STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS A. BARGA, o/b/o )

JAMES E. BRANDON, )

)

Petitioner, )

)

vs. )

)

DIVISION OF RETIREMENT, )

) Case No. 96-4284

Respondent, )

)

and )

)

WILLIAM BRANDON, )

)

Intervenor. )

)

RECOMMENDED ORDER

On October 14, 1997, a formal administrative hearing in this case was held in Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: David T. Weisbrod, Esquire

601 North Franklin Street Tampa, Florida 33602

For Respondent: Stanley N. Danek, Esquire

Division of Retirement Cedars Executive Center

2639 North Monroe Street, Building C Tallahassee, Florida 32399

For Intervenor: Thomas Frost, Esquire

7901 Fourth Street North Suite 315

St. Petersburg, Florida 33702

STATEMENT OF THE ISSUE

The issue in this case is who is entitled to payment of remaining retirement benefits due to James E. Brandon, deceased.

PRELIMINARY STATEMENT

In September 1995, the Division of Retirement became aware that James E. Brandon, a participant in the Florida Retirement System, had died. There were unpaid benefits remaining to James

E. Brandon's credit which are due and payable to a designated beneficiary. The Division notified Dennis A. Barga that he was entitled to receive the remaining benefits.

Subsequent to the Division's notification to Mr. Barga, the Division became aware that a form had been filed amending the named beneficiary. By letter dated October 23, 1995, the Division of Retirement notified Mr. Barga that the benefits would be paid to the subsequent beneficiary. Mr. Barga requested a formal administrative hearing. The Division forwarded the matter to the Division of Administrative Hearings.

A Petition to Intervene was filed by a William Brandon, one of the subsequent beneficiaries. The petition was granted.

At the hearing, joint Exhibits 1-4 were admitted into evidence. The Petitioner presented the testimony of three witnesses and testified on his own behalf. Petitioner's Exhibits 1-4 were admitted. The Respondent presented the testimony of one witness. The Intervenor presented the testimony of one witness and had Exhibits 1-2 admitted. A prehearing stipulation filed by

the parties was admitted as an Administrative Law Judge's exhibit.

A transcript of the hearing was filed. Proposed recommended orders were filed by the Respondent and the Intervenor.

FINDINGS OF FACT

1. James E. Brandon was employed by the Hillsborough County Parks and Recreation Department and was a participant in the Florida Retirement System (FRS).

2. Mr. Brandon had a long standing relationship with Dennis

   
   

   A. Barga.

   
   

3. In February 1995, James E. Brandon applied for FRS disability benefits due to a medical condition.

4. On the application for disability benefits, James E. Brandon designated Dennis A. Barga as his primary beneficiary.

5. The application for disability benefits was approved in June 1995, with an effective retirement date of March 1, 1995.

6. James E. Brandon elected to receive benefits under "Option 2" of the FRS, which provides for a lifetime benefit to the covered employee. Option 2 also provides that, if the covered employee does not survive for the ten years following retirement, payment is made to a designated beneficiary for the remainder of the ten year period.

7. James E. Brandon died on August 28, 1995, of the condition which resulted in his disability.

8. James E. Brandon did not personally receive any of his disability benefits.

9. By letter dated September 29, 1995, the Division notified Mr. Barga that he was entitled to receive the remaining benefit payments for the ten year period.

10. At the end of September, the Division sent two checks to the home of James E. Brandon. One check covered the initial benefits period from March 1995 through August 1995. The second check was for the September 1995 benefit. The checks were not returned to the Division and apparently were cashed or deposited.

11. On October 10, 1995, the Division was notified by William Brandon that his brother, James E. Brandon, had completed a form amending his designation of beneficiary and that the form had been filed with the Division.

12. The Division searched its files and located a form, FRS M-10, which was apparently filed on July 25, 1995, by James E. Brandon, and which amends his prior designation to identify sequential beneficiaries.

13. The amended beneficiaries, in order, are William W. Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens. The Brandons are family members of the deceased. Ms. Stevens is a long-time family friend and was also employed by the Hillsborough County Parks and Recreation Department.

14. FRS Form M-10 is the form adopted by the Division for use by a non-retired FRS participant in designating a

    beneficiary. Form M-10 does not require execution before a notary public.

15. FRS Form FST-12 is the form adopted by the Division for use by a retired participant in designating a beneficiary. Form FST-12 requires execution before a notary public.

16. The amendment of the beneficiaries should have been executed on a Form FST-12.

17. The Form M-10, which was filed on July 25, 1995, was provided to James E. Brandon by the human resources office of the Hillsborough County Parks and Recreation Department. The form was obtained by Victoria Weaver Stevens apparently at the request of the deceased.

18. The filing of the improper form was through no fault of James E. Brandon.

19. The Petitioner suggests that the signature on the Form M-10 is a forgery. There is no credible evidence to support the assertion. The evidence establishes that the deceased sometimes included his middle initial in his signature, and other times did not.

20. The Petitioner suggests that during the last weeks of the deceased's life, he was overmedicated, was often unaware of his surroundings, and was likely manipulated into changing the designated beneficiaries. There is no credible evidence that James E. Brandon was mentally incapacitated and unable to

    understand the import of his decisions at the time the amendment was filed with the Division.

    CONCLUSIONS OF LAW

    
    

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

22. The Division of Retirement is responsible for administration of the Florida Retirement System. Chapter 121, Florida Statutes.

23. Section 121.091(8) Florida Statutes, addresses designation of beneficiaries under the Florida Retirement System and provides, in part, as follows:

    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 or her beneficiary who shall receive the benefits, if any, which may be payable in the event of the member's death pursuant to the provisions of this chapter. . . . The beneficiary most recently designated by a member on a form or letter filed with the division shall be the beneficiary entitled to any benefits payable at the time of the member's death. . . .

    Rule 60S-4.011(1), Florida Administrative Code, further addresses designation of beneficiary and provides, in part, as follows:

    A member may designate a beneficiary . . . to receive the benefits which may be payable pursuant to these rules in the event of the member's death. No designation of beneficiary shall be effective unless it has been filed with the Division. The most recent designation of beneficiary filed with

    the Division shall replace any previous designation whether made before or after the member's retirement.

    
    

24. In this case, the most recent designation of beneficiary was set forth on the FRS Form M-10, filed on July 25, 1995. The Hillsborough County Parks and Recreation Department should have provided, and the deceased should have used, FRS Form FST-12, the form adopted by the Division for use by retired participants.

25. However, Section 121.091, Florida Statutes, provides that "[t]he beneficiary most recently designated by a member on a form or letter filed with the division shall be the beneficiary entitled to any benefits payable at the time of the member's death." (Emphasis supplied.) The inclusion of the reference to a "letter" clearly indicates that a designation should not fail merely due to the erroneous failure to use a specific form.

26. The Petitioner asserts that the deceased's failure to utilize the appropriate form requires that the amendment to the designated beneficiary be invalidated. In support of this assertion, the Petitioner cites to rules which designate and incorporate by reference the proper forms. Nothing in the cited rules specifically requires that an inappropriately filed designation be invalidated.

27. As to the suggestion that the deceased was coerced into the amendment or that the amended designation is a forgery, the evidence does not support the assertion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order dismissing the Petition of Dennis A. Barga.

DONE AND ORDERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida.

_ WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997.

COPIES FURNISHED:

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

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

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

David T. Weisbrod, Esquire 601 North Franklin Street Tampa, Florida 33602

Stanley N. Danek, Esquire Division of Retirement

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

Thomas Frost, Esquire 7901 Fourth Street North Suite 315

St. Petersburg, Florida 33702

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004284

Orders for Case No: 96-004284