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Miami

Cypen & Cypen
SPECIAL SUPPLEMENT
for
AUGUST 27, 2008

Stephen H. Cypen, Esq., Editor

FLORIDA APPELLATE COURT UPHOLDS FORFEITURE OF HOLLYWOOD COP’S PENSION:

Former police officer Thomas Simcox appealed 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 had pleaded guilty to the crime of conspiracy to possess heroin with intent to distribute. Because competent evidence established that Simcox committed a “specified offense” under Section 112.3173(2)(e)(6), Florida Statutes, the Florida Fourth District Court of Appeal affirmed.

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 had been filed against him. The information charged Simcox with one count of conspiracy to possess with intent to distribute a controlled substance, in violation of federal law. 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 had 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 a 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 federal 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, Florida Statutes.

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), Florida Statutes, 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), Florida Statutes.

Review of the Board's forfeiture order is governed by Section 120.68, Florida Statutes. 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.

Section 112.3173(3), Florida Statutes, implements the portion of the Florida Constitution that provides the framework for forfeiture of public retirement benefits:

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 "specified offense" pertain to this case. First, Section 112.3173(2)(e)(4), Florida Statutes, provides the meaning: "any felony specified in chapter 838, except ss. 838.15 and 838.16." Second, the "catch-all" provision section of 112.3173(2)(e)(6), Florida Statutes, 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 Florida or that would be punishable if committed in Florida, by death or imprisonment in a state penitentiary.

On appeal, Simcox argued that the acts constituting his federal conviction were not punishable as a "specified offense" in Florida under Section 112.3173 , Florida Statutes. He maintained 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) , Florida Statutes.
Contrary to Simcox's arguments, the record contained substantial competent evidence sufficient to support forfeiture under Section 112.3173(2)(e)(6) , Florida Statutes. In finding that the crime was related to Simcox's position as a police officer, the Board relied upon the admissions during his plea colloquy. In that plea colloquy, Simcox admitted that he participated in a drug trafficking scheme to transport over one kilogram of heroin; his role was to make sure the truck driver encountered no problem with his delivery; he utilized counter-surveillance and other methods to ensure that the delivery was successful; and he received payment for his corrupt services. These concessions supported the Board's conclusion that Simcox used the expertise he gained as a law enforcement officer to facilitate the scheme.

By accepting $8,000 in exchange for protecting and escorting the drug deliveryman, Simcox obtained an advantage for himself. He knowingly intended to violate the duties he owed to the public and the public agency for which he acted and was employed by committing those acts. Given these facts, the record supported the finding that Simcox obtained his monetary advantage through use or attempted use of his privileges, experience and duties, which were all a part of his position as a police officer. "Faithful performance" of a "duty" as a police officer under Section 112.3173(2)(e)(6), Florida Statutes, does not allow an officer to traffic in drugs when off duty.

At this point, the court turned to an issue of first impression in the State of Florida: whether or not forfeiture is appropriate when the subject acts were committed while the officer was participating in a Deferred Retirement Option Plan. Simcox contended that, even if the court found that he had used his powers, rights, privileges, duties or position as a police officer, that Section 112.3173, Florida Statutes, is inapplicable because he participated in the DROP and was therefore "retired" prior to his involvement in the drug trafficking scheme. (As our readers know, DROP is a program that allows employees to retire without terminating employment, while retirement benefits accumulate in an account.) However, DROP does not change an employee's conditions of employment. When an employee's DROP period ends, he must still terminate employment. A DROP "retirement" is not a true retirement, since the employee continues to work in his job. Rather, a DROP "retirement" is an employment status that triggers entitlement to certain benefits.

The court concluded that "retirement" for purpose of DROP is different and separate from "retirement" as used in Section 112.3173, Florida Statutes. Section 185.02(6), Florida Statutes, defines DROP retirement solely for "purposes of the plan." On the other hand, Section 112.3173, Florida Statutes, employs the common meaning of "retirement." That definition is usually associated with an employee's voluntary termination of his own employment or career. Here, Simcox remained employed as a police officer until he officially resigned, months after he had committed the federal felony. He therefore was not retired for purposes of section 112.3173, Florida Statutes. The court thus agreed with the Board and found that the evidence was sufficient to meet the statutory criteria for forfeiture, as there was a connection or "nexus" between the federal crime committed by Simcox and his duties as a police officer. As the Board noted, Simcox and his fellow police officers were chosen as drug escorts because of their heightened knowledge of law enforcement techniques, their police training and because they "knew the enemy" (that is, federal, state and local law enforcement agents).

Because Simcox's federal conviction equated to violation of Section 112.3173(2)(e)(6), Florida Statutes, the “catch-all” provision, and his retirement benefits were forfeited pursuant to that section, the court did not address whether his conviction also equated to a violation under Section 112.3173(2)(e)(4), Florida Statutes.

We are very pleased to have served as co-counsel for our regular client, Board of Trustees of the City of Hollywood Police Officers’ Retirement System. Simcox v. The City of Hollywood Police Officers’ Retirement System, Case No. 4D07-4630A (4th DCA, August 27, 2008).

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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.


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