STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUISE MOTES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2105

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Room 103, Collins Building in Tallahassee, Florida, on February 26, 1979, beginning at 10:00 o'clock a.m.

APPEARANCES

For Petitioner: Zollie M. Maynard, Esquire

502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302

For Respondent: Stephen S. Mathues, Esquire

Division of Retirement Room 530, Carlton Building

Tallahassee, Florida 32301 ISSUE

Whether the Petitioner, Louise Motes, waived her right to in-line of duty death benefits provided in Chapter 121, Florida Statutes.

FINDINGS OF FACT

1. Petitioner and Respondent agreed to the following facts:

   
   

   On November 23, 1975, Herschel and Audi Motes, a deputy sheriff with the Putnam County Sheriff's Department, died of a heart attack while arresting an individual who struggled with the arresting

   
   

   Louise Motes, Petitioner in this cause, was married to Herschel Audi Motes at the time of his

   death, thereby becoming his widow. Mrs. Motes remains unmarried to date and is qualified as to her

   status for all of the rights and benefits granted January 21, 1976, Sheriff E.W. Pellicer wrote a

   letter to the Department of Administration, Division of Personnel and Retirement, furnishing the Department with the record of Mr. Motes' salary, contributions to the retirement fund, together

   with the dates of his employment. The letter concluded by stating, "I would appreciate hearing from you at an early date and if anything further is needed, please advise." The letter was signed by E.W. Pellicer, Sheriff, Putnam County, Florida.

   
   

   On March 10, 1976, Mrs. Motes received a

   letter from Marjorie B. Smith, Retirement Benefits Specialist, with the letter showing a copy to Mr.

   E.W. Pellicer. The letter stated as follows:

   
   

   "As the designated beneficiary and surviving spouse of Herschel A. Motes, who died November 23, 1975, you are entitled to the refund of the accumulated retirement contributions which amount to

   $4,325.69 or the Option 3 monthly retirement benefit. If you desire the refund of the contributions, you should execute a request for refund, form . . . which must be completed in the personnel office of the Putnam County Sheriff's Department

   
   

   If you prefer the Option 3 monthly

   retirement benefit, which has been computed to be $125.29 based on 18.30 years of service, you should execute the enclosed form FST-11b on which a single beneficiary must be

   designated and send your personal remittance in the amount of $1,089.23 made payable to the Florida Retirement System. This payment is necessary to allow credit for four years of military service, service rendered from April through August 1963, and complete payment of the necessary contributions for the 1963-64

   and 1964-65 years. This monthly benefit, if elected instead of the refund, is a lifetime income which will continue even though you should remarry. In the event of your death prior to receiving in monthly benefits an amount equal to the total accumulated retirement contributions, any contribution on deposit in excess of the total monthly benefits paid will be refunded to your beneficiary.

   
   

   Please let us know if we may be of further assistance." (emphasis added).

   
   

   Enclosed with this letter was form FST-11b which is an "Application of Beneficiary for Monthly Benefits." The form. Joint Exhibit I, contained no reference whatsoever to any rights or benefits under Section 121.091(7)(c)(1),

   Florida Statutes (the death in the line of duty benefits). Either the Division of Retirement or a Mrs. Key, with the Sheriff's Office of Putnam County, had filled in the blank portions of the first sentence of the form by writing "121" and "3" in the blanks where the form states "Chapter 121, Option 3." The remainder of the form is typed in except for the signature of Louise A. Motes.

   
   

   After filing the "application" through the

   Putnam County Sheriff's Office, and receiving her first benefit check, Mrs. Motes had a conversation with a Mr. Ronald Clark of Palatka, Florida, about workmens' compensation comprehension benefits. As a result of that conversation, she went to an attorney, who filed a workmens' compensation claim for her. Sometime thereafter, Mrs. Motes was going through some of her husband's papers, which were contained in a filing cabinet at the Sheriff's Office, which her sons brought home. In those papers, she found a newspaper article that Mr. Motes had cut out and saved which told about the death in the line of duty benefits, a copy of the newspaper articles is attached to and made part of Joint Exhibit K. In response thereto, Mrs. Motes went back to the attorney who had filed her workmens' compensation claim and inquired about the "death in the line of duty retirement benefits" of Section 121.091(7)(c), Florida Statutes.

