STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE BAZZEL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5774

) DEPARTMENT OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONER: Joe Bazzel, pro se

Post Office Box 46 Blountstown, Florida 32424

FOR RESPONDENT: Stanley M. Danek, Esq.

Division of Retirement Cedars Executive Center

2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner's deceased wife, Dorothy Bazzel, made a valid selection of retirement "option 1" instead of "option 2"; whether that apparent selection was a mistake and, consequently, whether the Petitioner should be allowed to receive retirement survivors benefits in accordance with "option 2", as provided for under section 121.091(6), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition by Joe Bazzel, in which he seeks to change the retirement benefit option selected by his deceased wife, Dorothy Bazzel. Mrs. Bazzel apparently selected retirement "option 1", which provides full retirement benefits during the life of the retiree, with no benefits thereafter being paid to the surviving spouse. The Petitioner seeks to establish that "option 1" was selected mistakenly and the decedent, in reality, intended to select "option 2", whereby retirement benefits would be paid to the surviving spouse. The Respondent takes the position that the Petitioner's decedent made a knowing and voluntary election of "option 1" retirement benefits, that she was competent to make that election at the time it was made,

and that she never exercised her right to change that option during the months that ensued after the first election until she received and negotiated the first retirement check. Once the first retirement check was negotiated, the Respondent maintains that, under the rule cited below, that retirement option election could not be altered and therefore the Petitioner is not entitled to recover benefits based upon any change to "option 2".

The cause came on for hearing as noticed at which the Petitioner presented his own testimony and the testimony of Harold Bazzel and Ray Bazzel.

Petitioner's exhibits 1-6 were admitted into evidence. The Respondent presented the testimony of witness, Stanley Colvin, and presented 15 exhibits, all of which were admitted into evidence. Respondent's exhibits 1-6 were depositions admitted into evidence as testimony in lieu of attendance by those witnesses at hearing. Counsel's posthearing representation called "Notice of Filing", served on the Petitioner, coupled with the official highway map of the State of Florida and the highway map of the Panama City metro area published respectively by Rand McNally and Co. and AAA Auto Club South (most recent addition) official recognition of which is hereby taken at counsel's request, reveals that all the deponents were 100 miles or more from the site of the hearing. This is so because, in part, the hearing was conducted in Tallahassee during business hours and the deponents, other than Richard and Nan Locker, had as their business address the address of the Bay County School Board which was thus established to be 102.5 miles from the hearing site. Since the hearing was conducted during normal business hours, it is reasonable to measure the distance from the hearing site to the location of those deponents on the hearing date in question as being the 102.5 mile distance from the Division of Administrative Hearings to the office of the Bay County District School Board. Concerning deponents Richard and Nan Locker, their residence address is located either 98.5 miles from the hearing site or 101.5 miles, depending upon which route that distance is measured along. The distance to the home of those two deponents is approximately 2 miles more than the point within the City of Panama City, where official mileage is measured, which is the intersection of U.S. 98 alternate and

U.S. 231. That point is 97 miles from the point of official mileage measurement within the City of Tallahassee, which is the intersection of U.S. 90 and U.S.

1. The hearing location was 1.5 miles beyond that 97-mile distance point in the City of Tallahassee, for a total of 98.5 miles from the hearing site to the official mileage measurement point within the City of Panama City. If the distance to the home of the Lockers is measured from the official mileage measurement point in the City of Panama City, one would add 2 miles, for a total of 101.5 miles. If one measured the distance by the most direct route, along Bowen Avenue, the distance would be approximately 98.5 miles. In view of these circumstances, it is determined that a sufficient showing has been made by the Respondent that the business or residence locations of all the deponents in question meet the 100-mile requirement as to distance from the courtroom for purposes of Rule 1.330, Florida Rules of Civil Procedure, and that it would not be an abuse of discretion to admit the depositions. They are admitted. (See, generally, Colonnades, Inc. v. Vance Baldwin, 318 So.2d 515 (Fla. Appeal 4th DCA 1975).

