Florida/Georgia Personal Injury & Workers Compensation

loss of his employment benefits. See Fla.Stat. § 112.3173 (Supp.1984). . See Herskowitz v. Nesbitt, 419

.... . . on November 7, 1995." Hames was adjudicated guilty and sentenced on November 15, 2004. On July 12, 2006, the Trust notified Hames that it would be holding a preliminary hearing to determine whether Hames had forfeited his benefits pursuant to section 112.3173, Florida Statutes (2006)....

...The Trust's Authority to Commence Forfeiture Proceedings In Florida, a retired police officer forfeits all rights to receive public retirement benefits in excess of his or her accumulated contributions if the officer "is convicted of a specified offense committed prior to retirement." § 112.3173(3), Fla. Stat. (2006). Subsection 112.3173(5) outlines the procedures used to determine whether the retired officer was "convicted" of a "specified offense" prior to retirement, thereby requiring the forfeiture of public retirement benefits pursuant to subsection (3): (a) Whe...

...of determining whether the rights and privileges are required to be forfeited. If the official or board determines that such rights and privileges are required to be forfeited, the official or board shall order such rights and privileges forfeited. § 112.3173(5)(a), Fla....

...The official or board responsible for paying out benefits to its qualified members—in this case, the Trust—is required to give notice and hold a hearing in accordance with chapter 120, "for the purpose of determining whether such rights and privileges are required to be forfeited." § 112.3173(5)(a), Fla....

...The Trust's obligation to conduct a forfeiture determination under chapter 120 is triggered when it "receives notice pursuant to subsection (4), or otherwise has reason to believe that the rights and privileges of any person under such system are required to be forfeited under this section." § 112.3173(5)(a), Fla. Stat. (2006) (emphasis added). In the instant case, the Trust did not receive notice of Hames' actions from an independent investigation of the Commission on Ethics pursuant to subsection 112.3173(4); instead, it became aware that Hames was convicted of two federal felonies related to his conduct as a City of Miami police officer....

...Thus, although the Trust initiated the forfeiture determination proceedings more than four years after Hames' guilty plea, it did so in a timely fashion because the four-year limitations period provided by paragraph 95.11(3)(n), Florida Statutes (2001), was inapplicable. Hames' Acts Qualify as Specified Offenses Under Section 112.3173 Hames' retirement benefits were not required to be forfeited unless he was "convicted of a specified offense committed prior to retirement." § 112.3173(3), Fla....

...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. § 112.3173(2)(e)6, Fla....

...(2) "Corrupt" means done with knowledge that act is wrongful and with improper motives. (3) Official misconduct under this section is a felony of the third degree. . . . A violation of section 839.25 is a felonious breach of the public trust and a "specified offense" within the meaning of subparagraph 112.3173(2)(e)6, Florida Statutes (2006)....

...time of their commission) under section 839.25, Florida Statutes (2001). Thus, Hames' acts amounted to a breach of the public trust in violation of a "specified offense" requiring the forfeiture of Hames' retirement benefits pursuant to subparagraph 112.3173(2)(e)6, and subsection 112.3173(3), Florida Statutes (2006)....

...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. Fla. Const. Art. II § 8(d). To implement this constitutional mandate, the Florida Legislature enacted § 112.3173(3), Fla....

...of determining whether such rights and privileges are required to be forfeited. If the official or board determines that such rights and privileges are required to be forfeited, the official or board shall order such rights and privileges forfeited. § 112.3173(5)(a), Fla....

...Plaintiff does not dispute that the only trigger for a forfeiture proceeding is a felony conviction for one of a number of specified offenses, or that he was convicted of a felony offense. His response is that the felony offense he pled guilty to is not an offense that justifies forfeiture within the meaning of § 112.3173(2)(e), Fla....

...See Busbee, 685 So.2d at 916 (explaining that pension plan vests subject to the forfeiture provisions) (citing Steigerwalt v. City of St. Petersburg, 316 So.2d 554, 556 (Fla.1975)). And under the Florida statute, it is the time the offense is committed that controls forfeiture, not the time of the ultimate conviction. See § 112.3173(3) ("Any public officer or employee who is convicted of a specified offense committed prior to retirement ....

