Opinion
Case No. 2D18-4279
05-20-2020
LaJoyce HOUSTON, Appellant, v. CITY OF TAMPA FIREFIGHTERS AND POLICE OFFICERS' PENSION FUND BOARD OF TRUSTEES, Appellee.
Clifford A. Taylor and Megan Rosenberg of The Hogan Law Firm, Brooksville, for Appellant. Robert D. Klausner, Stuart A. Kaufman, and Anna R. Klausner Parish of Klausner, Kaufman, Jensen & Levinson, Plantation, for Appellee.
Clifford A. Taylor and Megan Rosenberg of The Hogan Law Firm, Brooksville, for Appellant.
Robert D. Klausner, Stuart A. Kaufman, and Anna R. Klausner Parish of Klausner, Kaufman, Jensen & Levinson, Plantation, for Appellee.
SALARIO, Judge. LaJoyce Houston appeals from a final order of the Board of Trustees of the City of Tampa Firefighters and Police Officers Pension Fund (Board) that forfeited her retirement benefits under a public-employee pension plan pursuant to section 112.3173, Florida Statutes (2017). Based on Ms. Houston's conviction in federal court for receiving, concealing, or retaining stolen government property—in this case, income tax refunds—the Board determined that she committed both an embezzlement of public funds and a felony falling within the statutory catch-all provision, either of which would support the forfeiture order under section 112.3173. The limited record consisting solely of documents the Board produced at the hearing failed to establish the existence of either ground. We are required to reverse.
I.
It is helpful before jumping into the facts of the case to understand the legal framework governing the forfeiture of public-employee retirement benefits. The forfeiture of such benefits is governed by both constitutional and statutory provisions. See Cuenca v. Bd. of Admin., 259 So. 3d 253, 258 (Fla. 3d DCA 2018). Article II, section 8(d), of the Florida Constitution provides as follows:
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.
The legislature has implemented this constitutional provision in section 112.3173. The statute was adopted in 1984, ch. 84-266, § 14, Laws of Fla., and in those respects important to this appeal, remains in identical form today.
Subsection (3) of the statute sets forth the general rule regarding the forfeiture of retirement benefits by a public employee:
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 statutory text, the forfeiture of pension benefits is the legal consequence of a conviction of a "specified offense" or the termination of public employment upon the "admitted commission, aid, or abetment of a specified offense." Without proof of a conviction of or admission to involvement in a specified offense, then, there can be no forfeiture of benefits. See Rivera v. Bd. of Trs. of City of Tampa's Gen. Emp't Ret. Fund, 189 So. 3d 207, 213 (Fla. 2d DCA 2016) (reversing final order forfeiting benefits on an absence of competent substantial evidence of the public employee's conviction of a specified offense).
The term "specified offense" is defined in section 112.3173(2)(e). That subsection makes clear that the legislature did not create a framework under which any crime or misconduct by a public employee results in a forfeiture of retirement benefits. Rather, the legislature limited the definition of a "specified offense" giving rise to forfeiture to a narrow set of seven categories of offenses that it evidently considered to involve a breach of public trust. Under the statute, "specified offense" means:
1. The committing, aiding, or abetting of an embezzlement of public funds;
2. The committing, aiding, or abetting of any theft by a public officer or employee from his or her employer;
3. Bribery in connection with the employment of a public officer or employee;
4. Any felony specified in chapter 838 [governing bribery by a public official], except ss. 838.15 and 838.16;
5. The committing of an impeachable offense;
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; or
7. 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 [involving lewd or lascivious offenses upon or against such victims], or any felony defined in chapter 794 against a 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.
Subsection (6) in the definition of "specified offense" is sometimes referred to as the definition's catch-all provision because it does not identify a specific crime but rather reaches "any felony" bearing certain characteristics. See, e.g., Simcox v. City of Hollywood Police Officers' Ret. Sys., 988 So. 2d 731, 733 (Fla. 4th DCA 2008) (describing section 112.3173(2)(e)(6) as a "catch-all" provision). As the language of that subsection demonstrates, it applies where the conduct at issue (1) constitutes a felony, (2) is committed by a public employee, (3) is done willfully and with intent to defraud the public or the public employer of its right to the employee's faithful performance, (4) is done to obtain a profit, gain, or advantage for the employee or some other person, and (5) is done through the use or attempted use of the power, rights, privileges, duties, or position of the employee's employment. See Cuenca, 259 So. 3d at 258 (quoting Bollone v. Dep't of Mgmt. Servs., Div. of Ret., 100 So. 3d 1276, 1280-81 (Fla. 1st DCA 2012) ). The last requirement—that the act be done through one of the listed attributes of public employment—requires a "nexus between the crimes charged against the public officer and his or her duties and/or position." DeSoto v. Hialeah Police Pension Fund Bd. of Trs., 870 So. 2d 844, 846 (Fla. 3d DCA 2003).
