STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIE MAE MILES, )
)
Petitioner, )
)
vs. ) CASE NO 89-4834
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on February 27, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: Willie Mae Miles, pro se
10220 S.W. 170th Terrace Miami, Florida 33157
For Respondent: Larry Scott, Esquire
Division Attorney Division of Retirement
Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560
STATEMENT OF THE ISSUES
The issue in this case is whether Willie Mae Miles is entitled to retirement credit for the period beginning March 1952 through August 1976 when she was employed at the Jackson Memorial Hospital in Miami, Florida (the "Hospital"). There is no dispute that Willie Mae Miles was employed at the Hospital during that time period. However, the Department of Administration (the "Department") contends that Ms. Miles received a refund of her employee retirement contributions of $5,475.39 in May 1977.
Therefore, the Department contends that Respondent is not entitled to credit for that period of service. Ms. Miles claims that she did not apply for or receive a refund of retirement contributions. She also claims that she would only have accepted a lump sum refund if it included her contributions and the county and state contributions with interest. Since no such sum was received, she claims she is entitled to retirement credit for her employment at the hospital.
PRELIMINARY STATEMENT
By letter dated August 1, 1989, the Petitioner
requested an administrative hearing regarding the denial of her claim for retirement benefits. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.
At the hearing, the Petitioner testified on her own
behalf and offered six exhibits into evidence, all of which were accepted.
The Respondent presented the testimony of Dennis
Higgins, the Assistant Comptroller for the Dade County Employees Credit Union and offered six exhibits into evidence all of which were accepted. Respondent's Exhibit 3 was the December 22, 1989 deposition of Maurice Helms, the Chief of Retirement Calculations for the Division of Retirement, Department of Administration.
Respondent's Exhibit 4 was the December 26, 1989 deposition of John F. McCarthy. Both depositions were duly noticed and taken
in Tallahassee, Florida. At the time the depositions were taken, Petitioner was represented by counsel. However, neither
Petitioner nor her attorney appeared at the depositions. Subsequently, on December 29, 1989, Petitioner's attorney filed a motion to withdraw from representation in this action. The motion was granted on January 2, 1990. The depositions were filed of record on January 2, 1990, and offered into evidence at the hearing. Both depositions were accepted without objection.
Mr. McCarthy was offered as an expert witness regarding the examination of questioned documents (commonly known as a
handwriting expert) by virtue of his knowledge, skill, training, and education in the field. After reading the deposition of John McCarthy, it appears that he has a demonstrated skill and expertise in the examination of questioned documents and he is accepted as an expert in that area.
No transcript of the hearing has been filed. Both
parties have timely filed post hearing proposals which have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the proposed findings of fact is contained in the Appendix attached to and incorporated into this Recommended Order. However, the Petitioner's submittal was a letter dated February 28, 1990. That letter consists of a mixture of argument, conclusions and proposed factual findings. While Petitioner's submittal has been fully considered, the proposed findings of fact cannot be separately identified so no specific ruling is made with respect thereto.
FINDINGS OF FACT
Petitioner, Willie Mae Miles was employed by Metropolitan Dade County at Jackson Memorial Hospital in Miami, Florida from March of 1952 until some time in August 1976.
During that time, Petitioner was enrolled in the State and County Officers' and Employees' Retirement System (SCORES) with an effective date of enrollment of March 22, 1952.
Petitioner worked as a housekeeper at the hospital for over 24 years. She has a limited educational background. She turned 65 years old in 1984.
In August of 1976, Petitioner went on sick leave in order to care for her husband who was ill. Petitioner's
husband died sometime in 1976. In December of 1976, Petitioner was in a car accident which further delayed her return to work. When she subsequently sought to recommence her employment, a new supervisor had taken over and her job had been changed. As a result, she resigned on or about March 20, 1977.
While employed at the hospital, Petitioner opened
an account at the Dade County Employees' Credit Union ("Credit Union"). Her account number was 9921. At the time she resigned, Petitioner informed the personnel office that her checks could be sent to the Credit Union.
