Bollone v. Department of Management Services, Division of Retirement
100 So. 3d 1276
| Fla. Dist. Ct. App. | 2012Background
- Appellant Mark G. Bollone, a Tallahassee Community College instructor, was enrolled in the Florida Retirement System due to public employment.
- A TCC-assigned work computer contained LimeWire and child-pornography images discovered during a criminal investigation and later examined by TCC personnel.
- Bollone admitted to misusing work time and resources in a letter, while contending his addiction-related behaviors were online “fantasy” issues.
- TCC terminated Bollone for policy violations related to pornography found on the work computer; Bollone pled no contest to three counts of possession of child pornography.
- The Division of Retirement forfeited Bollone’s FRS rights and benefits under section 112.3173, with return of accumulated contributions as of termination.
- An ALJ recommended forfeiture under the statutory catch-all provision, and the Department adopted the order, leading to this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 112.3173(2)(e)6. applies to Bollone’s conduct | Bollone argues catch-all requires specific elements. | Department argues conduct satisfies all elements of catch-all. | Yes; elements satisfied, constituting a specified offense. |
| Whether the evidence supports willful possession to defraud the public | Record shows Bollone’s use violated policies but questions intent to defraud. | ALJ’s findings show willful, intentional use for personal gain. | Competent, substantial evidence supports willful possession with intent to defraud. |
| Whether Bollone’s three felony convictions constitute a “specified offense” | Convictions by themselves may not automatically be specified offenses. | Conduct and circumstances satisfy the catch-all definition. | Convictions plus circumstances met the catch-all criteria; forfeiture affirmed. |
Key Cases Cited
- Simcox v. City of Hollywood Police Officers’ Ret Sys., 988 So.2d 731 (Fla. 4th DCA 2008) (forfeiture standards under Florida retirement system statutes)
- Hames v. City of Miami Firefighters’ & Police Officers’ Ret Sys., 980 So.2d 1112 (Fla. 3d DCA 2008) (scope of review for forfeiture orders)
- Waters v. Dep’t of Health, Bd. of Med., 962 So.2d 1011 (Fla. 3d DCA 2007) (statutory interpretation deference in agency decisions)
- Rosenzweig v. Dep’t of Transp., 979 So.2d 1050 (Fla. 1st DCA 2008) (agency interpretation of its governing statutes entitled to deference)
- Imhotep-Nguzo Saba Charter Sch. v. Dep’t of Educ., 947 So.2d 1279 (Fla. 4th DCA 2007) (deference to agency interpretations of governing statutes)
- Jenne v. State, Dep’t of Mgmt. Servs., Div. of Ret., 36 So.3d 738 (Fla. 1st DCA 2010) (catch-all scope; conduct-focused inquiry for specified offenses)
- Jacobo v. Bd. of Trustees of Miami Police, 788 So.2d 362 (Fla. 3d DCA 2001) (non-economic personal gain suffices under catch-all)
- Newmans v. State of Fla., Div. of Ret., 701 So.2d 573 (Fla. 1st DCA 1997) (forfeiture upheld where petitioner pled to offenses)