   
   

   At no time prior to or during her filing out the "application" from the State of Florida, Bureau of Retirement, was she informed by anyone that she might possibly entitled to higher benefits because of the manner in which

   her husband died. At no time prior to filling out the retirement "application" did she have any actual knowledge that the State paid benefits other than those benefits which had been

   presented to her which were listed on said application. At no time did the Sheriff's Office inform her that she had any possibility of benefits other than the benefits listed on the above stated State of Florida, Bureau of Retirement, application form.

   
   

   By letter of November 7, 1977, Steven S. Mathues,

   Assistant Division Attorney for the Division of Retirement, Department of Administration, informed Ms. Jill Brown (the attorney for Mrs. Motes who began the original inquiry as to obtaining the "death in the line of duty

   benefits"), that " . . . it is this Division's position that all retirement benefits and options become fixed when the first warrant

   is cashed. However, it would appear that

   under Chapter 120, Florida Statutes, your client would have a right to challenge this

   position . . . . As I see it, the issue would be whether Mrs. Motes' notarized application

   . . . and continued acceptance of benefits would estop her from now attempting to change the benefit "

   
   

   Thereafter, Mrs. Motes' case was referred to Mr. Maynard, who after several conferences with Mr. Mathues, the attorney for the Division of Retirement, filed a Petition for Administrative Hearing on Mrs. Motes' behalf, alleging, among

   other things, that Herschel Audi Motes was killed in the line of duty within the meaning of Section 121.091(7)(c)(1), Florida Statutes. The petition also alleged that the Division's "policy" that as of the moment Mrs. Motes had cashed one of her benefit checks her retirement benefits had vested and could not be changed by her subsequent to that event was within the definition of a rule as defined by Section 120.54(14), Florida Statutes, and that the Division of Retirement had never promulgated such a rule in accord with the procedures required by Chapter 120.

   
   

   Depositions were taken in Daytona, Palatka, and Tallahassee on the issue of whether or not

   Mr. Motes had been "killed in the line of duty." Subsequent to those depositions, Mr. Mathues informed Petitioner that the Division of Retirement no longer wanted to contest the in line of duty issue. Thereafter, Mr. Mathues and Mr. Maynard, attorney for Petitioner, executed a "Joint Motion for Continuance" which states as follows:

   
   

   "1. The parties have settled all of the questions which relate to the issue of whether Herschel Audi Motes, his widow, to the in line of duty death benefits provided in Chapter121, Florida Statues.

   
   

2. The only remaining issue in dispute is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided in Chapter 121, Florida

   Statutes, because she has been cashing her benefit checks since 1975.

   
   

3. The remaining issue is solely a legal issue and does not require any testimony by witnesses, with the possible

exception of testimony by Mrs. Motes and/or affidavits from Mrs. Motes and the Putnam County Sheriff's Office if the parties

cannot agree to a stipulation of facts. Therefore, this issue can be argued by the undersigned attorneys for the parties in Tallahassee, Florida, at the time and place stated above."

The Joint Motion was signed by both Mr. Maynard and Mr. Mathues. In response to that Motion, the hearing officer promulgated an Order entitled "Order of Continuance" which stated:

"The parties in the above styled cause

have filed a Joint Motion for Continuance of the hearing from February 15, 1979, at 1:00

p.m. in Palatka, Florida, to February 26, 1979, at 10:00 a.m., in Room 103, Collins Building, in Tallahassee, Florida. The Motion is granted.

Done and Ordered this 12th day of February, 1979, in Tallahassee, Leon County, Florida."

