Hames v. City of Miami Firefighters'

• Decision Date: 05 March 2008
• Docket Number: No. 3D07-186.,3D07-186.
• Citation: 980 So.2d 1112
• Parties: William HAMES, Appellant, v. The CITY OF MIAMI FIREFIGHTERS' AND POLICE OFFICERS' TRUST, Appellee.
• Court: Florida District Court of Appeals

980 So.2d 1112

William HAMES, Appellant, v. The CITY OF MIAMI FIREFIGHTERS' AND POLICE OFFICERS' TRUST, Appellee.

No. 3D07-186.

District Court of Appeal of Florida, Third District.

March 5, 2008.

Rehearing and Rehearing En Banc Denied May 30, 2008.

Richard F. O'Brien, III, Miami, for appellant.

Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. and John J. Quick and Joseph H. Serota, H. Miami; Cypen & Cypen and Stephen H. Cypen, Miami Beach, and Alison S. Bieler and Laura K. Wendell, Miami, for appellee.

Before WELLS, ROTHENBERG, and SALTER, JJ.

ROTHENBERG, J.

William Hames ("Hames") appeals from a final forfeiture order of the City of Miami Firefighters' & Police Officers' Trust ("the Trust") discontinuing all benefits and ordering the return of the amounts received in excess of his accumulated contributions. We affirm.

Hames worked as a City of Miami police officer from 1973 until his retirement in 1998. On the evening of November 7, 1995, Hames was on duty in Downtown Miami. After witnessing a robbery, Hames and his team began to chase the four fleeing suspects. Hames shot and killed one of the suspects, another suspect was shot and killed, a third was apprehended, and the fourth managed to escape. Other officers planted weapons on the suspects' bodies to explain their actions and validate the shootings. On November 13, 1995, Hames gave a sworn statement to homicide investigators wherein he covered up the actions of the other officers by falsely stating that the fleeing suspects were carrying weapons before they were shot.

Hames retired from the police force and began to receive full benefits from the Trust in February 1998. In 2001, the FBI began an investigation into the 1995 incident and other incidents involving the conduct of City of Miami police officers. On September 5, 2001, Hames was charged by information with conspiracy to obstruct justice and deprive Miami's citizens of rights, privileges, and immunities, in violation of federal law. See 18 U.S.C. §§ 242, 1512(b)(3) (2000). On September 6, 2001, Hames entered a plea of guilty, agreeing to cooperate with the federal government, and admitting that he "gave a false and misleading sworn statement regarding the circumstances surrounding the shooting ... on November 7, 1995." Hames was adjudicated guilty and sentenced on November 15, 2004.

On July 12, 2006, the Trust notified Hames that it would be holding a preliminary hearing to determine whether Hames had forfeited his benefits pursuant to section 112.3173, Florida Statutes (2006). The preliminary hearing was held on September 6, 2006, and finding cause to proceed, a formal hearing was conducted on December 8, 2006. The Trust issued the final forfeiture order on December 21, 2006, discontinuing Hames' benefits and ordering the return of $266,336.99. This appeal followed.

Our review of the Trust's forfeiture order is governed by Florida's Administrative Procedure Act, and specifically, section 120.68, Florida Statutes (2006). The Trust's final action may be set aside "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), Fla. Stat. (2006)). Hames argues that the Trust's forfeiture order was improperly entered because: (1) the Trust lacked statutory authority to independently commence forfeiture proceedings; (2) the forfeiture proceedings commenced after the applicable statute of limitations had run; (3) Hames' federal convictions were not specified offenses for the purposes of the forfeiture statute; and (4) the administrative procedures employed by the Trust violated his due process rights. We disagree.

The Trust's Authority to Commence Forfeiture Proceedings

In Florida, a retired police officer forfeits all rights to receive public retirement benefits in excess of his or her accumulated contributions if the officer "is convicted of a specified offense committed prior to retirement." § 112.3173(3), Fla. Stat. (2006). Subsection 112.3173(5) outlines the procedures used to determine whether the retired officer was "convicted" of a "specified offense" prior to retirement, thereby requiring the forfeiture of public retirement benefits pursuant to subsection (3):

(a) Whenever the official or board responsible for paying benefits 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 the 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.