...State, 731 So.2d 159 (Fla. 3d DCA 1999). The Board of Trustees subsequently brought pension forfeiture proceedings against Jacobo and held an administrative hearing. The Board determined that because *364 Jacobo was convicted of a specified offense under section 112.3173(2)(e)6, Florida Statutes (1992), forfeiture of his pension rights was warranted. This appeal follows. Jacobo first argues that his pension benefits cannot be forfeited under section 112.3173(2)(e)6 [1] because that section is ejusdem generis of embezzlement, theft, and bribery, none of which is the charge on which he was convicted....

...species as those specifically enumerated"). The doctrine of ejusdem generis is applicable only where there is some ambiguity or inconsistency in the statute. See Pottsburg Utilities, Inc. v. Daugharty, 309 So.2d 199, 201 (Fla. 1st DCA 1975). Because section 112.3173(2)(e)6 is neither vague nor ambiguous, it does not require statutory construction and the doctrine of ejusdem generis is not applicable. See Baker v. State, 636 So.2d 1342, 1343 (Fla. 1994). Jacobo's actions constituted a breach of the public trust forbidden by the plain wording of section 112.3173(2)(e)6. [2] See Newmans v. Division of Retirement, 701 So.2d 573 (Fla. 1st DCA 1997). Jacobo alternatively attacks the constitutionality of section 112.3173(2)(e)6 by arguing that it is not authorized by Article II, section 8(d) of the Florida Constitution....

...duties *365 and private interests, including, without limitation, a violation of s. 8, Art. II of the State Constitution or of this. part. Thus, it is a breach of the public trust to violate any standard of ethical conduct in Chapter 112, including section 112.3173(2)(e)6, which proscribes the commission of a felony with intent to defraud the public to gain an advantage for himself or someone else through the use of his office. Official misconduct [3] is clearly a breach of the public trust, and the pension board's conclusion that it is so is AFFIRMED. NOTES [1] "Specified offense" is defined in section 112.3173(2)(e) as follows: 1....

...ttempts 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. [2] Section 112.3173(2)(e)6 provides: 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 o...

...An informal hearing was conducted on December 5, 1995. The Division ruled that appellant had forfeited his retirement benefits by virtue of his guilty plea to accepting a bribe in connection with his employment, under the authority of Article II, section 8, Florida Constitution, and sections 112.3173(3) and 121.091(5), Florida Statutes....

...Busbee's pension rights vested, indeed, at the time he opted to become a member of the Florida Retirement System, we need not decide the question whether it was constitutional to also base the forfeiture upon Florida Constitution Article II, section 8 (adopted in 1976), and section 112.3173(3), Florida Statutes (enacted in 1984)....

...on whether the felony was a listed one at the time Mr. Shields committed his act of wrongdoing. See also Pilkay v. City of Tampa, 505 So.2d 1100, 1101 (Fla. 2d DCA), review denied mem., 513 So.2d 1062 (Fla.1987). In Pilkay, the appellant argued that section 112.3173(3) could not be applied to him because it was enacted after he had committed the crime of theft against his employer....

...On June 27, 1995, appellant pled guilty to Count Five of the indictment, which charges a conspiracy to obstruct justice, as a result of a negotiated plea. On September 18, 1995, the Division notified appellant of its intent to terminate his retirement benefits pursuant to sections 121.091(5)(f), and 112.3173(2)(e)3., 4....

...Appellant requested a formal hearing, and the controversy was forwarded to the Division of Administrative Hearings. At the conclusion of the hearing, the hearing officer recommended that the Division *574 determine that appellant had forfeited his right to a retirement benefit under the Florida Retirement System pursuant to section 112.3173(3), Florida Statutes....

...ccumulated contributions as of the date of termination. A "specified offense" for purposes of forfeiture includes embezzlement, theft, and bribery. The hearing officer found that appellant did not commit an offense of embezzlement, theft or bribery. Section 112.3173(2)(e)6., however, provides that "specified offense" includes: (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...

...r 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 hearing officer concluded that appellant committed a "specified offense" as defined in section 112.3173(2)(e)6....

