              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



DEMETRIO RIVERA,                             )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D15-1382
                                             )
BOARD OF TRUSTEES OF THE CITY                )
OF TAMPA'S GENERAL                           )
EMPLOYMENT RETIREMENT FUND,                  )
                                             )
             Appellee.                       )
                                             )

Opinion filed February 26, 2016.

Appeal from the Board of Trustees of the
City of Tampa's General Employment
Retirement Fund.

Mark F. Kelly and Robert F. McKee of Kelly
& McKee, P.A., Tampa, for Appellant.

Luis A. Santos of Ford & Harrison, LLP,
Tampa, for Appellee.


WALLACE, Judge.

             Demetrio Rivera challenges a final order of the Board of Trustees of the

City of Tampa's General Employment Retirement Fund (the Board) that forfeited his

retirement benefits. Because the proof of one of the critical elements underlying the
forfeiture order is based entirely on hearsay evidence and, therefore, the forfeiture order

is not supported by competent, substantial evidence, we reverse.

                    I. THE FACTUAL AND PROCEDURAL BACKGROUND

               Mr. Rivera was employed by the City of Tampa for many years and had

earned benefits under the City's retirement plan. In January 2015, the Board issued a

notice of proposed agency action to Mr. Rivera. The notice informed Mr. Rivera that the

Board intended to enter an order terminating and forfeiting all of his accrued retirement

benefits in accordance with section 112.3173, Florida Statutes (2014). In particular, the

Board alleged that Mr. Rivera had committed specified offenses as described in section

112.3173(2)(e)(7). Mr. Rivera responded and notified the Board that he wished to

challenge the proposed forfeiture of his retirement benefits, and the Board scheduled an

evidentiary hearing on the matter. Mr. Rivera was represented by counsel at the

hearing; Mr. Rivera himself appeared telephonically.

               At the conclusion of the final hearing, the Board made the following

findings of fact:

                       1. During his employment with the City of Tampa
               ("City"), Rivera was a member of the Retirement Plan for the
               City of Tampa General Employees (the "Plan").

                     2. As a City employee working for the Wastewater
               Department, Rivera was issued a set of keys which gave him
               access to the City's wastewater pump stations.

                     3. On April 4, 2013, Rivera was arrested at the City of
               Tampa Woodlands Wastewater Pump Station where he was
               present with a minor victim.

                     4. During the related police investigation, it was
               discovered that on multiple occasions Rivera used his City
               issued keys to access City property (pump stations) to
               engage in unlawful sexual acts with several minor victims.



                                           -2-
                   5. The City terminated Rivera's employment on May
             9, 2013.

                   6. Rivera worked for the City for 26 years prior to his
             termination.

                    7. On July 8, 2014, Rivera plead [sic] guilty to
             multiple counts of unlawful sexual conduct with minors.
             Specifically, Rivera pled guilty to the following relevant
             counts:

                 •   Lewd or lascivious battery of a victim age 12 to 15 (2
                     counts)

                 •   Unlawful sexual activity with certain minors age 16 to
                     17 (1 count)

                 •   Lewd or lascivious molestation of a victim age 12 to
                     15 (4 counts)

                   8. These crimes were committed during Rivera's
             employment with the City (and prior to his retirement).

Based on these findings of fact, the Board concluded as a matter of law that Mr. Rivera

had pleaded guilty to and had been convicted of specified offenses as defined in section

112.3173(2)(e)(7). The Board also concluded that Mr. Rivera had committed the

offenses in question through the use or attempted use of power, rights, privileges,

duties, or public employment position, for example, his use of the City keys issued to

him to enter City property. Accordingly, the Board decided that Mr. Rivera's rights,

privileges, and benefits under the Plan were required to be forfeited in accordance with

section 112.3173(3) and entered an order of forfeiture. This appeal followed. 1

           II. THE LAW APPLICABLE TO THE PROPOSED FORFEITURE



             1
              We have jurisdiction under Florida Rule of Appellate Procedure
9.030(b)(1)(C), section 112.3173(5)(b), and section 120.68, Florida Statutes (2014).



                                           -3-
              Our review of the Board's forfeiture order is governed by section 120.68,

Florida Statutes (2014). Bollone v. Dep't of Mgmt. Servs., Div. of Ret., 100 So. 3d 1276,

1279 (Fla. 1st DCA 2012). We may set aside the Board's order "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."

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).

              "The Florida Constitution and statutes provide the framework for the

forfeiture of public retirement benefits." Simcox v. City of Hollywood Police Officers'

Ret. Sys., 988 So. 2d 731, 733 (Fla. 4th DCA 2008). 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 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.

The definition of a "specified offense" applicable to this case is section

112.3173(2)(e)(7), which provides as follows:

                     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, or any felony defined in chapter 794 against a



                                             -4-
              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.