§ 112.3173(5)(a), Fla. Stat. (2006).

Hames first contends that the Trust was not authorized to commence the instant forfeiture proceedings without filing a sworn complaint with Florida's Commission on Ethics. We disagree. The official or board responsible for paying out benefits to its qualified members—in this case, the Trust—is required to 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." § 112.3173(5)(a), Fla. Stat. (2006). The duty to determine whether a forfeiture of benefits is warranted, and the duty to eventually order the forfeiture, rests with the Trust alone, and is not subject to the involvement of the Commission on Ethics. See id.; Jacobo v. Bd. of Trs. of Miami Police, 788 So.2d 362, 363-64 (Fla. 3d DCA 2001) (affirming a forfeiture order issued exclusively by board of trustees after administrative hearing).

The Trust's obligation to conduct a forfeiture determination under chapter 120 is triggered when it "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." § 112.3173(5)(a), Fla. Stat. (2006) (emphasis added). In the instant case, the Trust did not receive notice of Hames' actions from an independent investigation of the Commission on Ethics pursuant to subsection 112.3173(4); instead, it became aware that Hames was convicted of two federal felonies related to his conduct as a City of Miami police officer. The Trust's administrators, therefore, had their own reasons to believe that Hames' right to receive benefits was required to be forfeited, and thus, were authorized and required by statute to conduct a forfeiture determination in accordance with chapter 120. The filing of a sworn complaint with the Commission on Ethics was not a prerequisite to the Trust's going forward with a forfeiture determination under chapter 120, and thus, the administrative procedures fell outside of the jurisdiction of Florida's Commission on Ethics.

The Non-Applicability of Statutes of Limitation

Subsection 112.3231(1), Florida Statutes (2001), provides a five-year statute of limitations for the filing of "all sworn complaints alleging a violation of this part, or of any other breach of the public trust within the jurisdiction of the Commission on Ethics." Hames incorrectly argues that if the Trust was authorized to independently commence the instant forfeiture determination, this statute of limitations acts as a complete bar to the proceedings. The Trust was authorized by statute to determine whether Hames' retirement benefits were required to be forfeited. The administrative forfeiture proceedings were outside of the jurisdiction of the Commission on Ethics, and therefore, the Trust was not required to file a sworn complaint. Accordingly, the statute of limitations applicable to the filing of sworn complaints with the Commission on Ethics is irrelevant to the instant administrative proceeding. Furthermore, the Trust served Hames with notice of the preliminary hearing in July 2006, less than five years after Hames entered his guilty plea, and thus, the limitations period in section 112.3231, Florida Statutes (2001), would not bar the Trust's administrative forfeiture determination in any event.

Arguing in the alternative, Hames contends that the four-year limitations period found in paragraph 95.11(3)(n), Florida Statutes (2001), barred the Trust from proceeding forward with the forfeiture determination. Section 95.011 provides that in the absence of a separately provided time period, the limitations periods listed in chapter 95 are applicable to any "civil action or proceeding." § 95.011, Fla. Stat. (2001). The term, "civil action," standing alone, normally refers to a lawsuit or other action filed in court. See, e.g., Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). We, therefore, must resolve whether the Trust's administrative forfeiture determination was a "proceeding" requiring the application of the four-year limitations period provided by paragraph 95.11(3)(n).

Despite the Trust's suggestion to the contrary, statutory limitations periods contained in chapter 95 of the Florida Statutes, are sometimes applicable to administrative proceedings, including those held pursuant to chapter 120. See Associated Coca Cola v. Special Disability Trust Fund, 508 So.2d 1305, 1306 (Fla. 1st DCA 1987) (applying chapter 95 four-year statute of limitations to bar administrative proceeding contesting denial of workers' compensation reimbursement); Rebich v. Burdine's, 417 So.2d 284, 285 (Fla. 1st DCA 1982) (applying chapter 95 limitations period to physician's claims for services provided to workers' compensation claimant); Bishop v. State, Div. of Ret., 413 So.2d 776, 777 (Fla. 1st DCA 1982) (applying chapter 95 statute of...