Section 112.3173 provides several mechanisms by which a public employee's commission of a specified offense may be reported to the Florida Commission on Ethics and obligates the Commission to report any such offenses to the relevant retirement system. § 112.3173(4). When the retirement system receives such a notice or otherwise has reason to believe that forfeiture of a public employee's retirement benefits is required, it must give the public employee notice and the opportunity for a hearing under the Administrative Procedure Act, chapter 120, Florida Statutes (2017). § 112.3173(5)(a). Any appeal from a decision to forfeit an employee's retirement benefits is to the district court of appeal. § 112.3173(5)(b). II.
A.
Ms. Houston started as a police officer with the Tampa Police Department in 1997, eventually rising to the rank of sergeant. On February 2, 2016, she was charged in a twenty-count superseding indictment in federal court in connection with an alleged scheme to fraudulently obtain income tax refunds from the federal government. The superseding indictment alleged that Ms. Houston, her husband, and a woman named Rita Girven conspired to steal personal identifying information of taxpayers, file false income tax returns on their behalf asserting entitlement to refunds, and collect the refunds from the federal government through a variety of means.
Several counts in the superseding indictment alleged that Ms. Houston used the Driver and Vehicle Information Database (DAVID), to which she had access by virtue of her employment with the police department, to obtain personal identifying information for use in the alleged scheme. Pay attention to that because it will become important later. One of the central issues in this case is whether the Board had competent substantial evidence proving, as distinguished from an indictment merely alleging, that Ms. Houston in fact ran these DAVID searches.
The criminal case was resolved through a plea agreement under which Ms. Houston pleaded guilty to a single count of the superseding indictment—Count Four. Count Four alleged that Ms. Houston "did willingly receive, conceal, and retain stolen property of the United States ... with the intent to convert said property to [her] own use and the use of others, then knowing said property to have been stolen" in violation of 18 U.S.C. §§ 641, 642 (2017). It identified as the property $61,660.52 of tax refunds and stated that Ms. Houston used $2000 of those funds to pay a credit card balance. It did not say anything, however, about Ms. Houston using DAVID to further the theft.
The plea agreement contained a section titled "factual basis" in which Ms. Houston admitted to a statement of the facts supporting the plea. It stated that in 2011 and 2012, Ms. Houston received things of value obtained with debit cards tied to bank accounts loaded with fraudulently obtained tax refunds. It explained how Ms. Girven would open bank accounts in other people's names in which to deposit the tax refunds. It identified the specific bank account containing the refunds that were the subject of Count Four and explained that those refunds had been issued as a result of fraudulent tax returns filed in identity-theft victims' names by Ms. Girven and the filing of Ms. Girven's own fraudulent tax return. It described how the funds were used to make payments on Ms. Houston's credit card. Like Count Four, however, the factual basis section of the plea agreement said nothing about Ms. Houston using DAVID in connection with the theft of government property.
The federal court accepted Ms. Houston's plea and proceeded to a sentencing hearing. Before the hearing, a presentence investigation report was prepared that evidently—we say evidently because the presentence investigation report was not presented to the Board and is not included in our record—stated that Ms. Houston used DAVID in some way related to the theft. At the sentencing hearing, Ms. Houston argued objections to several statements in the presentence investigation report, including the statement about the use of DAVID. The court did not hear any witnesses or receive any documents (other than the presentence investigation report) on the matter, but it did state on the record that it was "satisfied that Ms. Houston ran these DAVID searches. The Court finds that Ms. Houston used her position of trust to secure this scheme."
After resolving Ms. Houston's objections to the presentence investigation report, the court heard testimony from Ms. Houston's pastor, a statement from Ms. Houston, and argument of counsel. The government requested that the court impose a sentence of fifty-one months in prison. The court stated that it would impose a sentence of thirty-three months. It did not explain how, if at all, its determination that Ms. Houston ran DAVID searches in furtherance of the scheme factored into the sentence. The written judgment and sentence entered following the hearing did not explain it either.
B.