...of a felony by which he realized or attempted to realize a gain or advantage for himself or some other person "through the use or attempted use of the power, rights, privileges, debts, or position of his ... political office or employment position." § 112.3173(2)(e)6....

...amper with a witness as asserted by appellant. Tampering with a witness or informant is a third degree felony under Florida law, and a conviction of that offense in a Florida court would constitute grounds for forfeiture of retirement benefits under section 112.3173(2)(e)6., Florida Statutes....

...forfeiting his retirement benefits. In federal court, Simcox pleaded guilty to the crime of conspiracy to possess heroin with intent to distribute. Because substantial competent evidence establishes that Simcox committed a "specified offense" under section 112.3173(2)(e)(6) Florida Statutes (2007), we affirm....

...ict 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. 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) 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)....

...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 that portion of the Florida Constitution and provides: 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 re...

...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 a "specified offense" pertain to this case. First, section 112.3173(2)(e)(4) provides this meaning: "[a]ny felony specified in chapter 838, except ss. 838.15 and 838.16." Second, the "catch-all" provision of section 112.3173(2)(e)(6) 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 whic...

...eath or imprisonment in a state penitentiary." Hames, 980 So.2d at 1116 (citing § 775.08(1), Fla. Stat. (2006)). On appeal, Simcox argues that the acts constituting his federal conviction are not punishable as a "specified offense" in Florida under section 112.3173....

...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)....

...onviction for obstruction of justice; acts committed by defendant were "inseparably intertwined" with his position as Sheriff). Contrary to Simcox's arguments, the record contains substantial competent evidence sufficient to support forfeiture under section 112.3173(2)(e)(6)....

...Given these facts, the record supports the finding that Simcox obtained his monetary advantage through the 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) does not allow an officer to traffic in drugs when off duty. Simcox also contends that, even if we find that he used his "powers, rights, privileges, duties, or position" as a police officer, section 112.3173 is inapplicable because he participated in the Deferred Retirement Option Plan ("DROP") and was therefore "retired" prior to participating in the drug trafficking scheme. See 112.3173(3)["A]ny public officer or employee who is convicted of a specified offense committed prior to retirement ....

...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. We conclude that "retirement" for the purpose of DROP is different and separate from "retirement" as used in section 112.3173. Section 185.02(6), Florida Statutes (2007), defines DROP retirement solely for the "purposes of the plan." On the other hand, section 112.3173 employs the common meaning of the word "retirement." That definition is usually associated with an employee's voluntary termination of his own employment or career....

...2003) ("When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary."). Here, Simcox remained employed as a police officer until he officially resigned in February 22, 2007, months after he committed the federal felony. He therefore was not retired for purposes of section 112.3173....

...corts because of their heightened knowledge of law enforcement techniques, their police training and because they "knew the enemy" (i.e. federal, state, and local law enforcement agents). Because Simcox's federal conviction equates to a violation of section 112.3173(2)(e)(6), and his retirement benefits are forfeited pursuant to that section, we do not address whether his conviction also equates to a violation under section 112.3173(2)(e)(4)....

...Levinson and Robert Klausner (Plantation), for appellee. Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ. PER CURIAM. This is an appeal of an administrative decision of the Hialeah Police Pension Fund Board of Trustees which ordered the forfeiture of the pension benefits of Orestes DeSoto under section 112.3173(2)(e)(6), Florida Statutes (2001)....

...At a pretrial hearing, DeSoto pled guilty to all counts charged in the indictment, admitting the facts underlying the charges as stated by the prosecutor. Soon thereafter the Pension Fund Board of Trustees commenced proceedings to forfeit DeSoto's retirement benefits under section 112.3173(2)(e)(6), Florida Statutes (2001). [1] On appeal, DeSoto contends that the board erred in determining that his benefits were subject to forfeiture under section 112.3173(2)(e)(6) because the crimes of which he was convicted occurred while he was on suspension and thus could not be related to his duties as a police officer....

...Additionally, DeSoto clearly violated his duty as a public officer to safeguard the public faith in his office. Although suspended for a period of time, DeSoto remained a public servant. We, therefore, affirm the board's conclusion that DeSoto's conviction warranted the forfeiture of his pension rights. Affirmed. NOTES [1] Section 112.3173(2)(e)(6), Florida Statutes (2001), states: "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 w...

