STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NELLIE E. DRY, )

)

Petitioner, )

vs ) CASE NO. 89-6853

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on February 2, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Nellie R. Dry, pro se

1501 South Ocean Drive, 804

Hollywood, Florida 33019

For Respondent: Stanley M. Danek, Esquire

Department of Administration Building C

Tallahassee, Florida 32399-1560 STATEMENT OF THE ISSUES

Whether Petitioner violated the provisions of law related to reemployment following retirement and, if so, whether her retirement benefits were overpaid as a result.

PRELIMINARY STATEMENT

Petitioner retired from Florida's Teacher Retirement System (TRS) on October 1, 1988. Prior to her retirement, Petitioner had been employed as an accounting instructor by Broward Community College (BCC). On December 14, 1988, Petitioner worked three hours as a substitute instructor at BCC and was paid

$61.35. On March 17, 1989, Petitioner worked five hours as a substitute instructor at BCC and was paid $102.25. Thereafter, following an audit, Respondent determined that Petitioner had violated provisions of Section 238.181, Florida Statutes, relating to reemployment. Respondent further determined that Petitioner was not entitled to retirement benefits for the months of December 1988 and March 1989 as a result of her reemployment during those months and demanded that Petitioner repay the sum of $2,173.54 representing the retirement benefits paid to Petitioner for the two months in question.

Petitioner timely requested a formal hearing as to Respondent's determination that she was not entitled to retirement benefits for December 1988 and March 1989. Petitioner contends, in part, that she was misled by information provided by Respondent to retirees in its October 1987 publication "Florida Retirement System - After You Retire" and the 1988 supplement to that publication.

At the formal hearing, Respondent presented the testimony of Robert DeCosmo, an administrator of BCC and introduced eight exhibits which were accepted into evidence. Petitioner testified on her own behalf, but she offered no other testimony. Petitioner offered no documentary exhibits.

No transcript of the proceedings was filed. Rulings on the proposed findings of fact submitted by Respondent may be found in the Appendix to this Recommended Order. Petitioner filed no post-hearing submittal.

FINDINGS OF FACT

1. Petitioner retired under the provisions of the Florida Teacher Retirement System (TRS) on October 1, 1988. Prior to her retirement, Petitioner had been employed as an accounting instructor by Broward Community College (BCC).

   
   

2. BCC is a tax-supported institution of higher learning in the State of Florida which participates in the Florida Retirement System. All instructional personnel at BCC are classified as "instructors". There is no job classification of "teacher" used by BCC.

   
   

3. On December 14, 1988, Petitioner worked three hours as a substitute instructor at BCC and was paid $61.35. On March 17, 1989, Petitioner worked five hours as a substitute instructor at BCC and was paid $102.25. petitioner worked -as a substitute instructor at the request of personnel at BCC.

   
   

4. Prior to agreeing to substitute on these two occasions, Petitioner had read and had relied on certain information provided by Respondent to retirees from the Florida Retirement System (FRS) and from the Florida TRS. That information was contained in a pamphlet published October 1987 entitled "Florida Retirement System - After You Retire" and the 1988 Supplement to that publication. Petitioner was aware that retirees from the TRS could not receive both a salary from a participant in the FRS and retirement benefits from TRS. Petitioner was aware that the pamphlet published October 1987 discussed two exceptions that did not apply to her situation. Petitioner construed a third exception, discussed in the 1988 Supplement, as authorizing her to be1 reemployed as a substitute instructor at BCC without that reemployment interfering with her retirement benefits. The 1988 Supplement discussed the third exception as follows:

   
   

   A third exception to the reemployment law was provided by 1988 legislation. After being retired and "off the payroll" for one calendar month, FRS and TRS retirees may work for 780 hours of the first 12 months as an hourly teacher on a noncontractual basis.

5. The language from the 1988 Supplement which discusses the third exception to the reemployment law provided by 1988 legislation and upon which Petitioner relied fails to advise the retiree that the exception is limited to teachers employed by district school systems. This failure lead to Petitioner's misunderstanding as to the scope of the exception.