   
   

   Upon conclusion of the hearing, the parties elected to exercise their right to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those pleadings have been considered in the rendition of this Recommended Order, and the proposed findings submitted have been specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

   FINDINGS OF FACT

   
   

   1. The Petitioner, Joe Bazzel, is a resident of Blountstown, Florida, and is retired. His wife, now deceased, was Dorothy Bazzel. She was a longtime teacher in the Bay County school system, with more than 46 years continuous creditable service in the Florida Retirement System and as a teacher. She retired on July 1, 1988.

      
      

   2. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutes, embodied in Chapter 121, and related rules, by which operation of the Florida Retirement System, including determinations of entitlement to and payment of benefits, is accomplished.

      
      

   3. Mrs. Bazzel underwent surgery for breast cancer on January 11, 1987. She had been diagnosed by Dr. Dixon McCloy, of Panama City, with breast cancer sometime in January of that year. Her progress after surgery was satisfactory, and she kept all appointments, had required x-rays, examinations and mammograms thereafter, by which her physicians monitored her progress.

      
      

   4. She had expressed to several persons of her acquaintance a desire to retire by the end of the 1987-1988 school year. In order to prepare for that event, she contacted her brother-in-law, Ray Bazzel, who testified in this case, and asked him to contact the Division of Retirement in Tallahassee, Florida, to obtain an estimate of her expected retirement benefits. He made that request to Ms. Loreen Vause, an employee of the Division, on July 16, 1987, by telephone. The Division of Retirement has an ongoing program which automatically generates an estimate of benefits for members who have certain amounts of creditable service and are of a certain age. When Mr. Bazzel made his request for an estimate of benefits for Mrs. Bazzel, the Division was already in the process of preparing a benefit estimate for her through its routine program. That estimate was forwarded to Mrs. Bazzel on July 22, 1987, and it stated as follows:

      
      

      This is a routine audit of your account. Noting the many years of service you have, we are furnishing you an estimate of your benefits as if you terminate your employment on June 30, 1988, and retire effective July 1, 1988. This is furnished for informational purposes only.

      
      

      By means of that estimate, Mrs. Bazzel was informed as to the benefit amounts which she would receive under all four retirement options. See Respondent's exhibit 8 in evidence.

      
      

   5. Ray Bazzel would visit Mrs. Bazzel on occasion during his visits to Panama City. She was described by him in his testimony to be a very private person not given to talking much about her illness or the operation. She did discuss the possibility of her retirement on one occasion with him, sometime during the summer of 1987. They discussed all four retirement options, and he explained the options in detail to her. He advised her that she would have to make a decision as to which option she would take, but he was never advised by Mrs. Bazzel nor anyone else as to which option she had actually selected until after her death. He did not know that she had made application for retirement on January 14, 1988.

   6. Harold Bazzel is a nephew of the Petitioner. He testified that he did not know that Mrs. Bazzel had made an application for retirement and did not know what option she selected until after her death.

      
      

      Richard Locker was the personnel officer with the school board where she was employed and knew Mrs. Bazzel personally and professionally. He was the principal for six years at Cove Elementary School where both his wife, Nan Locker, and Mrs. Bazzel taught. Mr. Locker had a policy of discussing retirement issues with Florida Retirement Service members on his staff and advising them of correct procedures to follow, as to the paperwork involved, and as to the full retirement options which they could select. He advised all members who were employed at his school to call the Division of Retirement in Tallahassee for more information. He never advised anyone of which option they should take because each case is an individual case, and he did not feel comfortable advising an employee or friend which option to take and then later have that person accuse him of advising the wrong option.

      
      

   7. Mr. Locker saw Mrs. Bazzel after her surgery and stated that after the surgery, she appeared to be in good health. He saw her in May of 1988 and stated that she was very optimistic and appeared capable of teaching the next year. She did not seem moody or depressed in any way to him. He believed that she exhibited an attitude that her treatment had been a success and that her health had been restored.

