# Third District Court of Appeal

State of Florida

Opinion filed November 14, 2018.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-780

Lower Tribunal No. 17-1318

________________



### Javier Cuenca

, Appellant,

vs.



### State Board of Administration

,

Appellee.

An Appeal from the State Board of Administration

.

Law Offices of Slesnick and Casey, LLP, and James C. Casey

, for appellant.

Ruth Ann Smith (Tallahassee), Assistant General Counsel; Pennington,

P.A., and Brian A. Newman (Tallahassee) and Brandice D. Dickson (Tallahassee),

for appellee.

Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

ROTHENBERG, C.J.

Javier Cuenca (“Cuenca”), a former employee of the Miami-Dade County2

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 and demanded that Cuenca return the distributions he had received,

except for his employee contributions. After receiving the State Board’s notice,

Cuenca requested a formal hearing before the Division of Administrative Hearings

(“DOAH”).

At the formal hearing before DOAH, the State Board introduced into

evidence, among other things, the following: (1) the transcript of the sworn

statement of one of the victims, D.F., made prior to Cuenca’s arrest in case number

14-25626; (2) the original information filed against Cuenca relating to D.F.; (3) the3

arrest affidavit relating to D.F.; (4) the transcript of D.F.’s deposition conducted by

Cuenca’s counsel following Cuenca’s arrest; (5) the consolidated information

resulting from Cuenca’s negotiated plea; and (6) the transcript of Cuenca’s plea

colloquy. In addition, several witnesses testified at the hearing, including Cuenca

and the prosecutor involved in Cuenca’s criminal case.

The evidence presented at the hearing reflects that Cuenca was employed by

MDCPS in various positions, including as a basketball coach. After four of

Cuenca’s basketball players alleged that he had sexually harassed and/or assaulted

them, Cuenca was charged in four separate cases with lewd and lascivious

molestation on a child twelve years of age or older but less than sixteen years of

age, attempted lewd and lascivious molestation on a child twelve years of age or

older but less than sixteen years of age, or lewd and lascivious conduct on a child

over sixteen years of age by a defendant over eighteen years of age.

D.F.’s sworn statement and/or deposition reflect that Cuenca was D.F.’s

basketball coach starting when he was in the seventh grade at a Miami-Dade

County middle school, and Cuenca also coached D.F. when he was in the ninth

grade at a Miami-Dade County high school. While D.F. and Cuenca were alone in

a classroom when D.F. was in the ninth grade, Cuenca asked D.F. to see what he

referred to as D.F.’s “virgin line.” Cuenca explained to D.F. that by looking at

D.F.’s penis, he could tell whether or not D.F. was a virgin and this was important4

because having sex would adversely affect D.F.’s basketball performance.

Because Cuenca had repeatedly asked D.F. to let him see his “virgin line” and D.F.

was tired of being repeatedly asked, D.F. pulled down his shorts and exposed his

penis. However, when Cuenca attempted to touch D.F.’s genitals, D.F. swiped

Cuenca’s hand away before Cuenca was able to touch him, pulled up his pants, and

left the classroom. D.F. did not initially report this incident. The evidence also

reflects that Cuenca asked D.F. if he wanted to take an enhancement drug that

would make him stronger and bigger. At first, D.F. said that he did, but after

Cuenca told D.F. that he would have to constantly check D.F.’s testicles while on

the drug, D.F. decided to not take the enhancement drug because he did not want

expose his genitals to Cuenca.

In addition to the original information relating to D.F., the police reports, the

consolidated information, D.F.’s sworn statement, the prosecutor’s testimony, and

the judgment showing Cuenca’s convictions for two counts of felony battery, the

State Board also introduced a transcript of the plea colloquy, which reflects that

Cuenca entered into a negotiated plea on October 4, 2016. The transcript reflects

that although Cuenca was willing to change his plea from not guilty to one of no

contest, Cuenca was unwilling to plea to any charge that would designate him as a

sexual offender or to any charge he believed would later prohibit him from sealing

his criminal record. Thus, the State agreed to consolidate the four cases involving5

four separate victims into a single four-count information under case number 14-

25626, dismiss two of the four counts, and amend the two remaining counts

relating to victims D.F. and O.Q. to charge felony batteries, in exchange for

Cuenca’s plea of nolo contendere to two counts of felony battery, and Cuenca’s

agreement to waive any defects in the new charging document or the arrest forms

and to stipulate that there was a prima facie factual basis for the negotiated plea.

