STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUGHLAN LONG, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1771

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 3, 1981, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the initial denial by the Division of Retirement of two percent credit for past service while a member of the State and County Officer and Employee Retirement System (SCOERS) to Petitioner who purchased this past service credit while a member of the Florida Retirement System (FRS).

APPEARANCES

For Petitioner: Jerold Feuer, Esquire

19 West Flagler Street Miami, Florida 33130

For Respondent: Augustus D. Aikens, Esquire

Division of Retirement Cedars Executive Center

2639 North Monroe Street, Suite 207C Box 81 Tallahassee, Florida 32303

SUMMARY

The claim in this case is basically a simple one. The Petitioner asserts that the Division of Retirement is estopped to deny his claim for two percent credit because it represented to him that he would receive two percent credit prior to the time he purchased his past service credit. Respondent asserts that the Petitioner is not entitled to two percent credit because he purchased his past service credit as a member of the Florida Retirement System, which permits only 1.6 percent credit for past service credit purchased while a member.

The issues presented are:

1. Did the Division of Retirement represent that Petitioner would be entitled to two percent credit for his past service credit?

   
   

2. Is the State of Florida estopped by such a representation?

FINDINGS OF FACT

1. The Petitioner, Hughlan Long, was employed by the Florida Industrial Commission from 1946 to 1952, during which time he was a member of the State and County Officer and Employee Retirement System (SCOERS).

   
   

2. Petitioner was employed as a state attorney from 1953 to 1956. Again, during that time he was a member of SCOERS.

   
   

3. During the period 1962 to 1964, Petitioner was a member of the Dade County Commission, at which time he was a member of SCOERS. On this occasion, as on each of the above occasions, the Petitioner obtained a refund of all contributions to SCOERS when he terminated his employment.

   
   

4. In October of 1969, Petitioner became Public Defender for Dade County and was a member of SCOERS. From this position he was appointed a judge of industrial claims. He has stayed in that position since his appointment on December 28, 1970.

   
   

5. Several days prior to his appointment as a judge of industrial claims, on December 1, 1970, Petitioner voluntarily transferred from SCOERS to the Florida Retirement System (FRS).

   
   

6. Petitioner based his decision to transfer upon his reading of the statutes and the data available from the Division of Retirement upon the benefits available under the two systems.

   
   

7. At the time he transferred to FRS, Petitioner was not eligible to purchase past service credit in SCOERS.

   
   

8. Petitioner corresponded with Respondent and was advised he could receive two percent credit for his 10.18 years prior SCOERS service. The Division erroneously advised him that he would receive two percent credit for his past service, although at the time Petitioner was a member of FRS and only eligible for 1.6 percent credit for such service.

   
   

9. Based upon the information provided to him, the Petitioner purchased his prior service credit of 10.18 years and paid the required interest, a total of $4,092.27.

   
   

10. In 1975, the Division discovered its error and sent a letter to Petitioner. See Petitioner's Exhibit #11. This letter advised Petitioner that his purchase had been incorrectly computed based upon Chapter 122, Florida Statutes, because he did not have three years service prior to the time he transferred to FRS. The letter further stated, "therefore, after you completed the three continuous years you must claim prior service in this system (FRS)." This was the only reference or correction made by the Division to Petitioner until 1981.

    
    

11. In 1981, Petitioner requested data on his retirement credit and was advised he would get 1.6 percent rather than two percent for his past service credit.

    
    

12. No credible evidence was received that Petitioner was induced to purchase his past service by the erroneous information provided him.

13. Petitioner filed a timely request for a hearing pursuant to Section 120.57, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Retirement is charged by statute with the administration of the various state retirement systems. The substantial interests of the Petitioner in this case are affected by the determination of his retirement benefits based upon his prior service. Petitioner having made a timely request for a formal hearing pursuant to Chapter 120, Florida Statutes, and the Division of Retirement having forwarded the case to the Division of Administrative Hearings, the Hearing Officer is authorized to enter this Recommended Order.

    
    

15. Petitioner asserts that he is entitled to two percent past service credit for the 10.18 years of prior service as a member of SCOERS, which he purchased because the Division of Retirement provided him with erroneous information upon which he based his decision to purchase his past service credit. Respondent asserts that Petitioner is entitled to 1.6 percent past service credit because at the time he purchased his past service credit he was a member of FRS and was not eligible to purchase his past service credit at the time he joined FRS.

    
    

16. The record shows that the Division of Retirement adopted a rule prior to the time Petitioner purchased his past service credit which permitted only those members of SCOERS who were already eligible to purchase their past service credit when they joined FRS to obtain two percent credit for their prior service with SCOERS. This shows that the Petitioner's case is a matter of erroneous information having been provided him and not a change in policy by the agency.

    
    

17. Petitioner asserts that the State of Florida is estopped to deny him the two percent benefit by virtue of having provided him erroneous data. The courts of Florida have applied the doctrine of estoppel to the state only in rare and extreme cases. Having considered the evidence, this is not such a case. See Greenhut Construction Co. v. Henry A. Knott, Inc. (1971 - Fla.App. D- 1) 247 So.2d 517.

    
    

18. There was no evidence that the individuals who advised the Petitioner provided him erroneous information with the intention of inducing him to purchase his past service. There is no evidence that these individuals were grossly negligent in the performance of their duties.

    
    

19. The Petitioner did not establish that in the absence of the erroneous information having been provided him he would not have purchased his past service. It is necessary for one claiming the benefits of estoppel to have altered his course of action based upon the representations made to him.

    
    

20. Lastly, Petitioner has failed to show any detriment to him arising from his having purchased his past service. Certainly, the loss of 0.4 percent for each year of past service is a loss, but that is not the test. The test is what loss the Petitioner suffered as a result of having purchased his past service at 1.6 percent. The record reflects that Petitioner paid approximately

    $4,200 for his past service. His purchase of his past service will increase his total years of service from approximately 12 years to 22 years.

21. The only detriment which the Petitioner has suffered is the loss of his $4,200 from 1971 to the present. To the extent that he has been injured he should have the option of accepting the 1.6 percent past service credit or be paid his $4,200 at six percent per annum. See Martin v. Williams, 364 So.2d 549.

    
    

22. Petitioner has failed to prove elements necessary to establish that the Division of Retirement should be estopped to deny him two percent credit for his past service.

    
    

23. The Division correctly applied the provisions of Chapters 121 and 122, Florida Statutes, in determining that Petitioner was not entitled to two percent service credit. Both FRS and SCOERS require that a member have served three continuous years before he becomes eligible to repurchase his past service credit. See Section 122.03(6) and Section 121.081, Florida Statutes. The Petitioner had not been reemployed three continuous years at the time he transferred to FRS and was not eligible to purchase his past service credit at that time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the decision of the Division of Retirement to deny the Petitioner two percent service credit be upheld. However, because Petitioner was misadvised he should receive the option of accepting the benefit as provided by law or receiving his purchase price back with interest of six percent per annum.

DONE and ORDERED this 11th day of February, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1982.

COPIES FURNISHED:

Jerold Feuer, Esquire

19 West Flagler Street Miami, Florida 33130

Augustus D. Aikens, Esquire Division of Retirement

Cedars Executive Center Nevin G. Smith, Secretary

2639 North Monroe Street Department of Administration

Suite 207C - Box 81 435 Carlton Building Tallahassee, Florida 32303 Tallahassee, Florida 32301

Docket for Case No: 81-001771

Orders for Case No: 81-001771