      
      

   8. He discussed with her the possibility of her retiring at the end of the 1987-88 school year, and he believed that she would retire at that time. In two telephone calls, he and Mrs. Bazzel discussed the four different retirement options. She appeared to know what he was talking about and to understand those options. He felt that she understood that option 1 would pay the highest benefit amount to her of the four options. He, however, did not really know what option she had chosen until after the Petitioner, her husband, informed him after Mrs. Bazzel's death.

      
      

   9. Based upon the testimony of Ray and Harold Bazzel and that of Richard Locker, concerning their contact and discussions with and advice to Mrs. Bazzel, it is found that Mrs. Bazzel was aware of the four options and the differences between them. She was aware that option 1 provided the highest benefit to the retiring member for the lifetime of that member and that it would cease at the death of the member with no further benefits being payable to any person.

      
      

   10. On January 14, 1988, the Petitioner, Joe Bazzel, drove his wife to the offices of the school board, where she completed the forms necessary for her retirement. She talked with Vicky Poole, the records clerk, who helped teachers and administrators complete necessary retirement forms as part of her job duties. Ms. Poole had worked at the school board offices for approximately seven years and had an established procedure for informing prospective retirees of all information needed to process retirement applications. As part of her instructions to them, she would ask each potential retiree to inform her of the option they wanted to select, who their beneficiary would be and where the checks were to be sent. She would inform them when they would start receiving checks, would discuss with them their sick leave balance "payoff", and what steps they needed to take to obtain social security benefits. This discussion with prospective retirees would take up to one-half hour if the retirement form had not been partially completed before the retiree came into the office, or about 15 minutes if the form had already been partially completed. If Mrs. Bazzel already understood the retirement options and had formed an opinion of what she wanted to do concerning retirement and the selection of an option, and

       if the form had already been partially completed, then the entire process on January 14, 1988 could have occurred in a few minutes.

       
       

   11. It was Ms. Poole's practice to sit next to the prospective retiree, obtain the necessary information, and type it on the retirement form at that time. She would then advise the member of the various options by referring to the back of the retirement form (Respondent's exhibit 12 in evidence) or to a pamphlet explaining the options issued by the Division of Retirement. Both of those documents contain a narrative description of the retirement options. Ms. Poole did not choose a retirement option or advise a prospective retiree of which option to choose. The retiree must choose his or her own option. Ms. Poole would never advise a person concerning which option to take and had been advised by the Division of Retirement never to give such advice on option selection.

       
       

   12. If Ms. Poole perceived that a prospective retiree was indecisive about option selection or did not appear to understand the options or the consequences of such election, she would advise that person to speak with someone else who was knowledgeable about the retirement system and about the retiree's financial situation, such as a friend or relative. If a prospective retiree was still indecisive or unsure of the meaning of options or which option to select, Ms. Poole would hold the form and not complete it without being sure in her own mind that the retiree understood the option and knew what it meant. In her standard procedure, she would go over each item on the form at least two and up to four times with a retiree. If they were very certain of the option they wanted to select, she would then finish the form and have the person sign it and give it to Ms. Bolinger to notarize.

       
       

   13. Ms. Poole realized that the choice of an option was an important decision and conducted her interview with the retiree accordingly. She testified in this regard as follows:

       
       

       If they said well I'm looking at 2 and 3, that's waivering. If they said I want option 1, I typed 1 in and I would say it several times as I typed it in. I mean I was very well aware that this selection was for the rest of their life and could affect someone else. I was very well aware of that. So, I would repeat it several times and when I was complete, when the form was complete, I'd give it back and go over it again, again reemphasizing the option. If they did waiver, I would briefly go over the options and there was time, I always mention, you know, there's time to do this, to choose your option, perhaps you want to talk to someone. I could not advise them. That's what I did.

