STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS D. P. SILVESTRI, )

)

Petitioner, )

)

vs. ) Case No. 01-3497

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF ) RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on December 3, 2001, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Louis D. P. Silvestri, pro se

18500 Southwest 55th Street

Fort Lauderdale, Florida 33332-1468

For Respondent: Larry D. Scott, Esquire

Department of Management Services Division of Retirement

Post Office Box 3900 Tallahassee, Florida 32315-3900

STATEMENT OF THE ISSUE

Whether Petitioner is eligible to participate in the Deferred Retirement Option Program.

PRELIMINARY STATEMENT

By letter dated June 8, 2001, Respondent advised Petitioner that, in response to Petitioner's inquiry concerning his eligibility to participate in the Deferred Retirement Option Program (DROP), Respondent had reviewed Petitioner's Florida Retirement System Account and, based upon such review, determined that Petitioner was not eligible for DROP because the deadline for Petitioner to elect to participate in the program had passed. Petitioner thereafter requested an administrative hearing on the matter. On September 5, 2001, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested.

As noted above, the final hearing in this case was held before the undersigned on December 3, 2001. Two witnesses (Petitioner and Larry Hunnicutt, Respondent's Benefits Administrator) testified at the final hearing. In addition to the testimony of these two witnesses, two exhibits (Petitioner's Exhibit 1 and Respondent's Exhibit 1) were offered and received into evidence.

At the close of the evidentiary portion of the final hearing on December 3, 2001, the parties were advised of their right to file proposed recommended orders and a deadline was established (December 13, 2001) for the filing of proposed recommended orders.

On December 6, 2001, and December 13, 2001, respectively, Respondent filed a Proposed Recommended Order and an Amended Proposed Recommended. On December 13, 2001, Petitioner filed a written position statement. These post-hearing submittals have been carefully considered by the undersigned.1

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Petitioner is now, and has been since 1976, a firefighter employed by Miami-Dade County and, as such, a Special Risk member of the Florida Retirement System.

2. Petitioner's date of birth is September 19, 1937.

   
   

3. Accordingly, on July 1, 1998, the effective date of DROP, Petitioner was 61 years of age and had approximately 22 years of creditable service as a Special Risk member of the Florida Retirement System.

4. Petitioner was aware that he needed to file an application to join DROP within 12 months of July 1, 1998, but he opted not to file such an application because he believed

   that the retirement benefits he would receive if he joined DROP within this 12-month period would not be enough for him to "live on" after he stopped working.2 Petitioner thought that it would be in his best interest, instead, to wait until 2003 to retire (and enjoy higher retirement benefits).

5. On June 7, 2001, Petitioner sent an e-mail to Governor Bush, which read, in pertinent part, as follows:

   Yesterday I met with the head spokesman of FL. State Retirement concerning my participation in the D.R.O.P. [and] he advised me to send this note. As you know it started in 1998 at which time I was offered a small window because of my age (unlawful discrimination) for which I was not able to get into because of the insignificant amount offered as permanent retirement. Since then, as anticipated, my retirement has increased from the high 30's to the low 60's due thanks to you . . .

   Now, I am asking, by special request, to be allowed to enter into the D.R.O.P. either to finish these two years or to be given an opportunity to go for the whole 5 years, which I doubt I would complete. . . .

   
   

6. Petitioner's e-mail correspondence was referred to the State Retirement Director who, by letter dated June 8, 2001, advised Petitioner that Petitioner's "request to join DROP at this late date must be denied."

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

   the parties thereto pursuant to Sections 120.569 and 120.57, Florida Statutes.

8. Chapter 121, Florida Statutes, contains the Florida Retirement System Act. Section 121.011(1), Florida Statutes.

9. Section 121.1905, Florida Statutes, "create[s] the Division of Retirement within the Department of Management Services," and it further provides that "the mission of the Division of Retirement is to provide quality and cost-effective retirement services as measured by member satisfaction and by comparison with administrative costs of comparable retirement systems."

10. DROP is a program administered by the Division of Retirement. It is described in Section 121.091(13), Florida Statutes, as follows:

    DEFERRED RETIREMENT OPTION PROGRAM.--In

    general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation

    in the DROP does not guarantee employment for the specified period of DROP.

    
    

11. Subsection (13)(a) of Section 121.091, Florida Statutes, addresses "[e]ligibility of [Florida Retirement System] member[s] to participate in the DROP." It provides, in pertinent part, as follows:

    2. . . . For a member who first reached normal retirement date . . . prior to the effective date of this section, election to participate shall be made within 12 months after the effective date of this section. A member who fails to make an election within such 12-month limitation period shall forfeit all rights to participate in the DROP.

    
    

12. The effective date of Subsection (13) of Section 121.091, Florida Statutes, was July 1, 1998.

13. On July 1, 1998, Petitioner was a Florida Retirement System member who was older than 55 years of age and had more than ten years of creditable service in the Special Risk Class. Accordingly, as of the effective date of Subsection (13) of Section 121.091, Florida Statutes, he had already reached his "normal retirement age," as that terms was then defined by Section 121.021(29), Florida Statutes, which read, in pertinent part, as follows:3

    121.021 Definitions.--The following words and phrases as used in this chapter have the respective meanings set forth unless a different meaning is plainly required by the context:

    * * *

    
    

    "Normal retirement date" means the first day of any month following the date a member attains one of the following statuses:

    
    

    * * *

    
    

    (b) If a Special Risk Class member, the member:

    
    

    1. Completes 10 or more years of creditable service in the Special Risk Class and attains age 55; . . .

    
    

    Petitioner, therefore, pursuant to Subsection (13)(a)2. Of Section 121.091, Florida Statutes, had to make his election to participate in DROP within 12 months of July 1, 1998.

