STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET R. ALLEN, )

)

Petitioner, )

)

vs. ) CASE NO. 80-644

)

DIVISION OF RETIREMENT, ) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, on June 27, 1980 in the County Commission Meeting Room, Bay County Courthouse Annex in Panama City, Florida beginning at 8:00 a.m.

APPEARANCES

For Petitioner: Robert A. Davenport, Esquire

406 Magnolia Avenue

Panama City, Florida 32401

For Respondent: Augustus D. Aikens, Esquire

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

ISSUE

Whether Petitioner Margaret R. Allen must reimburse the Respondent Division of Retirement for retirement benefits received by her for the years 1972-1976, during which time she was paid retirement benefits for the entire year although she worked more than five hundred (500) hours per year.

FINDINGS OF FACT

1. Petitioner Margaret R. Allen retired from the Bay County School System on April 1, 1971 and was rehired until the end of the 1970-1971 school year. She began receiving monthly benefits in July of 1971 and has continued to receive benefits since that date. She worked as a librarian for Day Memorial

   Medical Center in Panama City, "Florida until December 31, 1976. Prior to March 15, 1977, Petitioner requested a refund from the Respondent Division of Retirement which resulted in a letter from the Administrator of the Respondent dated March 15, 1977 (Petitioner's Exhibit 4). Petitioner was notified that she owed the Division of Retirement $10,873.65 overpayment of benefits plus

   $1,978.59 interest. She was advised that a credit for her contribution in the

   amount of $383.76 had been deducted and a total amount of $12,468.48 was due. Petitioner Allen requested an administrative hearing, which was forwarded to the Division of Administrative Hearings on April 4, 1980.

   
   

2. The payroll record of Bay Memorial Medical Center shows that Petitioner Allen began employment on February 7, 1972 and terminated employment December 31, 1976 as follows (Respon- dent's Exhibit 1)

   
   

   1972 - 510 hours worked on 9-30-72 at $2.00/hr

   1973 - 508 hours worked on 5-26-73 at $2.00/hr

   1974 - 536 hours worked on 6-23-74 at $2.33/hr

   1976 - 502.5 hours worked on 6-17-76 at $3.18/hr

   1975 - 510.5 hours worked on 6-21-75 at $2.49/hr

   
   

3. Petitioner Allen did not intend to draw retirement benefits to which she is not entitled, having accepted employment in good faith after stating to her prospective employer that she would work as a librarian for the doctors' offices at Bay Memorial Medical Center on the condition that such employment would not affect her retirement benefits. Prior to her employment in 1972, the Administrator of the medical center called the then Administrator of the teacher retirement system on the telephone and was told by him that Petitioner could work as a librarian for the medical center while receiving teacher retirement benefits. The employer informed Petitioner of the conversation, and she went to work at the medical center. Some time later, during the time of her employment, Petitioner and her employer, the Administrator of the medical center, talked personally with the Respondent's Administrator at a meeting in an office at the medical center in Panama City.

   
   

4. There is very little evidence as to whether there was a discussion between the prospective employer and the Respondent's Administrator as to the number of hours Petitioner could work, but on two occasions the Administrator of the Respondent's teacher retirement system discussed Petitioner's work and assured her employer that Petitioner Allen could work and still draw benefits. Petitioner's testimony that she was told both by her employer and by the Respondent's Administrator that she was free to work as many hours as she wanted without affecting her retirement because she was not working either as a teacher or a substitute teacher is believable. Petitioner understood that since she was not being employed as a substitute or part-time teacher she could work as many hours as she wished. This testimony coupled with the fact that she did work in excess of five hundred (500) hours per year for five (5) years is consistent.

   
   

5. There is no showing that the former Administrator of Respondent intended to mislead Petitioner Allen as to the number of hours she could work without reducing her retirement benefits, but on at least one occasion he discussed Petitioner's work with her, and she worked thereafter without concern that her retirement benefits would be reduced.

   
   

6. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

7. Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

8. The essential elements of estoppel as delineated in Quality Homes and Supply v. Roley, Fla. 186 So.2d 837, and quoted in Greenhut Construction Company

   1. Henry A. Knott, Inc. Fla. 247 So.2d 517 are.

      
      

      1. a representation by the

   party estopped to the party claiming the estoppel as to some material fact, which representation is contrary to the condi- tion of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming est- toppel; and (3) a change in the Position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.

   
   

9. Petitioner Allen requested information from Respondent's Administrator as to whether her employment would affect her retirement benefits, and when he advised her that it would not this was a positive act of an officer of the State upon which Petitioner had a right to rely and did rely to her detriment.

   
   

10. Section 238.181 Retired member may be substitute teacher; conditions.-- provides:

    
    

    1. Amy member who has retired may be employed, on a substitute basis only, as a substitute teacher in any of the public free schools of this state, and such em- ployment shall not affect the rights of such retired member under the retirement system, including, without limiting the general terms hereof, his right to receive his retirement allowance; provided that a school board may employ as a substitute teacher a member who has retired only if the school board is unable to employ for such substitute teaching Position, a gualified teacher who has not retired.

    2. A retired teacher may be employed on a part-time basis and receive compensation for services rendered without reducing or in any way affecting his retirement or pension status but in no case shall the part-time employment exceed 500 hours in any single calendar year.

    3. Any member who hereafter retires and receives a retirement allowance under the provisions of this chapter shall have his retirement allowance suspended during any period of reemployment in any capacity whatsoever by the state or any political subdivision, department, branch, or agency

       thereof, except as in this chapter speci- fically provided.

       
       

11. The forgoing statute read by a layman, as both the Petitioner and title former Administrator are, could have been interpreted to mean that employment as a substitute teacher or a part-time teacher would have been limited to five hundred (500) hours or less per year of part-time employment and employment as a librarian for a medical center would not haven been so limited. Regardless of such interpretation, the Respondent is estopped to require Petitioner Allen to repay the retirement benefits she received while working in excess of five hundred (500) hours per year in the time period 1972-1976. Cf. 19 Am.Jur., Estoppel Section 36.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Petitioner Margaret R. Allen not be required to reimburse the Respondent Division of Retirement for any retirement benefits received by her.

DONE and ORDERED this 22nd day of September, 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1980.

COPIES FURNISHED:

Augustus D. Aikens, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 2070 - Box 81

Tallahassee, Florida 32303

Bert A. Davenport, Esquire

406 Magnolia Avenue

Panama City, Florida 32401

Docket for Case No: 80-000644

Orders for Case No: 80-000644