       
       

       Ms. Poole remembered that Mrs. Bazzel came into the office but did not remember if the retirement forms had already been completed or partially completed prior to the visit. She testified that there was no doubt in her mind that Mrs.

       Bazzel chose option 1 and no doubt that she knew what option 1 meant.

       
       

   14. Ms. Bolinger began to work with the school board dealing with retirement applications in 1984. She is now the records clerk who handles retirement matters for teachers and school administrators. This is the same job

       that Ms. Poole performed in January of 1988. Ms. Bolinger notarized the retirement form of Mrs. Bazzel. Ms. Bolinger learned her job from Ms. Poole and testified that the retirement form was always completed in the office before a retirement clerk and was never sent to anyone. She stated that the clerk would ask the member if they understood each of the options, and the clerk would be sure that the member did understand them. It was the practice to ask such a retiring person if he or she was familiar with the options. If the retiree seemed the least bit confused, Ms. Bolinger testified that the clerk would discuss each option all over again with the prospective retiree, give him the form with the options listed on the back, and they would then discuss each one and make sure that the prospective retiree understood each option before continuing the process of executing the requisite forms.

       
       

   15. Thus, Ms. Poole and Ms. Bolinger or any school board clerk follows a routine practice of examining and discussing in detail each retirement option with a prospective retiree and makes sure that person understands the wording of the four options and what the four options mean before making a selection, answering any questions the prospective retiree might have and advising them to seek counsel from a qualified person if the prospective retiree remains unsure of which option to elect. After the forms are completed, the clerks, including Ms. Bolinger and Ms. Poole, when she was performing that function, examine the forms with the retiring member to make sure that all information is correct.

       "We wait until they check the whole thing and this is exactly what they want, and I watch them sign it." The signature is the last item which is placed on the retirement form. If the retiring member appears unsure about the options, Ms. Poole and Ms. Bolinger will ask them to go home and think about it and think it all through before they decide. Like Ms. Poole, Ms. Bolinger leaves the option selection up to the retiring member and does not attempt to advise persons about which option to select, merely giving them the information concerning the effect of selecting a particular option.

       
       

   16. In her capacity as a notary, Ms. Bolinger stated that if a person did not look like they knew what they were doing in executing the form, she would not notarize the form. If they did not appear to understand that they were applying for retirement, or which facet of it they were applying for, she would, likewise, not notarize the form. She would not notarize a signature after the fact of the signature being placed on the form. Ms. Bolinger was shown a copy of Petitioner's exhibit 7, in evidence, which is a copy of the retirement form that did not have her notary signature. She observed that her notary stamp was on that copy but that her name had merely been signed in the wrong place, possibly because she was new to those duties concerning retirement clerk matters. She testified, however, that her signature was correctly placed on the form, she believes, that same day. See pages 17 and 37 of Petitioner's exhibit 7, in evidence.

       
       

   17. On January 14, 1988, Mrs. Bazzel completed two forms: FR-11, "Application for Service Retirement", and FR-9, "Request for Audit", (see Respondent's exhibits 9 and 10, in evidence). Both of those forms contain Mrs. Bazzel's signature and are dated with the same date, January 14, 1988. The FR-

       11 form had that date written on it in three places. The two forms were then filed with the Division of Retirement. They were acknowledged by the Division as being received on the next day, January 15, 1988, according to the form FST- 40C, "Acknowledgment of Retirement Application", which has January 15, 1988 as the received date. See Respondent's exhibit 11 and the testimony of Stanley Colvin, in evidence.

