STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE GAPINSKI,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

)

)

)

)

) Case No. 01-2478

)

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a disputed-fact hearing was held in this case on September 24, 2001, and October 31, 2001, in Tallahassee, Florida, before Ella Jane P. Davis, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stanley M. Danek, Esquire

2114 Great Oak Drive, Suite 200

Tallahassee, Florida 32303

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Post Office Box 3900

Tallahassee, Florida 32315-3900

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to purchase leave of absence retirement credit on behalf of James Gapinski, Petitioner's ex- husband and a deceased member of the Florida Retirement System.

PRELIMINARY STATEMENT

On February 2, 2001, Respondent Department of Management Services, Division of Retirement, issued a letter advising Petitioner, Geraldine Gapinski, that she was not entitled to purchase leave of absence retirement credit on the account of James Gapinski, her deceased ex-husband. The notice outlined Petitioner's right to appeal the decision and explained that the Division's determination was based on Petitioner's status as a former spouse of James Gapinski. Petitioner timely challenged this determination, and the case was referred to the Division of Administrative Hearings on June 22, 2001. It was assigned DOAH Case No. 01-2478.

At the commencement of hearing on September 24, 2001, Respondent's Motion to Dismiss Counts III, IV, VII, and VIII of the Petition was denied, subject to revisitation in this Recommended Order. Respondent's Motion to Strike portions of Petitioner's Unilateral Response to Order Establishing Pre- Hearing Procedure also was denied. Respondent's combined Motion for Summary Final Order and Motion in Limine was taken under advisement.

At the conclusion of Petitioner's oral testimony, it was apparent that attorney-client privilege had been imposed by Petitioner to bar full and fair discovery by Respondent, and that Petitioner had waived the privilege during her testimony.

Accordingly, the hearing was continued, to permit Respondent to re-depose certain witnesses. This procedure had the effect of denying the Motion for Summary Final Order and Motion in Limine.

During the continuance, Petitioner filed a Petition allegedly challenging the Respondent Agency's use of an unpromulgated, non-rule policy as expressed in its February 2, 2001, letter. That Petition was assigned DOAH Case No.

01-3898RU. The cases were consolidated by agreement.

On October 31, 2001, a hearing was convened on the consolidated cases, and Respondent's Second Motion to Dismiss the Petition herein was denied, subject to revisitation in the Recommended Order. Respondent's Motion to Dismiss the Petition in DOAH Case No. 01-3898RU was orally granted with leave for Petitioner to amend her Petition within ten days. Only the instant cause proceeded.

In all, Petitioner presented only her own oral testimony.

She also had Exhibits P-1 through P-17 admitted in evidence, including four depositions with attached exhibits, respectively. Respondent presented the oral testimony of Stanley Colvin and had Exhibits R-1 through R-5 and R-8 admitted in evidence, including one deposition with attached exhibits. Official recognition was taken of Chapter 121, Florida Statutes.

No transcript was provided. Both parties timely filed (within 10 days of hearing) Proposed Recommended Orders, each of which has been considered.

FINDINGS OF FACT

1. Petitioner, Geraldine Gapinski, is the former spouse of James Gapinski, deceased.

2. At the time of his death, Mr. Gapinski was an employee of Florida State University and a "vested" Florida Retirement Service (FRS) member.

3. Petitioner is an employee of the Florida Department of Law Enforcement (FDLE) and an active member of FRS.

4. Mr. Gapinski was continuously employed by Florida's Univeristy System from approximately 1970, until his death on November 20, 2000, with the exception of a period from September 10, 1976 to June 9, 1977, during which period he took an approved leave of absence.

5. During the period September 10, 1976 to June 9, 1977, no contributions were made by Mr. Gapinski or on Mr. Gapinski's behalf to FRS toward his accruing retirement benefits and he earned no creditable service in FRS for this eight month period he was on his leave of absence.

