STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK H. MILLS, JR.,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 03-0733

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RECOMMENDED ORDER

A formal hearing was conducted in this case on April 30, 2003, in Tallahassee, Florida, before the Division of Administrative Hearings by its Administrative Law Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: Frederick H. Mills, Jr., pro se

8077 Longmeadow Lane

Tallahassee, Florida 32312

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 was eligible to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS) when he applied on October 4, 2002.

PRELIMINARY STATEMENT

Petitioner is employed by the Department of Business and Professional Regulation and is in the special risk class of the Florida Retirement System. Petitioner attained age 55 on January 15, 2001, and had approximately 23.5 years of creditable service in the special risk class of the Florida Retirement System at that time. He applied for participation in the DROP on October 4, 2002, some 20 months after his normal retirement date. The Department of Management Services, Division of Retirement, denied his application because more than 12 months had passed since he reached his normal retirement date and became eligible. Petitioner timely filed an appeal.

Petitioner testified on his own behalf. Respondent presented testimony from Ira Gaines, Benefits Administrator, Division of Retirement, and offered one exhibit, which was admitted. The parties jointly offered six exhibits, which were admitted. Official recognition was taken of Chapter 121, Florida Statutes, and specifically Sections 121.021(29)

and 121.091(13)(a), Florida Statutes (2001).

No transcript was ordered and the parties were given ten days to file post-hearing submissions. Both parties' submissions have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is employed by the Department of Business and Professional Regulation as a law enforcement officer, and has been since October 17, 1977 (Testimony of Petitioner).

2. Petitioner was considered "vested" in the special risk class of the FRS when he reached ten years of service in 1987 (Testimony of Ira Gaines).

3. On January 15, 2001, Petitioner reached 55 years of

   
   

   age.

   
   

4. On October 4, 2002, Respondent received Petitioner's

   
   

   application to participate in the DROP.

   
   

5. The Department of Management Services, Division of Retirement (Division), denied Petitioner's application for DROP participation because more than 12 months had passed since he first became eligible, and his opportunity to enter the program had lapsed.

6. Petitioner testified that he was confused by the language of the educational materials on the Division's web site and thought he could defer DROP participation until he

   reached 25 years of service.

   
   

7. The Division's web site stated the following regarding DROP eligibility when Petitioner became eligible:

   Eligibility - You are eligible to participate in the DROP when you are a participant of the Pension Plan, are vested

   and have reached your normal retirement date. Your "normal retirement date" is the earliest date at which you are eligible for full, unreduced benefits based upon your age and service. In most cases, you reach your normal retirement date when you are vested and reach age 62, or when you complete 30 years of service, regardless of your age (age 55 or 25 years of service for special risk members). You may make your election to participate in DROP up to 6 months before the date you plan to begin participation, and you must elect DROP participation within 12 months after you first reach your normal retirement date . . . . (Emphasis added)

   
   

8. Petitioner admitted he never sought advice either from his personnel office or from the Division.

9. Petitioner filed a timely request for a review of the Division's denial of his DROP application and this hearing followed.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).

11. The FRS is codified in Chapter 121, Florida Statutes.

    
    

    Section 121.091(13), Florida Statutes (2002), provides for the DROP, which is a program in which a member may defer the receipt of his or her retirement benefits and continue working for up to

    60 months. During this deferral period, a member's regular retirement benefit is retained in the FRS trust fund and earns

    interest. When a member terminates all employment, he or she will receive the accumulated benefit payments and interest, and commence drawing normal retirement benefit.

12. Section 121.091(13)(a), Florida Statutes (2002), provides that a member becomes eligible to enter DROP upon reaching his or her "normal retirement date." Upon reaching that date, a member may participate for up to 60 months. A member must elect to participate within 12 months of the date on which he or she first attains normal retirement date, with a few exceptions not relevant to this proceeding.1/

13. Section 121.021(29)(b), Florida Statutes (2002), defines "normal retirement date," for special risk members, as the first day of the month following the date on which the member attains 55 years of age, with six months of creditable service, or the date on which a member reaches 25 years of service, regardless of age.

14. In administrative proceedings the burden is on the party seeking the affirmative of an issue. See Florida

    Department of Transportation v. J.W.C. Company, 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).

15. Petitioner stated that he was mislead by information on the Division's web site. In his post-hearing brief, Petitioner states that the information on the web site, "stated that a participant in special risk had the option of entering the program at age 55 years or 25 years of service." As quoted above, the site clearly does not present such an option. Although the language could be clearer, the site states a member must elect DROP participation within 12 months after he or she first reaches the normal retirement date. The site states that the normal retirement date is the date at which a member is eligible for full, unreduced benefits based upon your age and service. It then says, "In most cases you reach normal retirement date when you are vested and reach age 62, or when you complete 30 years of service, regardless of your age (age 55 or 25 years of service for special risk members.)"

16. An option can not be construed from a plain reading of the web site's material. However, even if it could be, this is an equitable argument. The Division has no jurisdiction to award equitable relief. See Section 26.012, Florida Statutes (2002).

17. Petitioner failed to meet his burden that he was eligible to participate in the DROP when he applied on October 4, 2002.

RECOMMENDATION

Based on the foregoing Findings of Facts 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 participate in the DROP.

DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 30th day of June, 2003.

ENDNOTE

1/ If the member delays during the 12 months after becoming eligible, the number of months the member delays are deducted from the 60 months the member may participate in DROP.

COPIES FURNISHED:

Frederick H. Mills, Jr. 8077 Longmeadow Lane

Tallahassee, Florida 32312

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

Tallahassee, Florida 32399-0950

Erin Sjostrom, Director Department of Management Services Division of Retirement

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

Monesia Taylor Brown, Acting General Counsel 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: 03-000733

Orders for Case No: 03-000733