Rivera v. Board of Trustees of the City of Tampa's General Employment Retirement Fund

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DEMETRIO RIVERA, )
)
Appellant, )
)
v. ) Case No. 2D15-1382
)
BOARD OF TRUSTEES OF THE CITY )
OF TAMPA'S GENERAL )
EMPLOYMENT RETIREMENT FUND, )
)
Appellee. )
)
Opinion filed February 26, 2016.
Appeal from the Board of Trustees of the
City of Tampa's General Employment
Retirement Fund.
Mark F. Kelly and Robert F. McKee of Kelly
& McKee, P.A., Tampa, for Appellant.
Luis A. Santos of Ford & Harrison, LLP,
Tampa, for Appellee.
WALLACE, Judge.
Demetrio Rivera challenges a final order of the Board of Trustees of the
City of Tampa's General Employment Retirement Fund (the Board) that forfeited his
retirement benefits. Because the proof of one of the critical elements underlying the
forfeiture order is based entirely on hearsay evidence and, therefore, the forfeiture order
is not supported by competent, substantial evidence, we reverse.
I. THE FACTUAL AND PROCEDURAL BACKGROUND
Mr. Rivera was employed by the City of Tampa for many years and had
earned benefits under the City's retirement plan. In January 2015, the Board issued a
notice of proposed agency action to Mr. Rivera. The notice informed Mr. Rivera that the
Board intended to enter an order terminating and forfeiting all of his accrued retirement
benefits in accordance with section 112.3173, Florida Statutes (2014). In particular, the
Board alleged that Mr. Rivera had committed specified offenses as described in section
112.3173(2)(e)(7). Mr. Rivera responded and notified the Board that he wished to
challenge the proposed forfeiture of his retirement benefits, and the Board scheduled an
evidentiary hearing on the matter. Mr. Rivera was represented by counsel at the
hearing; Mr. Rivera himself appeared telephonically.
At the conclusion of the final hearing, the Board made the following
findings of fact:
1. During his employment with the City of Tampa
("City"), Rivera was a member of the Retirement Plan for the
City of Tampa General Employees (the "Plan").
2. As a City employee working for the Wastewater
Department, Rivera was issued a set of keys which gave him
access to the City's wastewater pump stations.
3. On April 4, 2013, Rivera was arrested at the City of
Tampa Woodlands Wastewater Pump Station where he was
present with a minor victim.
4. During the related police investigation, it was
discovered that on multiple occasions Rivera used his City
issued keys to access City property (pump stations) to
engage in unlawful sexual acts with several minor victims.
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5. The City terminated Rivera's employment on May
9, 2013.
6. Rivera worked for the City for 26 years prior to his
termination.
7. On July 8, 2014, Rivera plead [sic] guilty to
multiple counts of unlawful sexual conduct with minors.
Specifically, Rivera pled guilty to the following relevant
counts:
• Lewd or lascivious battery of a victim age 12 to 15 (2
counts)
• Unlawful sexual activity with certain minors age 16 to
17 (1 count)
• Lewd or lascivious molestation of a victim age 12 to
15 (4 counts)
8. These crimes were committed during Rivera's
employment with the City (and prior to his retirement).
Based on these findings of fact, the Board concluded as a matter of law that Mr. Rivera
had pleaded guilty to and had been convicted of specified offenses as defined in section
112.3173(2)(e)(7). The Board also concluded that Mr. Rivera had committed the
offenses in question through the use or attempted use of power, rights, privileges,
duties, or public employment position, for example, his use of the City keys issued to
him to enter City property. Accordingly, the Board decided that Mr. Rivera's rights,
privileges, and benefits under the Plan were required to be forfeited in accordance with
section 112.3173(3) and entered an order of forfeiture. This appeal followed. 1
II. THE LAW APPLICABLE TO THE PROPOSED FORFEITURE
1
We have jurisdiction under Florida Rule of Appellate Procedure
9.030(b)(1)(C), section 112.3173(5)(b), and section 120.68, Florida Statutes (2014).
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Our review of the Board's forfeiture order is governed by section 120.68,
Florida Statutes (2014). Bollone v. Dep't of Mgmt. Servs., Div. of Ret., 100 So. 3d 1276,
1279 (Fla. 1st DCA 2012). We may set aside the Board's order "only upon a finding
that it is not supported by substantial competent evidence in the record or that there are
material errors in procedure, incorrect interpretations of law, or an abuse of discretion."
Waters v. Dep't of Health, Bd. of Med., 962 So. 2d 1011, 1013 (Fla. 3d DCA 2007)
(citing § 120.68(7)); see also § 120.68(8) & (10).
"The Florida Constitution and statutes provide the framework for the
forfeiture of public retirement benefits." Simcox v. City of Hollywood Police Officers'
Ret. Sys., 988 So. 2d 731, 733 (Fla. 4th DCA 2008). 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." Section 112.3173(3) implements the constitutional provision as
follows:
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 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.
The definition of a "specified offense" applicable to this case is section
112.3173(2)(e)(7), which provides as follows:
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
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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.
