STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIRTA SCHLUSSLER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2472

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on October 26, 1987, at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Donald D. Slesnick, II, Esquire

2285 Southwest 17th Avenue Miami, Florida 33145

For Respondent: William A. Frieder, Esquire

Division of Retirement 2639 North Monroe Street Suite 207 Building C

Tallahassee, Florida 32399-1560 BACKGROUND AND PROCEDURAL MATTERS

This case began on April 17, 1987, when the Division of Retirement issued a letter denying benefits to Mirta Schlussler, the surviving spouse of William H. Schlussler, Jr. On May 7, 1987, Mirta Schlussler filed a Petition for Review of Final Agency Action and Request for Hearing. The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 4, 1987.

At the final hearing, Mirta Schlussler testified on her own behalf and presented the testimony of Christine Schlussler, surviving spouse of William H. Schlussler, Sr.; Scott Partridge, a police sergeant who had worked with Schlussler, Jr.; Peter Forrest, benefits coordinator for Metro-Dade County; Roxane Davies, administrator of the central personnel office for Metro-Dade; Thomas Dunn, a Metro-Dade police officer; and Don Gleeman, a family friend.

Petitioner's exhibits numbered 1-10 were admitted into evidence.

Respondent presented the testimony of June Ferguson, administrator for the survivor benefits section of the Division of Retirement. Respondent's exhibits numbered 2, 3, and 4 were admitted into evidence.

A transcript was filed with the Division of Administrative Hearings on December 10, 1987. The Petitioner filed a Motion to Extend the time for filing proposed findings of fact and conclusions of law. Such motion was granted and the parties were granted leave until January 8, 1988, to file their proposals. The Petitioner filed a proposal which has been carefully considered in the preparation of this Recommended Order and specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Petitioner is entitled to benefits for a deceased Florida Retirement System member.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. William H. Schlussler, Jr. was employed with the police department for Metro-Dade County beginning in June, 1970. On December 1, 1970, Mr. Schlussler became a member of the Florida Retirement System. Mr. Schlussler remained continuously employed and a member of the System until his death on September 30, 1986.

   
   

2. On July 13, 1970, Mr. Schlussler designated his father, William H. Schlussler, Sr., as the sole beneficiary of benefits under the retirement system.

   
   

3. On July 14, 1972, Mr. Schlussler married Mirta Schlussler, Petitioner herein. The couple remained continuously married until the time of Mr. Schlussler's death.

   
   

4. Throughout the course of their marriage, the Schlusslers acquired property in their joint names. Property which Mr. Schlussler had owned prior to his marriage was transferred to include Mirta Schlussler.

   
   

5. In connection with his work, Mr. Schlussler participated in a group life insurance program. After his marriage, Mr. Schlussler amended the beneficiary forms to provide Mirta Schlussler as his sole beneficiary for life insurance proceeds. At his death, Mirta Schlussler received those benefits.

   
   

6. Mr. Schlussler intended to designate Mirta Schlussler as his beneficiary for benefits under the Florida Retirement System. And although he stated this intention to several co-workers/friends, documentary evidence to establish that he completed and filed a change of beneficiary form does not exist.

   
   

7. Moreover, no one witnessed Mr. Schlussler execute and file a change of beneficiary form for the Florida Retirement System (FRS).

   
   

8. The only form on file with the FRS was the one executed on July 13, 1970, which designated William H. Schlussler, Sr. the sole beneficiary.

   
   

9. William H. Schlussler, Sr. survived William H. Schlussler, Jr.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

11. Section 121.091(8), Florida Statutes provides:

    
    

    DESIGNATION OF BENEFICIARIES. - Each

    member may, on a form provided for that purpose, signed and filed with the division, designate a choice of one or more persons, named sequentially or jointly, as his beneficiary who shall receive the benefits, if any, which may be payable in the event of his death pursuant to the provisions of this chapter. If no beneficiary is named i the manner provided above or if no beneficiary designated by the member survives him, the administrator shall direct the payment of such benefits to the spouse of the deceased, if living. If the member's spouse is not alive at his death, any payments to which he was entitled shall be paid to the living children of the member or on their behalf if under 18 years of age. If no children survive, any remaining benefits shall be payable to the member's father or mother, if living; otherwise, to the legal representative of the member's estate.

    
    

12. Rule 22B-4.011, Florida Administrative Code provides, in part:

    
    

    1. A member may designate a beneficiary on a form provided by the Administrator to receive the benefits, if any, which may be payable pursuant to these rules and regulations in the event of the members death.

       * * *

       (3) A member may change his designation of a beneficiary at any time on the proper form provided by the Administrator.

       * * *

       (6) If a member has transferred from an existing system, any person whom the member had designated as his beneficiary under that existing system shall remain the member's

       designated beneficiary and shall receive the benefits, if any, which may be payable pursuant to these rules and regulations in the event of the member's death; unless the member changes his designation of beneficiary on the proper form provided by the Administrator.

       
       

13. While it is clear the deceased, William H. Schlussler, Jr., intended to make his wife the beneficiary of retirement benefits, there is no direct evidence to establish that he met the requirements of completing the form and filing it with the Division. Unfortunately, the statute and rules which govern the distribution of benefits do not offer an alternate route to establish a beneficiary's right to benefits. Additionally, the Administrator does not have the discretion to deviate from the guidelines even though such deviation may be more equitable.

RECOMMENDATION

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

That the Department of Administration, Division of Retirement enter a Final Order denying benefits to Petitioner.

DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2472

Rulings on Proposed Findings of Fact submitted by Petitioner:

1. Paragraph 1 is accepted.

2. Paragraph 2 is accepted.

3. Paragraph 3 is accepted.

4. Paragraph 4 is accepted but is unnecessary to the determination made herein.

5. Paragraph 5 is accepted but is irrelevant, immaterial, and unnecessary to the determination made herein.

6. With regard to paragraph 6 and its subparts, the first two sentences are rejected as contrary to the weight of the evidence presented. However, subparts a., b., c., d., e., and f. are accepted. There is no doubt William H. Schlussler, Jr. intended his wife to receive all benefits available. Subpart g. is rejected to the extent it suggests Mr. Schlussler did, in fact, execute the required form. There was no direct evidence that this deceased completed the form required to change the beneficiary designation. Subparts h. & i. are accepted but cannot constitute proof of this deceased having executed the required form.

7. Paragraph 7 is accepted but is unnecessary to the resolution of the issue herein.

8. Paragraph 8 is rejected as irrelevant, immaterial and unnecessary.

9. Paragraph 9 is accepted but is irrelevant, immaterial and unnecessary. The file destroyed was a duplicate not the sole file.

10. Paragraph 10 is accepted.

11. Paragraph 11 is rejected. Mr. Schlussler's file did not contain the form in issue. The absence of it does not prove its existence. Moreover, the file required, by statute, would be maintained by the Division. That the local government might also have the form would be a sound argument of its execution. Of course then the argument would be as to filing. In this case, the proof failed as to both execution and filing. The proof offered established only intent.

COPIES FURNISHED:

Donald D. Slesnick, II, Esquire 2285 Southwest 17th Avenue Miami, Florida 33145

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

Tallahassee, Florida 32399-1560

Adis Vila, Secretary Department of Administration Division of Retirement

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-002472

Orders for Case No: 87-002472