Florida's Pension Forfeiture Act: How To Lose A Vested Pension By Misconduct By Robert G. Walker, Jr., Esq. Rarely a day passes that we don't read or hear about some public official, officer or employee who is charged with a criminal offense. If the employee occupies a position of trust, public safety, educational authority or other high-profile job, the more likely the incident is to be reported in the press or on television. The media tends to concentrate on the nature of the employee's misconduct, and invariably mention the maximum of criminal penalties that may be imposed. It is the rare case, and usually with regard to a very high-ranking public official, (a judge, member of the legislature, public school superintendent, police chief or sheriff, etc.), that the media may mention that the accused official-especially if he or she has been in office a long time-stands to lose his or her state pension if convicted. That substantial extra punishment is not generally known. In fact, these pension forfeiture laws apply to all public employees who qualify for a publicly funded pension. I have had several clients referred to me by seasoned criminal defense lawyers who did not know it either. This is something all criminal defense lawyers and public employees need to know, because entering a plea to a crime that is job-related, may very well end up as an administrative petition by the state to forfeit a pension that has even partially vested. When an employee with 25 or 30 years of service learns about that for the first time after pleading guilty or no contest to an offense that is specified in the law as one which mandates pension revocation, the employee's typical reaction is to turn ashen and find remaining upright a difficult feat. This rarely happens in open court--because it is not part of the plea process--it is; however, a consequence. Florida Statutes, Sec. 112.3173, specifies the offenses that will result in loss of a public pension, (and some are broad). For instance, "Felonies involving breach of public trust and other specified offenses" are defined by the legislature based on a requirement in the Florida Constitution, sec. 8(d) of Art. II. The "specified offenses" at 112.3173(e) are as follows: The committing, aiding, or abetting of an embezzlement of public funds; The committing, aiding, or abetting of any theft by a public officer or employee from his or her employer Bribery in connection with the employment of a public officer or employee; Any felony specified in chapter 838, except ss. 838.15 and 838.16 (e.g., drugs); The committing of an impeachable offense (applies to elected officials); The committing of any felony with the intent to defraud the public and wrongly obtain, or attempt to obtain a profit, gain or advantage for the employee or someone else through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position; or The committing of any felony sexual offense against a minor by a public officer or employee by use of the employee's official position. So, any theft from a government employer will justify forfeiture, even if it is a misdemeanor offense. The same is true of embezzlement. The use of government credit card for personal use is regarded as theft. Arguably, taking a paper clip home would technically qualify, but I have come across no administrative complaint or criminal prosecution for any theft-related offense that was not a felony intentionally committed for the employee's personal benefit. A guilty plea is a sure-fire ticket to the head of the forfeiture line. Even a no contest plea is no protection. In accepting a nolo contendere plea and its concomitant plea agreement, a judge is required to inquire and determine if there is a "factual basis" for the charge(s). If the court finds that there is a sufficient factual basis to support the plea, and that the plea has been entered into freely, knowingly, willingly, and voluntarily, that is all that is necessary to drive the pension forfeiture nail in the accused employee's retirement coffin, whether he or she knows about the law or not. It will be reported to the Department of Management Services, Division of Retirement. Withholding formal adjudication of guilt is of no help in saving the pension. The statute allows no discretion in determining whether an employee who has been convicted of a specified offense has forfeited his or her retirement rights and benefits, because the Florida Constitution calls for the penalty, and harsh though it may be, it is certainly appropriate for those who have used inside knowledge and access to rip off the public. The only nexus between one of the specified crimes and the public officer is that the position facilitated the commission of the crime. Guess what class of employee is most heavily represented in these forfeitures? Law enforcement officers. That is quite ironical. This law gives the adage "if you can't do the time, don't do the crime" all new meaning. Even criminal fines rarely encompass the financial loss that a permanent pension loss entails. Since the typical member of the State Retirement or a local supplemental retirement system may have hundreds of thousands of dollars coming to them after they retire, the loss is staggering. After those affected by this article have read it, 90% of them will forget it. Like Jo Anne Ryan's situation in Safety Harbor, that aspect of her punishment was never mentioned.

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