STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WENDY GASIOR AND HENRY A. WENZ, )

)

Petitioners, )

)

vs. )

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent, )

)

and )

)

JOANNE METZLER WENZ, )

)

Intervenor. )

Case No. 03-0428

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 6, 2003, in Viera, Florida, before Carolyn S. Holifield, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henry Wenz, pro se

658 Whitemarsh Avenue

Deltona, Florida 32725

For Petitioner

Wendy Gasior: Derek F. Johnson, Esquire

1970 Michigan Avenue Building D

Cocoa, Florida 32922

For Respondent: Thomas E. Wright, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

For Intervenor: Allan P. Whitehead, Esquire

Frese, Nash & Hansen, P.A.

930 South Harbor City Boulevard Suite 505

Melbourne, Florida 32901 STATEMENT OF THE ISSUE

Whether Petitioners, as named beneficiaries of William Wenz, deceased, are entitled to a refund of the Teachers Retirement System account balance of Mr. Wenz, or whether the widow, Joanne Metzler Wenz, is entitled to receive a monthly

retirement.

PRELIMINARY STATEMENT

William Wenz was an active member of the Teachers Retirement System (TRS) with approximately 35 years of creditable service when he died on March 27, 2002. Following his death, Petitioners, as two of the named beneficiaries, requested a refund of the accumulated contributions in the TRS account of William Wenz. Respondent, Department of Management Services, Division of Retirement (Respondent or Division of Retirement), determined that a continuing benefit was due to Joanne Metzler Wenz, as the surviving spouse of William Wenz, and that no benefits or contributions from William Wenz's TRS account were due to the named beneficiaries. In a letter dated

June 26, 2002, the Division of Retirement denied Petitioners' request for a refund of William Wenz's retirement contributions. According to the letter, the denial was because the lifetime benefit to the surviving spouse superceded the named beneficiaries' right to a refund of contributions. Petitioners challenged the Division of Retirement's decision and timely requested a hearing.

On or about February 10, 2003, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the final hearing and prepare a recommended order. On February 26, 2003, Joanne Metzler Wenz filed a Petition for Leave to Intervene. By Order issued March 5, 2003, Joanne Metzler Wenz was permitted to intervene in this proceeding.

At the final hearing, Petitioner Henry Wenz testified on his own behalf and presented the testimony of Joanne Metzler Wenz. Petitioner Wendy Gasior testified on her own behalf.

Respondent presented the testimony of Stanley Colvin, benefits administrator of the Division of Retirement. The parties jointly offered eight exhibits, which were admitted into evidence. Petitioner Henry Wenz's Exhibits lettered J and L were received into evidence, and his Exhibits lettered D and H were proffered. The undersigned took official recognition of

Chapter 238, Florida Statutes, and specifically, Sections 238.07 and 238.08, Florida Statutes (1963), (1969), and (2001).

At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days after the filing of the transcript. A Transcript of the proceeding was filed on June 2, 2003. On June 9, 2003, Petitioner Henry Wenz filed an Unopposed Motion to Enlarge Time (Motion) to file proposed recommended orders. The Motion was granted and the time for filing proposed recommended orders was extended to June 26, 2003. The parties timely filed Proposed Recommended Orders under the extended time, which have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. William Wenz was an active member of the Teachers Retirement System (TRS) when he passed away on March 27, 2002, having become a member in 1964 when he was employed as a teacher. William Wenz had approximately 35 years of creditable service in the TRS at the time of his death.

2. Throughout his more than 30 years as a teacher, William Wenz made contributions to the TRS. When William Wenz died, his TRS account consisted of $166,285.44 in contributions and interest.

3. William Wenz and Joanne Metzler were married on August 14, 1998.

4. On November 9, 1998, William Wenz filed a personal history and beneficiary designation with the Division of Retirement. On that form, William Wenz designated Joanne Metzler Wenz as primary beneficiary and their children as contingent beneficiaries.

5. On May 4, 2000, William Wenz filed a new beneficiary designation with the Division of Retirement and named his brother, Henry Wenz; his daughter, Wendy Gasior; and his son, William Kurt Wenz, as his beneficiaries. Henry Wenz and Wendy Gasior are Petitioners in this proceeding.

6. Petitioners contend that by virtue of his executing the May 4, 2000, beneficiary form described above, William Wenz clearly intended that his retirement benefits or TRS accumulated contributions would go to his children and brother and not to his wife.

7. In March of 2002, Joanne Metzler Wenz filed for a divorce from William Wenz. Shortly thereafter, on March 27, 2002, William Wenz died. At the time of his death, the divorce action was still pending and had not been finalized.

8. After the death of William Wenz, Petitioner Wendy Gasior sought a refund of William Wenz's TRS accumulated contributions. The Division denied this request by letter dated June 26, 2002. In the denial letter, the Division of Retirement stated that, "under TRS law, the right of a spouse to the

   lifetime Option 3 benefit supercedes the beneficiary's right to a refund of contributions."

