JOEL B. COHEN,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

)

vs.

Petitioner,

)

)

) Case No. 01-4888

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact hearing on February 19, 2002, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joel B. Cohen, pro se

2618 Northwest 22nd Avenue Gainesville, Florida 32605

For Respondent: Thomas E. Wright, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether Petitioner should be allowed to withdraw from the Deferred Retirement Option Program (DROP) of the Florida Retirement System.

PRELIMINARY STATEMENT

Petitioner applied to enter DROP effective July 1, 2001.

The Division of Retirement (Division) has treated Petitioner as if he had entered DROP effective July 1, 2001.

In August 2001, Petitioner requested to withdraw from DROP due to statutory changes to eligibility limitations made by the Florida Legislature effective July 1, 2001. This request was denied by the Division. Petitioner timely requested a disputed- fact hearing, and the cause was referred to the Division of Administrative Hearings on or about December 24, 2001.

In the course of discovery and at hearing, Petitioner also asserted that the Division's "no change after 30 days in DROP" practice is without statutory or rule authority and constitutes an unpromulgated rule. Because this theory was not raised by a petition filed directly with the Division pursuant to Section 120.54, Florida Statutes, it can only be addressed herein, pursuant to Section 120.57(1)(e)1., Florida Statutes.

Petitioner further contended at hearing that he was entitled to a variance or waiver from this alleged Division "rule," and presumably any existing rules, pursuant to Section 120.542, Florida Statutes. This attempt to amend his request for hearing herein was orally denied at the disputed-fact hearing.

The parties stipulated to certain facts.

Petitioner testified on his own behalf and had six exhibits admitted in evidence. Exhibit P-3 was withdrawn as cumulative of P-2, an extensive composite exhibit. Respondent presented the testimony of Larry Hunnicutt, Benefits Administrator of the Division, and had five exhibits admitted in evidence.

Official recognition was taken of Chapter 121, Florida Statutes (2001), which codifies the Florida Retirement System (FRS).

At Petitioner's request, based on a discovery problem, the record was left open and the Division was ordered to produce and file specified documents. These items, which are public records, were produced and filed after the final hearing and are admitted as Exhibits R-6 and R-7.

No transcript was filed.

Both parties timely filed their respective Proposed Recommended Orders.

On March 28, 2001, Petitioner filed a letter-motion to strike portions of the Division's Proposed Recommended Order. Respondent Division filed no response in opposition.

Petitioner's motion has been considered in assessing both Proposed Recommended Orders. However, Respondent's proposal has not been struck, and both Proposed Recommended Orders have been considered.

FINDINGS OF FACTS

1. Petitioner is a member of FRS. Petitioner is part of the "Regular" class for FRS retirement purposes.

2. In April 2001, and until late August 2001, Petitioner understood the law to require that if he wanted to participate in DROP he must elect to do so within 12 months of his 30-year anniversary of employment or within 12 months of attaining 62 years of age, whichever date came first. This was, in fact, the law until July 1, 2001. (See Findings of Fact 11 and 25-27).

3. In July of 2001, Petitioner would become eligible to participate in DROP by virtue of reaching thirty years of service teaching at the University of Florida (UF).1

4. Petitioner would become 62 years old on July 2, 2001.

   
   

5. In preparation for entry into DROP, Petitioner requested, and in April 2001 received, from the Division, an Estimate of Benefits. In bold capital print the acknowledgement stated:

   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. (P-2)

   
   

6. Petitioner filed his application for DROP participation on April 12, 2001. His application selected payout Option 2 to provide benefits to his wife and specified a "begin date" of July 1, 2001, his normal retirement date.

7. Respondent Division, by date of April 16, 2001, acknowledged receipt of Petitioner's DROP application, but required that he provide additional materials, stating:

   The following items must be received: Properly completed DROP application, DP-11.

   The notary public's stamp and/or commission expiration date was not shown. A notary public may not amend a notarial certification after the notarization is complete. Enclosed is another Form DP-11, Application for Service Retirement and the Deferred Retirement Option Program (DROP) for you to complete and have properly notarized. Return the completed application to this office immediately.

   
   

   The Hospital Record you submitted as birthdate verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age.