   
   

6. Following an audit, Respondent advised Petitioner by letter dated September 21, 1989, that she was not entitled to payments of retirement benefits for the months of December 1988, January 1989, and March 1989, because she had been reemployed by BCC during those months. Respondent demanded that Petitioner repay the sum of $3,270.41 that she had received for those three months.

   
   

7. On November 15, 1989, Respondent advised Petitioner by letter that it had revised its determination and that only the months of December 1988 and March 1989 were in dispute. Respondent demanded reimbursement of the sum of

   $2,173.54, the amount of the retirement benefits paid to Petitioner for the months of December 1988 and March 1989. Petitioner timely requested a formal hearing to challenge Respondent's determinations in this matter.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. As a retiree from the Florida Teacher Retirement System (TRS), Petitioner's rights and responsibilities relating to her retirement are those contained in Chapter 238, Florida Statutes.

   
   

10. Section 238.181, Florida statutes, provides, in pertinent part, as follows:

(2) (a) Any person retired under this chapter ... may be reemployed by any private or public employer after retirement and receive retirement benefits and compensation from his employer without limitation, except that no person may 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 district school board may reemploy a retired member as a substitute or hourly teacher on a noncontractual basis after he has been retired for 1 calendar month. Any retired member who is reemployed within

1 calendar month after retirement shall forfeit his right to retirement benefits during that month. ...

Any retirement benefits

received by such person while he is

reemployed during this limitation period shall be repaid to the retirement trust fund

1. Rule 22B-4.012, Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   1. Any retired member of a state- administered retirement system of Florida who is receiving benefits may be reemployed by an employer who participates in the Florida Retirement System, in either a regularly established position or a temporary position, subject to the following:

      1. He shall not concurrently receive retirement benefits and compensation from employment with a Florida Retirement System employer for 12 months immediately after his retirement date except as provided in Rule 22B-4.012(3).

   * * *

   (c) If he is reemployed by a Florida Retirement System employer and fails to have his retirement benefits suspended during the 12-month limitation period he shall:

   * * *

   . Repay to the Division of Retirement any retirement benefits

   received while reemployed during the 12- month period.

   
   

2. During the first twelve months of retirement, a retiree from the TRS, such as Petitioner, may not receive retirement benefits and a salary from reemployment with any agency participating in the Florida Retirement System, such as BCC. The exception to this prohibition upon which Petitioner relies applies only to teachers employed by a district school board. Petitioner, as an instructor employed by a community college, is not entitled to the benefits of this exception.

   
   

3. The 1988 Supplement, in discussing the third exception to the reemployment law created in 1988, failed to advise the retiree that the exception is limited to teachers employed by district school systems and is an incomplete or erroneous statement of the law. Although this failure lead to Petitioner's understanding as to the scope of the exception, Petitioner is charged with the knowledge of these provisions and was not entitled to rely on the brief description of the exception to a prohibition contained in the 1988 Supplement. Petitioner failed to establish that Respondent created an additional exception to the reemployment prohibition contained in Section 238.181, Florida Statutes, by its 1988 Supplement, or that Respondent is estopped from enforcing the reemployment prohibition in this case. See Austin v. Austin, 350 So. 2d 102 (Fla. 1st DCA 1977), and State Dept. of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981).

4. Respondent has failed to establish the basis for its decision that petitioner forfeited her rights to retirement benefits for the entire month of December 1988 and for the entire month of March 1989 by working for three hours in December 1988 and for five hours in March 1989.

   
   

5. The pertinent provisions of Section 238.181(2)(b), Florida Statutes, and of Rule 22B-4.012(2)(a)2, Florida Administrative Code require that Petitioner repay the retirement benefits received while she was reemployed. These provisions do not support Respondent's position that Petitioner is required to repay all benefits for the entire month if she was employed at any time during that month. Respondent's construction of the statute and rule would have the effect of imposing a substantial penalty on Petitioner and is rejected. Had the legislature intended that a retiree be penalized by being required to repay his or her retirement benefits for an entire month by performing prohibited employment during any part of that month, it would have clearly expressed such intent.