6. On May 4, 2000, Mr. Gapinski requested an audit and estimate of retirement benefits from Respondent.

7. At the time of his request for an audit and estimate, Mr. Gapinski and Petitioner had begun a dissolution of marriage proceeding (divorce). At all times material, each litigant had independent legal counsel, and each lawyer was aware that

   Mr. Gapinski's FRS benefits were "on the table" for division of the marital estate in the course of the divorce proceedings.

8. At all times material, Mr. Gapinski was terminally ill with cancer.

9. On September 14, 2000, Mr. Gapinski applied for participation in the Deferred Retirement Option Program (DROP).

10. His application (DROP Form DP11) requested a DROP "begin date" of September 1, 2000, and designated each of Mr. Gapinski's two adult daughters as 50 percent primary

    beneficiaries. Petitioner, who at that time was still married to Mr. Gapinski, was not even designated a secondary beneficiary.

    The application, which Mr. Gapinski signed, stated in pertinent part,

    I understand that the earliest date my

    participation in the DROP can begin is the first date I reach my normal retirement date as determined by law . . . I cannot add additional service, change options, or change my type of retirement after my DROP begin date (emphasis in original).

    
    

    The application also specified eight required acts before Mr. Gapinski could retire and become a DROP participant, including, but not limited to,

    4. A check payable to FRS for any amount you owe, or a written statement that you do not wish to claim the service . . . .

    
    

11. On September 15, 2000, Respondent provided James Gapinski with two estimates of benefits.

12. Estimate No. 1 showed the benefit Mr. Gapinski would be entitled to if he chose to purchase the one year leave of absence for $6,820.52, providing for a DROP beginning date of

    September 1, 2000. This estimate further advised that

    
    

    6.5 percent per annum would be posted on June 30, 2001. It also stated,

    Comments:

    
    

    The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. This amount must be paid for a DROP begin date of September 1, 2000.

    
    

13. Mr. Gapinski was also notified of the need to purchase his leave of absence credit in a letter from Respondent dated September 15, 2001, stating, in pertinent part, as follows:

    The following items are pending.

    
    

    The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent.

    
    

    * * *

    Completion of the Option Selection for FRS members, . . .

    AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT.

    
    

    * * *

    
    

14. Estimate No. 2 sent to Mr. Gapinski on September 15, 2000, showed the benefit Mr. Gapinski would be entitled to if he chose not to purchase his leave of absence and waited until March 1, 2001, to participate in DROP, when he would accrue 30 years of service without counting the gap left by his 1976-1977 leave of absence. This estimate also stated:

    
    

    Comments:

    
    

    This estimate does not include the purchase of your leave of absence and is provided for comparison purposes. It is provided for DROP purposes with a March 1, 2001, DROP begin date (see the enclosed DROP brochure). If you do not elect to pay the amount due and purchase the service it represents, we must have written notice of your intent.

    
    

15. Apparently, neither attorney ever saw any of the foregoing papers.

16. The thrust of Petitioner's attorney's actions and advice was to obtain survivorship retirement benefits, not necessarily DROP benefits, for Petitioner.

17. On October 23, 2000, Petitioner's attorney was told by telephone by Ms. Ferguson, a representative of Respondent,

    that Petitioner must make a non-party request to release

    Mr. Gapinski's retirement information to her. So far as this record shows, no third party request was ever made, but that day, Petitioner's attorney and Ferguson also generally discussed retirement pay-out options that Mr. Gapinski could elect, and Petitioner's attorney was generally aware that the DROP process was not complete.

18. On October 24, 2000, Petitioner's attorney discussed by telephone, retirement, divorce, and survivorship benefit issues and life insurance payment options with Ms. Hudson, a representative of Respondent.

19. On October 26, 2000, Petitioner's attorney discussed, by telephone, retirement options and steps to be taken, with both Ms. Ferguson and Mr. Helms, another of Respondent's representatives. Mr. Helms told her the DROP application was not complete but if the couple were still married, Option No. 3 would give the most benefit for survivorship benefits.