   
   

   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.

   
   

   A Final Salary Certification, FC-1 with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. (R-1)

   
   

8. Petitioner provided the additional information, and on April 30, 2001, the Division notified Petitioner that the apparent birth certificate he had supplied did not constitute

   acceptable proof of age and that additional proof was required. That item stated:

   The following items must be received:

   
   

   The Medical Center record you submitted as birth date verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age.

   
   

   If you have a copy of your birth certificate that is registered with the State of New York, please send it to us. The document you submitted was not registered with the vital statistics office for New York.

   
   

   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. (R-2)

   
   

9. The Division's April 30, 2001, request for a valid birth certificate was the parties' last correspondence before

   August 22, 2001. (See Finding of Fact 25).

   
   

10. Shortly after April 30, 2001, Petitioner caused the Federal Social Security Administration to send verification of his birthdate to the Division. The Division received this item but did not acknowledge to Petitioner that it had been received.

11. During the 2001 session, the Florida Legislature amended Section 121.091(13)(a)5., Florida Statutes, to allow "instructional personnel" to participate in DROP at any time

    after they reach their normal retirement date. In other words, the option for instructional personnel to elect DROP was no

    longer limited to a 12-month period after their 30 years' creditable service retirement date or attainment of age 62.

12. The parties stipulated that the foregoing amendment "became law" on May 16, 2001. However, Chapter 2001-47, Laws of Florida, Section 2., clearly specifies that the amendment "shall take effect July 1, 2001."

13. Respondent Division never individually sought out and notified Petitioner, any other DROP applicant, or any FRS retiree of the legislative change. According to Mr. Hunnicutt, on behalf of the Division, the Division has no way to single out all the people (such as DROP applicants) who might be affected by a specific legislative amendment.

14. However, the Division does try, on a yearly basis, each autumn, to notify all retirees and all employees in FRS and other state retirement programs of the current year's legislative changes. The Division also answers specific questions about such legislative amendments if retirees or employees take the initiative to ask the Division about them.

15. Since Petitioner did not know about the amendment until after August 22, 2001, he did not ask about it or otherwise contact the Division until August 30, 2001. (See Finding of Fact 27.)

16. On June 21, 2001, the Division sent Information Release 2001-73, to all FRS employers, including the UF Retirement

    Office. This Information Release noted the changes to DROP eligibility for instructional personnel. (R-6)

17. The Division's June 21, 2001, Information Release addressed many types of retirement information that could be obtained at the Division's web site, but did not specifically link the web site and the new legislation.

18. Petitioner's testimony that the Division's web site never announced the amendment effective July 1, 2001, is unrefuted.

19. At no time did UF affirmatively and individually seek out Petitioner and notify him concerning the new legislation. UF also did not do a blanket notification of the new legislation to all FRS members working for UF until November 19, 2001. (P-2)

20. Effective July 2001, Petitioner was honored by a special merit salary increase of $10,000.00 per year that would significantly raise his retirement benefits if he were not considered to have entered DROP, effective July 1, 2001. This award was not reasonably foreseeable at the time he applied for DROP on April 12, 2001.

21. The only document Respondent Division sent Petitioner after April 30, 2001, was a "Final Notification of DROP Benefit," dated July 19, 2001, but post-marked August 20, 2001. It included the following:

    You should call the Retired Payroll Section at (850) 487-4856, immediately if you:

    
    

    • Extend your DROP participation date (approval of employer required). Your participation in the DROP cannot exceed the 5 years (3 years for Special Risk members) which is the maximum allowed by law; (P-1)

      
      

22. According to Mr. Hunnicutt, the Division cannot do the final benefit calculations for a DROP or regular retirement applicant until the Division receives all of the information from the employee (Petitioner) and direct employer (UF) because final retirement calculations use the final salary information. The July 19, 2001, date of the foregoing "Final Notification" would have been the date the Division's Benefits Specialist prepared the final calculations and falls within the 30 days the Division usually needs to make and mail the final benefit calculations.

