Cuenca v. State Bd. of Admin.
| Decision Date | 14 November 2018 |
| Docket Number | No. 3D18-780,3D18-780 |
| Citation | 259 So.3d 253 |
| Parties | Javier CUENCA, Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee. |
| Court | Florida District Court of Appeals |
Law Offices of Slesnick and Casey, LLP, and James C. Casey, Coral Gables, for appellant.
Ruth Ann Smith (Tallahassee), Assistant General Counsel; Pennington, P.A., and Brian A. Newman (Tallahassee) and Brandice D. Dickson (Tallahassee), for appellee.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
Javier Cuenca ("Cuenca"), a former employee of the Miami-Dade County Public Schools ("MDCPS"), seeks judicial review of the final order entered by the State Board of Administration ("State Board"), concluding that pursuant to section 112.3173(3), Florida Statutes (2012), Cuenca has forfeited his rights and benefits under the Florida Retirement System ("FRS") Investment Plan, except for the portion of his accumulated contributions, because he was convicted of a "specified offense" committed prior to his retirement as defined in section 112.3173(2)(e) 6., Florida Statutes (2012). For the reasons that follow, we affirm.
On February 7, 2017, the State Board notified Cuenca that pursuant to section 112.3173 he had forfeited his rights and benefits under the FRS Investment Plan as a result of his October 4, 2016 plea of nolo contendere to two counts of felony battery in case number 14-25626 for acts committed while employed by MDCPS and demanded that Cuenca return the distributions he had received, except for his employee contributions. After receiving the State Board's notice, Cuenca requested a formal hearing before the Division of Administrative Hearings ("DOAH").
At the formal hearing before DOAH, the State Board introduced into evidence, among other things, the following: (1) the transcript of the sworn statement of one of the victims, D.F., made prior to Cuenca's arrest in case number 14-25626; (2) the original information filed against Cuenca relating to D.F.; (3) the arrest affidavit relating to D.F.; (4) the transcript of D.F.'s deposition conducted by Cuenca's counsel following Cuenca's arrest; (5) the consolidated information resulting from Cuenca's negotiated plea; and (6) the transcript of Cuenca's plea colloquy. In addition, several witnesses testified at the hearing, including Cuenca and the prosecutor involved in Cuenca's criminal case.
The evidence presented at the hearing reflects that Cuenca was employed by MDCPS in various positions, including as a basketball coach. After four of Cuenca's basketball players alleged that he had sexually harassed and/or assaulted them, Cuenca was charged in four separate cases with lewd and lascivious molestation on a child twelve years of age or older but less than sixteen years of age, attempted lewd and lascivious molestation on a child twelve years of age or older but less than sixteen years of age, or lewd and lascivious conduct on a child over sixteen years of age by a defendant over eighteen years of age.
D.F.'s sworn statement and/or deposition reflect that Cuenca was D.F.'s basketball coach starting when he was in the seventh grade at a Miami-Dade County middle school, and Cuenca also coached D.F. when he was in the ninth grade at a Miami-Dade County high school. While D.F. and Cuenca were alone in a classroom when D.F. was in the ninth grade, Cuenca asked D.F. to see what he referred to as D.F.'s "virgin line." Cuenca explained to D.F. that by looking at D.F.'s penis, he could tell whether or not D.F. was a virgin and this was important because having sex would adversely affect D.F.'s basketball performance. Because Cuenca had repeatedly asked D.F. to let him see his "virgin line" and D.F. was tired of being repeatedly asked, D.F. pulled down his shorts and exposed his penis. However, when Cuenca attempted to touch D.F.'s genitals, D.F. swiped Cuenca's hand away before Cuenca was able to touch him, pulled up his pants, and left the classroom. D.F. did not initially report this incident. The evidence also reflects that Cuenca asked D.F. if he wanted to take an enhancement drug that would make him stronger and bigger. At first, D.F. said that he did, but after Cuenca told D.F. that he would have to constantly check D.F.'s testicles while on the drug, D.F. decided to not take the enhancement drug because he did not want expose his genitals to Cuenca.