20. During the October 2000, conversations, Petitioner's attorney made each of Respondent's representatives aware of the impending divorce and of Mr. Gapinski's impending death, but the attorney did not specifically inquire how soon the lapsed time payment must be made and none of Respondent's representatives volunteered information on that issue.

21. At Mr. Gapinski's request, the divorce proceeding was bifurcated.

22. Prior to the divorce, Petitioner's attorney had done independent research and was aware that Mr. Gapinski had to pay the $6,820.52, in order to perfect the DROP program and in order to complete 30 years of creditable service in order to be eligible for survivorship benefits on his retirement. This information was communicated to Petitioner by her attorney and whether or not Petitioner would be willing to pay half the amount was discussed. Petitioner stated she would be willing to pay half the amount owed.

23. As a condition to her agreement to bifurcate the divorce proceeding, that is, as a condition to letting

    Mr. Gapinski out of the marriage but reserving jurisdiction in the Circuit Court to resolve certain disputes concerning assets and entitlements, Petitioner required that the couple enter into an "Agreement" on October 27, 2000, which provided, in pertinent part, as follows:

    1. BIFURCATION: The Husband shall be entitled to bifurcation of the dissolution action. The marriage of the parties shall be dissolved with the Court reserving on all remaining unresolved issues not addressed in this agreement. In light of the Husband's health, the Wife shall schedule and appear at an ex parte hearing to dissolve the marriage, to obtain Court-ordered approval of this agreement, and to ensure the Court's reservation of jurisdiction to hear any and all issues pertinent to support and the division of property not yet settled by the parties.

       * * *

       
       

       1. B. The Wife further agrees that all marital assets awarded to her in this cause (including proceeds from the Husband's retirement and life insurance in the event the Husband predeceases her), shall be placed in an inter vivos trust, from which she may draw living, personal, and medical expenses, during her life, with the parties' adult daughters named as the irrevocable beneficiaries of the remainder of such trust.

          
          

          C. The Husband agrees to bequeath sufficient marital assets, awarded to him in this cause, to the parties' adult daughters to aid in their comfort and support.

          
          

       2. HUSBAND'S RETIREMENT: The Husband shall elect an option on his retirement with the State of Florida that provides for survivorship benefits for the benefit of the Wife. The wife shall be entitled to all such retirement survivorship benefits which, like the other assets she receives in this bifurcated action, shall be placed in an inter vivos trust for her living, personal and medical expenses, during her life, with the adult daughters as irrevocable beneficiaries of the remainder of the trust.

          
          

          1. The Husband shall, simultaneously with the signing of the agreement, execute such documents as are necessary to create retirement survivorship benefits in accordance with this term. Should the Husband fail to execute the survivorship option on his retirement or should he ever change such option in contravention of this term, the Husband agrees that the obligation of this term is binding upon his estate, which estate shall be responsible for paying such retirement survivorship benefits to the Wife.

24. The Agreement could have, but did not, specifically require that the leave of absence be purchased by either

    Mr. Gapinski or Petitioner.

    
    

25. Petitioner's and Mr. Gapinski's Agreement does not bind the Respondent, which was in no way privy to that Agreement.

26. Petitioner and Mr. Gapinski's marriage was dissolved on November 1, 2000.

27. Petitioner's attorney provided Mr. Gapinski, through his counsel, with DROP forms (FST-12 and FRS-11o). On November 1, 2000, Mr. Gapinski executed Option 2 for his DROP

    retirement on these forms, naming Petitioner as his sole primary beneficiary and negating his prior designation of his adult daughters as beneficiaries.

28. Option No. 2 provides for a reduced monthly benefit payable for the FRS member's (Mr. Gapinski's) lifetime. If the member dies before receiving 120 monthly payments, his designated beneficiary (Petitioner) would receive a monthly benefit in the same amount until the monthly benefit payments to both of them equaled 120 monthly payments, when payments would terminate.