See also § 794.09, Fla. Stat. (2014); § 800.05, Fla. Stat. (2014). The Board had the
burden of proving that Mr. Rivera's retirement benefits under the Plan should be
forfeited. See Espinoza v. Dep't of Bus. & Prof'l Reg., 739 So. 2d 1250, 1251 (Fla. 3d
DCA 1999).
Under the foregoing statutory framework, the Board was required to prove
the following elements: (1) that Mr. Rivera was a public officer or employee; (2) that Mr.
Rivera had committed either any felony defined in section 800.04 against a victim
younger than sixteen years of age or any felony defined in chapter 794 against a victim
younger than eighteen years of age; (3) that the offense or offenses were committed on
or after October 1, 2008; and (4) that Mr. Rivera had committed the offense or offenses
in question through the use or attempted use of power, rights, duties, or position of his
public employment position. Accordingly, it was not sufficient for the Board to prove
merely that Mr. Rivera had committed one of the offenses in question against a victim
younger than the designated ages. The Board also had to prove that Mr. Rivera had
committed the offense or offenses through the use or attempted use of his power,
rights, duties, or position as an employee of the City. Stated differently, the Board had
to establish the existence of a "nexus" between the offense or offenses committed and
Mr. Rivera's position as a City employee. Although there are no reported cases
discussing the nexus requirement in the context of section 112.3173(2)(e)(7), there are
several reported cases that address this issue in the context of the so-called "catchall"
provision set forth in section 112.3173(2)(e)(6). See Bollone 100 So. 3d at 1281-82;
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Jenne v. State, Dep't of Mgmt. Servs., Div. of Ret., 36 So. 3d 738, 742-43 (Fla. 1st DCA
2010); Simcox, 988 So. 2d at 734; DeSoto v. Hialeah Police Pension Fund Bd. of Trs.,
870 So. 2d 844, 845-46 (Fla. 3d DCA 2003); Newmans v. State, Div. of Ret., 701 So. 2d
573, 577 (Fla. 1st DCA 1997); Bullock v. State Bd. of Admin., No. 14-2616, 2014 WL
4960358, at *4 (Fla. Div. of Admin. Hgs. Sept. 30, 2014).
III. THE EVIDENCE PRESENTED
The Board did not present any witness testimony at the hearing. Thus
none of the victims of Mr. Rivera's offenses testified. Instead, the Board's case against
Mr. Rivera consisted entirely of documentary evidence. The documents received in
evidence were as follows: (1) copies of police files concerning Mr. Rivera's offenses; (2)
copies of various documents from the court files regarding the criminal prosecution of
Mr. Rivera; and (3) copies of Mr. Rivera's personnel file. Although Mr. Rivera testified at
the hearing, he denied that he had used the keys issued to him by the City to commit
any of the offenses with the minor victims on City property.
The police files introduced into evidence included investigative reports
prepared by the officers assigned to investigate Mr. Rivera's offenses. The police files
also included lengthy transcripts of interviews with the minor victims. Information
contained in these materials indicated that Mr. Rivera had in fact used his City-issued
keys to access various facilities where several of the incidents involving sexual activity
with the minor victims had occurred.
The materials from the court files regarding the prosecution of Mr. Rivera
included, for each of several cases, the Uniform Plea, Acknowledgment and Waiver of
Rights forms signed by Mr. Rivera, and the judgment and sentences imposed for the
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offenses for which he was convicted. The plea forms and the judgments established
that Mr. Rivera had pleaded guilty to the offenses in question.
Mr. Rivera's personnel file was voluminous, and it contained a variety of
materials that were not pertinent to the issue before the Board. However, the personnel
file also included a "Notice of Disciplinary Action" form dated May 9, 2013, stating that
the City was dismissing Mr. Rivera from his employment for "neglect of duty" and "moral
turpitude." In this regard, the Notice stated, in pertinent part, as follows:
Through the investigation, information has determined that
you frequently misused your City of Tampa vehicle in your
pursuit and contact with female minors. This included being
on City of Tampa property and misuse of your authority,
including use of City issued keys to access City property and
pump stations for personal use (non-City use) and for
unlawful and inappropriate purposes, all of which was
admitted and verified in the investigation.
Mr. Rivera's supervisor and the department director (or designee) had signed the
Notice. Although Mr. Rivera had also signed the Notice, the preprinted portion of the
document informed the employee that "[y]our acknowledgment of receipt does not
indicate agreement."
IV. DISCUSSION
The sole question that we are called upon to determine in this appeal is
whether the forfeiture order is supported by competent, substantial evidence.
Undoubtedly, the Board established the first three elements of its case for forfeiture
under section 112.3173(2)(e)(7). Mr. Rivera's status as a public employee was not
disputed. The certified copies of his guilty pleas and the judgments and sentences
proved that he had committed seven of the requisite offenses. See Kelly v. Dep't of
Health & Rehab. Srvcs., 610 So. 2d 1375, 1377 (Fla. 2d DCA 1992) (stating that where
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a judgment and sentence is based upon a guilty plea, "a defendant is estopped from
denying his guilt of the subject offense in a subsequent civil action"). It was undisputed
that Mr. Rivera had committed his offenses after October 1, 2008. With regard to the
fourth element that the Board had to prove to support the forfeiture order, i.e., the nexus
between Mr. Rivera's position as a City employee and his commission of the offenses,
Mr. Rivera argues that the Board failed to introduce any proof other than inadmissible
hearsay. Accordingly, we must examine the Board's proof on the fourth element and
the sufficiency of the evidence to support the forfeiture order.
