STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA A. CROSSON, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1456

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held in the above styled cause in Room 104, Collins Building, Tallahassee, Florida at 10:00 a.m. on October 15, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Martha A. Crosson

801 West Myrtle

Independence, Kansas 67301

For Respondent: L. Keith Pafford, Esquire

530 Carlton Building Tallahassee, Florida 32304

INTRODUCTION

The Petitioner, a public school teacher, contends that she was transferred from the Teachers' Retirement System to the Florida Retirement System through misrepresentation and without her consent and therefore received lower retirement benefits than she would have had she not transferred from the Teachers' Retirement System.

Respondent contends that there was no misrepresentation and that Petitioner voluntarily elected to transfer from the Teachers' Retirement System to the Florida Retirement System.

FINDINGS OF FACT

1. Petitioner enrolled in "Plan A" of the Teachers Retirement System on August 13, 1954 as a teacher in the Orange County Florida school System.

   
   

2. Petitioner transferred to Jacksonville, Florida and began teaching in Duval County on August 18, 1959 and continued hem membership in the Teachers' Retirement System "Plan A".

3. Petitioner requested a change from the Teachers' Retirement System "Plan A" to Teachers' Retirement System "Plan E" by letter dated April 5, 1965.

   
   

4. Petitioner was approved on March 26, 1966 for Teachers' Retirement System benefits and received disability retirement benefits for a period of time until she re-entered the teaching profession on November 27, 1970 in Duval County, Florida. She subsequently repaid an overpayment of these disability benefits which been paid for a period of time when she had returned to work in Duval County without notice to the Division of Retirement.

   
   

5. Petitioner transferred from the Teachers Retirement System to the Florida Retirement System on October 15, 1970 when she signed a ballot entitled "Social Security Referendum and Application for Florida Retirement System Membership". Petitioner complains that she did not know when she signed the ballot that she was in fact changing her retirement from the Teachers' Retirement System to the Florida Retirement System contending that the statements of the person conducting the meeting at which the ballots were distributed informed the group the ballots were for an election for social security coverage. The ballot, however, clearly reflects that if social security benefits are desired, a change in the retirement system is necessary.

   
   

6. Petitioner applied for Florida Retirement System disability benefits on October 20, 1971 and was approved. This benefit is $26.07 per month greater than the benefits she would have received had she remained in the Teachers' Retirement System.

   
   

7. On October 3, 1975, Petitioner was supplied with the various documents concerning her actions in regard to her retirement benefits and was informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could be transferred back into the Teachers' Retirement System.

   
   

8. She requested a hearing on the transfer.

   
   

   CONCLUSIONS OF LAW

   
   

9. Florida Statutes in Section 121.011, Florida Retirement System.- provides:

   
   

   "(3) PRESERVATION OF RIGHTS.-

   1. The rights of members of the retirement systems established by chapters 122,238, and

      321 shall not be impaired, nor shall their benefits be reduced by virtue of any part of this chapter, except that if an eligible member of a retirement system established by chapters 122, 238, or 321, elects between April 15,

      1971 and June 1, 1971, inclusive, to transfer to the Florida Retirement System, he shall be transferred to the Florida Retirement System on June 1, 1971 and shall be subject to the provisions of the Florida Retirement System established by this chapter and at retirement have his benefits calculated in accordance with the provisions of 121.091.

10. Section 121.091, Florida Statutes, provides for the various benefits payable under the Florida Retirement System according to the work of the particular retiree.

    
    

11. Petitioner voluntarily signed a ballot in which it was clearly stated that she elected to obtain social security coverage and elected to transfer to the Florida System. This transfer is irrevocable and is to the monetary benefit of the Petitioner.

RECOMMENDATION

Dismiss the Petition of Petitioner Martha A. Crosson.

DONE and ORDERED this 15th day of November, 1976 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

L. Keith Pafford, Esquire Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

Martha A. Crosson 801 West Myrtle

Independence, Kansas 67301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF RETIREMENT

MARTHA A. CARSON,

Petitioner,

vs. CASE NO. 76-1456

STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,

Respondent.

/

ORDER

In August 1976 Petitioner petitioned the Respondent for an administrative hearing pursuant to Section 120.57(1), Florida Statutes, Petitioner generally alleged that she was transferred from the Teachers' Retirement System (TRS), Chapter 238, Florida Statutes, to the Florida Retirement System (FRS), Chapter 121, Florida Statutes, through misrepresentation and without her consent. She further alleged that upon retirement she received lower benefits by virtue of this transfer.