In October 2017, the Board served Ms. Houston with a notice of proposed agency action in which it stated that her retirement benefits were to be forfeited. The notice asserted that the federal crime to which she pleaded amounted to a specified offense because (1) it constituted the embezzlement of public funds under section 112.3173(2)(e)(1), (2) it constituted the theft by a public officer or employee from his or her employer under section 112.3173(2)(e)(2), and (3) it fell within the catch-all provision in section 112.3173(2)(e)(6). Ms. Houston requested a hearing before the Board.
At the start of the hearing, counsel for the Board announced that the case would proceed on the embezzlement and catch-all theories stated in the notice and, by implication, that the theory of theft by a public employee from her employer was abandoned. A special advocate retained by the Board then presented the case against Ms. Houston. He began by stating that he would not call any witnesses. Rather, he would rely solely on a limited set of documents to prove the specified offenses. As relevant here, those documents consisted of the superseding indictment, the plea agreement, the transcript of the federal sentencing hearing, and the written judgment and sentence.
The special advocate argued that Ms. Houston's plea to receiving, concealing, or retaining stolen federal property demonstrated "an embezzlement" under section 112.3173(2)(e)(1) because, under the Florida Criminal Code, the crime of embezzlement is subsumed by the crime of theft. He further argued that the only disputed issue under the catch-all provision, under section 112.3173(2)(e)(6), was whether there was a nexus between Ms. Houston's public employment and the theft and that the nexus was shown by Ms. Houston's use of DAVID to facilitate the scheme. He stated that the Board could find that Ms. Houston so used DAVID based on the federal court's finding at the sentencing hearing that she did.
Ms. Houston's counsel argued that embezzlement connotes a person's fraudulent appropriation of property or money that has been entrusted to him or her by someone like an employer or a fiduciary. Because no one had ever entrusted the fraudulent tax returns to Ms. Houston, and she thus could not have come into possession of the property lawfully, her counsel argued, she could not have committed that offense. As to the catch-all provision, Ms. Houston testified and denied using DAVID in connection with the tax-refund scheme. Her counsel argued that the federal judge's finding to the contrary at the sentencing hearing was hearsay and, as a matter of law, insufficient to prove the nexus element under our court's decision in Rivera.
The Board rendered a final order forfeiting Ms. Houston's retirement benefits. It concluded that Ms. Houston had committed the specified offense of embezzlement of public funds for two reasons: (1) 18 U.S.C. § 641 uses the term "embezzlement," and Ms. Houston's plea to a violation of that statute thus establishes that she committed or aided and abetted an embezzlement and (2) under Florida law, embezzlement is subsumed in the offense of theft. The Board also concluded that Ms. Houston committed a specified offense under the catch-all provision. It found the nexus element of the catch-all provision based on the federal court's finding at the sentencing hearing that Ms. Houston ran DAVID searches in connection with the fraudulent scheme. This is Ms. Houston's timely appeal.
III.
Our review of the Board's forfeiture order is governed by section 120.68 of the Administrative Procedure Act. See Rivera, 189 So. 3d at 210 (citing Bollone, 100 So. 3d at 1279 ). Under that statute, we may set aside an agency decision or remand a case to the agency when, as applicable here, its decision hinges on an erroneous interpretation of law or a finding of fact that is not supported by competent substantial evidence. See § 120.68(7)(b), (d); Simcox, 988 So. 2d at 732-33.
A.
Ms. Houston first argues that the Board's conclusion on the specified offense of embezzlement of public funds is incorrect because nothing in the record before the Board showed that she committed an offense involving the fraudulent appropriation of money with which she or someone else had been lawfully entrusted. This requires that we determine both the meaning of the term "embezzlement" in section 112.3173(2)(e)(1) and whether competent substantial evidence establishes that conduct meeting the definition of that term is present on this record.
The rules we bring to determining the meaning of the statutory term "embezzlement" are well-known. When we interpret a statute, we start with "the plain meaning of the actual language" that the legislature chose. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013). If that language is unambiguous, its plain meaning controls and there is nothing left for us to interpret. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). If the statutory language is ambiguous, however, we turn to rules of statutory construction to determine its meaning. English v. State, 191 So. 3d 448, 450 (Fla. 2016). Statutory language is ambiguous when it is reasonably susceptible of more than one interpretation. See License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, 155 So. 3d 1137, 1146 (Fla. 2014).
