STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD O'BRIEN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0849

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 22, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Mary Alice Gwynn, Esquire

Suite 302

215 Fifth Street

West Palm Beach, Florida 33401

For Respondent: Larry D. Scott, Esquire

Division of Retirement Building C

Cedars Executive Center 2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for retroactive retirement benefits should be granted.

PRELIMINARY STATEMENT

By correspondence dated January 7, 1992, Respondent denied Petitioner's request to change his retirement date and award him retroactive benefits for a period of 2 1/2 years, and Petitioner timely requested a formal hearing regarding that determination. This cause was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner testified on his own behalf. Additionally, Petitioner's Composite Exhibit numbered 1 and Respondent's Exhibit numbered 1, the deposition of Maurice Helms, were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by the Palm Beach County Sheriff's Office for approximately twelve years, working in a special risk capacity. As a result of that employment, he was a member of the Florida Retirement System.

   
   

2. In 1972 Petitioner completed Respondent's form FRS-M10 setting forth his membership as a special risk member of the Florida Retirement System as of November 1, 1970.

   
   

3. Petitioner resigned his position on March 15, 1982, when he was 47 years of age and had more than ten years of creditable service. At the time of his resignation, he was employed in the position of Inspector, Director of Law Enforcement, the third in command at the Sheriff's Office.

   
   

4. There are approximately 550,000 active members in the Florida Retirement System. Many members choose not to submit an application for retirement benefits on their normal retirement date for a variety of reasons.

   
   

5. An application for retirement benefits is a prerequisite for the establishment of an effective retirement date for a member of the Florida Retirement System.

   
   

6. In September of 1991, Petitioner applied for retirement benefits. At the time of his application, he was 57 years of age.

   
   

7. Petitioner never contacted Respondent to request information or advice regarding his retirement benefits prior to filing his retirement application in September of 1991.

   
   

8. Based upon receipt of Petitioner's application for retirement benefits in September of 1991, Respondent established October 1, 1991, as Petitioner's effective retirement date.

   
   

9. In October of 1986 Petitioner received from the Palm Beach County Sheriff's Office a copy of some of Respondent's forms which are utilized by persons filing applications for retirement benefits. Some of the information included in that package relates to persons who are regular members of the Florida Retirement System, not special risk members.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

11. Chapter 121, Florida Statutes, regulates the Florida Retirement System. Section 121.021(29)(c), Florida Statutes, defines normal retirement date for special risk members as follows:

    
    

    (29) 'Normal retirement date' means the first day of any month following the date a member attains one of the following statuses:

    * * *

    
    

    (c) If a special risk member:

    1. Completes 10 or more years of creditable service and attains age 55;

    2. Completes 25 continuous years of creditable service, regardless of age; or

    3. Completes 25 years of creditable service, which may include a maximum of 4 years of military service credit, and attains age 52;

    
    

    Petitioner, as a special risk member of the Florida Retirement System with over

    10 years of creditable service, was eligible to apply for normal retirement benefits at age 55. He did not submit an application to Respondent until he was

    57 years of age.

    
    

12. Section 121.031(1), Florida Statutes, authorizes the Division of Retirement to ". . . make such rules as are necessary for the effective and efficient administration . . ." of the Florida Retirement System. In accordance therewith, the Division has adopted Rule 22B-4.0035, Florida Administrative Code, which provides, in part, as follows:

    
    

    1. It shall be the responsibility of the member, or the beneficiary in the event of the member's death, to make proper applica- tion to the Division for retirement benefits.

       
       

       * * *

       
       

       (3) The Division shall establish the member's effective retirement date as follows:

       (a) For a member who makes application

       for a normal or early retirement benefit . . ., the effective retirement date shall be the first day of the month following the month in which the member's termination occurs,

       provided the Division receives such member's application for retirement no later than 30 calendar days after such termination. If a member fails to apply for retirement within

       30 calendar days after termination or if the member chooses to defer his retirement to a later date, the effective retirement date shall be the first day of the month following the month in which the Division receives the member's application, or the first day of a later month specified by the member.

