STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOY RUTH CARRUTHERS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0043

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 25, 1989, in Orlando, Florida.

APPEARANCES

For Petitioner: Joy Ruth Carruthers, Pro se

2103 Vernada Circle Post Office Box 680-151 Orlando, Florida 32858

For Respondent: Stanley M. Danek, Esquire

Office of General Counsel

440 Carlton Building Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories:

1. that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and

   
   

2. her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.

PRELIMINARY STATEMENT

In a letter dated November 14, 1988, addressed to State Retirement Director, A. J. McMullian III, Petitioner requested a formal hearing on the agency's determination that she was not entitled to surviving spouse benefits under the Florida Retirement System. After referral to the Division of

Administrative Hearings the hearing was scheduled for February 10, 1989, but was continued at the request of the Petitioner and with the consent of the Respondent.

At the commencement of the hearing, Mrs. Carruthers requested that her mother, Carol Stearns, be permitted to serve as her "Qualified Representative."

This request was denied. Mrs. Carruthers is 20 years old and is upset about her husband's death, but was at the hearing and was able to represent herself. Her mother has been handling the paperwork regarding the application for benefits and is superficially familiar with the statute and rules governing the Florida Retirement System. She is not familiar with the Administrative Procedure Act nor the procedural rules of the division. She conceded that she had not read the rules regarding qualification as her daughter's representative, Rules 221-6.008 and 6.009, F.A.C, that had been furnished with an order dated April 17, 1989. Moreover, Mrs. Stearns admitted that she had participated by telephone in a deposition taken by counsel for the Petitioner without revealing that she was not Mrs. Carruthers. Instead, by her references to "my husband," she specifically induced the participants to believe that she was Mrs.

Carruthers. This alone belies any meaningful grasp of the standards of conduct for administrative proceedings, as required in Rule 221-6.008(4)(f), F.A.C.

Mrs. Stearns was permitted to remain in the room and to assist her daughter in presenting her case. She was also permitted to testify in her daughter's behalf.

In addition to her own testimony and that of her mother, Mrs. Carruthers presented the testimony of two Orange County School Board employees, Mary Peterson and John B. Hawco. Her four exhibits were received in evidence as Petitioner's exhibits #1-4. At her request, the record was left open for the deposition of a fifth witness, Dennis Reussow, another school board employee who had been subpoenaed, but who did not appear.

The Respondent, Division of Retirement, submitted the testimony of one witness through deposition, without objection, and an additional exhibit, marked and received into evidence as Respondent's exhibit #2.

On May 9, 1989, Mrs. Carruthers filed a letter requesting that the decision be made based on the hearing testimony and exhibits.

No transcript was prepared and Respondent filed proposed findings of fact and conclusions of law on May 17, 1989. Those findings are substantially adopted in this recommended order.

FINDINGS OF FACT

1. Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988.

   
   

2. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death.

   
   

3. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers.

4. During his employment with the two school boards, Mr. Carruthers earned

   8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS.

   
   

5. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death.

   
   

6. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers.

   
   

7. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices.

   
   

8. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely.

   
   

   Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms.

   
   

9. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day.

   
   

   The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding, pursuant to Section 120.57(1), F.S.

    
    

11. Allegations by the Petitioner with regard to wrong doing by the School Board are not cognizable in the proceeding. The school board is not a party and the Division of Retirement has no authority to grant relief, assuming that a wrong was committed.

12. Under the scheme of the Florida Retirement System, Chapter 121, F.S., creditable service of any member in the system means the sum of his past service, prior service, military service and future service allowed within the provisions of the statute if all required contributions have been paid and all other requirements of the chapter have been met. Section 121.021(17), F.S. (1987). Such creditable service must be claimed by the beneficiary and it is the burden of the beneficiary to establish his right to creditable service. Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139 (Fla. 4th DCA 1989).

    
    

13. When a member's employment is terminated by death prior to the completion of 10 years creditable service, the beneficiary is entitled only to the member's accumulated contributions. Section 121.091(7)(a), F.S. Mrs. Carruthers is not claiming that her husband had accumulated contributions.

    
    

14. Petitioner has not cited any authority in the statute or rules relating to the Florida Retirement System for her theory that the 480 hours of accumulated sick leave can be considered "creditable service" and no such authority can be found. The letter from Mrs. Carruthers' lawyer to the Division of Retirement, dated October 4, 1988, cites Section 121.091(7)(b), F.S., but this provision plainly applies when a member dies subsequent to the completion of 10 years of creditable service, and does not address the tacking of sick leave.

    
    

    Authorized leaves of absence may be included as creditable service if the member already has 10 years, excluding the leave of absence. Section 121.121(1), F.S.

    
    

15. Since Robert Carruthers died before approval of payment of disability retirement benefits, his widow was not entitled to surviving spouse benefits. State department of Administration, Division of Retirement v. Miranda, 513 So.2d

    170 (Fla. 1st DCA 1987).

    
    

    Carlos Miranda was a Dade County Firefighter who died of cancer four days after his application for disability retirement was received by the division and before the application could be approved. He died on August 17, 1984. Based on the provisions of Section 121.091(4)(a), F.S., the court found the earliest effective retirement date that could have been established for Mr. Miranda was September 1, 1984, even if the division had acted immediately. His employment was terminated by his death on August 17th, rather than by disability retirement.

    
    

    Carlos Miranda's widow, like Mrs. Carruthers, was entitled only to a refund of her husband's accumulated contributions, if any.

    
    

16. Even if Robert Carruthers' application for disability retirement had been sent to the division immediately after he left active service in February 1988, there is no evidence that he would have been eligible for approval.

    
    

    Rule 22B-4.007, FAC, provides, in pertinent part:

    
    

    22B-4.007 Benefits Payable for Disability Retirement.

    1. A member shall be eligible to apply

       for a disability benefit in accordance with section 121.091(4), F.S., provided:

       1. The member is in the employ of the

          Florida Retirement System employer at the time the member becomes disabled; and

       2. The member is no longer able to work; and

       3. The member has creditable service as follows:

          1. The member becomes disabled in-line-of- duty regardless of length of service; or

          2. The member has completed at least 10 years of creditable service; or

          3. The member completed 5 years of creditable service prior to July 1, 1980; or

          4. The member was employed on July 1, 1980, had completed less than 5 years of creditable service on that date, but has

          since completed a total of 5 years creditable service and provides proof that he has not attained a fully insured status for benefits under the federal Social Security Act;... (Emphasis added)

          
          

          There is no evidence in this proceeding that Robert Carruthers did not attain "fully insured status for benefits under the federal Social Security Act."

          
          

17. At one point in the proceeding Mrs. Carruthers indicated that she thought her husband had military service which could be included as creditable service. There is nothing in the record of this proceeding to substantiate that, and still the member would need to have completed a minimum of 10 years of creditable service, excluding the military service, before claiming the additional military credits.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits.

DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989.

COPIES FURNISHED:

Joy R. Carruthers

Post Office Box 680-151 Orlando, Florida 32858

Stanley M. Danek, Esquire Office of General Counsel

440 Carlton Building Tallahassee, Florida 32399

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-000043

Orders for Case No: 89-000043