In addition to the original information relating to D.F., the police reports, the consolidated information, D.F.'s sworn statement, the prosecutor's testimony, and the judgment showing Cuenca's convictions for two counts of felony battery, the State Board also introduced a transcript of the plea colloquy, which reflects that Cuenca entered into a negotiated plea on October 4, 2016. The transcript reflects that although Cuenca was willing to change his plea from not guilty to one of no contest, Cuenca was unwilling to plea to any charge that would designate him as a sexual offender or to any charge he believed would later prohibit him from sealing his criminal record. Thus, the State agreed to consolidate the four cases involving four separate victims into a single four-count information under case number 14-25626, dismiss two of the four counts, and amend the two remaining counts relating to victims D.F. and O.Q. to charge felony batteries, in exchange for Cuenca's plea of nolo contendere to two counts of felony battery, and Cuenca's agreement to waive any defects in the new charging document or the arrest forms and to stipulate that there was a prima facie factual basis for the negotiated plea. Pursuant to the negotiated plea, Cuenca pled nolo contendere to the two counts of felony battery, stipulated that there was a factual basis to support his plea, waived any and all defects in the amended information, and agreed, among other things, that during the term of his probation, he could not: have any unsupervised contact with any minor; reside in a setting with minors; or teach, volunteer, coach, or engage in any activity that would place him in a position of authority over minors. Based on the negotiated plea, the trial court found Cuenca guilty of the two counts of felony battery and withheld adjudication.
In addition to the plea colloquy and other documentary evidence, Cuenca and the prosecutor who investigated the case and negotiated the plea with Cuenca, testified at the formal hearing. Cuenca admitted that he was D.F.'s basketball coach at a Miami-Dade County public middle school and high school, and that he was aware of the allegations made by D.F.—that he had asked D.F. to pull down his shorts, and thereafter, he had attempted to touch D.F.'s genitals. Cuenca also acknowledged that he was able to be at the high school because he was a basketball coach at the school, and he additionally acknowledged that he entered into the negotiated plea to resolve the pending criminal charges, including those relating to D.F.
Following the hearing, the ALJ entered its recommended order making numerous factual findings, including that Cuenca was an employee of MDCPS and that Cuenca pled nolo contendere to two counts of felony battery, which constitutes a "conviction" pursuant to section 112.3173(2)(a).1
However, in its conclusions of law, the ALJ determined that despite its determination that Cuenca was an employee of MDCPS at the time of the offenses, the State Board failed to establish the "nexus" requirement for forfeiture under section 112.3173(2)(e) 6., and therefore, Cuenca had not forfeited his FRS benefits. Specifically, the ALJ determined that the record lacked competent, substantial evidence of Cuenca's conduct, the circumstances, and the location associated with Cuenca's crimes. Additionally, despite concluding that Cuenca "had a duty to the public to safeguard students," the ALJ determined that the "record fail[ed] to meet the statutory requirement and demonstrate any nexus between the crimes charged against [Cuenca] and his duties as a coach because no factual basis was established ... between the offenses committed and [Cuenca's] position as a coach." In reaching its conclusions, the ALJ found persuasive and relied on Rivera v. Board of Trustees of the City of Tampa's General Employment Retirement Fund, 189 So.3d 207 (Fla. 2d DCA 2016).
Cuenca and the State Board did not file exceptions to the ALJ's recommended order. The matter then went before the State Board for final agency action. In its final order, the State Board adopted the ALJ's factual findings and rejected a portion of the ALJ's conclusions of law, including that the State Board failed to establish the requirements for forfeiture under section 112.3173(2)(e) 6., and therefore, Cuenca had not forfeited his FRS benefits. The State Board also found that the ALJ's reliance on Rivera was misplaced, and included the following additional conclusions of law:
Cuenca's appeal of the final agency order followed. See § 120.68(1)(a), Fla. Stat. (2017) ().
Cuenca contends that the State Board erred by concluding in its final agency order...
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