STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERMAN JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 05-2428

) DEPARTMENT OF MANAGEMENT ) SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

_____ )

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on September 26, 2005, in Starke, Florida, before Ella Jane

P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terence M. Brown, Esquire

Brown & Broling, P.A. Post Office Box 40

Starke, Florida 32091-0040

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services 4050 Esplandade Way, Suite 160

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a refund of, or credit equal to, the amount of the contributions he made to the

Florida Retirement System (FRS) for service between November 8, 1971 and June 30, 1972.

PRELIMINARY STATEMENT

Petitioner requested credit to FRS for his service for November 8, 1971 through June 30, 1972. In a proposed final agency action letter dated November 30, 2004, Respondent Agency denied his request. Petitioner timely requested a disputed-fact hearing, and the case was referred to the Division of Administrative Hearings on or about July 7, 2005.

At hearing, Petitioner testified on his own behalf and had one exhibit admitted in evidence. Respondent presented, by telephone, the oral testimony of Andrew Snuggs, who was accepted as an expert in FRS retirement calculations. Respondent had 15 exhibits admitted in evidence.1/ Official recognition was taken of certain requested statutes and rules.

A Transcript was filed on November 14, 2005. Respondent filed a Proposed Recommended Order on November 28, 2005.

Petitioner filed a Proposed Recommended Order on December 9, 2005. Because the parties had stipulated to file their proposals no later than November 24, 2005; and both proposals were filed late, both proposals have been considered.2/

FINDINGS OF FACT

1. Petitioner was employed as a paraprofessional by the Alachua County School Board from November 8, 1971 through

   June 30, 1972. During this period, he was a participant in FRS.

   
   

2. Petitioner was employed as a County Commissioner by the Bradford County Board of County Commissioners from November 19, 1996, through November 16, 2004. During this period, he was a participant in FRS.

3. On October 20, 2004, Petitioner filed an Application for Service Retirement with Respondent Division of Retirement.

4. Respondent's audit of Petitioner's FRS account indicated that Petitioner had been paid in 1976 for his service with the Alachua County School Board.

5. By an October 21, 2004, letter, Respondent acknowledged receipt of Petitioner's Service Retirement Application and gave Petitioner the opportunity to "buy back" his 1971/1972 time with the Alachua County School Board.

6. By a November 18, 2004, letter, Respondent notified Petitioner that he must provide either a check to buy back his 1971/1972 time or a written statement indicating he did not want to purchase the service. Petitioner sent Respondent's letter back to Respondent with the following handwritten letter at the bottom, "I do not wish to purchase this service. Send check of

   refund." Petitioner signed and dated his signature, "11-23- 04."3/

7. Respondent notified Petitioner, in a proposed final agency action letter dated November 30, 2004, that an audit of his FRS account showed that, in the 1975/1976 fiscal year, Petitioner had requested a refund of his contributions to FRS for the period from November 8, 1971 through June 30, 1972. The letter noted that a refund check, in the amount of $104.00, representing the Petitioner's full contribution to FRS had been issued on February 11, 1976. Respondent enclosed with the letter a copy of the signed refund request card bearing a signature it presumed to be Petitioner's. Respondent's letter also informed Petitioner that he could reinstate this service credit by repaying the $104.00, plus accrued interest, for a total of $645.89. It further stated that Respondent had received Petitioner's written statement that he did not wish to repurchase this service credit and therefore his name would be added to the retired payroll without the refunded service.

8. By a December 16, 2004, letter, Petitioner asked Respondent to get a handwriting expert to prove his signature on the refund request card was a forgery and a fraud. Respondent did not get a handwriting expert, but referred the underlying issue to the Division of Administrative Hearings.

9. Respondent is the State Agency charged with the responsibility of administering FRS. Its information management system maintains a file on each member of FRS, including Petitioner. This file permits the construction set forth in Respondent's November 30, 2004, letter.

10. Respondent's file also reflects that on or about November 2, 1998, Respondent, after conducting an audit of Petitioner's retirement account, determined that Petitioner then would have had to submit a check in the amount of $442.65, if Petitioner wanted to purchase previously refunded service from November 8, 1971 through June 30, 1972.

11. Also, the file reflects that a letter, dated November 16, 1998, was mailed to Petitioner, in care of (c/o) the Bradford County Board of County Commissioners (of whom Petitioner was one at the time), at the Board's official address. This letter provided Petitioner with a Statement of Account, which reflected the findings of the above audit and explained that Petitioner had the option to purchase his refunded service.