See also § 794.09, Fla. Stat. (2014); § 800.05, Fla. Stat. (2014). The Board had the

burden of proving that Mr. Rivera's retirement benefits under the Plan should be

forfeited. See Espinoza v. Dep't of Bus. & Prof'l Reg., 739 So. 2d 1250, 1251 (Fla. 3d

DCA 1999).

              Under the foregoing statutory framework, the Board was required to prove

the following elements: (1) that Mr. Rivera was a public officer or employee; (2) that Mr.

Rivera had committed either any felony defined in section 800.04 against a victim

younger than sixteen years of age or any felony defined in chapter 794 against a victim

younger than eighteen years of age; (3) that the offense or offenses were committed on

or after October 1, 2008; and (4) that Mr. Rivera had committed the offense or offenses

in question through the use or attempted use of power, rights, duties, or position of his

public employment position. Accordingly, it was not sufficient for the Board to prove

merely that Mr. Rivera had committed one of the offenses in question against a victim

younger than the designated ages. The Board also had to prove that Mr. Rivera had

committed the offense or offenses through the use or attempted use of his power,

rights, duties, or position as an employee of the City. Stated differently, the Board had

to establish the existence of a "nexus" between the offense or offenses committed and

Mr. Rivera's position as a City employee. Although there are no reported cases

discussing the nexus requirement in the context of section 112.3173(2)(e)(7), there are

several reported cases that address this issue in the context of the so-called "catchall"

provision set forth in section 112.3173(2)(e)(6). See Bollone 100 So. 3d at 1281-82;



                                           -5-
Jenne v. State, Dep't of Mgmt. Servs., Div. of Ret., 36 So. 3d 738, 742-43 (Fla. 1st DCA

2010); Simcox, 988 So. 2d at 734; DeSoto v. Hialeah Police Pension Fund Bd. of Trs.,

870 So. 2d 844, 845-46 (Fla. 3d DCA 2003); Newmans v. State, Div. of Ret., 701 So. 2d

573, 577 (Fla. 1st DCA 1997); Bullock v. State Bd. of Admin., No. 14-2616, 2014 WL

4960358, at *4 (Fla. Div. of Admin. Hgs. Sept. 30, 2014).

                           III. THE EVIDENCE PRESENTED

              The Board did not present any witness testimony at the hearing. Thus

none of the victims of Mr. Rivera's offenses testified. Instead, the Board's case against

Mr. Rivera consisted entirely of documentary evidence. The documents received in

evidence were as follows: (1) copies of police files concerning Mr. Rivera's offenses; (2)

copies of various documents from the court files regarding the criminal prosecution of

Mr. Rivera; and (3) copies of Mr. Rivera's personnel file. Although Mr. Rivera testified at

the hearing, he denied that he had used the keys issued to him by the City to commit

any of the offenses with the minor victims on City property.

              The police files introduced into evidence included investigative reports

prepared by the officers assigned to investigate Mr. Rivera's offenses. The police files

also included lengthy transcripts of interviews with the minor victims. Information

contained in these materials indicated that Mr. Rivera had in fact used his City-issued

keys to access various facilities where several of the incidents involving sexual activity

with the minor victims had occurred.

              The materials from the court files regarding the prosecution of Mr. Rivera

included, for each of several cases, the Uniform Plea, Acknowledgment and Waiver of

Rights forms signed by Mr. Rivera, and the judgment and sentences imposed for the




                                           -6-
offenses for which he was convicted. The plea forms and the judgments established

that Mr. Rivera had pleaded guilty to the offenses in question.

              Mr. Rivera's personnel file was voluminous, and it contained a variety of

materials that were not pertinent to the issue before the Board. However, the personnel

file also included a "Notice of Disciplinary Action" form dated May 9, 2013, stating that

the City was dismissing Mr. Rivera from his employment for "neglect of duty" and "moral

turpitude." In this regard, the Notice stated, in pertinent part, as follows:

              Through the investigation, information has determined that
              you frequently misused your City of Tampa vehicle in your
              pursuit and contact with female minors. This included being
              on City of Tampa property and misuse of your authority,
              including use of City issued keys to access City property and
              pump stations for personal use (non-City use) and for
              unlawful and inappropriate purposes, all of which was
              admitted and verified in the investigation.

Mr. Rivera's supervisor and the department director (or designee) had signed the

Notice. Although Mr. Rivera had also signed the Notice, the preprinted portion of the

document informed the employee that "[y]our acknowledgment of receipt does not

indicate agreement."

                                     IV. DISCUSSION

              The sole question that we are called upon to determine in this appeal is

whether the forfeiture order is supported by competent, substantial evidence.