   18. The Petitioner testified that he believes the retirement application forms referenced above were suspect as to accuracy because, according to his testimony, he took his wife to the school board offices on a Friday to sign the forms after the end of the teaching day on either January 8th or January 15th, and states that generally he remembers that it was a Friday because that was the day they had the habit of leaving the Panama City area to visit relatives for the weekend. However, the forms are dated January 14, 1988 in several places. The forms in evidence and the testimony of Ms. Colvin establish that the application documents were received on January 15th in the offices of the Respondent agency. Thus, they could not have been signed on Friday, January 15th. If they had been signed on Friday, January 8th, the record leaves no explanation as to why all of the forms were dated January 14th. The Hearing Officer can only logically find that, indeed, the forms were signed by Mrs. Bazzel on January 14, 1988 and received in the offices of the Division in Tallahassee, Florida, on January 15, 1988. The date of January 20, 1988, appearing on the documents, was established to be the date they were received in the bureau within the department which actually performs benefit calculations, not the date it was first received by the department.

       
       

   19. The evidence establishes that Mrs. Bazzel selected option 1, the retirement option which provides no survivor's benefits. None of the exhibits in evidence can support a finding that she chose or intended to choose option 2, which provides survivor's benefits. The application for service retirement shows an election for option 1 and the acknowledgment of receipt of that retirement application, FST-40C, shows that option 1 was selected, as well as the letter that informed Mrs. Bazzel that she was being added to the retirement payroll in the category of option 1 benefits.

       
       

   20. On August 1, 1988, the day after the first retirement warrant would have been received by Mrs. Bazzel, Ray Bazzel called the offices of the Division of Retirement to state that Mrs. Bazzel had checked the wrong number of income tax exemptions and wanted to change them. In order to know how many exemptions she had, he would have had to see the stub from that first retirement warrant. The stub would have depicted the gross amount of the benefit, which was the same amount as that provided for option 1, and not the gross amount attributable to option 2. See FST-40C form, in evidence as Respondent's exhibit 8.

       Additionally, in a conversation with one of her closest friends, Nan Locker, Mrs. Bazzel led Ms. Locker and friends at school to believe that her surgery had alleviated her medical problem with cancer and that she was in good health.

       During a conversation they had approximately nine months before Mrs. Bazzel's death, Mrs. Bazzel, in talking about retirement with Ms. Locker, who was also contemplating retirement, made a comment as follows: "Well, I've got my retirement and Joe's got his." This comment was made sometime in the fall of 1989 before Mrs. Bazzel's death in July of 1990.

       
       

   21. Although the Petitioner introduced exhibits 1, 2 and 4 in an attempt to show that his wife meant to select option 2 and that some mistake was made by the school board or the Division in preparing and submitting the documentation setting up Mrs. Bazzel's retirement benefit situation; in reality, those exhibits merely show that Mrs. Bazzel possibly did some calculations as to the difference in monthly amounts between option 1 and option 2. The exhibits can only show that she may have been aware of the difference in monthly benefit amounts between the two options, but they do not show that she intended to select option 2. Indeed, the evidence and testimony, considered in its totality, shows that her selection of option 1 was a voluntary, knowing selection.

   22. The evidence also shows that Mrs. Bazzel was mentally and medically competent to make that selection, freely and voluntarily. Her visits with Dr. McCloy, her treating physician, in the first half of 1988, to monitor her health situation after the cancer surgery, were normal and showed nothing unusual as far as any recurrence of cancer was concerned. Her chest x-rays were negative for recurrent cancer. On June 3, 1988, she was diagnosed as having a small duodenal ulcer, but no indication of recurrent cancer was present. Dr. McCloy treated her for the ulcer with medication; and by August 10, 1988, her symptoms attributable thereto had largely been alleviated.

       
       

   23. Her visits to Dr. McCloy were routine for the remainder of 1988 and 1989, with normal results. It was not until March of 1990 that she was diagnosed with a spot on the left rib, which proved to be recurrent cancer, probably attributable to the original breast cancer. She deceased as a result of this condition on July 9, 1990.