Respondent answered Petitioner's petition on August 13, 1976. In its Answer Respondent denied that it ever misrepresented anything to Petitioner and contended that Petitioner voluntarily elected to transfer from TRS to FRS. Furthermore, Respondent alleged that Petitioner actually received greater retirement benefits under FRS than she would have received had she elected the same form of retirement under TRS.

The Respondent requested the Department of Administration, Division of Administrative Hearings to assign a Hearing Officer in the above cause pursuant to Section 120.57(1)(b)3, Florida Statutes. This was done and a public hearing was held pursuant to proper notice in Room 104, Collins Building, Tallahassee, Florida at 10:00 a.m. on October 15, 1976 before Hearing Officer Delphene Strickland.

After considering the evidence and argument of both Petitioner and Respondent, the Hearing Officer found that:

"Petitioner voluntarily signed a ballot in which it was clearly stated that she elected to obtain social security coverage and elected to transfer to the Florida Retirement System. This transfer is irrevocable and is to the

monetary benefit of the Petitioner."

The Hearing Officer recommended that the petition of Martha A. Crosson be dismissed. A copy of this Recommended Order is attached hereto.

FINDINGS OF FACT

1. Petitioner began teaching with the Orange County School Board and enrolled in Plan A of TRS on August 13, 1954.

   
   

2. Petitioner moved to Jacksonville on August 18, 1959 and continued teaching in Duval County. She remained a member of TRS, Plan A.

   
   

3. Petitioner voluntarily transferred from TRS, Plan A to TRS, Plan E on July 1,

   
   

4. On March 17, 1966, Petitioner applied for TRS disability benefits.

5. Petitioner was approved for TRS disability retirement on March 26, 1966. Her monthly disability benefit was $130.90.

   
   

6. Petitioner resumed teaching in Duval County in September 1970 without notice to the Respondent.

   
   

7. On November 27, 1970, Petitioner notified Respondent that she had previously resumed teaching and her TRS disability benefits were discontinued. Petitioner voluntarily repaid $392.70 in benefits she received while employed.

   
   

8. Petitioner voluntarily transferred from TRS to FRS effective December 1, 1970. The ballot she executed to accomplish this transfer was clearly entitled "Social Security Referendum and Application For Florida Retirement System Membership." The ballot clearly indicated that an affirmative vote thereon would result in a transfer into FRS and participation in the old age and survivor's insurance system embodied in the Social Security Act.

   
   

9. Petitioner applied for FRS disability benefits on October 20, 1971.

   
   

10. Petitioner was approved for FRS disability retirement effective August 1, 1970. Her monthly benefit was $167.82. This benefit was $26.07 per month greater than the benefit she would have received had she elected to remain in the Teachers' Retirement System and apply for disability retirement.

    
    

11. On October 3, 1975, Respondent provided Petitioner with the various documents reflecting her previous actions with respect to her retirement system membership. Petitioner was also informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could transfer back into TRS.

    
    

    CONCLUSIONS OF LAW

    
    

12. Petitioner voluntarily transferred from the Teachers' Retirement System to the Florida Retirement System on Dec. 1, 1970 by executing a transfer ballot. This ballot clearly reflected that Petitioner's election would result in her transfer into the Florida Retirement System.

    
    

13. Section 121.011(3), Florida Statutes, provides that once an individual elects to transfer from an existing system (such as TRS) to FRS then he shall become subject to the provisions of FRS and at retirement have his benefits calculated accordingly. While the Florida Retirement System Act specifically provides the means by which members of existing systems may transfer into FRS, there is no means provided by which a member of FRS may transfer into an existing system. In view of these facts, Petitioner's transfer into the Florida Retirement System was irrevocable.

    
    

14. After Petitioner transferred into the Florida Retirement System, she voluntarily applied for and accepted greater disability retirement benefits under FRS than she would have received had she remained in TRS.

ORDER

WHEREFORE, and in consideration of the above findings and conclusions, it is hereby ordered that Petitioner transferred from the Teachers' Retirement System to the Florida Retirement System effective December 1, 1970 and that this transfer was irrevocable.

DONE AND ORDERED this 6th day of January, 1977.

ROBERT L. KENNEDY, JR.

State Retirement Director

Copies furnished to:

Miss Martha A. Crosson 801 West Myrtle

Independence, Kansas 67301

L. Keith Pafford Division Attorney Division of Retirement

530 Carlton Building Tallahassee, Florida 32304 Attorney for Respondent

Docket for Case No: 76-001456

Orders for Case No: 76-001456