...4th DCA 1998)). McFadden, 772 So. 2d at 1215 (emphasis added). The government points to a number of statutes that provide a definition of “conviction” or “convicted” to expressly include determinations of guilt for which adjudication was withheld. See, e.g., § 112.3173, Fla....

...System (“FRS”) rights and benefits, except for the return of his accumulated contributions, if any, as of the date of termination because Appellant was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes (2010)....

...n 827.071(5), Florida Statutes (2010). Appellant pled no contest to the three counts. The Division of Retirement of the Department notified Appellant, via letter, of its decision to forfeit his rights and benefits provided under the FRS, pursuant to section 112.3173....

...of possession of child pornography, which are third-degree felonies. The ALJ recommended that the Department issue a final order finding that Appellant was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, and directing the forfeiture of his FRS rights and benefits, except for the return of his accumulated contributions as of the date of termination....

...To assure this right: [[Image here]] 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. Art. II, § 8(d), Fla. Const. Section 112.3173(3), Florida Statutes (2010), implements article II, section 8(d) of the Florida Constitution....

...relating to bribery, embezzlement and theft of public funds, any impeachable offense, lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, or sexual battery upon a person less than 18 years of age. See § 112.3173(2)(e)1.-5., 7. The ALJ properly determined that the specified offenses proscribed in sections 112.3173(2)(e)1.-5. do not apply. However, section 112.3173(2)(e)6., the “catch-all” provision, also defines a “specified offense” as follows: 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 whi...

...tory conditions of the “catch-all” category set forth above must be examined and applied to the conduct of the official or the employee in making this determination. Jenne, 36 So.3d at 742 . 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 *1281 and with intent to defraud the public or the employee’s public employer of the right to receive the faithful performance...

...As such, the ALJ properly concluded that the other three elements of the “catch-all” provision were satisfied. Appellant argues the evidence failed to show that he realized or obtained a profit, gain, or advantage for himself or some other person. We disagree. Section 112.3173(2)(e)6....

...Garay’s criminal conviction approximately four years after he retired. FRS then conducted an investigation and verified that the crimes occurred while Mr. Garay was employed in the public trust and that the crimes constituted specified offenses under section 112.3173, Florida Statutes (2001), the forfeiture statute....

...nvicted 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 forfeiture provision is further codified in section 112.3173(3), Florida Statutes (2001), which states: FORFEITURE....

...ion, 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 section 112.3173(3), it is clear that the time the offense is committed controls forfeiture, not the time of the ultimate conviction....

...State, Div. of Ret., 685 So.2d 914, 916-17 (Fla. 1st DCA 1996). Once FRS learned of Mr. Garay’s conviction of crimes committed while he was still employed in public service, it was *1229 required to initiate forfeiture proceedings as provided for in section 112.3173(5)(a), Florida Statutes (2001): Whenever the official or board responsible for paying benefits under a public retirement system receives notice ......

...receive notice that an employee had committed a crime requiring forfeiture even after an employee had retired. An additional indication that the legislature contemplated post-retirement forfeiture of benefits is the repayment provision set forth in section 112.3173(5)(d), Florida Statutes (2001), which provides for repayment of benefits when FRS discovers that a member’s benefits are subject to forfeiture after the member has retired and begun receiving FRS benefits. Mr. Garay pled guilty to offenses specified in section 112.3173(2)(e), Florida Statutes (2001), involving misuse of his position of trust while he was an employee of the Miami-Dade Department of Human Services....

...Ken Jenne, the former Sheriff of Broward County, appeals a final order by the Department of Management Services adjudicating a forfeiture of his rights and benefits under the state retirement law. We hold that Jenne's federal conviction for conspiracy to commit mail fraud qualifies as a "specified offense" under section 112.3173(2)(e)6., Florida Statutes (2001), and that the commission of the offense justifies the forfeiture of his retirement benefits....

...The Department responded on January 24, 2008, by sending Jenne notice that he had forfeited his retirement benefits as a result of his federal convictions. In support of this decision, the Department cited article II, section 8(d), of the Florida Constitution and section 112.3173, Florida Statutes....