29. Option No. 2 is available for regular service retirements as well as DROP retirements.

30. Option No. 3 is also available for regular service retirements and DROP retirements.

31. Option No. 3 would have provided a reduced monthly benefit payable for Mr. Gapinski's lifetime, and upon his death, his joint annuitant, if living, would receive a lifetime monthly benefit payment in the same amount as Mr. Gapinski was receiving. Then, no further benefits would be payable after both he and his joint annuitant were deceased. There are exceptions to the foregoing general description, none of which matter to the case at bar. Option No. 3 would clearly provide more money to Petitioner if she were eligible.

32. On November 2, 2000, Petitioner's attorney had three short telephone conversations with Mr. Helms, who opined that since Mr. Gapinski had signed up for DROP while the couple were still married, Petitioner could still get Option No. 3, with DROP retroactive to September 1, 2000, but that the leave of absence must be paid for.

33. Apparently, Petitioner's attorney did not ask what would happen if the gap was not paid for before Mr. Gapinski died and no representative of Respondent volunteered that information.

34. The thrust of Petitioner's case continued to be to persuade Mr. Gapinski to pay the whole amount due and to change his Option election to No. 3.

35. On or about November 3, 2000, Mr. Helms sent an estimate letter based on selecting a September 1, 2000, retirement date with Option No. 1, to Mr. Gapinski. This

    estimate letter stated Mr. Gapinski had 30.11 years of creditable service. It did not mention DROP or any pay back. It did state that no lump sum retirement or cash value payments were available. (Second page of attachment to Exhibit P-11).

36. On November 3, 2000, Petitioner's attorney wrote Mr. Gapinski's attorney that Mr. Gapinski was considered by

    Respondent to be in the DROP program as of September 1, 2000, not March 1, 2001, as supposed before the divorce, but he had not bought back his leave by paying $6,820.52, and requested that Mr. Gapinski change his Option Election Form to Option No. 3 and authorize the payment of the $6,820.52 to Respondent.

37. On or about November 9, 2000, Petitioner's attorney sent the already-executed FST-12 (Beneficiary Designation Form) and FRS-11o (Option Selection for FRS Members) showing Option No. 2 to Respondent. Mr. Helms acknowledged receipt.

38. On or about November 9, 2000, Mr. Helms told Petitioner's attorney that the forms were correct and anyone could pay the $6,820.52. The attorney felt Mr. Gapinski was enrolled in DROP but that the $6,820.52 was still needed.

39. On November 15, 2000, Petitioner's attorney sent Mr. Helms a letter memorializing their conversation, in which Mr. Helms had indicated it was not necessary for Petitioner to sign below the Option No. 2 selection paragraph on FRS 11o as

    long as she was aware of the option Mr. Gapinski had selected.

40. On November 20, 2000, Mr. Gapinski passed away without anyone having purchased his leave of absence credit.

41. Mr. Gapinski was only 57 years of age when he died.

    
    

42. DROP retirement or regular service retirement with full benefits is possible at 62 years of age or upon attaining 30 years of creditable service.

43. Mr. Gapinski remained in regular employment until his death.

44. Because he had not purchased the leave of absence credit, Mr. Gapinski died with only 29 years and 9 months of creditable service for purposes of retirement. In other words, he was 3 months and ten days short of the 30-year retirement mark necessary to activate DROP or regular service retirement.

45. Petitioner never communicated directly with Respondent until after Mr. Gapinski's death.

46. Mr. Gapinski's will provided for the effective disinheritance of Petitioner to the extent provided by law.

47. On December 14, 2000, Petitioner's attorney spoke by telephone with Mr. Helms, who told her he thought Petitioner could still pay the leave of absence money but he would call her back.

48. On December 15, 2000, Stanley Colvin, another of Respondent's representatives, telephoned Petitioner's attorney to

    say Petitioner could not pay the amount after Mr. Gapinski's death.

49. At no time prior to Mr. Gapinski's death did any representative of Respondent affirmatively represent to anyone that Petitioner could pay the money after Mr. Gapinski's death or the conditions under which no benefits would be paid or specifically what would happen if Mr. Gapinski died before the money was paid by someone.