       
       

   24. Dr. McCloy testified that he never advised Mrs. Bazzel that her cancer was terminal because he believed that it had been successfully treated after the surgery and for a long period of time thereafter he had no evidence of its recurrence. Therefore, he had not advised her that she was terminally ill during the period of time she was making the retirement decisions, applying for and receiving her first retirement check during essentially the first half of 1988. Dr. McCloy's testimony further establishes, without doubt, that Mrs. Bazzel was alert, possessed her full intelligence and faculties, and understood the significance of his medical instructions, and understood his advice as to her health status. Accordingly, it has been established that Mrs. Bazzel did not have a recurrence of cancer until it was diagnosed in March of 1990, long after she had made the relevant retirement decisions pertinent hereto, and that she knew and was fully aware of her medical condition during the process of applying for her retirement benefits. She, therefore, understood the steps she took for retirement application and benefit receipt purposes, and was not medically or mentally impaired to make those decisions.

       
       

   25. It was established that she began her teaching career as a member of the Teacher Retirement System, pursuant to Chapter 238, Florida Statutes. She subsequently transferred into the Florida Retirement System under Chapter 121, Florida Statutes, during an open enrollment period. While a member of the Teacher Retirement System, she paid $12,870.33 in total contributions, plus interest, which accumulated on those contributions in the amount of $8,561.97, for a total on deposit in her account of $21,432.30. During the period of her retirement before her death, Mrs. Bazzel received total benefits in the amount of $49,551.95. She, therefore, received $28,119.65 more in benefits than she had paid into the Teacher Retirement System in contributions, plus accumulated interest.

       
       

   26. It was proven that the distance to the residence or places of business of the deponents, whose depositions were admitted into evidence, comports with the standard of Rule 1.330, Florida Rules of Civil Procedure. Since the locations of the deponents as potential witnesses accorded with the 100 mile standard, their depositions were admitted in lieu of live testimony.

       
       

       CONCLUSIONS OF LAW

       
       

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

   28. Section 121.091(6), Florida Statutes, provides for four different options for retirement under the Florida Retirement System ("FRS"). Option 1 provides for a lifetime benefit to the member only. If death occurs before the total benefits paid to the member equal the contributions made by him or her, the difference will be refunded to the beneficiary. Since Mrs. Bazzel selected option 1, her benefits ceased as of July 9, 1990, the date of her death. Option

       2 provides for a reduced lifetime benefit to the member but guarantees a minimum of 120 monthly payments to the member or someone else of her choosing. If Mrs. Bazzel had chosen option 2, then a benefit could have been paid to her husband for the remainder of the ten years.

       
       

   29. Rule 22B-4.002(3), Florida Administrative Code, provides that once a member has received and cashed the first retirement warrant, then he or she cannot change the retirement option already selected, by providing as follows:

       
       

       After a retirement benefit payment has been cashed or deposited, no additional service may be purchased and the selection of an option may not be changed.

       
       

   30. This interpretation of the Rule was affirmed in Arnow v. Williams, 343 So.2d 1309 (Fla. 1st DCA 1977), wherein it was determined that retirement benefits vested at the time of retirement when the first retirement warrant is received and cashed. Mrs. Bazzel received her first warrant on July 31, 1988. It was cashed or negotiated; and, therefore, her retirement benefits vested. Under the above Rule and decision, she could thus not change the option selection after that date. That Rule remains valid and is not under challenge in this proceeding since this is not a Section 120.56, Florida Statutes, rule challenge proceeding.

       
       

   31. A member may change his or her option selection at anytime up to the cashing of the first retirement warrant. Mrs. Bazzel could have changed her option anytime from January 14, 1988, when she applied for it, until July 31, 1988, the date she received and negotiated the first retirement warrant. It was established that she knew that she had selected option 1 because she was told in writing on a number of occasions that she had selected that option, and she never countermanded that selection.