The statutory term "embezzlement" is not defined in section 112.3173 or elsewhere in chapter 112. Thus, we give the term its ordinary, everyday meaning unless it has been used in a way that carries a specialized or technical meaning. See City of Tampa v. Thatcher Glass Corp., 445 So. 2d 578, 579 (Fla. 1984) ; State v. Kwitowski, 250 So. 3d 210, 215 (Fla. 2d DCA 2018). Here, one might say that when a term like "embezzlement" is used in a statute regulating a collateral consequence (forfeiture of retirement benefits) of the commission of a "specified offense," the term ought to be used as it is used in the criminal law. See Kwitowski, 250 So. 3d at 215-16 (holding that the term "capital felony" in a perjury statute carried the meaning it carried in the Florida Criminal Code and not its ordinary, everyday meaning). Which meaning applies to the term "embezzlement" as used in section 112.3173(2)(e)(1) is an academic question, however, because the ordinary and specialized meanings of the term are the same: both connote the fraudulent appropriation of property by a person to whom that property has been entrusted by reason of some office, employment, or position of trust. See ch. 812, Fla. Stat. (1967) (identifying and describing various embezzlement-related offenses); Berney v. State, 38 So. 2d 55, 56 (Fla. 1948) (stating elements of embezzlement under Florida law when it was still a separate offense); Embezzle , Black's Law Dictionary (5th ed. 1979) (defining "embezzle" as "willfully to take, or convert to one's own use, another's money or property, of which the wrongdoer acquired possession lawfully, by reason of some office or employment or position of trust"); Embezzlement , Webster's Third New Int'l Dictionary (1986) (defining "embezzlement" as "the fraudulent appropriation of property by a person to whom it has been entrusted (as of an employer's money by his clerk or of public funds by the officer in charge)"); Wayne R. LaFave, Substantive Criminal Law § 19.6(a) (3d ed. 2019) (describing the creation of embezzlement to fill a gap left by the element of larceny that required a trespass in the taking, recognizing "various kinds of persons who might have lawful possession of another's property," and "providing that any such person entrusted with another's property who fraudulently converted it was guilty of embezzlement").
Thus, an embezzlement occurs when a person lawfully comes into possession of the property (whether public or otherwise) of another (such as through a public office) and fraudulently converts it to his or her own use. See State v. Siegel, 778 So. 2d 426, 427 n.2 (Fla. 5th DCA 2001) (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 8.6 (2d ed. 1986)). The Third District's decision in Warshaw v. City of Miami Firefighters' & Police Officer's Retirement Trust, 885 So. 2d 892 (Fla. 3d DCA 2004), which affirmed an order forfeiting retirement benefits, is provides an example. There, the City of Miami funded a nonprofit organization for the purpose of recognizing individuals who had made contributions to the community and forming alliances between the police and local businesses. Id. at 894. The nonprofit was housed in the police department, and the police chief, who was the nonprofit's registered agent, arranged for the funds to be transferred to its bank account. Id. The chief later used part of those funds to pay for personal, unauthorized expenses. Id. This was a textbook case of embezzlement: the chief came into lawful possession of public funds by virtue of his office and involvement with the nonprofit and converted those funds to his own use.
The embezzlement to which section 112.3173(2)(e)(1) refers is the embezzlement of public funds. Ms. Houston has never disputed that the proceeds she received were public funds within the meaning of the statute.
This case, in contrast, does not involve anyone coming into possession of property lawfully. On the record developed before the Board, Ms. Girven filed phony income-tax returns pretending to be someone she was not and claiming an entitlement to a refund that did not exist, had the refunds deposited into a bank account in someone else's name, and then shared the refunds with Ms. Houston, who knew they were the product of a fraud on the government. This is not a case of anyone coming into possession of property lawfully, such as through a public office or employment; everyone who came into the possession of the tax refunds did so entirely unlawfully. See Siegel, 778 So. 2d at 427 (distinguishing crimes of theft like larceny, which require that criminal intent be formed at the time the property is taken, from embezzlement, a form of theft which "does not require that the defendant have criminal intent when he obtains the property in question"). Perhaps tellingly, the Board has not argued to the contrary.
The Board has argued, as it did in its final order, that Ms. Houston's plea to a violation of 18 U.S.C. § 641 shows that she committed embezzlement because that statute contains that word. In relevant part, 18 U.S.C. § 641 provides as follows:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another ... any ... money ... of the United States ... or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both ....