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

10. The Division of Retirement is charged with the general administration and responsibility for the proper operation of the TRS. Section 238.03, Florida Statutes.

11. The membership and rights of individuals under TRS are prescribed by the Legislature and the plain meaning of those provisions will control. Petitioners' subjective interpretation, based on their impressions and opinions, of what those rights are do not control.

12. The TRS is codified in Chapter 238, Florida Statutes.

    
    

    Section 238.05(1)(b), Florida Statutes (1965), provided for compulsory participation for all public school teachers in Florida.

13. Section 238.07(13), Florida Statutes (1965), provides that:

    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. Should a member die before

    retirement, the amount of his or her accumulated contributions shall be paid to such person, if any, as he or she shall have nominated by written designation duly executed and filed with the department; otherwise, to his or her executors or administrators.

    
    

14. In 1969, Chapter 238, Florida Statutes, was amended by adding Section 238.08(6), Florida Statutes, which provides as

    follows:

    
    

    1. Notwithstanding any provision in this chapter to the contrary, the following provisions shall apply to any member of the retirement system who has accumulated at least 10 years of service and dies prior to retirement:

       
       

       1. If the deceased member's surviving spouse has previously received a refund of the member's accumulated contributions made to the retirement system, such spouse may pay to the department an amount equal to the sum of the amount of the deceased member's contributions previously refunded and regular interest compounded annually on the amount of such refunded contributions from the date of refund to the date of payment to the department, and by so doing be entitled to receive the monthly retirement benefit provided in paragraph (c).

          
          

       2. If the deceased member's surviving spouse has not received a refund of the deceased member's accumulated contributions, such spouse shall, upon application to the department within 30 days of the death of the member, receive the monthly retirement benefit provided in paragraph (c).

          
          

       3. The monthly benefit payable to the spouse described in paragraph (a) or paragraph (b) shall be the amount which would have been payable to the deceased

    member's spouse, assuming that the member retired on the date of his or her death and had selected the option in subsection (3), such benefit to be based on the ages of the spouse and member as of the date of death of the member. The benefit shall commence on the first day of the month following the payment of the aforesaid amount to the department, if paragraph (a) is applicable, or on the first day of the month following the receipt of the spouse's application by the department, if paragraph (b) is applicable.

    
    

15. The statute is clear regarding who receives benefits and/or contributions should a TRS dies before retirement. Prior to 1969, that members' accumulated contributions would be paid to his or her designated beneficiaries. However, the 1969 Amendment to Section 238.08(6), Florida Statutes, sets forth a new legislative scheme. Subsection 238.08(6)(b), Florida Statutes (1969), provides that, "notwithstanding any provision in this chapter," if the deceased members spouse has not received a refund of the deceased members' accumulated contributions, the surviving "spouse shall upon application within 30 days of the death of the member, receive the monthly benefit."

16. Petitioners argue that William Wenz, the deceased TRS member, did not intend for his wife to receive a monthly benefit. Instead, he intended for his accumulated contributions or any benefit to go to Petitioners, as evidenced by the execution of the May 4, 2000, beneficiary form naming them as

    beneficiaries. If William Wenz had died leaving no surviving spouse, the designated beneficiaries would be entitled to the accumulated contributions. However, in this case, William Wenz left a surviving spouse.

17. Notwithstanding Petitioners' beliefs, the benefits under TRS are prescribed and controlled by law. Chapter 238, Florida Statutes. Based on the provisions therein, Petitioners are ineligible to receive a refund of William Wenz' accumulated contributions.

18. Applying the facts of this case to Section 238.08(6), Florida Statutes (1969), the Division of Retirement is required to pay a monthly benefit to Joanne Metzler Wenz, the surviving spouse of William Wenz.

RECOMMENDATION

Based on 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 finding that

(1) Petitioners are ineligible for a refund of accumulated contributions on the account of William Wenz; and (2) Intervenor Joanne Metzler Wenz is eligible for a monthly retirement benefit.

DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 7th day of August, 2003.

COPIES FURNISHED:

Derek F. Johnson, Esquire

1970 Michigan Avenue, Building D Cocoa, Florida 32922

Henry A. Wenz

658 Whitemarsh Avenue

Deltona, Florida 32725

Allan P. Whitehead, Esquire Frese, Nash & Hansen, P.A.

930 South Harbor City Boulevard Suite 505

Melbourne, Florida 32901

Thomas E. Wright, Esquire Division of Retirement

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin Sjostrom, Director Division of Retirement

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

Monesia Taylor Brown, Acting General Counsel Division of Retirement

Department of Management Services 4050 Esplanade Way

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: 03-000428

Orders for Case No: 03-000428