÒ committed during

employment.

D ONE A ND E NTERED this 3rd day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 3rd day of February , 2022 .

C OPIES F URNISHED :

Matthew J. Hale, DC# F90279 Jonathan W. Taylor, Esquire

Madison Correctional Institution Moffa, Sutton & Donnini, P.A.

382 Southwest MCI W ay Trade Center South, Suite 930

Madison, Florida 32340 100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

Rex D. Ware, Esquire Ash Williams, Executive Director &

Moffa, Sutton & Donnini, P.A. Chief Investme nt Officer

Suite 330 State Board of Administration

3500 Financial Plaza 1801 Hermitage Boulevard, Suite 100

Tallahassee, Florida 32312 Post Office Box 13300

Tallahassee, Florida 32317 - 3300

N OTICE OF R IGHT T O S UBMIT 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.