50. By a December 15, 2000, letter, Respondent notified Petitioner that since Mr. Gapinski had elected not to purchase the leave of absence, he could not have reached the required 30 years of service necessary to participate in the DROP program until March 1, 2001. It further stated that since Mr. Gapinski's death occurred before completion of the required months necessary to participate in DROP, his DROP application was cancelled and his choice of Option No. 2 was nullified. Moreover, Mr. Gapinski was viewed as an active FRS member on the date of his death, and because Petitioner, though designated as his beneficiary was not also a joint annuitant, she could only receive a refund of

    Mr. Gapinski's retirement contributions in the amount of

    
    

    $4,719.19,and was not eligible to receive Option No. 3. Respondent did not send a similar letter to prior beneficiaries, the decedent, or his estate/personal representatives.

51. Petitioner requested a review, and on February 2, 2001, Respondent issued its proposed final agency action letter, to the same effect as the December 15, 2000, letter. Respondent did not send a similar proposed final agency action letter to prior beneficiaries, the decedent, or his estate/personal representatives. However, the undersigned notes that

    Mr. Gapinski's adult daughters, who also were his joint personal representatives, were present in the courtroom on September 24, 2001, the first day of hearing. As of the second day of hearing on October 21, 2001, the estate had been closed and the personal representatives had been discharged.

52. Mr. Larry Hunnicutt, Benefits Administrator for the Bureau of Retirement Calculations, Division of Retirement, testified by deposition. He indicated that Respondent Division of Retirement has no rules in place specifically addressing DROP. Therefore, in DROP cases, Respondent interprets and applies Chapter 121, Florida Statutes, and the existing rules addressing regular service retirement. In practice, Respondent gives DROP applicants a 90-day grace period from the date of application in which to finalize all the outstanding documents or other requirements for DROP eligibility, including payments of amounts due, even though there are no provisions in place authorizing a grace period for DROP applicants. If there are money amounts due, the member must pay up during this period. If the member

    fails to pay up during this period, the DROP application and the option selected for DROP is cancelled by a certified letter, but the designated beneficiary remains intact. Herein, because the amounts were not paid before Mr. Gapinski died, and because it would serve no purpose to notify the decedent, who could no longer complete his DROP requirements, Respondent did not send the deceased member a cancellation of his DROP application and Option No. 2 selection. Rather, it treated the DROP application and option selection as null and void and notified his ex-wife, the designated beneficiary, of what Respondent understood to be her rights. In this notification, Respondent applied the statutes as its personnel understood them to apply to a member who dies in active service prior to reaching either 62 years of age or 30 years of creditable service. Respondent would have permitted Petitioner to pay the money on Mr. Gapinski's behalf only during his lifetime.

53. If the amount due had been paid, and Petitioner were qualified for Option No. 2, she would receive approximately

    $500,000 plus cost of living increases as opposed to $4,719.19. She would receive considerably more if she qualified for Option No. 3.

    CONCLUSIONS OF LAW

    
    

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

55. It is concluded that Petitioner, as the beneficiary named on the documents which the proposed final agency action letter seeks to nullify, has standing herein as a substantially affected party due to her substantial interests involved.

56. Respondent's assertion that Petitioner's cause should fail because she did not join, as parties herein, Mr. Gapinski's daughters, either individually or in their official capacity as his personal representatives, is not persuasive.

57. Due to Petitioner's multiple counts alleged in terms of unconstitutionality of Chapter 121, Florida Statutes, including but not limited to Section 121.091 (7)(b); the alleged violation of Petitioner's and Petitioner's ex-husband's civil and property rights; and the alleged "conflict of laws" among Chapters 112, 121, and 760, Florida Statutes, the notion that only Mr. Gapinski the deceased FRS member, and not Petitioner, has any rights with regard to that member's retirement benefits is alluring.

    However, it is nonsensical in the present context.

    
    

58. As clearly expressed to the parties at hearing, the constitutionality of a statute or administrative action is not within the jurisdiction of this forum, and those issues will not

    be addressed further. See Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1982).