       
       

       Similarly, Rule 22B-4.002(1), Florida Administrative Code, provides as follows:

       
       

       1. All benefits and refunds of accumu- lated contributions provided for under this

       chapter shall be payable only upon termina- tion of employment . . . and proper applica- tion to the Division as provided in 22B- 4.0035.

       
       

       The above-quoted rules implement Section 121.091(1), Florida Statutes, which provides, in part, as follows:

       
       

       (1) NORMAL RETIREMENT BENEFIT.--Upon attaining his normal retirement date, the member, upon application to the administrator, shall receive a monthly benefit which shall commence on the last day of the month of retirement and be payable on the last day of each month thereafter during his lifetime.

       
       

13. Both by statute and by rule, therefore, the receipt of retirement benefits is triggered by the Division's receipt of an application for benefits from a member of the Florida Retirement System. Although Petitioner argues that the rules requiring the filing of an application as a condition precedent to receiving retirement benefits should not be applied to him, Petitioner has not filed a challenge to those rules pursuant to Section 120.56, Florida Statutes, and those rules must be applied in this proceeding. Therefore, it was Petitioner's responsibility to notify the Division of Retirement, by submitting an application, that he wanted to receive retirement benefits. Petitioner did not do so until September of 1991. In accordance with its rules and implementing statute, the Division correctly established the Petitioner's effective retirement date, therefore, to be October 1, 1991.

    
    

14. There is no statutory or rule provision which would allow Petitioner to receive retirement benefits retroactively. Similarly, there is no rule or statutory requirement that the Division identify and notify each individual member when that member has reached his or her "normal retirement date," and a voluntary system to that effect is not feasible. As explained by Maurice Helms, Respondent's Chief of Retirement Calculations, in his deposition admitted as Respondent's Exhibit numbered 1, a large number of the active membership in the Florida Retirement System will not remain members long enough to ever become eligible for retirement benefits, many members will take early retirement, and many members will continue their employment well beyond the date on which they would be eligible to retire.

    
    

15. Petitioner seeks retroactive payment for 2 1/2 years of retirement benefits for the time period when he became 55 years of age until the date on which he filed his application for retirement benefits. He suggests that he did not know he could have begun receiving retirement benefits at age 55 for several reasons. First, he suggests that he did not know what a special risk member of the system meant. This contention is rejected since Petitioner signed documentation which resulted in him becoming a member of the special risk class in 1972. Next, Petitioner alleges that he did not know that special risk members were entitled to special consideration above that received by regular members, one such special consideration being the ability to retire at age 55 rather than at age 62. Petitioner's lack of knowledge of the law does not change the law. Third, Petitioner contends that he received erroneous information in 1986 regarding his eligibility for retirement benefits from the Palm Beach County Sheriff's Office. Petitioner's allegation that that

    information was the only information he ever received from anyone regarding his eligibility for retirement benefits is not credible.

    
    

16. Lastly, Petitioner's argument that his rights, as a member of the Florida Retirement System, are contractual in nature and that Respondent's denial of his claim for retroactive benefits is a breach of contract is without merit. Although Section 121.011(3)(d), Florida Statutes, does provide that the rights of members are contractual in nature, that section refers to the "rights of members of the retirement system established by this chapter. . . ." As discussed above, one of those rights is the right to begin receiving retirement benefits upon application. Section 121.091(1), Florida Statutes. It is undisputed that Petitioner began receiving retirement benefits immediately following his application.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to

change his effective retirement date and denying Petitioner's request for

retroactive retirement benefits.

DONE and ENTERED this 1st day of September, 1992, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1992.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0849

1. Petitioner's proposed findings of fact numbered 1 and 3-5 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed finding of fact numbered 2 has been rejected as being contrary to the evidence in this cause.

   
   

3. Petitioner's proposed findings of fact numbered 6-13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

   
   

4. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Mary Alice Gwynn, Esquire Suite 302

215 Fifth Street

West Palm Beach, Florida 33401

Larry D. Scott, Esquire Division of Retirement

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

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

Cedars Executive Center 2639 North Monroe Street

Tallahassee, Florida 32399-1560

Larry Strong Acting Secretary

Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000849

Orders for Case No: 92-000849