Forfeiture of a Public Employees FRS Benefits
Any public employee of a city, county or state employer participating in the Florida Retirement System (FRS) can face an action to forfeit their retirement benefits if they are accused of a specified criminal act or enter a plea of guilty or no contest even if the court withholds adjudication.
For instance, a school teacher might receive a letter from the Chief of Defined Contribution Programs with the Office of Defined Contribution Program with the State Board of Administration of Florida located at 1801 Hermitage Boulevard – Suite 100 in Tallahassee, FL 32308, concerning the notice of the forfeiture of retirement benefits.
Other agencies that sent the notification include the Division of Retirement of the Department of Management Services or the Board of Trustees of a General Employment Retirement Fund.
The letter officially notifies you that you received or are entitled to receive benefits under the Florida Retirement System (FRS) Investment Plan and that you forfeited those benefits as a result of a plea of guilty or nolo contendere (no contest) in the Circuit Court for acts committed while you were employed by a city, county or state employer who participates in the Florida Retirement System (FRS).
Tampa Attorneys to Contest the Forfeiture of Retirement Benefits
We can help you assert your rights under Chapter 112, Florida Statutes after a wrongful determination during an administrative hearing on the matter. Our attorneys can help you file a petition to contest the forfeiture within 21 days of receipt of the notice of forfeiture of retirement benefits by submitting the proper form fForm SBA-PFH, Petition for Hearing.
Hire an attorney to contest the FRS forfeiture by demanding an administrative hearing. You should also talk to an attorney if you lose the administrative hearing and an order of forfeiture of retirement system rights. The appeal is filed in the district court of appeals.
Call the attorneys at Sammis Law Firm in Tampa, FL, to discuss your case. Call (813) 250-0500.
Florida Law on the Forfeiture of Retirement Benefits
The Florida Constitution and statutes provide the framework for the forfeiture of public retirement benefits when that employee violates the public trust. Specifically, Article II, section 8 of the Florida Constitution provides, in relevant part:
SECTION 8. Ethics in government.—A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:….
“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.”
Six years later, the Florida Legislature enacted Section 112.3173(2)(e), Florida Statute, which provides a mechanism for the forfeiture of retirement benefits. The statute represents the intent of the Florida Legislature to implement the provisions of Section 8(d), Art. II of the State Constitution.
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.
Under this statute, the offenses must be committed before retirement but it is not required that the conviction occurred before retirement.
Definitions under Florida Statute Section 112.3173(2)(e)
The term “conviction” and “convicted” is defined to mean:
- an adjudication of guilt by a court of competent jurisdiction;
- a plea of guilty or of nolo contendere;
- a jury verdict of guilty when adjudication of guilt is withheld and the accused is placed on probation; or
- a conviction by the Senate of an impeachable offense.
The term “court” is defined to means any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense.
The term “public officer or employee” means an officer or employee of any public body, political subdivision, or public instrumentality within the state.
The the “public retirement system” means any retirement system or plan to which the provisions of part VII of this chapter apply.
Specified Offenses under Florida Statute Section 112.3173(2)(e)
Under Florida Statute 112.3173(2)(e) the following offenses qualify as “specified offense”:
- The committing, aiding, or abetting of an embezzlement of public funds;
- The committing, aiding, or abetting of any theft by a public officer or employee from his or her employer;
- Bribery in connection with the employment of a public officer or employee;
- Any felony specified in chapter 838, except ss. 838.15 and 838.16;
- The committing of an impeachable offense;
- 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
- The committing on or after October 1, 2008, of any felony either:
- defined in s. 800.04 against a victim younger than 16 years of age (lewd or lascivious offenses); or
- any felony defined in chapter 794 against a victim younger than 18 years of age (sexual battery), 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.
Catch-All Provisions of Section 112.3173(2)(e)6
In many of these cases, the specified offenses proscribed in sections 112.3173(2)(e) 1.–5. do not apply. Most of the contested cases involve “catch-all” provision under section 112.3173(2)(e) 6., which requires that the criminal acts must be:
- a felony;
- committed by a public employee;
- done willfully and with intent to defraud the public or the employee’s public employer of the right to receive the faithful performance of the employee’s duty;
- done to obtain a profit, gain or advantage for the employee or some other person; and
- done through the use or attempted use of the power, rights, privileges, duties, or position of employee’s employment.
The courts have held that the term “specified offense” is defined by the conduct of the public official and not by the elements of the crime for which the official was convicted. In other words, whether the crime for which the former public officer was convicted qualifies as a specified offense depends on the way in which the crime was committed.
Therefore, many felony convictions and pleas could qualify as a specified offense, so long as the remaining conditions in the statute have been met. The remaining conditions refer to the conduct of the employee and not the definition of the crime. Nevertheless, all this must be proven at the hearing.
Forfeiture of Retirement Benefits for Sexual Battery Crimes
Under Florida Statute Section 794.09, the retirement benefits of a person convicted of a felony committed on or after October 1, 2008, under this chapter are subject to forfeiture in accordance with s. 112.3173 or s. 121.091 if:
- the person is a public officer or employee when the offense occurs;
- the person commits the offense through the use or attempted use of power, rights, privileges, duties, or position of the person’s public office or employment position; and
- the victim is younger than 18 years of age when the offense occurs.