12. At the time of leaving his FRS-covered employment in June 1972, Petitioner had accrued .80 years (eighty per cent of one year) of creditable service in FRS, which computed to

    $104.00, but he was not a vested member of FRS.

13. In early 1976, Respondent received a "Request for Refund" card, dated "12-22-75," bearing Petitioner's name, social security number, mailing address, and what purported to be Petitioner's signature.

14. The mailing address listed on the refund card was, and still is, Petitioner's mailing address. It is a post office box. At all times material, Petitioner had the sole key to this post office box.

15. It was not unusual in 1975 for a non-vested member of FRS to request a refund of accumulated contributions in FRS after terminating employment. Reasons for this might include an intention not to return to work for the State or an immediate need for the money contributed.

16. Respondent Division of Retirement and the Comptroller followed their established procedures when they processed the request for refund card. Respondent Division of Retirement provided the pertinent information from the card to the Comptroller and requested a corresponding warrant. The Comptroller prepared a warrant in the requested amount and returned it to the Division, along with a computer-printed label that contained Petitioner's name and social security number, the refunded amount ($104.00), voucher number (270029), warrant number (0304887), and the date of the warrant (February 11, 1976). Upon receipt of the warrant and label, Respondent

    affixed the label to the refund request card, somewhat left of the middle, and over some of the other printing and markings. The label was affixed rather than filling out by hand the printed space indicated for the same information in the lower right hand corner of the card. The Respondent Division then mailed the warrant to Petitioner's address of record.

17. It is possible, but unlikely because he was employed elsewhere at the time (see Finding of Fact 18) that in 1975, Petitioner made out the refund request card at the office of his former employer, the School Board of Alachua County, and transmitted it through the former employer's office to Respondent. Petitioner could also have transmitted it personally under those conditions, but there is no affirmative proof either of the foregoing scenarios occurrence. It is possible that when the card was transmitted to the Respondent, it did not already have the necessary approval information filled out by a representative of the School Board of Alachua County, providing the date of Petitioner's last retirement deduction, employer agency code, and approval signature, but there is no affirmative proof of this, either. It is possible that the card acquired this information before it was submitted to Respondent or that Respondent requested that the former employer place this information on the card before Respondent requested that the Comptroller cut a State warrant to

    Petitioner. Therefore, it also is possible that the card was handled sometime during the process by persons in the office of the School Board of Alachua County, who may also have corrected dates in the request portion of the card, presumably filled out by Petitioner, but there is no affirmative proof that any of that chain of conjectured events actually happened. Respondent now cannot determine how the Agency initially was contacted (in writing or by telephone) concerning the refund or whether it was initially contacted by Petitioner or by his first FRS employer, the Alachua County School Board. However, nothing in this chain of possible, yet unproven, events alters Mr. Snuggs' clear and convincing testimony that at the time at issue, retirement refund checks were mailed by Respondent directly to the address of the former State employee, not to the former employing agency.4/

18. At hearing, Petitioner admitted that, when he left State employment in 1972, he had no idea what the future would bring and that he continued to run for office (presumably an FRS-covered employment) whenever the opportunity arose. Petitioner also testified that he was working for IBM in late 1975 and early 1976 and that his financial situation was "pretty good."

19. However, Petitioner denied executing the request for refund card and further denied ever receiving the State warrant for $104.00.

20. The actual warrant at issue was destroyed by the Comptroller's Office in accordance with its statutory document control schedule, so it is impossible to determine who endorsed and cashed it.

21. Petitioner contended that the signature on the refund request card was not his, but a forgery. He based this claim on his belief that he "never had a signature that looked that good." Respondent produced no handwriting expert to refute this testimony. However, Petitioner admitted that the appearance of his signature had "changed from time to time," and Respondent offered in evidence three examples of Petitioner's signature to show the different forms Petitioner's signature has taken over the years. Upon reviewing these exhibits, Petitioner conceded that all of the examples were of his signature and that they "don't look the same."

22. The undersigned has compared the three acknowledged signatures with the signature on the refund request card. There are differences among all of them, and the undersigned cannot make any reasonable finding of fact one way or the other as to the authenticity of the signature on the retirement refund card in this case.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes.