Undoubtedly, the Board established the first three elements of its case for forfeiture

under section 112.3173(2)(e)(7). Mr. Rivera's status as a public employee was not

disputed. The certified copies of his guilty pleas and the judgments and sentences

proved that he had committed seven of the requisite offenses. See Kelly v. Dep't of

Health & Rehab. Srvcs., 610 So. 2d 1375, 1377 (Fla. 2d DCA 1992) (stating that where



                                             -7-
a judgment and sentence is based upon a guilty plea, "a defendant is estopped from

denying his guilt of the subject offense in a subsequent civil action"). It was undisputed

that Mr. Rivera had committed his offenses after October 1, 2008. With regard to the

fourth element that the Board had to prove to support the forfeiture order, i.e., the nexus

between Mr. Rivera's position as a City employee and his commission of the offenses,

Mr. Rivera argues that the Board failed to introduce any proof other than inadmissible

hearsay. Accordingly, we must examine the Board's proof on the fourth element and

the sufficiency of the evidence to support the forfeiture order.

              In administrative proceedings such as the one conducted by the Board,

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.

Furthermore, in such 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); see also Sunshine Chevrolet Oldsmobile v. Unemployment Appeals

Comm'n, 910 So. 2d 948, 950 (Fla. 2d DCA 2005); Yost v. Unemployment Appeals

Comm'n, 848 So. 2d 1235, 1237 (Fla. 2d DCA 2003). With these evidentiary principles

in mind, we turn to a consideration of the evidence presented at the hearing to prove the

fourth element of the Board's case for forfeiture.




                                            -8-
              The certified copies from the files of the criminal cases established that

Mr. Rivera had committed one or more of the requisite offenses. However, the

elements of the requisite offenses did not include any matters regarding the required

nexus between Mr. Rivera's use of his position as a City employee and the commission

of the offenses. Notably, the materials drawn from the court files did not include a

transcript of the plea colloquy between Mr. Rivera and the trial court. A statement of the

factual basis for the pleas in accordance with the requirements of Florida Rule of

Criminal Procedure 3.172(a) in the plea colloquy might have included information about

how and where the offenses were committed. But no transcript of the plea colloquy was

included in the materials presented.

              The police reports and the transcripts of the interviews with the minor

victims did include information about Mr. Rivera's use of his City-issued keys to access

property owned by the City where he allegedly committed some of the offenses for

which he was convicted. But none of the victims testified at the hearing. The police

reports and the transcripts of the witness interviews were clearly hearsay that would not

be admissible over objection in civil actions. See Carter v. State, 951 So. 2d 939, 943-

44 (Fla. 4th DCA 2007) (holding that a victim's affidavit attached to a police report was

"classic hearsay" and "[did] not fit within the business or public records exception to the

hearsay rule"). We have not overlooked that when the police officers arrested Mr.

Rivera on April 4, 2013, he was on City property and in the company of an underage

female. Mr. Rivera would almost certainly have used his City-issued keys to gain

access to the property where he was arrested. However, the Board did not present any




                                            -9-
evidence that Mr. Rivera committed an offense under chapter 794 or under section

800.04 on the date of his arrest.

              In support of the forfeiture order, the Board relies on its own Notice of

Disciplinary Action as the necessary nonhearsay evidence of the fourth element. The

Board points out that the Notice "specifically states that the investigation that led to [Mr.

Rivera's] termination revealed that he used his City issued keys to access City pump

stations for his personal use and for unlawful and inappropriate purposes." The Board's

characterization of its own Notice is accurate as far as it goes. Nevertheless, the

person or persons who performed the investigation for the Board did not testify at the

hearing. And, for the most part, the information in the Notice had to be gathered from

other sources, and it was not based on personal knowledge. Thus the information in

the Notice constitutes double or triple hearsay that would not be admissible over

objection in civil actions. See § 90.805; Holborough v. State, 103 So. 3d 221, 223 (Fla.

4th DCA 2012); J.B.J. v. State, 17 So. 3d 312, 319 (Fla. 1st DCA 2009); Harris v. Game

& Fresh Water Fish Comm'n, 495 So. 2d 806, 808-09 (Fla. 1st DCA 1986).

                                     V. CONCLUSION

              All of the evidence in the record on the fourth element of the forfeiture

case was hearsay that would not be admissible in evidence over objection in civil

actions. It follows that the forfeiture order is not supported by competent, substantial

evidence and that it must be set aside. For this reason, the forfeiture order must be

reversed. See Cash v. Fla. Real Estate Comm'n, 176 So. 2d 518, 520 (Fla. 2d DCA

1965); Sheriff of Broward Cty. v. Stanley, 50 So. 3d 640, 644 (Fla. 1st DCA 2010); Scott

v. Dep't of Prof'l Reg., 603 So. 2d 519, 520 (Fla. 1st DCA 1992); Harris, 495 So. 2d at




                                            - 10 -
809. On remand, the Board shall enter an order restoring to Mr. Rivera his benefits

under the Plan. The order shall also provide for the payment to Mr. Rivera of any past

due benefits with interest.

              Reversed and remanded with directions.



KHOUZAM and SLEET, JJ., Concur.




                                         - 11 -