...nder a public retirement system or pension plan in such manner as may be provided by law. This provision is implemented by legislation contained in Chapter 112, Part III, Florida Statutes, entitled "Code of Ethics for Public Officers and Employees." Section 112.3173(3) states that "[a]ny public officer or employee who is convicted of a specified offense committed prior to retirement" shall forfeit all rights and benefits under the retirement system. The felony conviction that served as a basis for the administrative order declaring a forfeiture of retirement benefits in this case was Jenne's conviction for conspiracy to commit mail fraud. This crime is not identified by name in section 112.3173(2)(e), but it could serve as the basis for a forfeiture of retirement benefits if it meets the general definition of a specified offense in subsection 112.3173(2)(e)6....

...defined by the conduct of the former public official, or whether it is defined more narrowly by the elements of the crime for which the official was convicted. We need not look beyond the text of the statute to find the answer to the question. *742 Section 112.3173(2)(e)6., Florida Statutes defines a specified offense as the commission of " any felony by a public officer or employee who, willfully and with intent to defraud the public ......

...must be convicted of a crime that requires proof of an intent to defraud for the purpose of personal gain. But the statute plainly does not say that. Whether the crime of conspiracy to commit mail fraud meets the definition of a specified offense in section 112.3173(2)(e)6....

...ithout obtaining a benefit by virtue of the office. But it would be an entirely different matter if, for example, a public officer had used the mail to solicit a bribe in return for a favor performed at the expense of the public. Our conclusion that section 112.3173(2)(e)6....

...f the crime did not match those of any state crime that could be used to support a forfeiture. However, the Shields decision is not controlling here for two reasons. First, the opinion was published before the enactment of the catch-all provision in section 112.3173(2)(e)6....

...In contrast, Jenne entered a plea of guilty and signed a plea agreement admitting all of the material facts. That the crime of conspiracy to commit mail fraud was committed in a way that makes it a specified offense under the law is a matter of record. Jenne also argues that this court should interpret section 112.3173(2)(e)6....

...ROTHENBERG, C.J. Javier Cuenca (“Cuenca”), a former employee of the Miami-Dade County Public Schools (“MDCPS”), seeks judicial review of the final order entered by the State Board of Administration (“State Board”), concluding that pursuant to section 112.3173(3), Florida Statutes (2012), Cuenca has forfeited his rights and benefits under the Florida Retirement System (“FRS”) Investment Plan, except for the portion of his accumulated contributions, because he was convicted of a “specified offense” committed prior to his retirement as defined in section 112.3173(2)(e)6., Florida Statutes (2012). For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY On February 7, 2017, the State Board notified Cuenca that pursuant to section 112.3173 he had forfeited his rights and benefits under the FRS Investment Plan as a result of his October 4, 2016 plea of nolo contendere to two counts of felony battery in case number 14-25626 for acts committed while employed by MDCPS a...

...Following the hearing, the ALJ entered its recommended order making numerous factual findings, including that Cuenca was an employee of MDCPS and that Cuenca pled nolo contendere to two counts of felony battery, which constitutes a “conviction” pursuant to section 112.3173(2)(a).1 However, in its conclusions of law, the ALJ determined that despite its determination that Cuenca was an employee of MDCPS at the time of the offenses, the State Board failed to establish the “nexus” requirement for forfeiture under section 112.3173(2)(e)6., and therefore, Cuenca had not forfeited his FRS benefits....

...conduct, the circumstances, and the location associated with Cuenca’s crimes. Additionally, despite concluding that Cuenca “had a duty to the public to safeguard students,” the ALJ determined that the “record fail[ed] to meet the statutory 1 Section 112.3173(2)(a), Florida Statutes (2012), provides as follows: (2) DEFINITIONS.—As used in this section, unless the context otherwise requires, the term: (a) “Conviction” and “convicted” mean an...

...The matter then went before the State Board for final agency action. In its final order, the State Board adopted the ALJ’s factual findings and rejected a portion of the ALJ’s conclusions of law, including that the State Board failed to establish the requirements for forfeiture under section 112.3173(2)(e)6., and therefore, Cuenca had not forfeited his FRS benefits....

