Opinion
No. 1D22-1656.
05-10-2023
Matthew J. HALE, Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee.
Matthew J. Hale, pro se, Appellant. Rex D. Ware and Jonathan W. Taylor of Moffa, Sutton & Donnini P.A., Fort Lauderdale, for Appellee.
Matthew J. Hale, pro se, Appellant.
Rex D. Ware and Jonathan W. Taylor of Moffa, Sutton & Donnini P.A., Fort Lauderdale, for Appellee.
Bilbrey, J.
Matthew J. Hale appeals the final order of the State Board of Administration (SBA) forfeiting his Florida Retirement System benefits. These benefits were forfeited following Hale's convictions of specified criminal offenses. See § 112.3173(2)(e)6., (3), Fla. Stat. (2021); see also Art. II, § 8(d), Fla. Const. (stating that the conviction of felony involving breach of public trust subjects the public employee to forfeiture of public retirement system rights). Hale requests that the final order be set aside under section 120.68(7)(b)-(e), Florida Statutes. Because we find no ground for setting aside the final order under any provision of section 120.68(7), we affirm. See § 120.68(8), Fla. Stat.
Hale was a teacher in the Bay County School System. He was convicted of two felony counts of traveling to meet a minor for unlawful sexual conduct in violation of section 847.0135(4), Florida Statutes. He was also convicted of other crimes that are not relevant here. The criminal judgment and sentence were affirmed by this court in an unelaborated decision. Hale v. State, 316 So.3d 679 (Fla. 1st DCA 2021).
The SBA forfeited Hale's retirement benefits based on his convictions of the two felonies. Hale requested a formal administrative hearing to contest the forfeiture. Hale claimed that he was not a "public officer or employee" at the time of the offenses. See § 112.3173(2)(c), Fla. Stat. The SBA requested assignment of an administrative law judge (ALJ) by the Division of Administrative Hearings. See § 120.569(2), Fla. Stat. A formal hearing took place during which the ALJ admitted documents into evidence and heard witness testimony.
There was no dispute at the administrative hearing that Hale made the acquaintance of a minor student at the school where he was employed during the 2015 to 2016 school year. There was also no dispute that this student gave Hale her email address on the final day of that school year, and Hale started communicating with her outside of school. Later, Hale committed the criminal acts involving the student/victim leading to his convictions including the two felony counts. Hale was not employed by the public school system over the summer of 2016 but was re-employed for the 2016 to 2017 school year. The victim no longer attended the school where Hale was employed for the fall of 2016, but she remained a Bay County School System student.
One of the criminal counts (count II) was alleged to have occurred over a date range spanning the last month of the 2015 to 2016 school year through some months in fall of the 2016 to 2017 school year. The other count (count III) was alleged to have occurred on a specific day, October 10, 2016. There was no dispute that Hale was a public employee with the Bay County School System during much of the date range alleged for count II and on the specific date alleged for count III. But Hale claimed that any interaction that he had with the victim, which led to the criminal convictions, occurred after Hale was no longer acting in any official capacity. After the hearing, the ALJ submitted his Recommended Order consisting of findings of fact, conclusions of law and a recommended disposition or penalty. See § 120.57(1)(k), Fla. Stat. The ALJ made findings on each element required for forfeiture under section 112.3173(2)(e)6. As explained in Bollone v. Dep't of Management Services, 100 So.3d 1276, 1280-81 (Fla. 1st DCA 2012):
In order to constitute a "specified offense" under section 112.3173(2)(e)6., the criminal acts must be: (a) a felony; (b) committed by a public employee; (c) 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; (d) done to obtain a profit, gain or advantage for the employee or some other person; and (e) done through the use or attempted use of the power, rights, privileges, duties, or position of Appellant's employment.
The ALJ found that only the offense which occurred on the specified date (count III), qualified as a "specified offense" under section 112.3173(2)(e)6. Nonetheless, the ALJ recommended forfeiture of Hale's retirement benefits as the appropriate disposition or penalty.
The agency, the SBA, adopted most of the ALJ's findings of fact and conclusions of law. But the SBA modified the ALJ's findings in paragraphs 21, 26, and 27 without making a determination and statement with particularity in the order that the "findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law." See § 120.57(1)(l), Fla. Stat. And the agency's modification of the findings in paragraphs 26 and 27 were "based on the revised Conclusions of Law below." The modifications did not comply with the procedures set out in section 120.57(1)(l) which imposes specific requirements for an agency to reject findings of fact contained in a recommended order.
Likewise, the SBA adopted most of the ALJ's conclusions of law in determining that Hale had committed a "specified offense" as defined in section 112.3173(2)(e) and described in Bollone. 100 So. 3d at 1280-81. However, for certain factors the SBA "modified" the conclusions of law in paragraphs 41, 45, and 49 through 60 of the recommended order, and substituted its own conclusions of law. The final order contained the SBA's finding stating its substituted conclusions of law to be "as or more reasonable than [those] ... rejected or modified." See § 120.57(1)(l), Fla. Stat. But the SBA did not "state with particularity its reasons for rejecting or modifying such conclusions of law," as required by section 120.57(1)(l). With the modifications in the final order, the SBA found that Hale was a public employee when both count II and III were committed. The SBA concluded the final order by accepting the recommended order's penalty and ordered forfeiture of Hale's retirement benefits.
Hale's first issue on appeal challenges the SBA's final order based on its failure to follow the procedure for modification and rejection of recommended findings of fact and conclusions of law set out in section 120.57(1)(l), Florida Statutes. The "final order 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.'" Bollone, 100 So. 3d at 1279 (citations omitted).