Pursuant to the negotiated plea, Cuenca pled nolo contendere to the two counts of

felony battery, stipulated that there was a factual basis to support his plea, waived

any and all defects in the amended information, and agreed, among other things,

that during the term of his probation, he could not: have any unsupervised contact

with any minor; reside in a setting with minors; or teach, volunteer, coach, or

engage in any activity that would place him in a position of authority over minors.

Based on the negotiated plea, the trial court found Cuenca guilty of the two counts

of felony battery and withheld adjudication.

In addition to the plea colloquy and other documentary evidence, Cuenca

and the prosecutor who investigated the case and negotiated the plea with Cuenca

,

testified at the formal hearing. Cuenca admitted that he was D.F.’s basketball

coach at a Miami-Dade County public middle school and high school, and that he

was aware of the allegations made by D.F.

— that he had asked D.F. to pull down

his shorts, and thereafter, he had attempted to touch D.F.’s genitals. Cuenca also6

acknowledged that he was able to be at the high school because he was a basketball

coach at the school, and he additionally acknowledged that he entered into the

negotiated plea to resolve the pending criminal charges, including those relating to

D.F.

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. Specifically, the ALJ

determined that the record lacked competent, substantial evidence of Cuenca’s

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 adjudication of guilt

by a court of competent jurisdiction; a plea of guilty or of nolo

contendere; a jury verdict of guilty when adjudication of guilt is

withheld and the accused is placed on probation; or a conviction by

the Senate of an impeachable offense.7

requirement and demonstrate any nexus between the crimes charged against

[Cuenca] and his duties as a coach because no factual basis was established

. . .

between the offenses committed and [Cuenca’s] position as a coach.” In reaching

its conclusions, the ALJ found persuasive and relied on Rivera v. Board of

Trustees of the City of Tampa’s General Employment Retirement Fund

, 189 So. 3d

207 (Fla. 2d DCA 2016).

Cuenca and the State Board did not file exceptions to the ALJ’s

recommended order. 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. The State Board also

found that the ALJ’s reliance on Rivera was misplaced, and included the following

additional conclusions of law:

50. School teachers and coaches occupy a unique position with

respect to minors, as they act in loco parentis to the students and

players that they teach or coach.

. . . Thus, [Cuenca], as a basketball

coach acting in loco parentis, was an authority figure who had ample

opportunities to engage in inappropriate contact with the students he

coached because of his public position.

. . . . 59. In this matter, [Cuenca] by virtue of his public employment

exercised a position of authority over the minor victim he taught and

coached.

. . . 60. The evidence is sufficient to establish a nexus between the

offense(s) to which [Cuenca] pled and [Cuenca’s] public employment.8

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. See § 120.68(1)(a), Fla.

Stat. (2017) (“A party who is adversely affected by final agency action is entitled

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. As will be discussed fully

below, we find no error.

Judicial review of the State Board’s final agency action is governed by

section 120.68 of Florida’s Administrative Procedure Act. See Bollone v. Dep’t of

Mgmt. Servs., Div. of Ret.

, 100 So. 3d 1276, 1279 (Fla. 1st DCA 2012); Simcox v.

City of Hollywood Police Officers’ Ret. Sys.

, 988 So. 2d 731, 732 (Fla. 4th DCA

2008). The State Board’s final agency action may be set aside “only upon a

finding that it is not supported by substantial competent evidence in the record or

that there are material errors in procedure, incorrect interpretations of law, or an

abuse of discretion.” Hames v. City of Miami Firefighters’ & Police Officers’ Tr.

,

980 So. 2d 1112, 1114 (Fla. 3d DCA 2008) (quoting Waters v. Dep’t of Health,

Bd. of Med.

, 962 So. 2d 1011 (Fla. 3d DCA 2007)); see also § 120.68(7), Fla. Stat.9

(2017). Further, “an agency’s interpretation of the statutes that it is charged with

administering is entitled to deference unless the agency’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. Article II, section 8(d) provides that

“[a]ny 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.” 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. 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 or10

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 faithful performance of the employee’s duty; (d) done to

obtain a profit, gain or advantage for the employee or some other

person; and (e) done through the use or attempted use of the power,

rights, privileges, duties, or position of [the employee’s] employment.

This determination is based on the “ conduct of the public [employee], not by the

elements of the crime for which the [public employee] was convicted .” Id. at

1280 (emphasis added).

The evidence presented at the formal hearing satisfied each of the elements

set forth in Bollone

. The criminal act was: (a) a felony; (b) committed by Cuenca,

who was a public employee with MDCPS; (c) done willfully and with the intent to

defraud Cuenca’s public employer

— MDCPS

— of the right to receive the faithful

performance of his duties; (d) done to obtain a gain or advantage for himself

—

sexual gratification; and (e) done through the use of his power, rights, privileges,

duties or position as a coach and/or teacher for MDCPS.