On March 20, 1977, Petitioner signed a "Request
for Refund," Form FRS-M81, requesting a refund of the accumulated contributions she paid into the Florida Retirement System.
The evidence conclusively established that
Petitioner executed the Request For Refund form. That form contains a statement that the person making application for the
refund waives for themselves and their heirs any interest in the Florida Retirement System.
The address listed for Petitioner on the Request For Refund form was "17th Floor - Courthouse Street, Miami,
Florida 33130." That address was typed on the form, but the rest of the form had been completed by hand. The evidence did not establish who placed the address on the Request For Refund form or when it was placed there. Petitioner contends that she never directed the money to be sent to that address and that the Credit Union was located at a different address. No evidence was presented as to whether the Credit Union also operated at the address listed on the Request For Refund form. However, the evidence did establish that the refund was eventually deposited in Petitioner's account at the Credit Union.
The files and records of the Division of Retirement reflect that on April 28, 1977, State of Florida
Warrant No. 0428771 in the amount of $5,475.39 (the "Warrant") was issued to the Petitioner, Willie Mae Miles, as a refund of her retirement contributions covering her service at the Hospital.
While Petitioner contends that somebody forged her signature to the warrant, the evidence established that she ultimately received the full proceeds of the refund.
At the hearing, the Respondent introduced into evidence the deposition of John F. McCarthy. An exhibit to that deposition is a copy of State of Florida warrant no. 0428771 dated April 28, 1977, in the amount of $5,475.39 payable to the
order of Willie Mae Miles. There is an endorsement on the back of the Warrant which states, "For deposit only to the account of Willie M. Miles, #9921."
Mr. McCarthy, an expert regarding the examination
of questioned documents, compared the endorsement on the back of the warrant with known samples of Petitioner's handwriting and testified that, in his opinion, the same individual did not produce the signatures on each of the documents.
State of Florida Warrant No. 0428771 was paid by the Treasurer of the State of Florida through normal banking
channels and the funds were deposited in Petitioner's account at the Credit Union.
Although Petitioner vehemently denies ever
requesting or receiving a refund of her retirement contributions for the period from March 1952 to August 1976, the greater weight of the evidence establishes that she did request such a refund and that the refund was deposited to her account at the Credit Union via State of Florida Warrant No. 0428771 dated April 28, 1977, in the amount of $5,475.39.
While Respondent did not endorse the Warrant, the proceeds from the Warrant were deposited into her account, number 9921, at the Credit Union on May 27, 1977. That same day,
$1,145.64 of her balance was allocated to pay off the remaining portion of the outstanding loan balance she had with the Credit Union. Also on that day, Petitioner's account at the Credit
Union was closed by virtue of the withdrawal of the outstanding balance of
$3,926.44. Subsequently, in October of 1977, it was
discovered that a mathematical error was made and Petitioner was sent an additional check for $383.07.
While the Petitioner apparently did not personally receive the Warrant or endorse it, the evidence established that she received the full proceeds of the Warrant which were applied first to pay off the loan balance she had with the Credit Union, and then paid to her when she closed her account at the Credit Union. While it is clear that Petitioner obtained the proceeds of the refund, it does not appear that she ever realized that the payments made in May of 1977 constituted her entire refund and that by requesting a refund, she lost her claim to the state and county contributions as well as interest.
At some point during her employment, the
Petitioner took out a loan with the Credit Union. At the time she obtained the loan, the Credit Union typically asked borrowers whether they were participating in the Retirement Program and, if so, whether they were willing to have their retirement benefits used to pay off the loan in the event their employment was terminated. Thus, it was not unusual for refunded retirement contributions to be forwarded to the Credit Union and applied to outstanding loan balances. However, no evidence was presented as to whether Petitioner agreed to such an arrangement and/or whether Petitioner's loan agreement authorized the application of refunded retirement benefits to pay off her loan balance.
Petitioner acknowledges that her loan balance was
paid off and that she received the balance of her account when it was closed. However, she claims that she did not know the source of funds used to pay off the loan. She further disclaims knowledge that the balance in her account at the time it was closed reflected the complete refund of her retirement contributions.