23. Mr. Hunnicutt's only explanation for the month's delay in mailing the foregoing "Final Notification" was that it takes approximately a month for the verification process to be completed and the calculations mailed out. He testified that, regardless of its content, the Final Notification would not have been sent to Petitioner unless the Division had considered Petitioner's DROP application to be complete.

24. Mr. Hunnicutt testified that it is not Agency practice to send an "acceptance into DROP letter." In his opinion, an FRS member is supposed to know he is in DROP unless he is advised

    that he is not in DROP. The Division viewed Petitioner as automatically having entered DROP on his request date of July 1, 2001. The Division considered Petitioner's begin date of DROP participation to be July 1, 2001, as Petitioner had requested on April 12, 2001. Accordingly, the Division also considered Petitioner's first month of DROP participation to have ended on July 31, 2001. By "DROP participation date" the Agency means "begin DROP participation date." The Division allows members to change or amend their DROP applications during the first month of retirement or DROP participation because it takes approximately a month to make final benefit calculations, and the Division's aspirational goal is to provide the final calculations before the

    30 days are up. Therefore, in the Division's view and practice, Petitioner's right to alter any of his retirement selections would have been July 31, 2001.

25. On August 22, 2001, Petitioner received the "Final Notification," dated July 19, 2001, but mailed August 20, 2001. (P-1). It showed a final retirement calculation of benefits for Petitioner which was $6.15 less per month than the original estimate he had received in April 2001.

26. Immediately thereafter, Petitioner went to the UF Retirement Office and discovered the opportunity afforded by the 2001 legislation.

27. By an August 30, 2001, letter, Petitioner wrote Mr. Hunnicutt, requesting to make a change in his DROP

    participation begin date to either January 2002 or July 2002, dependent upon receiving and reviewing new estimated calculations of benefits based on each of those dates (P-2.)

28. On September 13, 2001, the Division denied Petitioner's request, citing Subsections 121.091(13)(b)3. and (13)(c)1. and 3., Florida Statutes, and advised that:

    
    

    After your DROP begin date, you cannot cancel your DROP participation, change your DROP begin date, change your option selection, or claim additional creditable service period.

    
    

    The letter did not mention the 30 days' grace period for changes which previous correspondence had and which is the Division's acknowledged practice. It stated that it constituted final agency action.

29. Petitioner continued to argue his case by correspondence, seeking an administrative hearing if necessary.

30. Apparently, it was not clear to many members of the academic community that university instructional personnel, as well as K-9 teachers, were eligible under the 2001 extended DROP sign-up amendment. However, as of October 2001, the Division had accepted DROP applications for instructional personnel who previously had not joined DROP during their initial DROP window period and who, as a result, and but for the new statutory

    amendment, would never have been eligible for DROP. As of October 2001, the Division also had advised other instructional personnel, that due to the new amendment, they were newly exempt from the 12-month window and could apply for DROP at any time. 2

31. On October 5, 2001, the Division again denied Petitioner's request to withdraw from DROP. In this letter, the Division also provided greater detail as to the reasons for its denial, stated it was final agency action, and included more details advising Petitioner of his right to request a disputed- fact hearing.

32. The 2001 legislative session enacted, in addition to the amendment affecting Petitioner, a number of other amendments which affected retirement benefits, The Division made no blanket mailing to all members of FRS concerning any 2001 retirement law amendments until its annual bulletin, discussing all of the amendments, was mailed for the Division to all FRS members on December 28, 2001, by a private company in New York.

    CONCLUSIONS OF LAW

    
    

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

34. Petitioner bears the duty to go forward and establish entitlement to the relief sought by a preponderance of the evidence. See Section 120.57(1), Florida Statutes; Florida

    Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and

    Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

    
    

35. To establish that the Division's action is based on an unadopted rule, the action must meet the definition of a rule as contained in Section 120.52(15), Florida Statutes. It is not presumed valid or invalid, but the Division must demonstrate that the unadopted rule meets each of the seven criteria itemized at Section 120.57(e)1, Florida Statutes, if it is to be applied on a case-by-case basis.

36. Subsections 121.091(13)(b)3. and (13)(c)1. and 3.

Florida Statutes, address DROP, specifically, and provide, in pertinent part":

(13) 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 of 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.