The Board's argument lacks merit. As the text makes clear, one can commit an offense under 18 U.S.C. § 641 in multiple ways: (1) by (a) embezzling, (b) stealing, (c) purloining, or (d) knowingly converting money of the United States or (2) by receiving, concealing, or retaining that money knowing it to have been (a) embezzled, (b) stolen, (c) purloined, or (d) converted. In the count of the superseding indictment to which Ms. Houston pleaded guilty, the government did not charge Ms. Houston with embezzling money. Nor did it charge her with receiving, concealing, or retaining money that she knew to have been embezzled. It charged that Ms. Houston "did willingly receive, conceal, and retain stolen property of the United States ... then knowing said property to have been stolen." (Emphasis added.) And Ms. Houston's plea agreement did not contain any admission to an embezzlement or knowingly receiving embezzled money. It contained only an admission to knowingly receiving stolen property. Thus, nothing in Ms. Houston's plea or the resultant judgment establishes a conviction of or admission to embezzlement or aiding an abetting embezzlement.
The Board also argues that we should interpret the term "embezzlement" in section 112.3173(2)(e)(1) as reaching Ms. Houston's crime because her crime was a theft and under Florida law, embezzlement is subsumed within theft. As support, it points to section 812.014(1), which establishes a single offense of "theft" that reaches anyone who "obtains or uses" the property of another with the intent to deprive that person of the property or to appropriate it to themselves. It then identifies section 812.012(3)(d)(1), which defines "obtains or uses" for purposes of the theft statute as including "[c]onduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception." From there, the Board argues that because embezzlement is included within theft, and Ms. Houston participated in a theft, her conduct qualifies as embezzlement.
In Florida, the statutes making various forms of embezzlement criminal offenses with their own separate elements were repealed before section 112.3173(2)(e)(1) was enacted. When they were repealed, embezzlement and other crimes against property—such as obtaining money by false pretenses, for example—were merged into a single offense by way of a series of statutory amendments. See Casso v. State, 182 So. 2d 252, 255 (Fla. 2d DCA 1966) (recognizing that "[a]ll former distinctions between larceny, embezzlement, and obtaining money or other property by false representations" were "abolished by statute and are now merged into the one offense of larceny" and citing the version of section 811.021, Florida Statutes (dealing with larceny and other related offenses), that was in effect at the time relevant to the 1966 opinion); see also ch. 74-383, § 40, Laws of Fla. (renumbering section 811.021 to section 812.021, Florida Statutes, and amending it); ch. 77-342, §§ 4, 5, 16, Laws of Fla. (repealing section 812.021 and creating section 812.014). The result is that Florida now has an umbrella theft statute in section 812.014, Florida Statutes (2017), that encompasses all of the various forms of commission of theft by way of what were once separate offenses against property.
Obviously, this does not make sense as a matter of logic. Reduced to essentials, the Board's argument is a syllogism that runs as follows: (1) all embezzlement is theft; (2) Ms. Houston's crime was theft; therefore (3) Ms. Houston's crime was an embezzlement. This presents what logicians call the fallacy of the undistributed middle. See, e.g., Aylett v. Sec'y of Hous. & Urban Dev., 54 F.3d 1560, 1569 (10th Cir. 1995) (describing the fallacy of the undistributed middle). The middle term of the syllogism is "theft" because it appears in both the major and minor premises, items (1) and (2) respectively. But in the minor premise (item (2)), it says something about a particular thing (Ms. Houston) rather than about everything the term designates, making it undistributed. (It would be distributed if the second premise was something like "all theft is illegal.") As a result, the major and minor premises cannot be connected, and the conclusion is invalid. It is like saying (1) all apples are fruit; (2) a banana is a fruit; therefore (3) a banana is an apple. See Royer v. State, 389 So. 2d 1007, 1016 (Fla. 3d DCA 1979) ("The fallacy of the undistributed middle directly applies: all narcotics couriers act like parts of the profile, but most people who act like parts of the profile are not narcotics couriers."). The Board's argument thus does not present a reasonable interpretation of the term "embezzlement" in section 112.3173(2)(e)(1).