In administrative proceedings such as the one conducted by the Board,
section 120.569(2)(g) provides:
Irrelevant, immaterial, or unduly repetitious evidence
shall be excluded, but all other evidence of a type commonly
relied upon by reasonably prudent persons in the conduct of
their affairs shall be admissible, whether or not such
evidence would be admissible in a trial in the courts of
Florida. Any part of the evidence may be received in written
form, and all testimony of parties and witnesses shall be
made under oath.
Furthermore, in such proceedings, "[h]earsay evidence may be used for the purpose of
supplementing or explaining other evidence, but it shall not be sufficient in itself to
support a finding unless it would be admissible over objection in civil actions."
§ 120.57(1)(c); see also Sunshine Chevrolet Oldsmobile v. Unemployment Appeals
Comm'n, 910 So. 2d 948, 950 (Fla. 2d DCA 2005); Yost v. Unemployment Appeals
Comm'n, 848 So. 2d 1235, 1237 (Fla. 2d DCA 2003). With these evidentiary principles
in mind, we turn to a consideration of the evidence presented at the hearing to prove the
fourth element of the Board's case for forfeiture.
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The certified copies from the files of the criminal cases established that
Mr. Rivera had committed one or more of the requisite offenses. However, the
elements of the requisite offenses did not include any matters regarding the required
nexus between Mr. Rivera's use of his position as a City employee and the commission
of the offenses. Notably, the materials drawn from the court files did not include a
transcript of the plea colloquy between Mr. Rivera and the trial court. A statement of the
factual basis for the pleas in accordance with the requirements of Florida Rule of
Criminal Procedure 3.172(a) in the plea colloquy might have included information about
how and where the offenses were committed. But no transcript of the plea colloquy was
included in the materials presented.
The police reports and the transcripts of the interviews with the minor
victims did include information about Mr. Rivera's use of his City-issued keys to access
property owned by the City where he allegedly committed some of the offenses for
which he was convicted. But none of the victims testified at the hearing. The police
reports and the transcripts of the witness interviews were clearly hearsay that would not
be admissible over objection in civil actions. See Carter v. State, 951 So. 2d 939, 943-
44 (Fla. 4th DCA 2007) (holding that a victim's affidavit attached to a police report was
"classic hearsay" and "[did] not fit within the business or public records exception to the
hearsay rule"). We have not overlooked that when the police officers arrested Mr.
Rivera on April 4, 2013, he was on City property and in the company of an underage
female. Mr. Rivera would almost certainly have used his City-issued keys to gain
access to the property where he was arrested. However, the Board did not present any
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evidence that Mr. Rivera committed an offense under chapter 794 or under section
800.04 on the date of his arrest.
In support of the forfeiture order, the Board relies on its own Notice of
Disciplinary Action as the necessary nonhearsay evidence of the fourth element. The
Board points out that the Notice "specifically states that the investigation that led to [Mr.
Rivera's] termination revealed that he used his City issued keys to access City pump
stations for his personal use and for unlawful and inappropriate purposes." The Board's
characterization of its own Notice is accurate as far as it goes. Nevertheless, the
person or persons who performed the investigation for the Board did not testify at the
hearing. And, for the most part, the information in the Notice had to be gathered from
other sources, and it was not based on personal knowledge. Thus the information in
the Notice constitutes double or triple hearsay that would not be admissible over
objection in civil actions. See § 90.805; Holborough v. State, 103 So. 3d 221, 223 (Fla.
4th DCA 2012); J.B.J. v. State, 17 So. 3d 312, 319 (Fla. 1st DCA 2009); Harris v. Game
& Fresh Water Fish Comm'n, 495 So. 2d 806, 808-09 (Fla. 1st DCA 1986).
V. CONCLUSION
All of the evidence in the record on the fourth element of the forfeiture
case was hearsay that would not be admissible in evidence over objection in civil
actions. It follows that the forfeiture order is not supported by competent, substantial
evidence and that it must be set aside. For this reason, the forfeiture order must be
reversed. See Cash v. Fla. Real Estate Comm'n, 176 So. 2d 518, 520 (Fla. 2d DCA
1965); Sheriff of Broward Cty. v. Stanley, 50 So. 3d 640, 644 (Fla. 1st DCA 2010); Scott
v. Dep't of Prof'l Reg., 603 So. 2d 519, 520 (Fla. 1st DCA 1992); Harris, 495 So. 2d at
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809. On remand, the Board shall enter an order restoring to Mr. Rivera his benefits
under the Plan. The order shall also provide for the payment to Mr. Rivera of any past
due benefits with interest.
Reversed and remanded with directions.
KHOUZAM and SLEET, JJ., Concur.
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