1. Participation in the DROP.

   3. The DROP participant shall be a retiree under the Florida Retirement System for all purposes, except for paragraph (5)(f) and subsection (9) and subsections 112.3173, 112.36., 121.053, and 121.122. However, participation in the DROP does not alter the participant's employment status and such employee shall not be deemed retired from employment until his or her deferred resignation is effective and termination occurs as provided in Section 121.021(39).

   
   

2. Benefits payable under DROP.

   1. Effective with the date of DROP participation, the member's initial normal monthly benefit, including creditable service, optional form of payment, and average final compensation, and the effective date of retirement shall be fixed. The beneficiary established under the Florida Retirement System shall be the beneficiary eligible to receive any DROP benefits payable if the DROP participant dies prior to the completion of the period of DROP participation. . . .

* * *

3. The effective date of DROP participation and the effective date of retirement of a DROP participant shall be the first day of the month selected by the member to begin participation in the DROP, provided such date is properly established, with the written confirmation of the employer, and the approval of the division, on forms required by the division. (Emphasis supplied).

1. The Division has adopted no rules specific to its DROP program. Rather, it uses normal retirement rules applicable to all FRS regular class members. However, it has cited no existing rules for purposes of this case.

2. The Division also uses statutory sections applicable to regular FRS class members for purposes of administering the DROP program, and Section 121.091(6)(h), Florida Statutes, which provides:

   (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13).

   
   

3. Petitioner has five theories upon which he has brought this case. Synopsized, they are: (1) No promulgated rule limits changes to the DROP begin date to 30 days after the DROP begin date, and therefore the Division is operating pursuant to an unpromulgated rule by which Petitioner should not be bound;

   (2) The Division sent Petitioner conflicting information, saying at several points that he had a right to change his DROP begin date during the first 30 days and saying, after the grace period had run, that he could not change his DROP begin date at any time after his begin date, and therefore Petitioner asserts that he should be allowed to revoke/change his begin date; (3) The Division never formally notified Petitioner of its approval "on forms required by the Division" and therefore, his requested begin date of July 1, 2001, never activated or, alternatively, was tolled until he received the Final Notification of DROP Benefits on or about August 22, 2001, and he should have been

   allowed to change his begin date at any time within 30 days after August 22, 2001; (4) The Division is estopped by its delayed Final Notification of DROP Benefits and by its failure to notify Petitioner of the legislative changes taking effect July 1, 2001, before Petitioner's cut-off date of July 31, 2001; and

   (5) Petitioner also asserts (a) that he has received selective treatment different from that of other similarly situated instructional personnel, because others were timely notified and/or (b) that he is entitled to a variance from any and all rules due to the hardship arising from non-inclusion of his

   $10,000 meritorious increase.

   
   

4. Respondent Division submits only that, pursuant to Section 121.091(6)(h), Florida Statutes, Petitioner lost his right to change any options, including his begin date, when the first DROP retirement payment was deposited into Petitioner's DROP account on July 31, 2001.

5. The Division asserts that Section 121.091(6)(h), Florida Statutes, does not permit any option changes, including any changes to a DROP participation begin date after the first day of the first month selected by the member to begin participation in DROP. Arguably, that subsection only prohibits changes in Petitioner's selection of the payout Option 2.

6. Assuming, arguendo, that statute or the other cited statutes include a prohibition of changing the begin date at any

   time after a DROP deposit has been made, Petitioner's other issues must be addressed. Because it takes the Division an average of 30 days to calculate and verify benefits after the direct employer has provided the amount of final pay, the Division uniformly allows persons opting into the DROP program to opt out or change any other option within 30 days of the selected begin date. Another obvious reason for the 30-day grace period is that in the regular retirement system (non-DROP retirement, as it were) the first retirement check is not issued for 30 days and therefore does not get deposited for, or cashed by, the recipient until the end of the first month of participation, or 30 days after the participation begin date. The same is true for DROP deposits. Just as working FRS members usually work 30 days before getting paid, retirees and DROP recipients must be in the system (regular retirement or DROP) 30 days before receiving their first retirement check/deposit.