24. FRS is codified in Chapter 121, Florida Statutes.

    
    

25. Chapter 121, Florida Statutes, provides for compulsory participation in FRS for all employees hired after December 1, 1970. § 121.051, Florida Statutes.

26. Respondent is the State Agency charged with the responsibility of administering FRS. § 121.025, Fla. Stat.

27. Prior to 1975, FRS was "contributory," meaning that each FRS member was required to contribute a percentage of his or her salary to the FRS Trust Fund. Contributions to the FRS Trust Fund were also made by each member's employer.

    § 121.071(2)(a), Fla. Stat.

    
    

28. On January 1, 1975, FRS became "non-contributory" for members, meaning that each member's employer made all contributions to FRS. § 121.071(2)(a), Fla. Stat.

29. Upon termination for any reason other than retirement, a member could request a full refund of contributions paid prior to the date upon which FRS became non-contributory.

    § 121.071(2)(b), Fla. Stat.

30. If a member receives a refund of contributions and does not "purchase it back," the member waives all rights under FRS to the service credit represented by the refunded contributions. § 121.071(6)(c), Fla. Stat.; Fla. Admin. Code. R. 60S-3.002(6).

31. The burden of proof in administrative hearings is on the party asserting the affirmative of an issue. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation v. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). This burden has been specifically adopted for the instant type of case. Johnson v. Dept. of Management Services, DOAH Case No. 04-1685 (RO: September 22, 2004); Holt v. Dept. of Management Services, DOAH Case No. 04-1046 (RO: June 24, 2004); and Helms v. Dept. of Management Services, DOAH Case No. 02-0354 (RO: April 17, 2002). The standard of proof is a preponderance of the evidence. Florida Department of Health and Rehabilitative Services v.

    Career Service Commission, 289 So. 2d 412 (Fla. 4th DCA 1974), and Section 120.57(1)(j), Florida Statutes.

32. Petitioner herein has the burden of proving by a preponderance of the evidence that he did not receive a refund and that he is therefore now entitled to a refund of, or a credit equal to, the accumulated contributions he made for the

    period of employment at issue. A "preponderance of the evidence" means that Petitioner must prove that it is "more probable than not" that he did not receive a refund and that he is therefore now entitled to a refund of, or a credit equal to, the accumulated contributions he made to FRS. See cases cited supra; and Holland v. Dept. of Management Services, DOAH Case No. 02-0986 (RO: June 24, 2002), involving request by respondent for a refund of an overpayment of petitioner's retirement contribution refund.

33. Herein, Petitioner's evidence is little more than his bare assertion, thirty years after the fact, that he did not sign the 1975/1976 request for refund card and that he did not receive the refund warrant. I detect no dishonesty on Petitioner's part, only a confusion of memory. Since the refund check was mailed to a post office box to which only Petitioner had a key, it is more probable than not that he did receive the State warrant, and by inference, that he is the one who endorsed and cashed that warrant.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which denies Petitioner's request for a refund or credit for the amount of the accumulated

contributions he made to FRS between November 8, 1971, and June 30, 1972.

DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida.

S

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 6th day of January, 2006.

ENDNOTES

1/ The Table of Contents of the Transcript is in error, but its transcribed pages 8, 9, and 58 will bear out these statements.

2/ Petitioner's Proposed Recommended Order has been considered over Respondent's objection in the form of a Motion to Strike, filed December 19, 2005. Respondent's proposed "stipulated facts" were only stipulated to by Respondent. Petitioner stipulated only to Respondent's exhibits.

3/ Petitioner testified that he made this request because he knew that Respondent was holding some money for him from "that time." Clearly, Petitioner did not understand his options as set out in the letter, but equally clearly, he was seeking a one-time payment, and was not seeking credit in time served in government employment.

4/ Cases cited by Respondent indicate that through 1974, refund applications had to be made by the former employee through the former FRS employer, and that through 1974, refund checks were

sometimes mailed to the former FRS employer for pickup by the former employee. (See Conclusion of Law 31.)

COPIES FURNISHED:

Terence M. Brown, Esquire Brown & Broling, P.A. Post Office Box 40

Starke, Florida 32091-0040

Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplandade Way, Suite 160

Tallahassee, Florida 32399

Alberto Dominguez, Esquire Department of Management Services Division of Retirement

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Interim Director 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.

Docket for Case No: 05-002428

Orders for Case No: 05-002428