The amount of the Warrant reflects Petitioner's contributions to the retirement program over the years without
interest. It does not include the corresponding payments made by the county or state. Petitioner contends that she would not knowingly have accepted a lump sum payment which reflected only
her contributions and not the corresponding payments made by the county and state or the interest earned on those sums.
Petitioner was keeping close track of the balance in her retirement fund (including state and county contributions.) Petitioner expected that any lump sum repayment of her retirement contributions would include the county and state contributions plus interest. In 1977, that sum (together with her contributions) would have totaled in excess of $12,000.00.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
As set forth in Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139 (Fla. 4th DCA 1989), "it is the burden of the beneficiary to establish his
right to creditable service. That includes a requirement to show that all required contributions have been made." Id. at 142.
The Petitioner failed to prove, by a preponderance
of the evidence, that all required contributions have been made for any employment that she may have had between March 1952 and August 1976, at Jackson Memorial Hospital. Indeed, the evidence establishes that any contributions made by Petitioner for this period of time were refunded in May of 1977.
Petitioner was enrolled in the SCORES program which was governed by Chapter 122, Florida Statutes.
Pursuant to Section 121.011(2)(b), the SCORES
system has been consolidated into the Florida Retirement System Trust Fund. Any waiver of rights under the Florida Retirement System includes a waiver of rights under the previously consolidated systems including SCORES.
Section 122.10(1), Florida Statutes, provides, in part, as follows:
* * *
Should any officer or employee who has ten or more years service within the contemplation of this law leave the service of the state and county... such officer or employee may elect to accept a refund of 100 percent of his contributions to the fund, without interest. Any officer or employee who accepts such refund shall be forever barred from receiving prior service credit under the provisions of this law... (emphasis supplied)
Petitioner has received a refund of her contributions from SCORES. Therefore, she is not eligible for retirement benefits under the system.
Unfortunately, the Petitioner apparently did not
understand the implications of her actions or the workings of the Retirement System. The disclosures and warnings given to
participants regarding the ramifications of requesting a refund were sketchy at best and provided little assistance to individuals such as Petitioner who have a limited educational background. Moreover, the indirect method by which the refund was made has caused a great deal of confusion. Petitioner was clearly mistaken in assuming that she was entitled to a lump sum payment that included county and state contributions as well as interest. It is reasonable to assume that she would not have accepted a lump sum payment if she correctly understood the workings of the system. However, the only provisions in the Statute or the Rule that would enable Petitioner to re-enroll in the Florida Retirement System is Section 121.081(2), Florida Statutes. Under that statute, Petitioner would have to return to employment with an agency which is in the Florida Retirement System for a period of twelve continuous months after which she would be able to reclaim her prior service under SCORES by repaying the prior refund in accordance with the terms of the statute.
It is RECOMMENDED that the Petitioner not be credited
with any creditable service under the provisions of Chapter 121, Florida Statutes, for the period from March 1952 to May 1977.
DONE and ORDERED this 30 day of March 1990, in Tallahassee, Florida.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30 day of March 1990.
APPENDIX TO RECOMMENDED ORDER 89-4834
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the proposed findings of fact submitted by the Respondent in this case. Petitioner's submittal was a mixture of argument, conclusions and facts which have been carefully considered in the preparation of this Recommended Order. However, specific ruling on proposed findings of fact by the Petitioner is not possible given the format of her proposal.
Rulings on Respondent's Findings of Fact
Adopted in substance in Findings of Fact 1.
Adopted in substance in Findings of Fact 3.
The first sentence is adopted in substance in Findings of Fact 5. The remainder of the proposal is rejected as unnecessary.
Subordinate to Findings of Fact 7.
Adopted in substance in Findings of Fact 8 and 10.
Adopted in substance in Findings of Fact 11 and 12.
Adopted in substance in Findings of Fact 14 and 16.
