STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELLEN GUTTINGER, )

)

Petitioner, )

)

vs. ) Case No. 96-5112

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

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came on for formal hearing before

Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on May 16, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Hellen Guttinger, Pro Se

2650 Westchester Parkway

Conyers, Georgia 30208

For Respondent: Robert B. Button, Esquire

Division of Retirement

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

STATEMENT OF THE ISSUES

The issues are: (1) whether Petitioner may retire and begin receiving retirement benefits at age 60 instead of age 62;

(2) whether Petitioner may claim maternity leave in the 1962-1963 and 1965-1966 school years as creditable service; (3) whether

Petitioner is entitled to a refund of her retirement contributions for the 1967-1968 and 1968-1969 school years; and

(4) whether Petitioner may transfer her membership from the Teachers’ Retirement System (TRS) to the Florida Retirement System (FRS).

PRELIMINARY STATEMENT

Respondent Department of Management Services, Division of Retirement (Respondent), denied Petitioner Hellen Guttinger’s (Petitioner) request to use age 60 as her normal retirement age, to claim two maternity leaves as creditable service, to receive a partial refund of her retirement contributions, and to transfer her membership in TRS to FRS. Petitioner requested an administrative hearing by letter dated July 16, 1996. Respondent referred this matter to the Division of Administrative Hearings on October 31, 1996.

After receiving the parties’ response to the Initial Order, the undersigned scheduled the case for hearing on March 26, 1997. Petitioner filed a request for a continuance on March 13, 1997.

The undersigned rescheduled the case for hearing on May 16, 1997.

During the hearing, the parties offered a stipulation of facts as a joint exhibit which was accepted into evidence.

Petitioner testified on her own behalf and offered twelve exhibits which were accepted into evidence. Respondent did not present any witnesses or offer additional exhibits.

A VHS videotape of the formal hearing was filed with the

Clerk of the Division of Administrative Hearings on May 16, 1997. On May 20, 1997, the undersigned issued a post-hearing order directing the parties to file their proposed recommended order on or before June 23, 1997.

Respondent filed its proposed findings of fact and conclusions of law on June 10, 1997. Petitioner filed her proposed order on June 23, 1997.

FINDINGS OF FACT

1. Petitioner became a member of TRS when the Dade County School Board employed her for the 1960-1961 school year.

2. In 1961, Petitioner began teaching in the public schools of Hillsborough County. Petitioner taught school in Hillsborough County until she took a maternity leave of absence in 1963. Her son was born on April 12, 1963.

3. On September 4, 1963, Petitioner requested and subsequently received a return of her retirement contributions from TRS.

4. From 1964 through 1966, Petitioner was employed by the Pinellas County School Board, the St. John’s County School Board, and the Duval County School Board. She was a member of TRS during this period of time.

5. On October 28, 1966, Petitioner left her full-time position with the Duval County School Board to begin a maternity leave of absence. Her daughter was born on February 9, 1967.

6. On January 20, 1967, Petitioner requested and

   subsequently received a return of her retirement contributions from TRS.

7. On March 1, 1968, the University of Florida employed Petitioner. She again became a member of TRS.

8. The University of Florida granted Petitioner a nine- month sabbatical to teach and study as a visiting scholar at Stanford University from September 9, 1979, until June 13, 1980.

9. Petitioner took a professional educational leave of absence from August 10, 1984, through June 6, 1985. She took another professional educational leave of absence from August 9, 1985, through June 6, 1986.

10. On December 5, 1985, Petitioner repaid the personal retirement contributions that she had withdrawn in 1963 and 1967. (See paragraphs three and six above.) She repaid these funds with interest as calculated by TRS. The amount repaid is currently on deposit with TRS.

11. The University of Florida employed Petitioner continuously from 1968 through 1987. During this time, Petitioner was the major wage earner in her family. She had three young children who were eligible for greater benefits under TRS than FRS. Therefore, Petitioner elected not to transfer her membership to FRS on any of the six occasions that the Florida Legislature made available for such a transfer.