   
   

6. The applicable statute and rule are interpreted to require that Petitioner repay only the retirement benefits she received for December 14, 1988, and for March 17, 1989. Although Petitioner is not entitled to retirement benefits for those two days because she was employed by BCC on those days, she has not forfeited her entitlement to the balance of her retirement benefits for December 1988 and March 1989.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner

received overpayment of retirement benefits for December 14, 1988, and for March

17, 1989, due to her reemployment by Broward Community College and which requires her to repay the retirement benefits she received for December 14, 1988, and for March 17, 1989.

DONE AND ENTERED this 12 day of March, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-6853

The following rulings are made on the proposed findings of fact submitted by Respondent. end

1. The proposed findings of fact in paragraph 1 are

   adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 3 are

   adopted in material part by paragraph 6 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are

   adopted in material part by paragraph 7 of the Recommended Order.

5. The proposed findings of fact in paragraphs 5-7 are rejected as being recitation of testimony and as being subordinate to the findings made.

COPIES FURNISHED:

Nellie E. Dry, pro se

1501 South Ocean Drive, M804 Hollywood, Florida 33019

Stanley M. Danek, Esquire Department of Administration 2639 North Monroe Street Building C

Tallahassee, Florida 32399-1560

Shirley Hoefer

Broward Community College

225 East Las Olas Boulevard Ft. Lauderdale, Florida 33301

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF RETIREMENT

NELLIE E. DRY,

Petitioner,

vs. DOR Case No. DR 89-25

DOAH Case No. 89-6853

DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

On February 2, 1990, Claude B. Arrington, Hearing Officer with the Division of Administrative Hearings, held a formal hearing in this case in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Nellie E. Dry, pro se

1501 South Ocean Drive, #804

Hollywood, Florida 33019

For Respondent: Stanley M. Danek, Esquire

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 12, 1990. A copy of the Recommended Order is attached hereto, incorporated by reference and made a part of this Final Order as an exhibit. Having considered the Findings of Fact in the Recommended Order together with all matter of record reduced to writing, the Division of Retirement hereby adopts in part the Findings of Fact as follows:

No. 5 Adopted in part and rejected in part. The language in the 1988 Supplement states that the third exception applies to an "hourly teacher".

While the Petitioner considered herself to be an hourly teacher, the testimony from Mr. DeCosmo was that the Community College has no "teachers" but rather all its instructional personnel were classified as instructors.

No. 6 Adopted

No. 7 Adopted

CONCLUSIONS OF LAW

1. As a retiree from the Teacher Retirement System (TRS), Chapter 238, Florida Statutes, Petitioner's rights and responsibilities relating to her retirement are those contained in Chapter 238, Florida Statutes, together with certain rights and responsibilities contained in the Florida Retirement System (FRS), Chapter 121, Florida Statutes.

   
   

2. Section 238.181, Florida Statutes, provides, in pertinent part, as follows:

   
   

   (2) (a) Any person retired under this chapter ... may be reemployed by any private or public employer after retirement and receive retirement benefits and compensation from his employer without limitation, except that no person. may 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 district school board may reemploy a retired member as a substitute or hourly teacher on a non-contractual basis after he has been retired for 1 calendar month. Any retired member who is reemployed within 1 calendar month after retirement shall forfeit his right to retirement benefits during that month. ...

   ... Any retirement benefits received by such person while he is reemployed during this limitation period shall be repaid to the retirement trust fund ...

   (emphasis added)

   
   

3. Rule 22B-4.012, Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   1. Any retired member of a state administered retirement system of Florida who is receiving benefits may be reemployed by an employer who participates in the Florida Retirement System, in either a regularly established position or a temporary position, subject to the following:

      1. He shall not concurrently receive retirement benefits and compensation from employment with a Florida Retirement System employer for 12 months immediately after his retirement date except as provided in Rule 22B-4.012(3).

