etw
Cypen & Cypen  
Home Attorney Profiles Clients Resource Links Newsletters navigation
    
777 Arthur Godfrey Road
Suite 320
Miami Beach, Florida 33140

Telephone 305.532.3200
Telecopier 305.535.0050
info@cypen.com

Click here for a
free subscription
to our newsletter

Miami

Cypen & Cypen
SPECIAL SUPPLEMENT
for
APRIL 21, 2010

Stephen H. Cypen, Esq., Editor

FLORIDA APPELLATE COURT UPHOLDS FORFEITURE OF JENNE PENSION:  The Florida First District Court of Appeal has upheld a final order of the Department of Management Services adjudicating forfeiture of former Sheriff Ken Jenne’s rights and benefits under the state retirement law.  The court held that Jenne’s federal conviction for conspiracy to commit mail fraud qualifies as a “specified offense” under Section 112.3173(2)(e)6., Florida Statutes, and that commission of the offense justifies forfeiture of his retirement benefits. Jenne was charged in the United States District Court for the Southern District of Florida with one count of conspiracy to commit mail fraud and three counts of filing a false tax return.  The facts alleged by the government in support of these charges were not in dispute. Jenne admitted the allegations in a written plea agreement, and the federal judge accepted his admission as the factual basis for his guilty plea.  The crimes referred to were committed over the course of several years in a series of unlawful transactions, which are summarized in the appellate court’s opinion.  After Jenne had been sentenced by the federal judge, Jenne resigned and applied to the Florida Department of Management Services for his pension.  The Department responded by sending Jenne notice that he had forfeited his retirement benefits as a result of his federal convictions.  In support of this decision, the Department cited Article II, Section 8(d), of the Florida Constitution and Section 112.3173, Florida Statutes.  Jenne challenged the forfeiture, and the parties submitted a joint stipulation of facts in lieu of a formal hearing.  After reciting the factual basis for the convictions, the administrative law judge concluded that Jenne had abused his position and violated the public trust, thus forfeiting his retirement benefits.  The Department adopted the administrative law judge's findings of fact and conclusions of law, and entered a final order to the same effect.  Jenne filed a timely appeal to seek review of the order.  The primary source of the state's authority to declare a forfeiture of rights and benefits under the state retirement system is the Florida Constitution, Article II, Section 8(d), which states in material 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:

            * * *

(d) 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.

This provision was implemented by legislation contained in Chapter 112, Part III, Florida Statutes, entitled "Code of Ethics for Public Officers and Employees."  Section 112.3173(3), Florida Statutes, states that any public officer or employee who is convicted of a specified offense committed prior to retirement shall forfeit all rights and benefits under the retirement system.  The felony conviction that served as basis for the administrative order declaring a forfeiture of retirement benefits in this case was Jenne's conviction for conspiracy to commit mail fraud.  The crime is not identified by name in Section 112.3173(2)(e), Florida Statutes, but it could serve as the basis for a forfeiture of retirement benefits if it met the general definition of a specified offense in subsection 112.3173(2)(e)6, Florida Statutes, which states

(e) 'Specified offense' means:

            * * *

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.

Jenne contended that his conviction for conspiracy to commit mail fraud did not meet the definition of a specified offense because the elements required to prove the offense did not match the elements of any of the crimes described in the statute.  The Department argued that the crime qualifies as a specified offense by the manner in which it was committed. Jenne did not conspire to commit mail fraud in a purely personal venture; he did so from a position of public trust, by using the power of his office to gain a benefit for himself.  The question emerging from these competing arguments is whether the term "specified offense" is defined by the conduct of the former public official or whether it is defined more narrowly by the elements of the crime for which the official was convicted.  We need not look beyond the text of the statute to find the answer to the question.  Section 112.3173(2)(e)6., Florida Statutes, defines a specified offense as the commission of any felony by a public officer or employee who, willfully and with intent to defraud the public of the right to receive the faithful performance of his or her duty realizes or obtains, or attempts to realize or obtain, a profit, gain or advantage for himself or herself through the use or attempted use of the power, rights, privileges, duties or position of his or her public office.  By this language, any felony could qualify as a specified offense, so long as the remaining conditions in the statute have been met.  All of the remaining conditions refer to the conduct of the official, not the definition of the crime.  In support of its conclusions, the court cited Newmans v. Division of Retirement, 701 So. 2d 573 (Fla. 1st DCA 1997), and Simcox v. City of Hollywood Police Officer's Retirement System, 988 So. 2d 731 (Fla. 4th DCA 2008).  Jenne relied on Shields v. Smith, 404 So. 2d 1106 (Fla. 1st DCA 1981), for the proposition that a federal offense can qualify as a specified offense only if the elements of the federal crime match those of a comparable state crime that would justify a forfeiture of retirement benefits.  However, the court found  Shields not controlling for two reasons:  one, the decision was rendered before enactment of the catch-all provision in Section 112.3173(2)(e)6, Florida Statutes; and, two, Shields was convicted by a jury, which necessarily limited inquiry to elements of the crime.  This comprehensive decision answers many of the questions that had been vexing pension boards and their counsel.  Jenne v. State of Florida, Department of Management Services, Division of Retirement, Case No. 1D09-2959 (Fla. 1st DCA, April 20, 2010); 35 Fla. L. Weekly D859;  http://opinions.1dca.org/written/opinions2010/04-20-2010/09-2959.pdf


Copyright, 1996-2011, all rights reserved.

Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


Site Directory:
Home // Attorney Profiles // Clients // Resource Links // Newsletters