Houston v. City of Tampa Firefighters & Police Officers' Pension Fund Bd. of Trs., Case No. 2D18-4279

• Decision Date: 20 May 2020
• Docket Number: Case No. 2D18-4279
• Citation: 303 So.3d 233
• Parties: LaJoyce HOUSTON, Appellant, v. CITY OF TAMPA FIREFIGHTERS AND POLICE OFFICERS' PENSION FUND BOARD OF TRUSTEES, Appellee.
• Court: Florida District Court of Appeals

303 So.3d 233

LaJoyce HOUSTON, Appellant,

v.CITY OF TAMPA FIREFIGHTERS AND POLICE OFFICERS' PENSION FUND BOARD OF TRUSTEES, Appellee.

Case No. 2D18-4279

District Court of Appeal of Florida, Second District.

Opinion filed May 20, 2020

Clifford A. Taylor and Megan Rosenberg of The Hogan Law Firm, Brooksville, for Appellant.

Robert D. Klausner, Stuart A. Kaufman, and Anna R. Klausner Parish of Klausner, Kaufman, Jensen & Levinson, Plantation, for Appellee.

SALARIO, Judge.

LaJoyce Houston appeals from a final order of the Board of Trustees of the City of Tampa Firefighters and Police Officers Pension Fund (Board) that forfeited her retirement benefits under a public-employee pension plan pursuant to section 112.3173, Florida Statutes (2017). Based on Ms. Houston's conviction in federal court for receiving, concealing, or retaining stolen government property—in this case, income tax refunds—the Board determined that she committed both an embezzlement of public funds and a felony falling within the statutory catch-all provision, either of which would support the forfeiture order under section 112.3173. The limited record consisting solely of documents the Board produced at the hearing failed to establish the existence of either ground. We are required to reverse.

I.

It is helpful before jumping into the facts of the case to understand the legal framework governing the forfeiture of public-employee retirement benefits. The forfeiture of such benefits is governed by both constitutional and statutory provisions. See Cuenca v. Bd. of Admin., 259 So. 3d 253, 258 (Fla. 3d DCA 2018). Article II, section 8(d), of the Florida Constitution provides as follows:

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.

The legislature has implemented this constitutional provision in section 112.3173. The statute was adopted in 1984, ch. 84-266, § 14, Laws of Fla., and in those respects important to this appeal, remains in identical form today.

Subsection (3) of the statute sets forth the general rule regarding the forfeiture of retirement benefits by a public employee:

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.

Under this statutory text, the forfeiture of pension benefits is the legal consequence of a conviction of a "specified offense" or the termination of public employment upon the "admitted commission, aid, or abetment of a specified offense." Without proof of a conviction of or admission to involvement in a specified offense, then, there can be no forfeiture of benefits. See Rivera v. Bd. of Trs. of City of Tampa's Gen. Emp't Ret. Fund, 189 So. 3d 207, 213 (Fla. 2d DCA 2016) (reversing final order forfeiting benefits on an absence of competent substantial evidence of the public employee's conviction of a specified offense).

The term "specified offense" is defined in section 112.3173(2)(e). That subsection makes clear that the legislature did not create a framework under which any crime or misconduct by a public employee results in a forfeiture of retirement benefits. Rather, the legislature limited the definition of a "specified offense" giving rise to forfeiture to a narrow set of seven categories of offenses that it evidently considered to involve a breach of public trust. Under the statute, "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 or her employer;

3. Bribery in connection with the employment of a public officer or employee;

4. Any felony specified in chapter 838 [governing bribery by a public official], 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 officer 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 public 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 [involving lewd or lascivious offenses upon or against such victims], 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.

Subsection (6) in the definition of "specified offense" is sometimes referred to as the definition's catch-all provision because it does not identify a specific crime but rather reaches "any felony" bearing certain characteristics. See, e.g., Simcox v. City of Hollywood Police Officers' Ret. Sys., 988 So. 2d 731, 733 (Fla. 4th DCA 2008) (describing section 112.3173(2)(e)(6) as a "catch-all" provision). As the language of that subsection demonstrates, it applies where the conduct at issue (1) constitutes a felony, (2) is committed by a public employee, (3) is done willfully and with intent to defraud the public or the public employer of its right to the employee's faithful performance, (4) is done to obtain a profit, gain, or advantage for the employee or some other person, and (5) is done through the use or attempted use of the power, rights, privileges, duties, or position of the employee's employment. See Cuenca, 259 So. 3d at 258 (quoting Bollone v. Dep't of Mgmt. Servs., Div. of Ret., 100 So. 3d 1276, 1280-81 (Fla. 1st DCA 2012) ). The last requirement—that the act be done through one of the listed attributes of public employment—requires a "nexus between the crimes charged against the public officer and his or her duties and/or position." DeSoto v. Hialeah Police Pension Fund Bd. of Trs., 870 So. 2d 844, 846 (Fla. 3d DCA 2003).

Section 112.3173 provides several mechanisms by which a public employee's commission of a specified offense may be reported to the Florida Commission on Ethics and obligates the Commission to report any such offenses to the relevant retirement system. § 112.3173(4). When the retirement system receives such a notice or otherwise has reason to believe that forfeiture of a public employee's retirement benefits is required, it must give the public employee notice and the opportunity for a hearing under the Administrative Procedure Act, chapter 120, Florida Statutes (2017). § 112.3173(5)(a). Any appeal from a decision to forfeit an employee's retirement benefits is to the district court of appeal. § 112.3173(5)(b).

II.

A.

Ms. Houston started as a police officer with the Tampa Police Department in 1997, eventually rising to the rank of sergeant. On February 2, 2016, she was charged in a twenty-count superseding indictment in federal court in connection with an alleged scheme to fraudulently obtain income tax refunds from the federal government. The superseding indictment alleged that Ms. Houston, her husband, and a woman named Rita Girven conspired to steal personal identifying information of taxpayers, file false income tax returns on their behalf asserting entitlement to refunds, and collect the refunds from the federal government through a variety of means.

Several counts in the superseding indictment alleged that Ms. Houston used the Driver and Vehicle Information Database (DAVID), to which she had access by virtue of her employment with the police department, to obtain personal identifying information for use in the alleged scheme. Pay attention to that because it will become important later. One of the central issues in this case is whether the Board had competent substantial evidence proving, as distinguished from an indictment merely alleging, that Ms. Houston in fact ran these DAVID searches.

The criminal case was resolved through a plea agreement under which Ms. Houston pleaded guilty to a single count of the superseding indictment—Count Four. Count Four alleged that Ms. Houston "did willingly receive, conceal, and retain stolen property of the United States ... with the intent to convert said property to [her] own use and the use of others, then knowing said property to have been stolen" in violation of 18 U.S.C. §§ 641, 642 (2017). It identified as the property $61,660.52 of tax refunds and stated that Ms. Houston used $2000 of those funds to pay a credit card balance. It did not say anything, however, about Ms. Houston using DAVID to further the theft.

The plea agreement contained a section titled "factual basis" in which Ms. Houston admitted to a statement of the facts supporting the plea. It stated that in 2011 and 2012, Ms. Houston received things of value obtained with debit cards tied to bank accounts loaded with fraudulently obtained tax refunds. It explained how Ms. Girven would open bank accounts in other people's names in which to deposit the tax refunds. It identified the specific bank account containing the refunds that were the subject of Count Four and explained that those refunds had been issued as a result of fraudulent tax returns filed in identity-theft victims' names by Ms. Girven and the filing of Ms. Girven's own fraudulent tax return. It described how the funds were used to...