Furthermore, the argument does not make sense within the context of section 112.3173(2)(e). Section 112.3173(2)(e)(1) identifies "embezzlement of public funds" as a specified offense calling for forfeiture of retirement benefits. The very next subsection—subsection (2)(e)(2)—identifies "theft by a public officer or employee from his or her employer" as a separate and distinct specified offense calling for forfeiture. The fact that the legislature used the term "embezzlement" to identify one specified offense and the term "theft" to identify another—all while knowing that embezzlement had been subsumed within the offense of theft in the criminal code—indicates, in the absence of evidence to the contrary, that the legislature understood the two terms to carry different meanings. See State v. Mark Marks, P.A., 698 So. 2d 533, 541 (Fla. 1997) (quoting Dep't of Prof'l Reg. v. Durrani, 455 So. 2d 515, 518 (Fla. 1st DCA 1984) ); Burgess v. State, 198 So. 3d 1151, 1157 (Fla. 2d DCA 2016) ("[T]he legislature does not ordinarily use different words to mean the same thing."). And the evidence the Board presented here does not show that Ms. Houston committed or aided and abetted the commission of the offense the term "embezzlement" connotes.
B.
With respect to the catch-all provision, the issue is whether competent substantial evidence supports the Board's finding that Ms. Houston ran DAVID searches in connection with her crime, which was essential to its conclusion that the nexus requirement was satisfied. The sole evidence that supported the Board's finding was the federal court's finding at Ms. Houston's sentencing hearing that she did run those circumstances and, accordingly, abused her position of trust. Ms. Houston argues that the federal court's finding is hearsay and is, by itself, insufficient to support the Board's finding under our decision in Rivera.
At oral argument, the Board posited that a nexus also exists because Ms. Houston met Ms. Girven while the latter was a confidential informant for the police department. Whether we should consider an alternate ground for affirmance raised outside the briefs is debatable. See, e.g., Powell v. State, 120 So. 3d 577, 592-93 (Fla. 1st DCA 2013). At all events, the record does not support it. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) ("[T]here must have been support for the alternative theory or principle of law in the record. ..."). The evidence was that Ms. Houston met Ms. Girven in 2000, that the crime occurred in 2011, and that the two women became very close personally in the interim—so close that Ms. Girven's daughter lived with Ms. Houston. There was no evidence bearing on whether Ms. Girven was an informant at the time of the crime. The final order states that Ms. Houston "abused her position of trust" by taking money from someone she met as a confidential informant. But it does not conclude that this meant that Ms. Houston "use[d] or attempted [to] use ... the power, rights, privileges, duties, or position" of her employment when she committed her crime eleven years after meeting Ms. Girven and after the two women had become personally close, see § 112.3173(2)(e)(6), which is what the nexus element requires. The Board has not cited and we have not found any decision holding the nexus element satisfied on facts close to these; on the contrary, the applicable cases clearly involve the direct leveraging of the public office to secure private gain. See, e.g., Bollone, 100 So. 3d 1276, 1281 (Fla. 1st DCA 2012) (involving facts where a public employee used a computer given to him for employment purposes to download and view child pornography); Jenne v. Dep't of Mgmt. Servs., Div. of Ret., 36 So. 3d 738, 739 (Fla. 1st DCA 2010) (involving facts where a sheriff, among other things, gave a developer a lease amendment with the sheriff's office in apparent exchange for private work on a residence and used his secretary and an attorney for the sheriff's office in the process). We cannot conclude that the record supports the Board's alternate ground for affirmance here.
In an administrative proceeding of the type conducted by the Board here, "[i]rrelevant, immaterial, or unduly repetitious evidence shall be excluded but all other evidence of a type commonly relied upon by reasonably prudent persons" is admissible, regardless of whether it would be admissible at a trial in a court. See § 120.569(2)(g); Fla. Indus. Power Users Grp. v. Graham, 209 So. 3d 1142, 1145-46 (Fla. 2017) ("[S]ection [120.569(2)(g) ] exemplifies the longstanding general rule ... that the rules of evidence do not strictly apply in administrative proceedings."). That means that hearsay evidence is admissible. But the Administrative Procedure Act limits what hearsay may be used to do, providing that it "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) (emphasis added); see also Yost v. Unemployment App. Comm'n, 848 So. 2d 1235, 1237 (Fla. 2d DCA 2003) (holding that in administrative proceedings, hearsay evidence "is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding").