59. With the foregoing admonitions, the pending Motions to Dismiss are denied, and this case will be resolved on the merits.

60. The ultimate burden of proof by a preponderance of the evidence is upon Petitioner. See Section 120.57(1)(j) and (k), Florida Statutes (2000); Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); and Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).

61. The issue of estoppel, also raised by Petitioner, is normally the preserve of Article V courts, which are empowered to rule in equity, and may only be addressed in a limited way under Chapter 120, Florida Statutes. To the degree Petitioner asserts estoppel against a state agency, specific elements and internal and shifting burdens of proof apply. See Kuge v. Dept. of

    Administration, Div. Of Retirement, 449 So. 2d 389 (Fla. 3d App. 1984), and Austin v. Austin, 350 So. 2d 102 (Fla. 1st DCA 1977). Finally, Petitioner must overcome the presumption that elected and public officials are presumed to perform their duties in a lawful and proper manner, see Section 90.304, Florida Statutes, and Ehrhardt, Florida Evidence Section 304.1 (2001 Edition), and

    that Legislative acts are presumed to be valid and constitutional, Hanson v. State, 56 So. 2d 129 (Fla. 1952).

62. Section 121.121, Florida Statutes, authorizes an FRS member to purchase creditable service for up to two work years of authorized leaves of absence. Nothing in this statutory section authorizes anyone except the member himself to make this purchase. Mr. Gapinski met all the requirements to purchase his leave of absence for attaining 30 years creditable service toward retirement.

63. At the time of his death, Mr. Gapinski had had approximately six and a half months notice to buy his leave of absence. The information on the forms he had received, but had not shared with others, was clear.

64. At the time of his death, Mr. Gapinski was vested in FRS but was not eligible to participate in DROP because he had not (a) achieved 30 years service credit without buying back the leave of absence, which would have occurred on March 1, 2001, or

    (b) purchased the leave of absence, which would have given him 30 years service retroactive to September 1, 2000, or (c) reached the age of 62.

65. There is no evidence herein that Mr. Gapinski had resigned his state employment or had applied for early retirement. There is no evidence he had applied for regular service retirement, either. Since there is no evidence he was

    eligible for any other retirement category, it was, therefore, reasonable for Respondent to treat him as if he had died as an active member of FRS, while employed, but prior to attaining either 30 years creditable service or 62 years of age.

66. Although Petitioner makes some interesting arguments intertwining the dates established for first payment of a member's retirement benefits in different retirement categories or situations, those arguments are not persuasive.1

67. Pursuant to Section 121.091(7)(b), a member of FRS who dies while employed but prior to attaining 30 years of creditable service (his established retirement date) is deemed retired as of the date of his death.

68. Section 121.091(7)(b), Florida Statutes, provides as follows:

    (7) DEATH BENEFITS.–

    
    

    (b) If the employment of an active member who may or may not have applied for retirement is terminated by reason of his or her death subsequent to becoming vested and prior to his or her effective date of retirement, if established, it shall be assumed that the member retired as of the date of death in accordance with subsection

    (1) if eligible for normal retirement benefits, subsection (2) if eligible for benefits payable for dual normal retirement, or subsection (3) if eligible for early retirement benefits. Benefits payable to the designated beneficiary shall be as follows:

    
    

    1. For a beneficiary who qualifies as a joint annuitant, the optional form of payment

       provided in accordance with subparagraph (6)(a)3. shall be paid for the joint annuitant's lifetime.

       
       

    2. For a beneficiary who does not qualify as a joint annuitant, no continuing monthly benefit shall be paid and the beneficiary shall be entitled only to the return of the member's personal contributions. If there is no monetary interest in the member's retirement account for which such beneficiary is eligible, the beneficiary shall be the next named beneficiary or, if no other beneficiary is named, the beneficiary shall be the next eligible beneficiary according to subsection (8).