COPIES FURNISHED:
Willie Mae Miles
10220 S.W. 170th Terrace Miami, Florida 33157
Larry Scott, Esquire Division Attorney
Office of General Counsel Department of Administration Room 440 Carlton Building Tallahassee, Florida 32399-1550
Stanley M. Danek, Esquire Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Aletta Shutes, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DIVISION OF RETIREMENT
WILLIE MAE MILES,
Petitioner,
vs. DOR Case No. DR 89-17
DOAH Case No. 89-4834
DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
On February 27, 1990, Steve Minton, Hearing Officer with the Division of Administrative Hearings, held a formal hearing in this case in Miami, Florida.
APPEARANCES
For Petitioner: Willie Mae Miles, pro se
10220 Southwest 170th Terrace Miami, Florida 33157
For Respondent: Larry D. Scott
Assistant Division Attorney Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
A Recommended Order was issued on March 30, 1990, a copy of which is attached hereto. After consideration of the evidence, pleadings, and Recommended Order in the case, the Hearing Officer's Recommended Order is adopted by the Division of Retirement with supplemental Findings of Fact concerning the actions of Mrs. Miles and the effect of receiving a refund of contributions.
FINDINGS OF FACT
The Findings of Fact contained in the Recommended Order are adopted by the Division of Retirement and by reference made a part of this Final Order.
In addition, the Division adopts the following supplemental Findings of Fact based on its review of the evidence and testimony in the hearing.
SUPPLEMENTAL FINDINGS OF FACT
While Mrs. Miles has handled her case up to and including the hearing since she dispensed with the services of her attorney, her testimony and the nature of the exhibits indicate that she did not fully comprehend the meaning and intent of the documents that she signed requesting a refund of her retirement contributions and mistakenly believed that she still had funds in the Retirement Trust Fund from which a retirement benefit would be paid later upon her retirement. Her belief was erroneous. Under the State and County Officers and Employees' Retirement System (SCOERS), an employee and the employing agency each paid retirement contributions into the Retirement Trust Fund, and these contributions were credited to the employee's retirement account. Eventually, when the employee retired, the retirement benefit was paid from the total contributions paid into the Trust Fund, including investment earnings of the Fund. However, if the employee terminated employment before retirement, he could legally receive only a return of his personal contributions paid in and not the retirement contributions paid in by his employing agency.
Mrs. Miles believed she was due and had a right to her own paid-in contributions, as well as the contributions paid in for her by her employing agency, and since she had received a refund of only a portion (her portion) of her retirement contributions, there were monies (retirement contributions made by her employer) still on deposit with the Division of Retirement that would provide for her retirement.
Mrs. Miles did not understand that the return of her personal contributions would end any entitlement or vested right on her part to a future retirement benefit under the SCOERS. It is also evident from her testimony that no one with her employing agency advised her of this fact and that none of the information received from the Division of Retirement made this clear to her.
The "Request for Refund" card stated the effect of a refund of personal contributions, but Mrs. Miles did not understand the instructions on the refund card.
In April, 1989, the Division received an inquiry from Mrs. Miles advising that she was applying for her retirement benefits. This is further evidence that she believed she still had an active retirement account with the State of Florida.
It is concluded that Mrs. Miles never had any actual intent to relinquish her right to apply for and receive a retirement benefit under the SCOERS.
CONCLUSIONS OF LAW
Under SCOERS, Section 122.08(2) (a), Florida Statutes, provides in pertinent part as follows:
Any state or county officer or employee who has attained the age of 55 or more and has accumulated at least 10 years' service in the aggregate within the contemplation of this law and who has made or makes contributions to the State and County Officers and Employees' Retirement Trust Fund for 5 or more years as prescribed by this law but who is not eligible to retire in accordance with subsection (1) may elect to retire and receive a reduced benefit, which would be the actuarial equivalent of the benefits provided in subsection (1).
Section 122.10(1), Florida Statutes, provides in pertinent part as follows:
Should any officer or employee who has 10 or more years service within the contemplation of this law leave the service of the state and county, such officer or employee may leave said contributions in the retirement trust fund and receive the same retirement benefits as provided for current employees in s. 122.08, provided however that such officer or employee shall have made contributions as required by this law, or such officer or employee may elect to accept a refund of 100 percent of his contributions to the fund, without interest.