In Rivera, we applied these principles to the nexus requirement in section 112.3173(2)(e)(7) —regarding the specified offense of lewd or lascivious molestation of a person under sixteen—which is textually identical to the nexus requirement in the catch-all provision. 189 So. 3d at 211 (relying on cases interpreting the nexus requirement in the catch-all provision). There, the public employee pleaded guilty to the requisite crimes and the record included his plea agreement, plea colloquy, and judgment and sentence, but none of those documents showed a nexus between his public employment and his crimes. Id. at 212. To fill the gap, the retirement system board relied on a police report and transcripts of police interviews of the minor victims. Id. We held that "[t]he police reports and the transcripts of the witness interviews were clearly hearsay that would not be admissible over objection in civil actions." Id. We concluded that "[i]t follows that the forfeiture order is not supported by competent, substantial evidence and that it must be set aside." Id. at 213.
Assuming without deciding that the federal court's finding that Ms. Houston used DAVID in connection with her crime qualifies as substantive evidence that she in fact did so, it is as clearly hearsay as was the evidence in Rivera. It is a statement (Ms. Houston used DAVID in connection with her crime), made out of court (really, outside the board proceedings), by a declarant (the federal judge), that is offered for the truth of the assertion the statement contains (that Ms. Houston really did use DAVID in connection with her crime). See § 90.801(c), Fla. Stat. (2017) (defining hearsay); Rubrecht v. Cone Distrib., Inc., 95 So. 3d 950, 959 (Fla. 5th DCA 2012) (explaining that a statement of fact in an appellate opinion is hearsay when used to establish that the fact is true); BDO Seidman, LLP v. Banco Espirito Santo Int'l, 38 So. 3d 874, 880 (Fla. 3d DCA 2010) ("A court judgment is hearsay ‘to the extent that it is offered to prove the truth of the matters asserted in the judgment.’ " (quoting United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007) )). The Board's final order does not identify an exception to the hearsay rule under which the federal court's finding would have been admissible in a civil case, and none is apparent to us. Absent an exception, the federal court's finding is insufficient to sustain the Board's finding that Ms. Houston used DAVID in connection with her crime. See Rivera, 189 So. 3d at 212-13.
The Board argues that the transcript of the sentencing hearing is a public record admissible under the public records exception in section 90.803(8). Even if true, however, that would not get the federal court's finding into evidence. That is because the transcript is itself hearsay, and the finding is another level of hearsay within it. See, e.g., Leighty v. State, 981 So. 2d 484, 492 (Fla. 4th DCA 2008) (holding that statements contained in a deposition transcript were inadmissible hearsay when offered for the truth of their assertions even though the transcript itself was admissible over a hearsay objection); Bigge v. Dist. Sch. Bd. of Citrus Cty., No. 5:13-cv-49-Oc-10PRL, 2015 WL 1138472, at *8 (M.D. Fla. Mar. 13, 2015) ("[E]ven though these transcripts [of a school board meeting] have been deemed public records, they are replete with statements constituting inadmissible hearsay within hearsay within hearsay."). Even if the transcript is admissible, an exception applicable to the federal court's finding would still be required. See § 90.805; Leighty, 981 So. 2d at 492. The same, obviously, would be true of any other factual statement made during the course of the sentencing proceeding that is offered for its truth.
The Board argues that even if it was inadmissible, the federal court's finding about DAVID precludes her from relitigating the matter under the doctrine of collateral estoppel. Whether a federal court's findings at a criminal sentencing have preclusive effect under the doctrine is, as it turns out, a fairly murky affair. At least two federal courts of appeal have held that it is presumptively improper for a party to invoke collateral estoppel to preclude its adversary from relitigating a fact found at a federal criminal sentencing, citing as significant concerns the procedural differences and the different incentives parties have to litigate between federal sentencings and other court proceedings. See, e.g., Maciel v. Comm'r of Internal Revenue, 489 F.3d 1018, 1024-25 (9th Cir. 2007) ; Sec. & Exch. Comm'n v. Monarch Funding Corp., 192 F.3d 295, 305-06 (2d Cir. 1999). Others have recognized these concerns but have avoided definitively ruling on whether findings at a federal sentencing can have collateral-estoppel effect. See, e.g., United States v. Clark, 906 F.3d 667, 671 (7th Cir. 2018) (declining to reach the issue because any error in applying the doctrine was harmless); Kosinski v. Comm'r of Internal Revenue, 541 F.3d 671, 677-79 (6th Cir. 2008) (describing concerns but declining to reach the question because the case could be resolved on other grounds). Still others have given such findings preclusive effect without explicitly considering whether it is proper to do so. See, e.g., United States v. Duboc, 694 F.3d 1223, 1227 (11th Cir. 2012).
