STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, the final hearing was held in this case on June 9, 2009, before Administrative Law Judge Jeff B. Clark of the Division of Administrative Hearings by video teleconference at sites in Tampa and Tallahassee, Florida.

APPEARANCE

For Petitioner: Linda Holston, pro se

5841 10th Street

Zephyrhills, Florida 33542

For Respondent: Thomas E. Wright, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121,

Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.

PRELIMINARY STATEMENT

By letter dated August 19, 2008, Respondent, Department of Management Services, Division of Retirement (hereinafter "Division"), notified Petitioner, Linda Holston, a retired member of the Florida Retirement System (hereinafter "FRS"), that she was in violation of the reemployment provision of FRS by returning to work with the Pasco County School Board (hereinafter "PCSB") within 12 months of her retirement date.

Petitioner terminated the Deferred Retirement Option Program (hereinafter "DROP"), effective January 31, 2006, but then returned to employment with PCSB in April 2006. The Division inactivated her retirement benefits and requested she repay those retirement benefits and health insurance subsidy payments to which it suggested she was not entitled. When Petitioner disagreed with the Division's request, the Division issued a Final Agency Action letter dated August 19, 2008. On

September 15, 2008, Petitioner timely requested a hearing. This case was forwarded to the Division of Administrative Hearings by the Department of Management Services on March 18, 2009, requesting a formal hearing.

On the same day, March 18, 2009, an Initial Order was sent to both parties. Based on the parties' responses to the Initial

Order, on March 27, 2009, the final hearing in this case was scheduled for May 5, 2009. By letter dated April 27, 2009, Petitioner requested a continuance, which was granted. The case was rescheduled for June 9, 2009.

The final hearing took place as scheduled. Petitioner testified in her own behalf and presented the testimony of Allen Ford and Renee Sedlack. She introduced 13 exhibits which were admitted into evidence marked P1 through P13. Respondent presented the testimony of Cindy Randolph and introduced eight exhibits, which were admitted into evidence and marked R1 through R8. In addition, the Division requested official recognition of Chapter 121, Florida Statutes (2005). Official recognition was taken.

No transcript of the proceedings was filed. Both parties timely filed post-hearing submittals.

All references are to Florida Statutes (2005), unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:

1. Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006.

2. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk.

3. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions.

4. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment.

5. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call.

6. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits.

7. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status.

8. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case.

9. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS.

10. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and

    $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit.

11. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and of the parties hereto pursuant to Sections 120.569 and Subsection 120.57(1), Florida Statutes (2008).

13. Chapter 121, Florida Statutes, contains the "Florida Retirement System Act."

14. Petitioner has the burden of proving by a preponderance of the evidence that she did not violate the reemployment provisions of Chapter 121, Florida Statues. Wilson v. Department of Administration, Division of Retirement, 538

    So. 2d 139, 141-42 (Fla. 4th DCA 1989); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788

    (Fla. 1st DCA 1981).

15. When a member of FRS retires, as in the instant case, there are statutory limitations upon that member returning to work with an employer in FRS.

16. Except for limited exceptions, a retired member of FRS is prohibited from receiving retirement benefits and a salary from an employer in FRS for a period of 12 months immediately subsequent to the date of retirement.

17. Subsection 121.091(9), Florida Statutes, provides in relevant part:

    EMPLOYMENT AFTER RETIREMENT; LIMITATION.—

    
    

    * * *

    
    

    (b)1. Any person who is retired under this chapter, . . . may be reemployed by any private or public employer after retirement and receive retirement benefits and compensation from his or her employer without any limitations, except that a person may not receive both a salary from reemployment with any agency participating in the Florida Retirement System and retirement benefits under this chapter for a period of 12 months immediately subsequent to the date of retirement. However, a DROP participant shall continue employment and receive a salary during the period of participation in the Deferred Retirement Option Program, as provided in

    subsection (13).

    
    

    2. Any person to whom the limitation in subparagraph 1. applies who violates such reemployment limitation and who is reemployed with any agency participating in the Florida Retirement System before completion of the 12-month limitation period shall give timely notice of this fact in

    writing to the employer and to the division and shall have his or her retirement benefits suspended for the balance of the 12-month limitation period. Any person employed in violation of this paragraph and

    any employing agency which knowingly employs or appoints such person without notifying the Division of Retirement to suspend retirement benefits shall be jointly and severally liable for reimbursement to the retirement trust fund of any benefits paid during the reemployment limitation period.

    To avoid liability, such employing agency shall have a written statement from the retiree that he or she is not retired from a state-administered retirement system. Any retirement benefits received while reemployed during this reemployment limitation period shall be repaid to the retirement trust fund, and retirement benefits shall remain suspended until such repayment has been made. Benefits suspended beyond the reemployment limitation shall apply toward repayment of benefits received in violation of the reemployment limitation. [emphasis added]

    
    

18. In addition, Subsection 121.091(13), Florida Statutes, provides that limitations are equally applicable to DROP participations. Subsection 121.091(13)(h), Florida Statutes,

    provides:

    
    

    Employment limitation after DROP participation.-—Upon satisfying the definition of termination of employment as provided in s. 121.021(39)(b), DROP participants shall be subject to such reemployment limitations as other retirees. Reemployment restrictions applicable to retirees as provided in subsection (9) shall not apply to DROP participants until their employment and participation in the DROP are terminated.

19. As a "clerical" worker, Petitioner did not qualify for any of the statutory exceptions that would allow her to be reemployed by a FRS employer during the first 12 months of her retirement and continue to receive her retirement stipend.

20. Unfortunately, Petitioner relied on PCSB's assurances that she could return to work and continue to receive her retirement stipend. While Subsection 121.091(9)(b)2, Florida Statutes, in paragraph 17 above, appears to address this factual situation, this tribunal does not have jurisdiction to grant equitable remedies and PCSB is not a party to this case. See

§ 26.012, Fla. Stat.

RECOMMENDATION

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

RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes.

DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2009.

COPIES FURNISHED:

Thomas E. Wright, Esquire Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Linda J. Holston 5841 10th Street

Zephyrhills, Florida 33542

Sarabeth Snuggs, Director Division of Retirement

Department of Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

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: 09-001462

Orders for Case No: 09-001462