However, a terminated member who has received a refund of contributions will not lose his right to retire after reemployment and repayment of his personal contributions, plus interest, to the Retirement Trust Fund (Section 122.11, Florida Statutes).
Chapter 122, Florida Statutes, became a non-active or "closed" retirement system on December 1, 1970, upon implementation of the Florida Retirement System (FRS), Chapter 121, Florida Statutes. Provisions of the FRS law allow members to claim refunded, prior service as creditable service when the member has terminated, elected to receive a lump sum refund of his accumulated contributions, and is subsequently reemployed under the FRS. However, these provisions of law only apply when a member knowingly and intentionally requests and receives a refund of his personal retirement contributions.
Waiver is the intentional relinquishment of a known right or the voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right. 22 Fla. Jur. 2d Estoppel and Waiver, Section 86 (1980). The acts or conduct which may give rise to a waiver need not be positive but can consist of failure to act or, more particularly, failure to speak when under some duty to speak. Richards v. Dodge, 150 So.2d 477 (Fla. 2nd DCA 1963). Waiver may be inferred from conduct or acts putting one off his guard and leading him to believe that the demanding party has waived the right sought to be enforced. Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960).
However, as reflected in the above Findings of Fact, the evidence in this case did not prove that Mrs. Miles knowingly and intentionally waived her right to apply for retirement benefits.
The facts of this case raise doubt as to whether Mrs. Miles knowingly and willingly waived her right to retirement benefits under the SCOERS law when she followed her employer's instructions at the time her employment was terminated in 1977 and signed the Request for Refund card.
From the facts of this case, it is clear that Mrs. Miles did not understand the legal and factual implications of her actions. She did not understand that the return of her personal contributions canceled her right to receive a future retirement benefit, but rather she thought she still had retirement contributions on deposit, from which a retirement benefit could be paid later.
Taking these circumstances into consideration, the evidence does not support a finding that Mrs. Miles legally waived her right to apply for retirement benefits under the SCOERS.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is:
ORDERED and DIRECTED that the Recommended Order is adopted in part and denied in part. Willie Mae Miles' request for a refund of contributions was not an intentional relinquishment on her part of any of her rights under the SCOERS, including her right to eventually apply for retirement benefits.
Accordingly, Mrs. Miles may repay to the Retirement Trust Fund the amount of her refund ($5,475.39) together with the interest accruing to the Trust Fund from July 1, 1977, to the date of repayment. It is further
ORDERED and DIRECTED that until the above monies are repaid, her application for retirement benefits will be held in abeyance; when repayment is made by her to the Retirement Trust Fund, she will be retired retroactive to May 1, 1989.
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
DONE and ORDERED this 20th day of July, 1990, at Tallahassee, Leon County, Florida.
J. MCMULLIAN, III State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THIS
26th day of July, 1990
Copies furnished to:
BETTY ANN LEDFORD
Willie Mae Miles Clerk
10220 S.W. 170th Terrace Division of Retirement Miami, Florida 33157
Steve Minton Hearing Officer
Division of Administrative Hearings 1230 DeSoto Building
Tallahassee, Florida 32399-1560
Stanley M. Danek, Esquire Division Attorney Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Larry D. Scott, Esquire Assistant Division Attorney Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
| Issue Date | Proceedings |
|---|---|
| Mar. 30, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 20, 1990 | Agency Final Order | |
| Mar. 30, 1990 | Recommended Order | Petitioner's retirement contributions were paid to bank which applied part to outstanding loan and rest to petitioner's account; Petitioner not entitled to retire credit |
RICHARD W. HOLLAND vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 89-004834 (1989)
SUSAN ANN CARPENTER vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 89-004834 (1989)
GLADYS L. WHALEY vs DIVISION OF RETIREMENT, 89-004834 (1989)
VERONICA P. HOLT vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 89-004834 (1989)
VERNON TAYLOR BELL vs. DIVISION OF RETIREMENT, 89-004834 (1989)