   * * *

   (c) If he is reemployed by a Florida Retirement System employer and fails to have his retirement benefits suspended during the 12-month limitation period he shall:

   * * *

   2. Repay to the Division of Retirement any retirement benefits received while reemployed during the 12-month period. ... (emphasis added)

   
   

4. During the first twelve months of retirement, a retiree from the TRS, such as Petitioner, may not receive retirement benefits and a salary from reemployment with any agency participating in the Florida Retirement System, such as the Community College. The exception to this prohibition (upon which Petitioner relies) applies only to teachers employed by a district school board. Petitioner, as an instructor employed by a community college, is not entitled to the exemption provided by this exception.

   
   

5. The 1988 Supplement to the pamphlet entitled "Florida Retirement System

   - After You Retire", in discussing the third exception to the reemployment law created in 1988, did not advise retirees that the exception was limited only to teachers employed by district school systems and not to instructors employed by a community college. Although this omission lead to Petitioner's misunderstanding as to the scope of the exception, Petitioner is charged with the knowledge of these provisions and was not entitled to rely on the brief description of the exception to a prohibition contained in the 1988 Supplement. Petitioner failed to establish that Respondent created an additional exception to the reemployment prohibition contained in Section 238.181, Florida Statutes, by its 1988 Supplement, or that Respondent is estopped from enforcing the reemployment prohibition in this case. See Austin v., Austin, 350 So. 2d 102 (Fla. 1st DCA 1977), and State Dent. of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981)

   
   

6. Section 238.181(2) (b), Florida Statutes, states that the "retirement benefits" of a person reemployed during the 12-month prohibition period "shall be repaid to the retirement trust fund". See also Rule 22B-4.012(2)(c)2. Florida Administrative Code. This provision does not provide for the repayment of partial benefits or the repayment of the amount earned during reemployment.

   
   

7. In addition, retirement credit under TRS is earned by the month and retirement benefits are paid by the month. An individual who retires in the middle of the month must wait until the first of the following month to begin earning the benefit. Thus, all creditable service and benefits accrue by the month and no credit or benefits are earned or paid for any less period of time such as days or weeks.

   
   

8. Therefore, it is clear that since such benefits are earned and paid by the month, then if there is an overpayment of benefits, that overpayment must be repaid on the basis of a full month's benefits. The statute clearly states that the "retirement benefits received . . . shall be repaid to the retirement trust fund." Those benefits are paid by the Division and then received by the retiree on the basis of a full month and are not divisible into days or weeks. Thus, the entire month's benefits must be repaid for the month in which a retiree worked.

9. While the Hearing Officer noted that the Division's interpretation would impose a substantial penalty on retirees, that was the intention of the Legislature in enacting the reemployment limitation provisions. While the various provisions of the retirement law which govern reemployment after retirement that have been enacted by the Legislature over the years are too voluminous to detail, it is sufficient to state that the Legislature intended that the latest provisions as applied to Petitioner be severe enough to discourage retirees from violating the reemployment limitation provisions by returning to employment within 12 months of retirement. Any exceptions to the law are few and are enacted by the Legislature only after careful review. None of those exceptions extend to the Petitioner's situation. The law is clear that regardless of the number of hours worked during a month, the entire month's retirement benefit must be repaid to the Retirement Trust Fund.

THEREFORE, based on the foregoing, it is

ORDERED and DIRECTED that Nellie E. Dry is required to repay retirement benefits to the Division of Retirement in the amount of $2,173.54, representing retirement benefits for the months of December, 1988, and March 1989. Mrs. Dry is to contact the Division to discuss an acceptable repayment schedule. If a mutually agreeable schedule cannot be agreed upon, the Division shall deduct the amount due from her future retirement benefits.

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 THE FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT 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 26th day of July, 1990, at Tallahassee, Leon County, Florida.

A.J. McMullian, III

State Retirement Director

FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THIS 30th DAY OF JULY, 1990.

BETTY ANN LEDFORD

Clerk

Division of Retirement

Copies furnished to:

Mrs. Nellie B. Dry 1501 Ocean Drive, #804

Hollywood, Florida 33019

Claude B. Arrington Hearing Officer

Division of Administrative Hearings 1230 DeSoto Building

Tallahassee, Florida 32399

Stanley M. Danek Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, Florida 32399

Docket for Case No: 89-006853

Orders for Case No: 89-006853