As mentioned, the appellate record supports Hale's position that the SBA's final order did not comply with the procedural requirements for modifications of the recommended findings and conclusions under section 120.57(1)(l). But "a harmless error rule for review of agency action is suggested" under section 120.68(7)(c) , and that rule "is comparable to the harmless error rule applied in appellate review of lower court decisions." Peoples Bank of Indian River Cnty. v. State, Dep't of Banking & Fin., 395 So.2d 521, 524 (Fla. 1981).
Formerly section 120.68(8), Florida Statutes.
As explained in Department of Business Regulation, Division of Pari-Mutuel Wagering v. Hyman, 417 So.2d 671 (Fla. 1982), a material error in procedure or failure to follow prescribed procedure must result in impairment of the fairness of the proceedings or the correctness of the action to constitute harmful error. In Hyman, the agency's final order was not rendered within 90 days of the conclusion of the final hearing, in violation of the time limit set out in section 120.569(1)(l), Florida Statutes. The Florida Supreme Court found that the statutory provision establishing the time limit did not specify a sanction or remedy for violation of the proscribed time limit. Hyman, 417 So. 2d at 673.
Formerly section 120.59, Florida Statutes.
Adopting this court's holding in G & B of Jacksonville, Inc. v. State, Department of Business Regulation, Division of Beverage, 362 So.2d 951 (Fla. 1st DCA 1978), the Court in Hyman ruled that "although the 90-day period prescribed by section [120.569(1)(l)] is mandatory, the consequence of its violation should be determined by section [120.68(7)(c)]." Id. at 673. The Court then said, accordingly, "we read section [120.569(1)(l)] in conjunction with section [120.68(7)(c)]." Id. The Court then concluded by stating, "Applying this section to the present case, we hold that the untimely rendition of the final order did not result in the impairment of either the fairness of the proceedings or the correctness of the action and that Hyman was not prejudiced by the delay." Id.
The harmless error rule was more recently applied by this court in Ames v. District Board of Trustees, Lake City Community College, 908 So.2d 1142, 1143-44 (Fla. 1st DCA 2005). There, a college instructor appealed the termination of his employment based on his employer's failure to follow proscribed procedure. We rejected the argument that the agency's failure to follow prescribed procedures mandated reversal. Judge Ervin's opinion for the court in Ames reasoned:
This argument overlooks a cardinal principle of review under the Administrative Procedural Act (APA), permitting reversal only on a showing of "material error in procedure or a failure to follow prescribed procedure." § 120.68(7)(c), Fla. Stat. (2002). This provision has been characterized as the APA's version of the harmless error rule. See Dep't of Bus. Regulation v. Hyman, 417 So.2d 671, 673 (Fla.1982). Appellant's claim that a hearing pursuant to the administrative rule may have accorded him relief overlooks the ineluctable fact that he received such a hearing, which, while not complying with the procedural requirements of the rule, nonetheless gave him substantially the same opportunity to present evidence on his asserted entitlement to paid leave as he would have received had the Board itself filed the petition and noticed the dispute for hearing. Thus, the Board's failure to comply with the procedural requirements
of the rule must be considered at most harmless error.
Id.
The SBA's modifications here did not involve determinations of credibility of witnesses or re-weighing evidence adduced at the hearing. And the SBA accepted and ordered the same penalty as recommended by the ALJ. Hale fails to show that the errors in procedure for the agency's modifications under section 120.57(1)(l) impaired the "fairness of the proceedings or the correctness of the action" as required for us to remand or set aside a final order under section 120.68(7)(c). He also fails to show that the result of the administrative proceeding would have been different without the procedural errors in the final order. Accordingly, the violations of section 120.57(1)(l) in the final order were at most harmless error.
The other issues Hale raises on appeal contest the sufficiency of the evidence to support the SBA's findings that he committed the offenses while a public employee, the offenses breached the public trust, and the offenses were done through Hale's public position. A criminal conviction cannot be re-litigated in an administrative proceeding. Cabezas v. Corcoran, 293 So.3d 602, 604 (Fla. 1st DCA 2020). For purposes of section 112.3173, a "conviction" is an adjudication of guilt by a court of competent jurisdiction. § 112.3173(2)(a), Fla. Stat. As discussed above, Hale was convicted of qualifying offenses.
Section 112.3173(2)(e)6. does not require the SBA to re-prove the specified offense. An agency is only required to prove that a person has been convicted of a specified offense. See § 112.3173(2)(a), (3), Fla. Stat. So long as the person is convicted of a felony based on acts committed during his or her public employment, and the conduct meets the other requirements in section 112.3173(2)(e)6., the person has committed a "specified offense" requiring forfeiture of retirement rights and benefits. See § 112.3173(3), Fla. Stat.; see also Bollone, 100 So. 3d at 1279-81; Jenne v. State, Dep't of Mgmt. Servs., Div. of Retirement, 36 So.3d 738, 742 (Fla. 1st DCA 2010) (holding that any felony could qualify as a specified offense, so long as the remaining conditions in the statute are met).
Here, the final criminal judgment and sentence, the charging document, and the transcript of the trial were admitted into evidence in the administrative hearing. As a result, Hale fails to show any failure of proof or insufficiency of evidence to support the SBA's findings that he committed a felony while he was a public employee, as well as the other requirements of a "specified offense" under section 112.3173(2)(e)6. See Bollone, 100 So. 3d at 1281.
For all these reasons, the SBA's final order is
AFFIRMED.
Lewis and Kelsey, JJ., concur.