With the Division of Retirement, Department of Administration, no longer contesting the in line of duty issue, a final hearing was held on February 26, 1979, on the only remaining issue in dispute which is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided by Chapter 121, Florida

Statutes, because she has been cashing retirement benefit checks since 1975.

1. The issue as to whether Petitioner's husband died in such a manner as to entitle her to in-line-of-duty death benefits has been settled by agreement of the parties in Petitioner's favor.

   
   

2. This Administrative Hearing was held to resolve the issue of whether Petitioner waived her right to the in-line-of-duty death benefits provided in Section 121.091(7)(c)(1), Florida Statutes, inasmuch as she has been cashing benefit checks awarded her pursuant to Section 121.091(6)(a)(3).

   
   

3. Inquiry to the Respondent as to subject retirement claim was made by Petitioner, Louise Motes, when she became aware of the possibility of her entitlement to in-line-of-duty death benefits.

   
   

4. No rules have been promulgated in relation to Section 121.091(7) Death benefits, although Rule 22B-4.10(5) was promulgated in 1972 (amended 1974) under authority of Section 212.091(6), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 121.091(6), Florida Statutes, provides various optional forms of retirement benefits. Section 212.091(6)(a)(3) is the option under which Petitioner has received benefits and provides as follows:

   
   

   3. A decreased retirement benefit which shall be payable during the joint lifetime

   of both the member and his joint annuitant and which shall continue after the death of either during the lifetime of the survivor in the same amount.

   
   

6. At the time Petitioner indicated her option on the form provided her by Respondent the benefit was and is now based on actuarial tables relative to her age and the age of her deceased husband.

   
   

7. The rule promulgated pursuant to the foregoing statute, 22B-4.10(5), Florida Administrative Code, provides:

   
   

   (5) A member may select an option for receiving benefits prior to the time the first benefit check has been paid by the State Treasurer, but after the first benefit check has been paid by the State Treasurer, the member shall not be permitted to change the option he selected.

   
   

8. The foregoing rule is necessary to the orderly implementation of the statute and was duly promulgated. It is not an additional requirement of the statute.

   
   

9. Section 121.091(7)(c)(1), Florida Statutes, provides as follows:

   
   

   1. The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime, unless said surviving spouse remarries, in which case the pension shall terminate on the date of remarriage; or, in lieu

      of the above, the surviving spouse may elect to receive the benefit provided in paragraph (b) of this subsection.

      
      

10. Petitioner draws benefits pursuant to (b) of the subsection.

    
    

11. No rule has been promulgated pursuant to the foregoing section of the statute, and no evidence was submitted that a rule is proposed.

    
    

12. The contention that the policy decision of Respondent determining that Petitioner's rights were vested at the time she cashed her first check is a rule, and therefore the decision is valid, cannot be sustained.

    
    

13. Respondent followed Rule 22B-4.10(5), Florida Administrative Code, supra, which is applicable to the same statute, though not the same section. It exercised its discretion to make a decision in the case sub judice. Its actions were related to an individual situation and were consistent with the requirements of MacDonald v. Department of Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), as follows:

    
    

    While the Florida APA . . . requires rule-making for policy statements OF GENERAL APPLICABILITY, it also recognized the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. There are

    quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that KNOWS its policy may wisely sharpen its purposes through adjudication before casting rules. Shapiro, THE CHOICE OF RULEMAKING OR ADJUDICATION IN THE DEVELOPMENT OF ADMINISTRATIVE POLICY, 78 Harv.L.

    Rev. 921, 927 (1965). The Law Revision Council, sponsor of the proposed 1974 APA, had no intention of building an impenetrable wall between policymaking and adjudication. On the contrary, the APA reflects the Council's conviction that:

    
    

    "In fact, agency proceedings frequently affect individual rights and create general policy at the same time, so that they partake of adjudication and rule- making at the same time."

