STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN W. THURSTON, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3317

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on October 27, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jonathan W. Thurston, pro se

4850 Northwest 24th Court Miami, Florida 33142

For Respondent: Burton N. Michaels, Esquire

Department of Administration

440 Carlton Building Tallahassee, Florida 32399

BACKGROUND

This matter began when Respondent denied Petitioner's assertion of entitlement to retirement benefits for the month of July, 1987, on the basis that Petitioner's application for retirement benefits had not been timely presented. Petitioner requested a formal administrative hearing of this denial and this proceeding ensued.

At hearing, the parties presented one joint evidentiary exhibit.

Petitioner presented the testimony of one witness, himself. Respondent presented nine evidentiary exhibits and the testimony of two witnesses. Proposed findings of fact submitted by Respondent are addressed in the appendix to this recommended order. Petitioner did not timely file proposed findings of fact and none had been received by the undersigned at the time of the preparation of this recommended order.

Based upon all of the evidence, including the candor and demeanor of witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. On June 19, 1987, the last day of the 1986-87 school year, Petitioner received his class schedule for the forthcoming 1987-88 school year at Kinlock

   Park Junior High School in Dade County, Florida, where he was the band director. Petitioner was discomfited with the schedule and resolved that he would investigate the process of applying for retirement benefits in view of a total of 36 years of service in the Florida Retirement System (FRS), inclusive of four years of military service. He knew he had been eligible for retirement since August, 1985.

   
   

2. On July 1, 1987, Petitioner requested an appointment with administrative personnel of the Dade County School Board to discuss retirement options by executing and mailing a form entitled "Retirement Information/Appointment Request" to the Dade County School Board's Bureau of Personnel Management, Retirement Section. The form was received by the bureau on July 8, 1987.

   
   

3. On the form, Petitioner stated he was tentatively planning to retire in August, 1987. Thereafter, Petitioner was contacted and attended a conference with a representative of the school board's retirement section on July 27, 1987, where he executed numerous personnel documents and completed the application for retirement benefits. The application was received by Respondent on July 30, 1987.

   
   

4. The face of the application form contains a blank where an applicant for retirement inscribes the date for termination of service with all FRS employers. In the instant case, that blank reflects the date of June 19, 1987, as the effective date of Petitioner's termination of employment. Following the effective date of termination of employment on the application is the form's emphatic printed statement that this is the date for termination of employment and not the effective date of retirement. The application is notarized and bears the signature of Petitioner. While evidencing Petitioner's intent to terminate his employment on June 19, 1987, the application form provides no evidence of Petitioner's intent to retire prior to July 1, 1987.

   
   

5. Another of the many forms which Petitioner received at the July 27, 1987, retirement conference is entitled "Retirement Information Form." Petitioner acknowledged his signature on this form which sets forth language stating that the signatory understands the data on the form is an estimate of his potential retirement benefits and that the amount may change. That form sets forth an effective retirement date of August 1, 1987.

   
   

6. The Dade County School Board has 26,000 to 27,000 employees. Of this total number, approximately 18,000 are teachers. Between 400 and 500 of the employees seek retirement each year. Of that number, approximately 150-200 teachers retire in June of every year. All employees of the board are urged to contact the retirement section as soon as possible. The general policy is for the employee contemplating retirement to telephone the office. Four or five seminars are held throughout the year by various entities to familiarize school board employees with retirement procedures and benefits.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Rule 22B-4.002(4)(a), Florida Administrative Code, reads:

   
   

   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.

   
   

9. The proof establishes that Petitioner did not make application for retirement benefits until the July 27, 1987, conference with personnel of the school board's retirement section. The evidence is also uncontroverted that his application was not received by the Division of Retirement until July 30, 1987, more than 30 days after the termination of his employment.

   
   

10. In accordance with Rule 22B-4.002(4)(a), Petitioner's effective date of retirement must be the first day of the month following receipt of his application by the Division of Retirement. Not only are the terms of Rule 22B- 4.002(4)(a) quite clear, the Rule is also supported by the provisions of Section 121.091(1), Florida Statutes, which states that members of the retirement system receive those benefits "upon application to the administrator." Robert Gilmour

    v. Department of Administration, (DOAH 84-4340, Final Order entered May 22, 1985).

    
    

11. It is concluded that Petitioner did not timely file an application for retirement benefits which would entitle him to those benefits for the month of July, 1987.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered establishing Petitioner's

retirement date for purpose of receipt of retirement benefits to be August 1, 1987.

DONE AND ENTERED this 15th day of November, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 15th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3317

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

Petitioner did not submit proposed findings.

RESPONDENT'S PROPOSED FINDINGS

1. Addressed.

2. Addressed.

3. Addressed.

4. Addressed.

5. Addressed.

6. Addressed in part, remainder unnecessary to conclusion.

COPIES FURNISHED:

Jonathan W. Thurston

4850 Northwest 24th Court Miami, Florida 33142

Burton M. Michaels, Esquire Department of Administration

440 Carlton Building Tallahassee, Florida 32399

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Hon. Adis Vila Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-003317

Orders for Case No: 88-003317