12. Petitioner moved to Georgia when her husband took a job in Atlanta. She worked 9.87 years as a public school

    administrator in Georgia. During this period, Petitioner was a member of the Georgia Teachers’ Retirement System (GTRS).

13. Respondent sent Petitioner a letter dated April 17, 1995, advising her that the first date she would be eligible for monthly retirement benefits from TRS would be March 1, 1993. Petitioner became 55 years old in March of 1993. The letter was incorrect because Petitioner’s normal retirement age is age 62. However, there is no evidence that Petitioner relied on the incorrect information contained in the letter to her detriment.

14. Petitioner sent Respondent a letter dated March 18, 1996, requesting that the agency transfer her membership in TRS to FRS. Respondent denied Petitioner’s request in a letter dated that same day.

15. On June 1, 1996, Petitioner purchased 3.33 years of service in GTRS for the following years of service with TRS in Florida:

    School Year Transferred Service

    
    

    1969-1961 1 year

    1961-1962 1 year

    1962-1963 .556 year (9/62-1/63)

    1963-1964 .333 year (3/64-5/64)

    1965-1966 .222 year (4/66-5/66)

    1966-1967 .222 year (9/66-10/66)

    
    

16. On June 6, 1996, Respondent received an application for service retirement, Form TRS-11, from Petitioner. Petitioner selected Option 3 on that form.

17. On July 1, 1996, Petitioner requested Respondent not to process her retirement application until she could have an

    administrative hearing. Petitioner made this request over the telephone.

18. Respondent sent Petitioner a letter dated July 9, 1996, in which Respondent made the following decisions: (a) Respondent denied Petitioner’s requests to use age 60 instead of age 62 as her normal retirement age; (b) Respondent rejected Petitioner’s request to claim maternity leave in the 1962-1963 and 1965-1966 school years as credible service; (c) Respondent refused to refund Petitioner’s retirement contributions for the 1967-1968 and 1968-1969 school years so that she could claim an additional

    1.55 years of service in Georgia. Petitioner filed a written request for formal hearing by letter dated July 26, 1996.

19. Petitioner testified that her decision to maintain her membership in TRS over the years was due to her reliance on information contained in handbooks published by Respondent in 1982 and 1993. Specifically, Petitioner claims to have relied on statements contained within these handbooks relating to normal retirement ages and the purchase of credible service after withdrawal of retirement contributions or a leave of absence. Portions of these manuals were accepted into evidence. The 1982 brochure clearly states:

    This brochure contains basic information on the Teachers’ Retirement System, established by Chapter 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers’ Retirement System and should not be used in place of the law on questions of interpretation and application. Any questions which are not answered by this

    brochure may be addressed to the Division of Retirement, Room 530, Carlton Building, Tallahassee, Florida, 32301.

    
    

    Petitioner could not have relied on information contained in either of the handbooks when she made the decisions to take maternity leave in 1963 and 1966 or to withdraw her retirement contributions in 1963 and 1967. Petitioner made these critical decisions before Respondent published the handbooks in 1982 and 1993. Petitioner presented no evidence that she contacted Respondent’s office before she made any decision that is material to this proceeding.

20. Petitioner does not assert that she filed an application with Respondent to continue her TRS membership after she was granted either of her maternity leaves and before her next retirement contribution was due.

    CONCLUSIONS OF LAW

    
    

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

22. Petitioner had the burden of proving by a preponderance of the evidence that she is entitled to any of the following relief: (a) to retire at age 60; (b) to claim her two maternity leaves as credible service; (c) to a partial refund of her retirement contribution; and (d) to transfer her membership to

    FRS. She did not carry her burden on any of these issues. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

23. Section 238.05(3), Florida Statutes, provides in pertinent part:

    (3) Except as otherwise provided in

    s. 238.07(9), membership of any person in the retirement system will cease if he or she is continuously unemployed as a teacher for a period of more than 5 consecutive years or upon the withdrawal by the member of his or her accumulated contributions as provided in s. 238.07(13) . . . .

