97-001357 Lawrence E. Ellis vs. Division Of Retirement Status: Closed Recommended Order on Tuesday, July 29, 1997.

Summary: Sheriff's federal felony convictions dictate forfeiture of state retirement benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE E. ELLIS , )

)

Petitioner , )

)

vs. ) Case No. 97-1357

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF RETIREMENT , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Don W. Davis,

held a formal hearing in the above-styled case on May 29, 1997,

in Tallahassee, Florida.

APPEARANCES

For Petitioner : John A. Barley, Esquire

Post Office Box 10166

Tallahassee, Florida 32301

For Respondent : Augustus D. Aikens, Jr., Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Petitioner's rights

and benefits under the Florida Retirement System are subject to

forfeiture.

PRELIMINARY STATEMENT

By letter of August 10, 1993, Respondent notified Petitioner

that his rights and benefits under the Florida Retirement System

had been forfeited as a result of conviction for distribution of

drugs and conspiracy to obstruct justice, violations of

Title 21, United States Code, Section 841(a)(1), Title 18,

United States Code, Sections 2, 371 and 1503. The letter advised

Petitioner of his right to a formal hearing to contest

Respondent’s decision. Petitioner elected to request a formal

hearing, and the matter was referred to the Division of

Administrative Hearings for conduct of formal proceedings

pursuant to Section 120.57(1), Florida Statutes.

By joint motion filed on February 1, 1994, counsel for the

parties requested the matter be abated pending completion of

Petitioner’s appeal of his federal conviction before the United

States 11th Circuit Court of Appeals.

By order dated February 18, 1994, the motion was granted and

the file of the Division of Administrative Hearings was closed

and the case referred back to Respondent until such future time

as either party might request further proceedings on the matter.

Respondent, by pleading dated March 12, 1997, requested

return of the case to the active trial docket and scheduling of a

final hearing inasmuch as the criminal appeal requiring abatement

had been concluded.

Petitioner’s request for further continuance, pending

conclusion of additional attempts to obtain federal post

conviction relief, was denied.

At hearing, Petitioner presented testimony of his wife,

Connie Ellis. Petitioner's exhibits 1-6 were received into

evidence. Respondent called Maurice Helms as a witness, and its

exhibits 1-10 were received into evidence.

The transcript of hearing was filed June 17, 1997, and the

parties were granted leave to file proposed findings more than

ten days beyond that date. The parties' proposed recommended

orders have been duly considered in the preparation of this

recommended order.

FINDINGS OF FACT

1. Petitioner, Lawrence E. Ellis (Ellis), was employed as a

deputy sheriff in the Nassau County Sheriff’s office on or about

April 1, 1966. Thereafter, with the exception of a two year

hiatus (March, 1980 until July, 1982) from public employment,

Ellis was employed in various public positions through which he

accumulated credit in the Florida Retirement System until

conclusion of his service as Sheriff of Nassau County, Florida,

on December 31, 1992.

2. As the Sheriff of Nassau County, Ellis was a

constitutional officer required by state law to enforce all

provisions of the Florida Comprehensive Drug Abuse Prevention and

Control Act codified in Chapter 893, Florida Statutes, as well as

other provisions of law. Upon assuming his constitutional duties

as Sheriff, Ellis took an oath to "support, protect, and defend

the Constitution and Government of the United States and the

State of Florida."

3. Effective January 1, 1993, Ellis began receiving monthly

retirement benefits from Respondent pursuant to an option he had

chosen where benefits were payable jointly to him and his wife.

Each monthly benefit payment was in the amount of $1,978.88.

4. On February 19, 1993, a federal indictment, issued in

the United States District Court for the Middle District of

Florida (Case No. 93-52-Cr-J-10), charged Ellis with eight drug-

distribution related counts and two counts of obstruction of

justice. The indictment detailed the overt acts alleged to have

been committed by Ellis and specifically charged him with

committing a series of felonies during the period of time when he

was Sheriff of Nassau County.

5. On July 15, 1993, Ellis was convicted, pursuant to jury

trial on the charges in the indictment, for certain violations of

21 United States Code Section 841(a)(1) and 18 United States Code

Sections 2, 371 and 1503. Specifically, as stipulated by the

parties, Ellis was found guilty and adjudged guilty of:

a. ) knowingly possessing, with intent to

distribute, cocaine, a Schedule II controlled

substance, as the result of an offense

concluding on June 3, 1992, as set forth in

Counts 3, 4, and 6 of the indictment.

b. ) knowingly possessing, with intent to

distribute, marihuana, a Schedule I

controlled substance, as the result of an

offense concluded on July 25, 1991, as set

forth in Counts 2, 5, and 7 of the

indictment.

c. ) knowingly conspiring to obstruct justice

as the result of false testimony, an offense

concluded on September 2, 1992, as set forth

in Count 10 of the indictment.

d. ) knowingly conspiring to possess with

intent to distribute cocaine and distributing

cocaine; and knowingly possessing with intent

to distribute and distributing marihuana; and

knowingly conspiring to obstruct justice

(false statements) as set forth in Counts 1

and 9 of the indictment.

6. On or about August 4, 1993, Respondent, without prior

notice to Ellis, determined that Ellis’ convictions on the

charges in the indictment required the forfeiture of his

retirement benefits. Thereafter, on August 5, 1993, Ellis’ name

was removed from the retirement payroll.

7. Ellis was sent a letter, dated August 10, 1993, by

Respondent’s representative, informing Ellis that his retirement

benefits were forfeited due to his convictions and that he would

receive no further benefit payments since the total of benefit

payments made to him already exceeded the total of contributions

made by Ellis to the retirement system. Ellis was apprised in

the letter of his right to initiate administrative proceedings

within 21 days to challenge the action taken by Respondent.

