STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT GILMOUR, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4340

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on April 17, 1985, in Tallahassee Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Robert Gilmour, Pro Se

416 Northwest 21st Court

Ft. Lauderdale, Florida 33311

For Respondent: William A. Frieder, Esquire

Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303

The issue is whether Petitioner is entitled to retirement benefits for July and August, 1984.

Petitioner presented his own testimony together with three Exhibits, Petitioner's Exhibit A, Exhibit D, and Exhibit E. Respondent presented the testimony of Ruth Sansom, together with six Exhibits.

The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent and credible evidence. 1/

FINDINGS OF FACT

1. The Petitioner, Robert Gilmour, was employed by the Dade County School Board until July 2, 1984, when he terminated his employment effective June 15, 1984. Mr. Gilmour terminated his employment by placing a telephone call to his supervisor. At the time of the telephone call, Mr. Gilmour was out of the Miami area on vacation. Mr. Gilmour did not return from vacation until August 8, 1984. On August 9, 1984, Mr. Gilmour went to the Office of Personnel Retirement Section, of the Dade County School Board, where he executed an application for early retirement.

   
   

2. Mr. Gilmour's application for retirement was received by the Benefits Calculation Section of the Division of Retirement on August 15, 1984, in Tallahassee, Florida. The Division of Retirement assigned to Mr. Gilmour an effective date of retirement of September 1, 1984, the first day of the month following the date on which the Division of Retirement received his application for retirement.

   
   

3. In May, 1984, Mr. Gilmour, placed a telephone call to Louise Syrcle, an employee of the School Board in the Office of Personnel, Retirement Section. Mr. Gilmour was considering retirement and wanted to discuss the matter with Ms. Syrcle. At the time of the telephone call, Ms. Syrcle was on her vacation and then was subsequently on sick leave because of a broken back. Ms. Syrcle was absent from employment from April 23, 1984 until June 25, 1984. In the course of the telephone call, Mr. Gilmour was told of Ms. Syrcle's broken back and was told that appointments were being made only for those teachers who had already decided to retire. Because he had not yet made that decision, he did not make an appointment. Further Mr. Gilmour did not seek to speak with any other personnel in that office.

   
   

4. Art Miles Ms. Syrcle's supervisor, and other personnel were available in the Dade County School Board's Office of Personnel to respond to retirement requests and they did process numerous retirement requests during Ms. Syrcle's absence.

   
   

5. At no time did Mr. Gilmour seek, read or receive a copy of the Summary Plan Description brochure which was admitted as Respondent's Exhibit C. Additionally, at no time did Mr. Gilmour make inquiry of anyone at the Division of Retirement regarding his retirement options. Instead, Mr. Gilmour relied on information gleaned from casual conversations with colleagues, which information was not correct.

   
   

6. At all time relevant hereto, the Division of Retirement has maintained a staff of counselors who are available to consult with members and agencies on matters concerning retirement, including deadlines for filing applications.

   
   

7. As a result of Mr. Gilmour's July 2, 1984, telephone call, in which he terminated his employment, the Dade County School Board sent a certification of service and earnings, Form FT4A, on July 2, 1984. This form was received by the Division of Retirement on July 9, 1984. While this form may have indicated that Mr. Gilmour had terminated his employment with the Dade County School Board, no information contained in that form indicated his intent to retire.

   
   

8. When Mr. Gilmour went to the Office of Personnel, Retirement Section, of the Dade County School Board on August 9, 1984, he first learned that the rules of the Division of Retirement required that the application for retirement be filed within 30 days of the termination date in order for the retiree to

   receive retirement benefits retroactive to the date of termination. Because Mr. Gilmour failed to file his application for retirement until August 15, 1984, he did not receive retirement benefits for the months of July and August, 1984.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

10. Rule 22B-4.02(4)(a) Florida Administrative Code, provides:

    
    

    A member may make application for retirement benefits within 6 months prior to his date of termination of employment. If the retirement application is received by the Division of Retirement prior to termination of employment, or within 30 calendar days thereafter, the effective date of retirement will be the first day of the month following termination.

    Benefits will begin to accrue on the effective date of retirement and will be payable on the last day of the month. If the member fails to make application for retirement benefits within 30 calendar days after termination of employment, the effective date of retirement shall be the first day of the month following receipt of the application by the Division of Retirement.

    
    

11. It is clear from the evidence that Mr. Gilmour did not execute his application for retirement until more than 30 days after termination of his employment. Therefore, pursuant to Rule 22B-4.02(4)(a), the effective date of his retirement must be the first day of the month following receipt of the application by the Division of Retirement. The evidence is uncontroverted that Mr. Gilmour's application was received by the Division of Retirement on August 15, 1984, and the effective date of retirement is September 1, 1984.

    
    

12. Mr. Gilmour argues that he is morally entitled to retirement benefits for July and August, and that he is unjustly being punished even though he acted in "good faith." Unfortunately, Mr. Gilmour chose to rely upon information gleaned from conversations with colleagues and that information was inaccurate. It is impossible to find that Mr. Gilmour acted in "good faith" when he did not seek retirement information from those persons on duty in the Office of Personnel, Retirement Section, and did not request any documentary information which would explain his retirement rights and duties.

    
    

13. The terms of Rule 228-4.02 (4)(a) are clear. This rule is also supported by Section 121.091(1), Florida Statutes, which provides in pertinent part that a member of the Florida Retirement System is eligible to receive a monthly benefit "upon application to the administrator." The administrator is the Director of the Division of Retirement. Section 121.025, Florida Statutes. In this case, Mr. Gilmour did not apply for retirement benefits until August 15, 1984.

14. It is concluded that Mr. Gilmour did not timely file an application for retirement benefits which would entitle him to benefits for the months of July and August, 1984. The Division of Retirement has acted properly in the processing of Mr. Gilmour's retirement application and in the payment of benefits.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Division of Retirement enter a Final Order denying Robert Gilmour retirement benefits for the months of July and August, 1984, and establishing Mr. Gilmour's effective date of retirement to be September 1, 1984, the first day of the month following his application for retirement.

DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985.

ENDNOTES

1/ Petitioner's proposed findings 1, 2, and 3, and Respondent's proposed findings 2, 3, 4, 5 and 6 have been modified. The Respondent's proposed finding

1 has been adopted and Petitioner's proposed finding 4 is rejected. Petitioner's proposed finding 5 is unnecessary.

COPIES FURNISHED:

Robert Gilmour

416 North West 21st Court

Fort Lauderdale, Florida 33311

William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207-Building C

Tallahassee, Florida 32303

A. J. McMullian, III State Retirement Director

Department of Administration Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32303

Docket for Case No: 84-004340

Orders for Case No: 84-004340