ROLANDO JACOBO, APPELLANT,
v.
BOARD OF TRUSTEES OF THE MIAMI POLICE, ETC., APPELLEE
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The court held that Jacobo's pension benefits were subject to forfeiture under the relevant statute because his felony conviction for official misconduct constituted a breach of public trust.
[1] The doctrine of ejusdem generis is inapplicable to statutory interpretation when the statute is clear and unambiguous.
[2] A felony conviction involving a breach of public trust, as defined by statute, may subject a public officer or employee to forfeiture of retirement benefits.
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Join FLexlaw to unlock all legal intelligenceRolando Jacobo, a former police officer, was convicted of official misconduct for falsely reporting on an arrest affidavit. The Board of Trustees init…
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PER CURIAM.
Rolando Jacobo appeals from the Board of Trustees’ final administrative order forfeiting his retirement benefits. We affirm.
In August 1997, Jacobo, a former police officer with the City of Miami Police Department, was convicted of official misconduct, a felony, for falsely reporting on an arrest affidavit that a suspect who was shot by another officer was carrying a gun at the time. His conviction was affirmed by this court. Jacobo v. 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 be cause 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)61 because that section is ejusdem generis of embezzlement, theft, and bribery, none of which is the charge on which he was convicted. See, e.g., Green v. State, 604 So. 2d 471, 473 (Fla.1992) (“Under the doctrine of ejusdem generis, where an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated”). The doctrine of ejusdem gen-eris 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. We disagree. Article II, section 8(d) of the Florida Constitution 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.” The legislature defined “breach of the public trust” in Section 112.312(3), Florida Statutes (1992), as follows:
“Breach of the public trust” means a violation of a provision of the State Constitution or this part which establishes a standard of ethical conduct, a disclosure requirement, or a prohibition applicable to public officers or employees in order to avoid conflicts between public duties 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 misconduct3 is clearly a breach of the public trust, and the pension board’s conclusion that it is so is
AFFIRMED.
."Specified offense” is defined in section 112.3173(2)(e) as follows:
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, except ss. 838.15 and 838.16;
5. The committing of an impeachable offense; or
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.
. 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 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.
. "Official misconduct,” as defined in section 839.25(1), Florida Statutes (1991), "means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or herself or another or to cause unlawful harm to another: knowingly falsifying, or causing another to falsify, any official record or official document.”
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State v. Hobbs, 974 So. 2d 1119 (Fla. 5th DCA 2008)…e text. Capers v. State, 678 So. 2d 330, 332 (Fla.1996). Ejusdem generis should only come into play when it is necessary to construe an ambiguous statute, not to create an ambiguity in a clearly worded statute. Jacobo v. Bd. of Trs. of Miami Police, 788 So. 2d 362, 363 (Fla. 3d DCA 2001). It is similarly inappropriate to use the maxim if, as a result, the court fails to give meaning to all of the words used by the legislature. Fla. Police Benev. Ass’n, Inc. v. Dep’t of Agric. & Consumer Servs., 574 So. 2d 120…
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Hames v. The City of Miami Firefighters' & Police Officers' Tr., 980 So. 2d 1112 (Fla. 3d DCA 2008)…determine whether a forfeiture of benefits is warranted, and the duty to eventually order the forfeiture, rests with the Trust alone, and is not subject to the involvement of the Commission on Ethics. See id.; Jacobo v. Bd. of Trs. of Miami Police, 788 So. 2d 362, 363-64 (Fla. 3d DCA 2001) (affirming a forfeiture order issued exclusively by board of trustees after administrative hearing). The Trust’s obligation to conduct a forfeiture determination under chapter 120 is triggered when it “receives notice pur…
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Liner v. Workers Temp. Staffing, Inc., 990 So. 2d 473 (Fla. 2008)…an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated.” (quoting Jacobo v. Bd. of Trustees of Miami Police, 788 So. 2d 362, 364 (Fla. 3d DCA 2001))). The legislative history of section 448.24(l)(b) also supports this interpretation. In 1995, the Legislature initially attempted to enact a provision (with regard to the transportation fee that day laborers could be charge…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green v. State, 604 So. 2d 471 (Fla. 1992)
- Baker v. State, 636 So. 2d 1342 (Fla. 1994)
- Pottsburg Utils., Inc. v. Daugharty, 309 So. 2d 199 (Fla. 1st DCA 1975)
- Newmans v. State, 701 So. 2d 573 (Fla. 1st DCA 1997)
- Jacobo v. State, 731 So. 2d 159 (Fla. 3d DCA 1999)
- Norris v. State, 731 So. 2d 159 (Fla. 3d DCA 1999)