    
    

14. The contention that Respondent should have informed Petitioner of her eligibility under Section 212.091(7)(c)(1), Florida Statutes, is untenable because the statute itself is notice to all citizens, and there is no showing that Respondent misled or intended to mislead Petitioner as to benefits under the foregoing statute.

RECOMMENDATION

Deny the request of Petitioner to change the retirement benefits she now receives to in-line-of-duty death benefits provided in Chapter 121, Florida Statutes.

DONE and ORDERED this 1st day of June, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Stephen S. Mathues, Esquire Division of Retirement

Room 530, Carlton Building Tallahassee, Florida 32301

Zollie M. Maynard, Esquire

502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302

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

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

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF RETIREMENT

LOUISE MOTES,

Petitioner,

vs. DOAH Case NO. 78-2105

DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

The Division of Retirement, through its undersigned agency head, hereby adopts the Findings of Fact and Conclusions of Law found by the Hearing Officer as set forth below.

On November 23, 1975, Herschel Audi Motes, a deputy sheriff with the Putnam County Sheriff's Department, died of a heart attack while arresting an individual who struggled with the arresting officers during the course of the arrest. Louise Motes, Petitioner in this case, was married to Herschel Audi Motes at the time of his death, thereby becoming his widow. Mrs. Motes remains unmarried to date and is qualified as to her status for all of the rights and benefits granted by Section 121.091(7)(c)(1), Florida Statutes, if it is ultimately determined that Deputy Motes was killed in the line of duty.

At the time of her husband's death, Mrs. Motes was unaware that she might be entitled to the in-line-of-duty death benefits provided in Section 121.091(7)(c)(1). Deputy Motes had creditable service in excess of ten (10) years and Mrs. Motes, as his surviving spouse and designated beneficiary, was entitled to receive the benefits provided in Section 121.091(6)(a)(3), Florida Statutes. She made application for these benefits and began receiving monthly retirement warrants. Sometime thereafter, she learned of the possibility of applying for the in-line-of-duty death benefits.

A request for these death benefits was made and initially it was denied.

Mrs. Motes then sought and received an administrative hearing at which the foregoing facts were disclosed.

CONCLUSIONS OF LAW

1. Section 121.091(6), Florida Statutes, provides various optional forms of retirement benefits. Section 121.091(6)(a)(3) is the option under which Petitioner has received benefits and provides as follows:

   
   

   3. A decreased retirement benefit which shall be payable during the joint lifetime of both the member and his joint annuitant and which shall continue after the death of either during the lifetime of the survivor in the same amount.

   
   

   At the time Petitioner indicated her option on the form provided her by Respondent, the benefit was and is now based on actuarial tables relative to her age and the age of her deceased husband.

   
   

   The rule promulgated pursuant to the foregoing statute, 22B-4.10(5), Florida Administrative Code, provides:

   
   

   5. A member may select an option for receiving benefits prior to the time the first benefit check has been paid by the State Treasurer, but after the first benefit check has been paid by the State Treasurer, the member shall not be permitted to change the option he selected.

   
   

   The foregoing rule is necessary to the orderly implementation of the statute and was duly promulgated. It is not an additional requirement to the statute.

   
   

2. Section 121.091(7)(c)(1), Florida Statutes, provides as follows:

   
   

   1. The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime unless said surviving spouse remarries, in which case the pension shall terminate on the date of remarriage; or, in lieu of the above, the surviving spouse may elect to receive the benefit provided in paragraph (b) of this subsection.

Petitioner draws benefits pursuant to paragraph (b) of the subsection. No rule has been promulgated pursuant to the foregoing section of the statute.

DECISION AND ORDER

The Recommendation of the Hearing Officer is hereby rejected, and the Petitioner is permitted to make application for in-line-of-duty death benefits.

DONE AND ORDERED this 31st day of August 1979, in Tallahassee, Florida.

ROBERT L. KENNEDY, JR.

State Retirement Director

COPIES FURNISHED:

Zollie M. Maynard, Esquire

502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302

Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Docket for Case No: 78-002105

Orders for Case No: 78-002105