Contrary to Cuenca’s argument, the State Board correctly rejected several of11

the ALJ’s conclusions of law, including the ALJ’s finding that there was no nexus

between the criminal acts and Cuenca’s public employment with MDCPS. The

evidence presented at the formal hearing clearly established that Cuenca was

employed by MDCPS as a teacher and/or basketball coach. As a result of his

public employment with MDCPS, Cuenca was given access to the students he

taught and/or coached, and as a teacher and/or coach, Cuenca exercised a position

of authority over these students. Both the students and their parents expected that

while the students were in Cuenca’s care and under his supervision, he would

protect, not abuse the students or engage in inappropriate conduct with them.

Instead, while entrusted with the care and supervision of students, Cuenca chose to

engage in inappropriate conduct with students he coached, including D.F. Cuenca

called D.F. into a classroom or area of the school where nobody was present.

Cuenca then asked D.F. to show him his penis under the guise of checking for what

he called a “virgin line.” Because Cuenca had repeatedly asked D.F. to show him

his penis, D.F. finally acquiesced and lowered his shorts, exposing his penis.

Cuenca then attempted to touch D.F.’s genitals, but D.F. 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)6.12

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

. The Board of Trustees of the City of Tampa’s General

Employment Retirement Fund (“Board”) found that based on the evidence

presented: Rivera worked at the City of Tampa (“City”) Wastewater Department;

while working for the City, Rivera used a set of keys issued to him by the City to

access the wastewater pump stations; he was arrested at one of the City’s

wastewater pump stations after he was found on the premises; a subsequent

investigation revealed that Rivera had also taken other minors to the wastewater

pump stations to engage in unlawful sexual acts with several minor victims; and

Rivera pled guilty to: two counts of lewd and lascivious battery of a victim age

twelve to fifteen; one count of unlawful sexual 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 position of his public employment, Rivera had forfeited his

retirement benefits. Id. Rivera appealed the forfeiture order.13

On appeal, the Second District Court of Appeal concluded that, although the

evidence established that Rivera was a public employee and he committed the

charged offenses, the Board failed to establish that there was a nexus between

Rivera’s position as a City employee and his commission of the offenses. This

finding was based on the Second District’s finding that the Board had failed to

introduce a transcript of the plea colloquy (which would have included either a

statement of the factual basis for the plea or a stipulation of the factual basis for the

plea), and that the only evidence presented was double or triple hearsay. Id. at

213. Although “[h]earsay evidence may be used for the purpose of supplementing

or explaining other evidence, [] 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), Fla. Stat. (2017) Thus, the Second District concluded that the

forfeiture order was not supported by competent, substantial evidence, and

reversed the Board’s forfeiture order. Rivera

, 189 So. 3d at 213.

Rivera

, however, is factually distinguishable from the instant case. First, the

minor victims of the crimes Rivera pled guilty to were not in any manner related to

his position at the City’s Wastewater Department. Rivera’s position did not involve

safeguarding minors and did not place him in any position of authority over

minors. In contrast, Cuenca’s position as a basketball coach at a Miami-Dade

County middle school and high school put him in a position of authority over the14

students, including D.F. who he coached at middle school and high school.

Second, unlike in Rivera

, where the required nexus was established solely through

hearsay, that was not the case here. The plea colloquy constitutes a statement

against interest and is non-hearsay evidence. Additionally, during the plea

colloquy, Cuenca stipulated that there was a factual basis for the plea and that the

charging documents and arrest forms provided a prima facie basis for the plea, and

the trial court additionally found that there was a prima facie basis for the

negotiated plea. Moreover, at Cuenca’s formal hearing, Cuenca testified and he

admitted that he had coached D.F. at a Miami-Dade County public school and that

he worked at a Miami-Dade County public school as a coach at the time he

committed the offense against D.F. Thus, the nexus between Cuenca’s position as

a public school coach and the charged offenses was establish by a combination of

both hearsay and non-hearsay evidence. We, therefore, conclude that Rivera is

distinguishable from the instant case and Cuenca’s reliance on Rivera is therefore

misplaced.

CONCLUSION

Based on the above analysis, we conclude that the State Board’s

determination that Cuenca forfeited his rights and benefits under the FRS

Investment Plan, except for the portion of his accumulated contributions, is

supported by competent, substantial evidence. We, therefore, affirm the order15

under review.

The remaining arguments raised by Cuenca do not merit discussion.

Affirmed.