...coached. . . . 60. The evidence is sufficient to establish a nexus between the offense(s) to which [Cuenca] pled and [Cuenca’s] public employment. 7  As such, the requirements of Section 112.3173(2)(e)6., Florida Statutes, are satisfied, and [Cuenca’s] rights and benefits under the FRS Investment Plan must be forfeited. Cuenca’s appeal of the final agency order followed....

...to judicial review.”). ANALYSIS Cuenca contends that the State Board erred by concluding in its final agency order that Cuenca forfeited his FRS retirement benefits under the catch-all forfeiture provision set forth in section 112.3173(2)(e)6....

...gency’s interpretation is clearly erroneous.” Bollone, 100 So. 3d at 1279. A public employee’s forfeiture of rights and benefits under a public retirement system is governed by article II, section 8(d) of the Florida Constitution and section 112.3173 of the Florida Statutes....

...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.” To implement this provision, the Florida Legislature enacted section 112.3173, which provides, in part, as follows: (3) FORFEITURE.—Any public officer or employee who is convicted of a specified offense committed prior to retirement . . . 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. § 112.3173(3) (emphasis added). The term “specified offense” is defined in section 112.3173(2)(e) and, as pertinent in this case, includes the following, which is referred to as the “catch-all” forfeiture provision: 6....

...imself or 9  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[.] § 112.3173(2)(e)6. As explained by the First District Court of Appeal in Bollone, 100 So. 3d at 1280-81: 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 fa...

...was able to slap Cuenca’s hand away. Based on the evidence presented, the necessary nexus was clearly established. Thus, the State Board correctly concluded in its final agency order that Cuenca forfeited his FRS Investment Plan benefits under the catch-all forfeiture provision, section 112.3173(2)(e)6. 11  Although we have determined that the State Board correctly concluded that Cuenca forfeited his retirement benefits, we briefly address Cuenca’s misplaced reliance on Rivera....

...exual activity with minors age sixteen to seventeen; and four counts of lewd and lascivious molestation of a victim age twelve to fifteen. Id. Thus, the Board concluded that because: Rivera was convicted of specified offenses as defined in section 112.3173(2)(e)7.; Rivera utilized the keys issued by the City to enter the City’s property to commit the specified offenses; and Rivera committed the offenses through the use or attempted use of the power, rights, privileges, duties, or...

...lan. 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)....

...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)....

...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)....

...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 of...

...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....

...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)....

...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)....

...The government points to a number of statutes that provide a definition of “conviction” or “convicted” to expressly include determinations of guilt for which adjudication was withheld. - 12 - See, e.g., § 112.3173, Fla....

...The parties stipulated that the crimes were not related to the employee's service as a teacher or legislator. The Department of Management Services, Division of Retirement (DMS), notified the employee of agency action to forfeit his rights and benefits under the FRS, pursuant to section 112.3173, Florida Statutes (2003), based on the employee's convictions....

...The DMS adopted the findings of fact and conclusions of law set forth in the ALJ's order, and ordered the forfeiture of all of the employee's rights and benefits under the FRS, excepting the return of accumulated contributions. On appeal, the employee argues that section 112.3173 of the Florida Statutes is unconstitutional because, as applied, it violates his constitutional protections against excessive fines, double jeopardy, and ex-post facto laws....

...e subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law." Art. II, § 8(d), Fla. Const. To effectuate these constitutional provisions, the Florida Legislature enacted section 112.3173, which provides that "[a]ny public officer or employee who is convicted of a specified offense committed prior to retirement . . . 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." § 112.3173(3), Fla. Stat. (2003) (emphasis added). In Busbee, the First District Court of Appeal upheld section 112.3173 against similar constitutional challenges....

...Kelco Disposal, Inc., 492 U.S. 257, 268, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). Forfeiture of the employee's retirement benefits is not a fine because the employee has not been ordered to pay anything to the government. Unlike a criminal forfeiture statute, section 112.3173(3) merely relieves the State of its duty to pay retirement benefits....

