A provision of the Florida constitution provides that any public employee “who is convicted of a felony involving breach of public trust” shall forfeit any retirement benefits. A Florida statute implementing the constitutional provision elaborates on the definition of what a “breach of public trust” is. The statute includes in the list of offenses those crimes where a public employee “willfully and with intent to defraud the public or public agency of the right to receive the faithful performance of his or her duty, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself through the use or attempted use of the power, rights, privileges, duties, or position of his public office or employment.”
Thomas Simcox was a police officer with the City of Hollywood, Florida. Simcox resigned in 2007, less than a month after federal charges were filed against him.
Simcox pleaded guilty as charged. During his plea in court, Simcox admitted that he provided escort services for a truck driver who was portrayed as carrying multiple kilograms of heroin. Simcox’s role was to make sure “that the truck driver encountered no problems with his delivery.” Simcox conceded that he, his co-conspirators, and the undercover officers “discussed the operation in detail, including the counter-surveillance techniques they would employ, and the methods they would use that the heroin delivery was successful.”
The City of Hollywood Police Officers’ Retirement System board subsequently voted that Simcox had forfeited his retirement benefits pursuant to the Florida constitution and the state statute interpreting the constitution. The Florida Court of Appeals agreed.
The Court did not accept Simcox’s arguments that his actions in furtherance of the drug trafficking scheme were unrelated to his position as a police officer: “By accepting $8,000 in exchange for protecting and escorting a drug delivery man, Simcox obtained an advantage for himself. He knowingly intended to violate the duties he owed to the public and the public agency for which he acted. 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 part of his position as a police officer. Faithful performance of duty as a police officer does not allow an officer to traffic in drugs when off duty.”
Simcox v. City of Hollywood Police Officers’ Retirement System, 2008 WL 3914892 (Fla.App. 2008).
This article appears in the November 2008 issue