We need not resolve the problem in this case. Assuming it is proper to give preclusive effect to findings made at a federal sentencing hearing, the Board failed to prove that collateral estoppel applies. The party asserting collateral estoppel must establish the following elements:
(1) [T]he issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding.
Lary v. Ansari, 817 F.2d 1521, 1524 (11th Cir. 1987) (alteration in original) (quoting I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1549 (11th Cir. 1986) ). Assuming without deciding that the other elements of collateral estoppel are satisfied, there is no evidence in this record of the third element—that Ms. Houston's use of DAVID was a critical and necessary part of the judgment and sentence in the federal criminal case.
We look to federal law to determine the preclusive effect of the judgment and sentence in the federal criminal case because it is a federal judgment. See, e.g., State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So. 3d 528, 534 n.5 (Fla. 2d DCA 2017) (looking to Florida law to determine the preclusive effect of a Florida judgment (citing Restatement (Second) of Judgments ch. 6, intro note (Am. Law Inst. 1982))). At all events, the requirements of collateral estoppel in Florida are, in those respects material to this case, identical to those under federal law. See, e.g., Goodman v. Aldrich & Ramsey Enters., Inc., 804 So. 2d 544, 546-47 (Fla. 2d DCA 2002) (stating elements of collateral estoppel).
The fundamental problem is that it is not possible to determine on the record before the Board how, if at all, the federal court's finding affected the sentence it imposed. See, e.g., Lary, 817 F.2d at 1525 (holding that the "critical and necessary" element was not established where the jury in the prior action rendered a general verdict and the court in the second action could not determine which of multiple bases for the decision the jury chose). Fashioning a federal sentence is a discretionary exercise by a federal court based on its consideration of a series of statutory factors. See 18 U.S.C. § 3553 ; United States v. Boyd, 786 F. App'x 186, 189 (11th Cir. 2019) ("The district court has broad discretion to weigh the various sentencing factors and to consider the totality of the circumstances [in imposing a sentence]."). We know from the sentencing transcript that the federal court found that Ms. Houston used DAVID in connection with her crime. But we also know from the transcript (1) that the court considered ample other information, including information in the presentence investigation report, testimony from Ms. Houston's pastor, Ms. Houston's own statement, other information the federal court did not specifically identify, and the arguments of counsel and (2) that the court imposed a sentence that was materially shorter than the sentence the government requested. Nothing in the sentencing transcript connects the finding that Ms. Houston used DAVID to the sentence imposed either as a matter of law or as a matter of the federal court's sentencing discretion. And there is nothing else in our record that would enable us to make those determinations directly or by reasonable inference. Instead, as far as this record is concerned, there are multiple ways the federal court could have arrived at the sentence it did, and we thus cannot conclude that its finding regarding the use of DAVID was critical and necessary to the sentence it imposed. See Hickman v. Comm'r of Internal Revenue, 183 F.3d 535, 538 (6th Cir. 1999) (holding that the sentencing court's determination of a restitution amount in the amount of the defendant's unpaid taxes was not collateral estoppel on the issue of that defendant's tax liability because the sentencing court "enjoyed considerable discretion as to whether [it] should order restitution, and if so, as to the amount" such that the defendant's tax liability was not critical and necessary to the restitution award); cf. Dennis v. United States Bureau of Prisons, 325 F. App'x 744, 747 (11th Cir. 2009) (holding that the "critical and necessary" element was not satisfied where the prior decision was based on alternative holdings).
IV.
At oral argument, the Board emphasized that Ms. Houston's conduct was unconscionable for a police officer and that she should not be allowed to enjoy public retirement benefits. We take no issue with the Board's assessment of Ms. Houston's conduct; it was quite obviously serious and deserving of condemnation. Our role, however, is not to determine whether it is morally right for Ms. Houston to receive retirement benefits. The legislature has carefully crafted a statute that tells us when a public employee's commission of a crime requires forfeiture of retirement benefits, and the question for us is whether the evidence the Board produced at the hearing establishes one of those circumstances. The Board here decided to forego witness testimony and rely on a limited record of documents. For the reasons we have explained, those documents fail to prove a specified offense justifying forfeiture under the statutory scheme. Accordingly, we reverse the final order forfeiting Ms. Houston's retirement benefits and remand the case to the Board with instructions to enter an order restoring Ms. Houston's retirement benefits and providing for the payment of any past due benefits with interest. See Rivera, 189 So. 3d at 213.
Reversed and remanded with instructions.
VILLANTI and MORRIS, JJ., Concur.