...rfeiture of government benefits merely enforce the terms of a contract rather than impose punishment. See Austin, 509 U.S. at 618, 113 S.Ct. 2801; Busbee, 685 So.2d 914; Wright, 772 So.2d 560. This statute does not require a finding of scienter. See § 112.3173(1)....

...Neither the date the employee entered into the pension system nor the date that his pension rights vested is relevant to an ex post facto law analysis. See Busbee, 685 So.2d at 916-17. It is the date of the crime which led to the conviction that determines the outcome. Because section 112.3173(3) was enacted before the employee committed the crimes for which he was convicted, section 112.3173 does not reach back in time and does not violate the proscription against ex post facto laws....

...n. One thing the legislature made perfectly clear is that an "employee who is convicted of a specified offense committed prior to retirement... shall forfeit all rights and benefits under any public retirement system of which he or she is a member." § 112.3173(3) (emphasis added)....

...city retirement benefits. 1 We affirm. The forfeiture came about because of Warshaw’s conviction of one count of mail fraud in violation of Title 18, United States Code, § 1341 . 2 This federal conviction led *894 to the Board’s application of section 112.3173(3), Florida Statutes (2001), which reads: “(3) FORFEITURE....

...d 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.” “Specified offense” is defined in section 112.3173(2)(e), Florida Statutes (2001) to include the embezzlement of public funds, or any theft by a public employee or officer from his or her employer. 3 Pursuant to section 112.3173(5), the Board held a hearing for the purpose of determining whether Warshaw’s pension rights and privileges should be forfeited. The Board concluded that Warshaw had been convicted of a specified offense as provided in section 112.3173, and ordered the forfeiture....

...Warshaw argues that he did not embezzle or commit a theft of public funds (thus there was no “specified offense”) as he embezzled or committed a theft only of DTRT funds. He further argues that as DTRT was a private not-for-profit corporation and not a public entity, no provision of section 112.3173 is applicable, and there *895 fore his federal conviction was not of a specified offense, thus his pension cannot be ordered forfeited....

...r the city funds to be transferred from DTRT to him. Whether the funds remained with the city’s law enforcement trust fund or were transferred to DTRT, the funds always were slotted for public uses. 4 The Board also found that Warshaw had violated section 112.3173(2)(e)(6), Florida Statutes, which section is set out in footnote 3....

...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.” § 112.3173(2)(e)(6), Fla. Stat. (2001). . This includes any privately contributed funds as upon contribution they became funds to be used solely for the city's public purposes. . For discussions of section 112.3173(2)(e)(6), see DeSoto v....

law” the manner in which forfeitures occur. Section 112.3173 of the Florida Statutes implements this constitutional

GERBER, J. The former employee appeals the Department’s final order concluding that, pursuant to section 112.3173, Florida Statutes (2009), he was “convicted” of a specified offense based on his no contest plea, thereby requiring the forfeiture of his Florida retirement system rights and benefits. The former employee argues that section 112.3173, by defining “convicted” to include a no contest plea, regardless of the lack of a guilty plea or adjudication, unconstitutionally broadens the term “convicted” beyond its plain meaning as used in Article II, Section 8 of the Florida Constitution. We disagree with that argument and affirm. Before explaining why we disagree with the former employee’s argument, we will briefly examine the origins of both Article II, Section 8, and section 112.3173....

...The court reasoned that Section 8(d) “requires so much in the way of definition, delineation of time and procedural requirements, that the intent of the people cannot be carried out without the aid of legislative enactment.” Id. at 420 (footnote omitted). Thus, six years later, the legislature enacted section 112.3173, Florida Statutes (Supp. 1984). The statute provides that its intent is “to implement the provisions of s. 8(d), Art. II of the State Constitution.” § 112.3173(1), Fla....

...d, 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 his [or her] date of termination. § 112.3173(3), Fla....

...ttempts 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. § 112.3173(2)(a) & (e)6., Fla. Stat. (Supp. 1984) (emphasis added). 2 Applying de novo review, we conclude that section 112.3173 does not unconstitutionally expand the term “convicted” beyond its plain meaning as used in Article II, Section 8(d)....