    (a) A person who has been granted leave of absence shall file with the division before his or her next contribution is due an application to continue his or her leave of absence and, if such application is filed, shall make his or her contribution to the retirement system on the basis of his or her last previous annual salary as a teacher, and shall, prior to retirement, pay in full to the system such contributions with accumulated regular interest.

24. Section 238.07, Florida Statues, provides as follows, in pertinent part:

    (2) The provisions for the retirement of a member are as follows:

    * * *

    (e) To retire:

    1. At normal retirement age which shall be age 60 for those persons whose membership date, or last renewal thereof, occurred prior to July 1, 1963, and age 62 for those persons whose membership date, or last renewal thereof, occurred on or after July 1, 1963

    . . . .

    * * *

    (9) Any member who has taught, or who teaches in the public free schools of Florida for not less than an aggregate of 10 years and withdraws or has withdrawn from the

    system, may elect to leave his or her accumulated contributions in the system or to repay his or her withdrawn accumulation to the system, and upon reaching retirement age, the member shall receive a retirement allowance based on the number of years of service which he or she taught in the public schools of Florida before retirement, provided, that a person who has lost his or her membership and later returns to service shall be allowed the privilege of having credit restored for previous service, if he or she returns to full-time teaching service and renders three additional years of continuous service.

    * * *

    (13) Should a member cease to be a teacher except by death or by retirement under the provisions of this chapter, the member shall be paid the amount of his or her accumulated contributions.

    
    

25. FRS was established on December 1, 1970. Section 121.011, Florida Statutes. Since 1970, the Florida Legislature provided several "open enrollment" periods during which members of TRS could transfer from TRS to FRS. Section 121.051, Florida Statutes. Petitioner did not elect to transfer her membership from TRS to FRS on any of these occasions. There is no authority to allow Petitioner to make that transfer at this time.

26. Sections 238.05 and 238.07, Florida Statutes, clearly establish that age 62 is Petitioner’s normal retirement. She interrupted her membership in TRS when she withdrew her retirement contributions in 1963 and 1967. Petitioner became a member again when she returned to work in 1968. For memberships established after July 1, 1993, age 62 is the normal retirement age. Section 238.07(2)(e) 1., Florida Statutes.

27. Petitioner cannot claim her two maternity leaves as credible service. She did not file an application to continue her membership in TRS as required by Section 238.05(3)(a), Florida Statutes. Instead, Petitioner interrupted her service by taking a leave of absence, then requesting a refund of her retirement contributions. There is no authority to permit Petitioner to purchase credible service for either of her maternity leaves.

28. Finally, Respondent properly denied Petitioner’s request for a refund of retirement contribution for the 1967-1968 and 1968-1969 school years. Section 238.01(12), Florida Statutes, defines "accumulated contributions" as "the sum of all the amounts deducted from the salary of a member and credited to his or her individual account in the Annuity Savings Trust Fund provided in s. 238.09(1), together with regular interest on such accounts." Section 238.07(13), Florida Statutes, allows a TRS member to withdraw "accumulated contributions" when a member ceases to be a teacher. There is no provision which allows a partial refund.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter an order denying the following: (a) Petitioner’s request to establish age 60 as her normal retirement age; (b) Petitioner’s request to purchase creditable service for maternity leave taken during the 1962-1963

and 1965-1966 school years; (c) Petitioner’s request for a refund of retirement contribution during the 1967-1968 school years; and

(d) Petitioner’s request to transfer her membership in TRS to FRS.

DONE AND ENTERED this 18th day of July, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Hellen Guttinger

2650 Westchester Parkway

Conyers, Georgia 30208

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997.

Robert B. Button, Esquire Department of Management Services Division of Retirement

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

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

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

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

Tallahassee, Florida 32399-0950

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: 96-005112

Orders for Case No: 96-005112