7. This informal "grace period" practiced by the Division, meets the definition of a "rule." It also meets most of the other criteria of the applicable statutes; see Sections 120.52(15) and 120.57(e)1. Florida Statutes. The only possible exception is that the unpromulgated 30-day grace period arguably may modify Subsections 121.091(13)(c)1. and 3. which "fix" the DROP participation date as the first day of the first retirement month.

8. More to the point, if this unpromulgated rule were not applied by the Division, here, Petitioner could not have changed his options at any time after July 1, 2001, and the Division agrees he could change at least up until July 31, 2001.

9. Therefore, the Division is justified in its practice of extending a 30-day grace period in this case to this Petitioner. (See Petitioner's first theory of the case).

10. There was no request by Petitioner between July 1, 2001, and July 31, 2001, to change his DROP application. Since it was not proven that the Division ignored or rejected any change requests of Petitioner between July 1, 2001 and July 31, 2001, the discrepancy in some of the Division's correspondence to him is not significant. (See Petitioner's second theory of the case).

11. A fair reading of Section 121.091(13)(c)3., Florida Statutes, does not support Petitioner's third theory of the case that something more than the Acknowledgement of DROP Application (R-1), is required from the Division in order to demonstrate his acceptance into DROP or that his elected effective date of DROP is no good until that Final Notification is received. Moreover, Section 121.091, Florida Statutes, only provides that benefits may not be paid until a proper application has been filed in the manner prescribed by the Division and that the Division may

    cancel an application when the member fails to timely provide further required information.

12. As to his fifth theory, Petitioner did not factually establish a selective application of the unpromulgated "30-day rule" to himself. He did prove that those who affirmatively inquired got legislative information from the Division, whereas he, who had made no inquiries, did not get such direct information until the December 2001 blanket mailing. However, he did not prove that the Division has allowed anyone else similarly situated to himself (that is, someone who had already passed the 30-day grace period) to opt out of DROP. Upon the evidence herein, Petitioner's grounds for a variance, pursuant to Section 120.542, Florida Statutes, may be well-taken, but his late motion to amend the request for hearing in that regard was denied at hearing and need not be revisited here. Petitioner's remaining fifth theory concerning an alleged affirmative duty of the Division to notify him of legislative amendments in time for him to take advantage of those amendments, which he deemed applicable and favorable to himself, is actually a variation of his fourth theory of estoppel and both theories are discussed infra.

13. The elements of estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position;

    (2) reliance on that representation; and (3) a change in position detrimental to a party claiming estoppel, caused by the

    representation and reliance thereon. Greenhut Construction Co. v. Henry a. Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971).

14. The facts of this case do not meet the foregoing definition. Everything the Division presented to Petitioner was factually true and legally correct at the time it occurred. The Division also did not intentionally withhold information from

    him.

    
    

15. There is no affirmative duty of state agencies to

    
    

    notify citizens of legislative amendments, let alone a time frame for doing so, unless that duty and time frame are specified or inherent in the statute itself. As silly as it may be in modern practical terms, it remains axiomatic in the law that the citizenry is presumed to know the law.

16. Many members applied for DROP participation, effective July 2001. The Division did not attempt to determine each member's motivation for selecting a July 2001, DROP begin date and could not assume everyone eligible under the new legislation would want to revoke their DROP date. Assuming, arguendo, that such an assumption could be made, the Division had no mechanism to disseminate information only to those DROP applicants.

17. That said, a legal concept known as "equitable tolling" should be applied here. While equitable tolling normally is not employed in cases involving the mere failure to provide any information to an employee (see Hickey v. Division of Retirement,

    DOAH Case No. 98-3895 (Recommended Order 3/9/99 adopted in toto by Final Order 5/10/99)) and Behnke v. Division of Retirement, DOAH Case No. 00-0697 (Recommended Order 8/14/00), the Florida Supreme Court held in Machules v. Dept. of Administration, 532 So. 2d 1132 (1988), both that the principles of equitable tolling are applicable to administrative cases and that the doctrine should apply when an applicant has been misled or lulled into inaction by an agency, and has been diligent in seeking to protect his rights after discovering the error. Here, two sequential failures of accepted governmental duty amounted to lulling Petitioner into inaction. First, the Division's direct employer-agent failed to timely inform all its FRS members of whom Petitioner, who was still working, was one. Second, the Division failed to timely communicate its final calculations to Petitioner. Once aware of them, Petitioner was immediate and diligent in seeking to protect his rights.