...of any constitutional provision, the presumption is in favor of constitutionality. To overcome *774 the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law.” Id. (citation and quotations omitted). Here, the alleged invalidity of section 112.3173does not appear beyond reasonable doubt....

...e] against abuse.” Art. II, § 8, Fla. Const. (1976). Even if we were to treat Article II, Section 8(d)’s use of the term “convicted” as susceptible to more than one meaning, we are required to treat the meaning adopted by the legislature in section 112.3173as conclusive....

...te adopted one, its action in this respect is well-nigh, if not completely, controlling.”). We also defer to the legislature’s construction of Article II, Section 8(d) because: (1) its construction is not manifestly erroneous; and (2) it enacted section 112.3173relatively contemporaneous to the passage of Article II, Section 8(d)....

...f termination. § 121.091(5)(f), Fla. Stat. (1975) (emphasis added). We disagree with the former employee’s argument for two reasons. First, section 121.091(5)(f) remains in effect today, and we must give effect to that statute in combination with section 112.3173....

...nal disposition of a case, as a result of a trial or plea, without regard to the court’s decision on adjudication of the defendant,” except under specified circumstances). Here, the particular context in which the term “convicted” is used in section 112.3173 is the legislature’s attempt to interpret Article II, Section 8(d) of the Florida Constitution pursuant to Williams ....

...Given Section 8’s guarantee of the people’s “right to secure and sustain [the trust of public office] against abuse,” and given the legislature’s pre-existing section 121.091(5)(f) requiring forfeiture of benefits for a no contest plea, the legislature was within its authority when it defined “convicted” in section 112.3173 to include a no contest plea. Based on the foregoing, we hold the Department did not err in concluding that, pursuant to section 112.3173, the former employee was “convicted” of a felony based on his no contest plea, thereby requiring the forfeiture of his Florida retirement system rights and benefits....

...We affirm the Department’s final order to that effect. Affirmed. TAYLOR and CIKLIN, JJ., concur. . In 1998, the electorate voted to revise other portions of Article II, Section 8 which are not relevant here. . Since 1984, the legislature has revised section 112.3173(2) in certain respects which are not relevant here.

...Appellant, William Pilkay, Jr., appeals an order of appellee, Board of Trustees of the City of Tampa Genéral Employees Pension Fund, wherein the Board denied Pilkay his pension benefits. We affirm. The Board based its denial of pension benefits to Pilkay on section 112.3173(3), Florida Statutes (1985), which states: 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 admitted commission, aid, o...

...city. The thefts were committed prior to July 1, 1984, the effective date of section 112.-3173(3). Pilkay pled no contest to two cases of grand theft on June 3, 1985, and stipulated to the thefts of $140,132.98 and $121,356.10. Pilkay contends that section 112.3173(3) as applied to him violates the ex post facto provisions of the Constitution of the United States....

...1; Fla. Const., art. I, § 10. He argues that although he was on leave status with the department until November 1, 1984, he was disabled in April 1984 and his right to his retirement benefits vested at that time. Pilkay further contends that, since section 112.3173(3) was not in effect when he enrolled in the retirement system or when the crimes were committed, the statute constitutes an ex post facto law as applied to him....

...Though the court in Hiss held the federal law to be ex post facto as applied to Hiss, it stated: “The proper function of regulation is to guide and control present and future conduct not to penalize former employees for acts done long ago.” Id. at 1148-1149 . In his argument Pilkay chooses to ignore the fact that section 112.3173(3) is based on a provision of the Constitution of the State of Florida adopted by the people of Florida in 1976....

...Article II, section 8(d) 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.” Section 112.3173(3), passed by the legislature in 1985, was the implementing act of this 1976 constitutional provision....

...nd privileges under the retirement system. The 1976 amendment to the Constitution of the State of Florida advised him of the foreseeable results of his criminal actions, and when he entered his plea to the charges in 1985, the legislature had passed section 112.3173(3), which carried out the intent expressed in the constitutional amendment. Section 112.3173(3), did not reach back in time to punish Pilkay for acts which occurred before its enactment because it was *1102 based on a constitutional provision which was in effect prior to the commission of the criminal acts by Pilkay....

participation in the local retirement system? In sum: Section 112.3173, Florida Statutes, requires the official or