       
       

   32. There is no evidence that she ever tried to change the option from option 1. The form FST-40C, "Acknowledgment of Retirement Application" (exhibit 11, in evidence), was sent to her on January 25, 1988 and the computer-generated letter, in evidence as Respondent's exhibit 14, was sent to her to notify her that she had been placed on the retirement payroll. Both of these documents state that she had chosen option 1. As a part of the FST-40, "Estimate of Retirement Benefit" (Respondent's exhibit 8, in evidence), the Division included a form entitled "OPT-FRS", which was an extensive, detailed explanation of retirement options. That form stated, in pertinent part, as follows:

       
       

       Upon your death, the monthly benefit will cease and your beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. This option does not provide a continuing benefit to a beneficiary. If you wish to provide a beneficiary with a continuing monthly benefit after your death, you should consider selecting one of the

       other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional benefits are derived by applying actuarial equivalency factors to the option 1 benefit.

       
       

   33. Thus, the evidence of record establishes that Mrs. Bazzel was sufficiently informed of the various options and the benefits payable under them. The options had been well-explained to her by her brother-in-law and Richard Locker, as well as through the numerous written materials referenced herein. She was advised on several occasions to carefully consider the option she would ultimately choose. The evidence establishes that she was an intelligent person, with many years of work experience in the school system. She was knowledgeable with regard to retirement procedures and the available options. It was not shown that she was ignorant of the retirement system generally nor the ramifications of the available retirement benefit options.

       
       

   34. There was some testimony on the part of the Petitioner designed to show that she may have intended to select option 2 so as to leave a benefit to her husband as her survivor. The evidence does not justify a finding to that effect, however. The witnesses all agree that Mrs. Bazzel was aware of the different options and what they provided. All of the forms she signed showed that she selected option 1. The competent medical evidence of record shows that she was of sound mind and able to understand her physical condition and that she was mentally alert and in possession of her faculties. She was, at no time, established to be medically or mentally incompetent in any way which might make her option selection suspect for those reasons.

       
       

   35. The Petitioner takes the position that someone made a mistake and put down the wrong option on the retirement form and that his wife intended to select option 2. The testimony and evidence offered in support of that argument, however, does not rise beyond the speculative. There has been no showing that a mistake was made by the retirement clerks at the school board office who helped in preparing the forms and in the execution of them. The existence of one form without the notary's actual signature in the appropriate place does not establish that a mistake in the option selection was made nor that there is any legal frailty in the ultimate execution of the document. The uncontradicted evidence of record establishes that the school board staff were very careful and concerned about retiring teachers and in ensuring that their retirement benefits were appropriately applied for, calculated and received. They constantly admonished retiring teachers to carefully consider all options and make no hasty decisions, as delineated in more detail in the above Findings of Fact.

       
       

   36. No evidence was produced to indicate that they nor anyone in the Respondent agency ever purposely or accidentally mislead Mrs. Bazzel or any other retiring member. No evidence was offered to show that the Division made any error in processing the retirement forms of Mrs. Bazzel or in the manner in which it placed her on the retirement payroll. There is simply no evidence to show that Mrs. Bazzel chose option 1 for any other than her own voluntarily and intelligently-arrived-at reasons. Accordingly, and based upon the above-cited legal authority, her selection was a valid one.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Joe Bazzel, is not entitled to have the retirement option selected by Dorothy Bazzel changed from option 1 to option 2.

DONE AND ENTERED this 15th day of September, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5774

Petitioner's Proposed Findings of Fact

1-5. Rejected as not being in accord with the preponderant weight of the evidence.

6. Accepted but not itself materially dispositive. 7-11. Rejected as not being in accord with the

preponderant weight of the evidence.

Respondent's Proposed Findings of Fact 1-25. Accepted.

26-30. Accepted.

COPIES FURNISHED:

A.J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560

Mr. Larry Strong Acting Secretary

Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

Joe Bazzel

P.O. Box 46 Blountstown, FL 32424

Stanley M. Danek, Esq. Division of Retirement Cedars Executive Center

2639 North Monroe Street, Bldg. C Tallahassee, FL 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-005774

Orders for Case No: 91-005774