Simcox v. Hollywood Police Officers' Ret.

• Decision Date: 27 August 2008
• Docket Number: No. 4D07-4638.,4D07-4638.
• Citation: 988 So.2d 731
• Parties: Thomas SIMCOX, Appellant, v. The CITY OF HOLLYWOOD POLICE OFFICERS' RETIREMENT SYSTEM, Appellee.
• Court: Florida District Court of Appeals

988 So.2d 731

Thomas SIMCOX, Appellant, v. The CITY OF HOLLYWOOD POLICE OFFICERS' RETIREMENT SYSTEM, Appellee.

No. 4D07-4638.

District Court of Appeal of Florida, Fourth District.

August 27, 2008.

Patsy Zimmerman-Keenan of Genovese Joblove & Battista, P.A., Fort Lauderdale, for appellant.

Joseph H. Serota and John J. Quick of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, Stephen H. Cypen and Alison S. Bieler of Cypen & Cypen, Miami Beach, for appellee.

GROSS, J.

Former police officer Thomas Simcox appeals from a final administrative decision rendered by the Board of Trustees of the City of Hollywood Police Officers' Retirement System forfeiting his retirement benefits. In federal court, Simcox pleaded guilty to the crime of conspiracy to possess heroin with intent to distribute. Because substantial competent evidence establishes that Simcox committed a "specified offense" under section 112.3173(2)(e)(6) Florida Statutes (2007), we affirm.

Simcox worked as a City of Hollywood police officer until he resigned on February 22, 2007—less than a month after a federal criminal information was filed against him. The information charged Simcox with one count of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 (2007). The charges arose from an undercover sting operation conducted by the Federal Bureau of Investigation targeting corruption within the Hollywood Police Department

Simcox pleaded guilty as charged. During the plea colloquy, Simcox admitted that he provided escort services for a truck driver who was portrayed as carrying multiple kilograms of heroin. Simcox's role was "to make sure that the truck driver encountered no problems with his delivery." Simcox conceded that he, his co-conspirators, and the undercover officers "discussed the operation in detail, including the counter-surveillance techniques they would employ, and the methods they would use to ensure that the [heroin] delivery [was successful]." Simcox acknowledged that after escorting the truck, he "returned to the hotel room in Miami Beach where [he] . . . received payments for these activities." While in that hotel room, he and the co-conspirators discussed "how the operation had gone, including some of the surveillance techniques and methods they had used." The district court adjudicated Simcox guilty and sentenced him to 135 months incarceration.

After the conviction, the Board held a preliminary hearing and decided to conduct a formal hearing on whether Simcox had forfeited his retirement benefits pursuant to section 112.3173.

At the formal hearing, the Board found that Simcox had committed a "specified offense" forfeiting his retirement benefits under section 112.3173(2)(e)(4) because the acts underlying the federal crime of which Simcox was convicted would support a Florida conviction for a Chapter 838 felony under both section 838.016, unlawful compensation for official behavior, and section 838.022, official misconduct. Alternatively, the Board found that the federal conviction fell within the catch-all provision, section 112.3173(2)(e)(6).

Review of the Board's forfeiture order is governed by section 120.68, Florida Statutes (2007). See Hames v. City of Miami Firefighters' and Police Officers' Trust, 980 So.2d 1112, 1113-14 (Fla. 3d DCA 2008). The Board'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." Id. at 1114 (quoting 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), Fla. Stat. (2007).

The Florida Constitution and statutes provide the framework for the forfeiture of public retirement benefits. 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 that portion of the Florida Constitution and provides:

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.

Two statutory definitions of a "specified offense" pertain to this case. First, section 112.3173(2)(e)(4) provides this meaning: "[a]ny felony specified in chapter 838, except ss. 838.15 and 838.16." Second, the "catch-all" provision of section 112.3173(2)(e)(6) defines "specified offense as,

[t]he 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.

The term, "felony" means "any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary." Hames, 980 So.2d at 1116 (citing § 775.08(1), Fla. Stat. (2006)).

On appeal, Simcox argues that the acts constituting his federal conviction are not punishable as a "specified offense" in Florida under section 112.3173. He maintains that his actions in furtherance of the drug trafficking scheme were unrelated to his position as a police officer; that he did not use his "power, rights, privileges, duties or position" as a police officer when participating in the scheme; and that his role in the scheme was merely that of an unlawful citizen.

A public officer or employee may have his pension benefits forfeited if the acts underlying the federal crime of which he was convicted or admitted to during his guilty plea would support a Florida conviction for a Chapter 838 felony or other felony described in section 112.3173(2)(e)(6). See DeSoto v. Hialeah Police Pension Fund Bd. of Trustees, 870 So.2d 844, 846 (Fla. 3d DCA 2003) (holding evidence was sufficient to meet the statutory requirement of "a nexus between the crimes charged against the public officer and his or her duties and/or position"); Newmans v. State, Div. of Ret., 701 So.2d 573, 577 (Fla. 1st DCA 1997) (holding retired sheriff forfeited all rights and benefits under state retirement system upon his conviction for obstruction of justice; acts committed by defendant were "inseparably intertwined" with his position as Sheriff).

Contrary to Simcox's arguments, the record contains substantial competent evidence sufficient to support forfeiture under section 112.3173(2)(e)(6). In finding that the crime was related to Simcox's position as a police officer, the Board relied on his admissions during his plea colloquy. In that plea...