STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA P. HOLT,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 04-1046

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RECOMMENDED ORDER

A formal hearing was conducted in this case on May 24, 2004, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Veronica P. Holt, pro se

230 East First Street, Apartment 1313 Jacksonville, Florida 32206

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to additional retirement benefits for her years of service between September 1966 and December 1974.

PRELIMINARY STATEMENT

By letter dated January 6, 2004, Respondent Department of Management Services, Division of Retirement (Respondent), advised Petitioner Veronica P. Holt (Petitioner) that she received a refund in February 1978 in the amount of $1,850.78, representing the contributions she made to the Florida Retirement System (FRS) for the period September 1966 through December 1974. The letter alleged that based upon the payment of the refund, Petitioner had waived her right to service credit for said period of time. Petitioner requested an administrative hearing to challenge Respondent's decision, alleging that she never received the refund.

A Notice of Hearing dated April 2, 2004, scheduled the hearing for May 24, 2004.

During the hearing, Petitioner testified on her on behalf.

Petitioner did not present the testimony of any additional witnesses or offer any exhibits for admission into the record as evidence.

Respondent presented the testimony of one witness, Ira Gaines, who was accepted as an expert on retirement benefits under the FRS. Respondent presented seven exhibits, which were accepted as evidence.

A Transcript of the record was filed on June 4, 2004. The parties filed their Proposed Recommended Orders on June 14,

2004.

FINDINGS OF FACT

1. Petitioner is a retired member of the FRS. She began working for the Duval County Juvenile Detention Center (DCJDC) in August 1966. However, Petitioner's name was not placed on the payroll until September 1966 because of the time she was absent.

2. As an employee of the DCJDC, Petitioner was a county employee but also a participant in the FRS. She made contributions in the amount of $1,850.78 to the FRS from September 1966 through December 1974. The FRS became non- contributory for all state and county employees in January 1975.

3. Petitioner terminated her employment with Duval County on June 20, 1977. At that time, Petitioner requested a refund of her accumulated contributions to the FRS. Petitioner acknowledged in her request for refund that she waived her interest in FRS for the refunded service.

4. On or about February 22, 1978, Respondent issued Voucher #273254 and Warrant #0364356 made payable to Petitioner in the amount of $1,850.78. Petitioner's testimony that she never received the refund is not credible.

5. On or about October 16, 1981, Petitioner returned to work at DCJDC. After receiving several promotions, Petitioner transferred to a position at the Department of Health. Petitioner terminated her employment at the Department of Health on November 13, 1998.

6. In August 2000, Petitioner filed an Application for Service Retirement. The application includes the following sworn statement:

   I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited.

   
   

7. Respondent sent Petitioner an Acknowledgment of Service Retirement Application dated August 10, 2000. The acknowledgment indicated that Petitioner's retirement date was June 2000 and that she could purchase credit for refunded service from September 1966 through December 1974 by paying Respondent $7,918.46. The acknowledgment made it clear that Respondent required written notification if Petitioner did not intend to purchase this service.

8. In March 2001, Petitioner executed an Option Selection for FRS Members. She selected Option 1, which provides her a monthly benefit for her lifetime.

9. In a letter dated March 27, 2001, Petitioner advised Respondent that she did not intend to buy back any time. Additionally, she stated as follows:

   I would like for my retirement application to be accepted/processed as is. The rate quoted was at $517.00. However, if this amount is incorrect, I would like to know as soon as possible.

   
   

   Based upon Petitioner's statement in the letter, Respondent began paying and Petitioner began receiving her retirement benefits effective June 1, 2000.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

11. Petitioner has the burden of proving by the preponderance of the evidence that she is entitled to additional retirement benefits for her years of service between September 1966 and December 1974. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative

    Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974).

12. Section 121.071(2), Florida Statutes (2003), states as follows:

    (2)(a) Effective January 1, 1975, or

    October 1, 1975, as applicable, each employer shall accomplish the contribution required by subsection (1) by a procedure in which no employee's gross salary shall be reduced.

    
    

    (b) Upon termination of employment for any reason other than retirement, a member shall be entitled to a full refund of the contributions he or she has made prior or subsequent to participation in the noncontributory plan, subject to the restrictions otherwise provided in this chapter.

    
    

13. Section 121.085(2), Florida Statutes (2003), states as follows:

    1. No credible service which remained unclaimed at retirement may be claimed or purchased after a retirement benefit payment has been cashed or deposited.

       
       

14. Florida Administrative Code Rule 60S-3.002 states as follows, in relevant part:

    1. All employee retirement contributions for service credit on which benefits are to be calculated must be paid prior to the date of issuance of the first retirement benefit payment.

       
       

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       1. The required contribution for any service that have not been made prior to a

          member's retirement may not be made by any person after the member's retirement. . . .

          
          

       2. . . . A refund of member contributions cancels the member's right to any retirement service credit represented by the refunded contributions. . . .

       
       

15. Florida Administrative Code Rule 60S-4.002 states as follows, in pertinent part:

    1. After a retirement benefit payment has been cashed or deposited or after a DROP payment is credited:

       
       

       1. No additional service, which remained unclaimed at retirement, may be claimed or purchased;

          
          

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    2. Any person who retires under the noncontributory retirement plan for state officers and employees established by Section 112.05, F.S., shall forfeit all rights and benefits under the Florida Retirement System, except for a refund of his accumulated contributions.

    
    

16. The most credible evidence indicates that Petitioner received a refund of her contributions in 1978. She then retired and began accepting benefits under FRS effective June 2000. She is not entitled to any additional benefits for credible service from September 1966 through December 1974.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter a final order finding that Petitioner is not entitled to any additional retirement benefits.

DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 24th day of June, 2004.

COPIES FURNISHED:

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Veronica P. Holt

230 East First Street, Apartment 1313 Jacksonville, Florida 32206

Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Interim Director Division of Retirement

Department of Management Services 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: 04-001046

Orders for Case No: 04-001046