14. Petitioner made a knowing and informed decision to not join DROP during this 12-month period.

15. In failing to join DROP within the statutorily prescribed period, Petitioner "forfeit[ed] all rights to participate in the DROP," and, as a result, the Division of Retirement is without statutory authority to allow him to now belatedly join the program, even if, as Petitioner argues, doing so would benefit not only him, but Miami-Dade County and the state as well. See City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493, 495-96 (Fla. 1973)("All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. This, of course, includes the Public Service

Commission . . . . As such, the Commission's powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State. . . . Any reasonable doubt as to the lawful existence of a particular power that is being exercised by the Commission must be resolved against the exercise thereof, . . . and the further exercise of the power should be arrested."); Sun Coast International, Inc. v.

Department of Business Regulation, 596 So. 2d 1118, 1121 (Fla. 1st DCA 1991)("[A] legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way."); Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An administrative agency has only the authority that the legislature has conferred it by statute."); Lewis Oil Co.,

Inc. v. Alachua County, 496 So. 2d 184, 189 (Fla. 1st DCA 1986)("Administrative agencies have only the powers delegated by statute."); Gulf Coast Hospital, Inc. v. Department of Health and Rehabilitative Services, 424 So. 2d 86, 91 (Fla. 1st DCA 1982)("Even were it otherwise and the agency's predictions of an osteopathic explosion correct, HRS would not be empowered to rewrite and administratively repeal the legislation in question. Arguments concerning the potential effect of the legislation or questioning the wisdom of such legislation are matters which should be presented to the Legislature itself."); and Fiat

Motors of North America, Inc. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978)("Alpine's failure to timely file the required verified complaint [concerning Fiat's proposed discontinuation of Alpine's franchise agreement] left the Division [of Motor Vehicles] without jurisdiction and, upon expiration of the 90-day period for initiating proceedings, without power to acquire jurisdiction. Administrative agencies are creatures of statute and have only such powers as statutes confer.").

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent issue a final order finding that Respondent is not eligible to participate in DROP because he did not elect to do so within the time frame prescribed by Subsection (13)(a)2. of Section 121.091, Florida Statutes.

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

STUART M. LERNER

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.

ENDNOTES

1/ On December 11, 2001, Stan Hills, Vice-President of the Metro-Dade Fire Fighters, submitted a letter on behalf of Petitioner. To the extent that Mr. Hills' letter contains argument based upon evidence adduced at the final hearing, and to that extent only, the undersigned has taken the letter into consideration.

2/ In or about June 1996, Miami-Dade County removed Petitioner to light duty and did not return him to active duty until August 1998. Had Petitioner remained on active duty during this 26- month period that he was assigned light duty (as he claims he should have) and had he continued to work the overtime hours he had been working prior to being placed on light duty, his wages during this period (and, consequently, his average final compensation as of August of 1998) would have been higher than they turned out to be.

3/ Chapter 2000-169, Laws of Florida, amended Subsection (29) of Section 121.021, Florida Statutes, effective July 1, 2001, to read as follows:

121.021 Definitions.--The following words and phrases as used in this chapter have the respective meanings set forth unless a different meaning is plainly required by the context:

* * *

"Normal retirement date" means the first day of any month following the date a member attains one of the following statuses:

* * *

(b) If a Special Risk Class member, the member:

1. Completes 6 or more years of creditable service in the Special Risk Class and attains age 55; . . .

COPIES FURNISHED:

Larry D. Scott, Esquire Department of Management Services

Division of Retirement Post Office Box 3900

Tallahassee, Florida 32315-3900

Louis D. P. Silvestri 18500 Southwest 55th Street

Fort Lauderdale, Florida 33332-1468

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.

1 On December 11, 2001, Stan Hills, Vice-President of the Metro- Dade Fire Fighters, submitted a letter on behalf of Petitioner. To the extent that Mr. Hills' letter contains argument based upon evidence adduced at the final hearing, and to that extent only, the undersigned has taken the letter into consideration.

2 In or about June 1996, Miami-Dade County removed Petitioner to light duty and did not return him to active duty until August

1998. Had Petitioner remained on active duty during this 26- month period that he was assigned light duty (as he claims he should have) and had he continued to work the overtime hours he had been working prior to being placed on light duty, his wages during this period (and, consequently, his average final compensation as of August of 1998) would have been higher than they turned out to be.

3 Chapter 2000-169, Laws of Florida, amended Subsection (29) of Section 121.021, Florida Statutes, effective July 1, 2001, to read as follows:

121.021 Definitions.--The following words and phrases as used in this chapter have the respective meanings set forth unless a different meaning is plainly required by the context:

* * *

"Normal retirement date" means the first day of any month following the date a member attains one of the following statuses:

* * *

(

(b) If a Special Risk Class member, the member:

1. Completes 6 or more years of creditable service in the Special Risk Class and attains age 55; . . .

Docket for Case No: 01-003497

Orders for Case No: 01-003497