8. By letter dated September 9, 1993, Ellis’ counsel

requested formal administrative proceedings. While admitting

that Ellis was convicted of the charges in the indictment, the

letter disputed whether such charges constituted a felony

conviction, as well as Respondent’s determination of the amount

of contributions made by Ellis to the retirement system.

9. Ellis’ accumulated contributions on deposit at the time

of his retirement totaled $6,025.26. Ellis received a total of

$13,882.39 in monthly retirement payments, inclusive of a payment

of $2,009.11 in July of 1993. Ellis received $7,857.13 in excess

of his accumulated contributions.

10. On October 1, 1993, United States District

Judge Terrell Hodges adjudged Ellis to be guilty of the charges

referenced above and committed Ellis to custody of the

United States Bureau of Prisons for a term of 192 months.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Sections 112.3173(5)(a) and 120.57(1), Florida

Statutes.

12. Pertinent to this case, portions of Section 112.3173,

Florida Statutes, address the grounds for forfeiture of

retirement benefits and the procedure to be followed in a

forfeiture determination as follows:

Felonies involving breach of public trust and

other specified offenses by public officers

and employees; forfeiture of retirement

benefits .—

(1 ) INTENT.--It is the intent of the

Legislature to implement the provisions of s.

8(d), Art. II of the State Constitution.

2) DEFINITIONS.--As used in this section,

unless the context otherwise requires, the

term

(a) "Conviction" 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.

* * *

(c) "Public officer or employee" means an

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

* * *

(e) "Specified offense " 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 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;

or

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 he acts or in which he is

employed of the right to receive the faithful

performance of his duty as a public officer

or employee, realizes or obtains, or attempts

to realize or obtain, a profit, gain, or

advantage for himself or for some other

person through the use or attempted use of

the power, rights, privileges, duties, or

position of his public office or employment

position . (Emphasis Supplied.)

(3 ) FORFEITURE. 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 admitted commission, aid, or

abatement of a specified offense, shall

forfeit all rights and benefits under any

public retirement system of which he is a

member, except for the return of his

accumulated contributions as of his date of

termination.

* * *

(5 ) FORFEITURE DETERMINATION.

(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 under 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.

13. The office of sheriff is a constitutional office

established under Article VIII, Section 1(d), Constitution of

Florida, and possesses the executive power of the State within

the county. 40 Fla. Jur.2d, Police, Sheriffs, and Constables,

Section 68. Residing in the office of sheriff is a portion of

the sovereign power of the State, and the office has with it all

of the common law powers and duties associated with the office.

Id ., Section 80. A sheriff takes an oath of office in which he

swears that he will support, protect, and defend the Constitution

and government of the United States and of the State of Florida

and will faithfully perform the duties of sheriff. Id .

Section 73.

14. As heretofore noted in the findings of fact, Ellis was

convicted of these offenses: (1) knowingly possessing, with

intent to distribute, cocaine, a Schedule II controlled substance

for an offense which concluded on June 3, 1992, as charged in

Counts 3, 4, and 6 of the indictment; (2) knowingly possessing,

with intent to distribute, marihuana, a Schedule I controlled

substance for an offense which concluded on July 25, 1991, as

charged in Counts 2, 5, and 7 of the indictment; (3) knowingly

conspiring to obstruct justice of an offense which concluded on

September 2, 1992, as charged in Count 10 of the indictment; and

(4) knowingly conspiring to possess with intent to distribute

cocaine and distributing cocaine; possessing with intent to

distribute marihuana and distributing marihuana; and knowingly

conspiring to obstruct justice (false statements) as charged in

Counts 1 and 9 of the indictment.

15. All peace officers of the State of Florida are required

to enforce "all provisions" of the Florida Comprehensive Drug

Abuse Prevention and Control Act, Chapter 893, Florida Statutes.

See Section 893.09, Florida Statutes. Contrary to this duty,

Ellis committed and was convicted of felony offenses constituting

official misconduct. Section 839.25, Florida Statutes.

Accordingly, Ellis' retirement benefits are subject to forfeiture

under the provisions of Sections 112.3173 and 121.091(5)(f),

Florida Statutes.

16. Contrary to arguments advanced by Petitioner’s counsel,

Respondent is not authorized or required to include Petitioner in

its preliminary decision-making process regarding whether to

implement forfeiture proceedings. Respondent’s August 10, 1993

letter to Ellis provided notice of Respondent’s intended action

and accorded with requirements of Chapter 120, Florida Statutes.

17. Similarly, argument of Petitioner’s counsel that Ellis’

spouse was inadequately noticed regarding agency action affecting

her substantial interest must be rejected. Designation as a

joint annuitant provided Mrs. Ellis only a contingent interest,

at best, that could have been terminated by her husband without

her consent at any time. Section 121.091(6)(d), Florida

Statutes. Events required for the spousal interest to rise to

the level of entitlement to administrative due process

protections in the present instance would require that Mrs. Ellis

survive Petitioner as his spouse and that she establish his

continuing right to receive benefits at his death. Mrs. Ellis’

interest has clearly not ripened to this stage at present and is

not the type of interest designed to be protected by Section

112.3173(5), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that a final order be rendered determining that

Petitioner forfeited all rights and benefits under the Florida

Retirement System upon his July 15, 1993 federal felony

convictions and requiring the refund by Petitioner of $7,857.13

in benefits paid to him by Respondent in excess of Petitioner’s

accumulated contributions.

DONE AND ENTERED this 29th day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 1997.

COPIES FURNISHED:

Augustus D. Aikens, Jr., Esquire

Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

John A. Barley, Esquire

Post Office Box 10166

Tallahassee, Florida 32301

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Paul A. Rowell, Esquire

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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.