STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. HAROLD ROACH on behalf of ) the Estate of HULDAH C. ROACH, ) Deceased, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 80-1564

   ) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was conducted in the above matter before the undersigned Hearing Officer on October 24, 1980, in Cocoa, Florida. The following appearances were entered: Joseph R. Moss, Cocoa, Florida, who appeared on behalf of the Petitioner, S. Harold Roach; and Diane K. Keisling, Tallahassee, Florida, who appeared on behalf of the Respondent, Division of Retirement, Department of Administration.

   
   

   The Respondent has made an effort to collect from the Petitioner what the Respondent contends are excess retirement benefits which were paid to the Petitioner's deceased wife in June, 1977. The Petitioner filed a Petition for Formal Hearing with respect to the issues, and the Respondent forwarded the matter to the office of the Division of Administrative Hearings with a request that a Hearing Officer be assigned to conduct the hearing. The hearing was scheduled as set out above by Notice dated September 16, 1980. The Respondent called David W. Ragsdale, the Administrator of the Respondent's Disability Determinations Section, formerly the Administrator of the Respondent's Deceased Section, as its only witness. The Petitioner testified on his own behalf.

   Hearing Officer's Exhibit 1 and Respondent's Exhibit 1 were received into evidence. Official recognition was taken of the rules of the Division of Retirement. The parties stipulated that the facts set out in paragraphs 1 through 12 and 15 of the Petition for Formal Hearing could be accepted as true without the need for any further proof. The parties further stipulated that the Respondent filed no caveat to the estate of the Petitioner's deceased wife, and that the Respondent made no effort to collect allegedly excess retirement benefits between August 24, 1977, and December 5, 1979. The parties were given an opportunity to submit post-hearing legal memoranda and proposed recommended orders. The Respondent submitted proposed findings and conclusions.

   
   

   The issues in this proceeding are whether the Respondent paid excess retirement benefits to the Petitioner's deceased spouse, and, if so, whether the Petitioner is obliged to make repayment.

   FINDINGS OF FACT

   
   

   1. The Petitioner is the surviving spouse of Huldah C. Roach. At the time of her death, Mrs. Roach was a retired member of the Florida Retirement System, and was receiving retirement benefits pursuant to Chapter 121, Florida Statutes. The Respondent, Division of Retirement, sent Mrs. Roach her retirement benefits for the month of June, 1977, at the end of that month. The warrant for the retirement benefit was received by the Petitioner on or about June 30, 1977, and was deposited by him in the joint account which he had shared with Mrs. Roach.

      
      

   2. On June 8, 1977, Mrs. Roach died. By letter dated July 4, 1977, the Petitioner advised the Respondent of his wife's death. He also advised the Respondent that he was holding the benefit warrant, but in a telephone conversation on August 22, 1977, he advised the Respondent that the warrant had been deposited in the joint account. By letter dated August 24, 1977, the Respondent advised the Petitioner that Mrs. Roach was entitled to retirement benefits only up to the date of her death, and that $330.81 of the June payment thus represented an overpayment. The letter included a demand for repayment of the asserted overpayment.

      
      

   3. The Respondent made no effort to collect the asserted overpayment between August 24, 1977, and December 5, 1979, when the Respondent, through counsel, forwarded a demand letter to the Petitioner.

      
      

   4. The petitioner was not able to identify what expenses he paid from the June, 1977, retirement benefit.

      
      

   5. Mrs. Roach received retirement benefits in excess of her total contributions to the Florida Retirement System, and under the retirement option that she selected, she was entitled to no additional benefits after the day of her death.

      
      

   6. The Respondent has consistently interpreted provisions of the Florida Retirement Law as allowing payment of retirement benefits only through the date of a retiree's death.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   8. Section 121.091(1), Florida Statutes, provides: Upon attaining his normal retirement date,

      the member, upon application to the Adminis- trator, shall receive a monthly benefit which shall commence on the last day of the month of retirement and be payable on the last day of each month thereafter during his lifetime. . . .

      
      

      The Respondent has adopted Rule 22B-4.02(8), Florida Administrative Code, in implementation of this statute. The rule, which has been in effect, although numbered differently, since 1972, provides in pertinent part: "Upon the death of a retired member . . . retirement benefits shall be paid through the date of death Under the statute and rule, and under the Respondent's consistent

      interpretation of the statute and rule, Mrs. Roach was entitled to benefits for the month of June, 1977, only through the date of her death on June 8. If the statute and rule are valid, and the Respondent's interpretation of them is valid, Mrs. Roach was entitled to retirement benefits for June, 1977, in the amount of $120.26. A warrant for $451.07 was forwarded to her and deposited by the Petitioner in his account. This would amount to an overpayment in the amount of $330.81 which the petitioner received and is obliged under the statute and rule to repay.

      
      

   9. The petitioner contends that the statute does not allow the Respondent to prorate monthly retirement benefits, but rather obliges the Respondent to make payment for retirement benefits on a monthly basis through the month during which a recipient dies. A rule to this effect would not be inconsistent with the language of Section 121.091(1), Florida Statutes, but nothing in the section precludes an interpretation which would require a proration of a monthly benefit during the month of a recipient's death. This is the interpretation that has been chosen by the Respondent in Rule 22B-4.02(8) and which has been consistently followed by the Respondent for many years. The Respondent's interpretation of the statute is entitled to great weight, when it is not in conflict with the language of the statute.

      
      

   10. The retirement benefit forwarded by the Respondent to the Petitioner's deceased spouse for the month of June, 1977, included an overpayment in the amount of $330.81. The Petitioner is obliged to make repayment to the Respondent in this amount.

RECOMMENDED ORDER

In accordance with the following findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That a Final Order be entered by the Division of Retirement of the Department of Administration requiring that the Petitioner repay the Division

$330.81 which represents the amount of overpaid retirement benefits paid by the Division of Retirement to the Petitioner's deceased spouse during the month of June, 1977.

RECOMMENDED this 3rd day of December, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1980.

COPIES FURNISHED:

Joseph R. Moss, Esquire Joseph R. Moss, P.A.

112 Derby Street Post Office Box 1450 Cocoa, Florida 32922

Diane K. Keisling, Esquire Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center

2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Mr. Andrew J. McMullian, III Director, Division of Retirement Department of Administration Room 530, Carlton Building Tallahassee, Florida 32301

Docket for Case No: 80-001564

Orders for Case No: 80-001564