DROP participants are not removed from the scope of s. 8(d), Art. II of the State Constitution, s. 112.3173, and paragraph (5)(f). DROP participants who commit a specified felony offense while employed are subject to forfeiture of all retirement benefits, including DROP benefits, pursuant to those provisions of law.
Under Florida Statute 121.091, any member who has been found guilty by a verdict of a jury, or by the court trying the case without a jury, of committing, aiding, or abetting any embezzlement or theft from his or her employer, bribery in connection with the employment, or other felony specified in chapter 838, except ss. 838.15 and 838.16, committed prior to retirement, or who has entered a plea of guilty or of nolo contendere to such crime, or any member whose employment is terminated by reason of the member’s admitted commitment, aiding, or abetting of an embezzlement or theft from his or her employer, bribery, or other felony specified in chapter 838, except ss. 838.15 and 838.16, shall forfeit all rights and benefits under this chapter, except the return of his or her accumulated contributions as of the date of termination.
Forfeiting Benefits under any Public Retirement System
Any public officer or employee in Florida 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.
Notice Provisions to Forfeit Requirement Benefits
In many of these cases, the clerk of a court in which a proceeding involving a specified offense is being conducted against a public officer or employee shall furnish notice of the proceeding to the Commission on Ethics after the state attorney advises the clerk that the defendant is a public officer or employee and that the defendant is alleged to have committed a specified offense.
The notice is sufficient if it is in the form of a copy of the indictment, information, or other document containing the charges. In addition, if a verdict of guilty is returned by a jury or by the court trying the case without a jury, or a plea of guilty or of nolo contendere is entered in the court by the public officer or employee, the clerk shall furnish a copy thereof to the Commission on Ethics.
When called on by the Commission on Ethics, the Department of Management Services shall assist the commission in identifying the appropriate public retirement system.
Administrative Hearings Contesting the Forfeiture of Retirement Benefits
If the employee files a timely request for an administrative hearing, in some cases, the case can be transferred to the Division of Administrative Hearings for the assignment of an administrative law judge (“ALJ”) to conduct a formal hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes.
In administrative proceedings such as the one conducted by the entity that manages the employment retirement benefit plan for the city, county or state, Florida Statute 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.
In these administrative 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).
As a result of the administrative hearing the ALJ will often recommended that a final order is issued to find the person was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, and directing the forfeiture of his FRS rights and benefits, except for the return of his accumulated contributions as of the date of termination. The employee can then file exceptions to the recommended order.
Appeals from an Order of Forfeiture of Retirement System to the District Court
Any order of forfeiture of retirement system rights and privileges is appealable to the district court of appeal. The District Court of Appeals has jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(1)(C), section 112.3173(5)(b), and section 120.68, Florida Statutes.
On appeal, the District Court can reverse the forfeiture order, remand the case for the entry of an order restoring to the individual his or her retirement benefits to pay any past due benefits with interest.
The District Court’s review of the Board’s forfeiture order is governed by section 120.68, Florida Statutes (2014). The District Court may set aside the Board’s order 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.
The payment of retirement benefits ordered forfeited is stayed pending an appeal as to a felony conviction. If such conviction is reversed, no retirement benefits shall be forfeited. If such conviction is affirmed, retirement benefits shall be forfeited as ordered in this section.
If any person’s rights and privileges under a public retirement system are forfeited pursuant to this section and that person has received benefits from the system in excess of his or her accumulated contributions, such person shall pay back to the system the amount of the benefits received in excess of his or her accumulated contributions.
If he or she fails to pay back such amount, the official or board responsible for paying benefits pursuant to the retirement system or pension plan may bring an action in circuit court to recover such amount, plus court costs. Alternatively, the District Court on appeal could determine that the rights and benefits under the FRS were properly forfeited in accordance with Florida law.
Finding an Attorney to Contest an Alleged Violation of Section 112.3172
If it is alleged that you violated the provisions of Section 112.3173, Florida Statutes, then hire a qualified attorney to help you contest the allegation. Section 112.3173 provides for the forfeiture of the right to requirement benefits under the FRS upon adjudication of guilty by a court of competent jurisdiction, or a withhold of adjudication after a plea of guilty or nolo contendere to the charges.
If you forfeited your rights to a requirement benefit under the FRS, you might also have to repay and distribution of your Investment Plan (not including your employee contribution) must be returned to the Investment Plan within 45 days of the notice. If you do not return the money then the State Board of Administration (SBA) may seek legal action against you. Your notice will tell you were to send the check, for example, it may tell you to send the check to the FRS Investment Plan Administrator.
After the forfeiture, you have no further rights in the Investment Plan and you will not be permitted to repurchase as prior service the years of credible service earned prior to your conviction.
If you believe your rights under Chapter 112, Florida Statutes, have been wrongfully determined, you can hire an attorney to demand an administrative hearing on the matter.
Your attorney can help you file a petition to this effect with the SBA within 21 days of receipt of the notice. Your attorney can help you demand a hearing by completing and submitting the enclosed Form for the Petition for Hearing within 21 days of receipt of this letter that acts as the official notice of the forfeiture of retirement benefits.
Your attorney can make sure your petition is filed and received in the Office of Defined Contribution Program within the 21 day period. If you fail to file within the 21 days, you have waived your right to appeal this decision. The attorneys at Sammis Law Firm in Tampa, FL, represent public officers and employees charged with a crime that could lead to the forfeiture of their retirement benefits.
Call (813) 250-0500 today.
This article was last updated on Friday, February 24, 2017.