    
    

69. Section 121.091(7)(e), Florida Statutes (2000), provides:

    (e) The surviving spouse or other dependent of any member, except a member who participated in the Deferred Retirement Option Program, whose employment is terminated by death shall, upon application to the administrator, be permitted to pay the required contributions for any service performed by the member which could have been claimed by the member at the time of his or her death. Such service shall be added to the creditable service of the member and shall be used in the calculation of any benefits which may be payable to the surviving spouse or other surviving dependent. (Emphasis added).

    
    

70. Respondent asserts three arguments related to Section 121.091(7)(e), Florida Statutes. First, Respondent asserts that only a surviving spouse or dependent can pay the amount due after the member's death, but if the member is a DROP participant, then even the surviving spouse or dependent cannot pay. This is a

    logical, if strained interpretation, because if a member has completed all prerequisites to qualify for DROP so as to participate in DROP, he has already reached 30 years of creditable service (or 62 years of age) and does not need to buy back any time. Mr. Gapinski never completed his DROP requirements because he never paid anything back. Therefore, he never fully participated in DROP. Cf. Sections 121.021(44) Florida Statutes, defining DROP participation and 121.091 (13), Florida Statutes, permitting cancellation of DROP applications. Second, Respondent asserts that the words "any service" does not apply to leaves of absence which are covered by Section 121.121, Florida Statutes. This interpretation makes no logical sense in the present context, is not supported by case law, and was not shown to have been Respondent Agency's method of dealing with this, or previous, similar situations. Therefore, I reject it on that basis. Third, Respondent asserts that even if leaves of absence are contemplated by Subsection 121.091(7)(e), Florida Statutes, Petitioner is not in a position contemplated by it.

    The third assertion is the crux of the matter. Once divorced, Petitioner was no longer Mr. Gapinski's spouse. Likewise, she was not his surviving spouse. She has not asserted or proven that she was his dependent.

71. Petitioner also has presented no evidence by which she can qualify as a "joint annuitant" which is defined in Section

    121.021(28), Florida Statutes, and addressed, for our purposes here, in the remaining Subsections of Section 121.091(7), Florida Statutes.

72. Accordingly, Petitioner is not entitled to "buy back" her deceased ex-spouse's leave of absence on the basis of Chapter 121, Florida Statutes.

73. Alternatively or additionally, Petitioner also asserts that Respondent should be estopped from denying her the right to purchase Mr. Gapinski's leave of absence after his death, because of misinformation or misrepresentation made by Respondent, upon which Petitioner relied to her detriment (that is, she did not pay the amount during his lifetime). With the exception of the November 2, 2000, estimate letter to Mr. Gapinski which did not state that the payment still had to be made and did state that

    30.11 years creditable service had been reached on September 1, 2000, Petitioner has not established that any misrepresentations or misinformation was provided. That letter was merely an estimate, not directed to Petitioner, and Petitioner's counsel knew money was owed. Other than that letter, not sent to Petitioner, Respondent's representatives sometimes said they thought a result would occur but would check. At best, Petitioner proved that the right questions were not asked and Respondent did not volunteer crucial information. This does not amount to an estoppel situation.

74. Moreover, Petitioner has not established that she relied on this or any other representation of Respondent to her detriment. Negotiations were afoot to get Mr. Gapinski to change his option election and pay the full amount owed. Petitioner knew she could pay and did not. Had Mr. Gapinski lived until March 1, 2001, no payment would be due and the Option No. 3 benefits would have been in place for Petitioner, but death displaced negotiation.

75. Finally, Petitioner has not shown that Respondent was obligated at law to volunteer information without specific questions or was estopped because it did not draw all the possibilities together for Petitioner.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to purchase leave of absence credit on the account of James Gapinski.

DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.

ENDNOTE

1/ See Section 121.021(30) and(41).

COPIES FURNISHED:

Stanley M. Danek, Esquire 2114 Great Oak Drive Suite 200

Tallahassee, Florida 32303

Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Erin Sjostrom, Director Department of Management Services Division of Retirement

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

Emily Moore, Chief Legal Counsel Department of Management Services Division of Retirement

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

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: 01-002478

Orders for Case No: 01-002478