18. The Division of Retirement herein apparently recognized that the new legislation was a particularly important item of information to a limited group of FRS members and assumed the affirmative duty to disseminate information concerning the new legislation to all direct employers, including the retirement offices of all state universities. In sending Release 2001-73 to the UF Retirement Office on or about June 21, 2001, the Division clearly recognized the importance of the new legislation to all

    FRS members associated with the university and made UF its agent for further dissemination of the information. See Hickey v.

    Division of Retirement, DOAH Case No. 98-3895 (Recommended Order 3/9/99), citing Warren v. Dept. of Administration, 534 So. 2d 568 (Fla. 5th DCA 1989).

19. The fact that the Division communicated to all direct employers, including UF, the unusual and highly significant new opportunity provided by the 2001 amendment before its effective date shows that the Division recognized its importance, recognized that some confusion might exist as to whether it applied to all university instructional personnel, and further recognized that some confusion might exist as to its effective date. The fact that some instructional personnel knew to inquire of the Division before the Division's December 2001, blanket employee notification indicates that other direct employers, as the Division's agents for that purpose, relayed this information to their employees in a timely manner. The fact that UF did not notify Petitioner is an unusual circumstance for which Petitioner should not be penalized.

20. Whenever the Division fails to complete and verify its calculations within its self-appointed 30-day window, it clearly creates inequities in the system for those members whose final calculations have been delayed, through no fault of their own, in such a way as to cut them off from any meaningful exercise of the

    30-day grace period the Division's practice/unpromulgated rule intends to be extended uniformly. Herein, the unusual circumstance of a delay between July 19, 2001, and August 22, 2001, in mailing the final calculations to Petitioner could not be adequately explained by Mr. Hunnicutt, who acknowledged that the Division's aspirational goal is to let retirees see their final calculations before their grace period ends.

21. Finally, equitable tolling could be applied in no more appropriate case than one in which a $10,000 meritorious salary increase indicates that allowing Petitioner to remain employed and serve the State longer as a teacher is in the State's best interest.

22. Petitioner remains an employee and has not actually received any of the deposits or interest accruals associated with DROP. Under the circumstances, the named statutes should not be applied to prevent his withdrawal from DROP.

23. Petitioner should be entitled to withdraw from DROP effective within July 2001, and return to the regular retirement class, with a concomitant recalculation of his retirement credits so that any deposits and interest accruals to date do not unjustly enrich him. Then, under the new statutory provision, he may elect a DROP begin date at any time hereafter.

RECOMMENDATION

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

RECOMMENDED that the Department of Retirement enter a final order deeming Petitioner timely withdrawn from DROP in the month of July 2001, returning him to an FRS status of regular employment, earning regular retirement serviceable credit, and providing for a recalculation of his retirement credits as appropriate to his altered status.

DONE AND ENTERED this 16th day of May, 2002, 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 16th day of May, 2002.

ENDNOTES

1/ The parties stipulated to this Finding of Fact. However, the undersigned notes that the UF verification of Petitioner's wages shows that he had been in that employment beginning July 1, 1974 (or 27 years). Since there could have been other State employment, the 27 years cannot be relied upon, and the parties' stipulation is accepted. This is not really significant in light of Finding of Fact 4.

2/ Petitioner proposed that the undersigned refer to an

October 22, 2001, letter from the Division to a representative of a different University, which letter Petitioner acknowledges in his Proposed Recommended Order was not assigned an exhibit number or admitted in evidence. That letter was used in oral argument with regard to the order noted in the Preliminary Statement for the Division to produce other public documents and was attached to discovery pleadings in this case. Although not admitted in evidence, Mr. Hunnicutt's testimony is to the same effect.

COPIES FURNISHED:

Joel B. Cohen

2618 Northwest 22nd Avenue Gainesville, Florida 32605

Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin Sjostrom Director Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel Division of Retirement

Department of Management Services 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: 01-004888

Orders for Case No: 01-004888