STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EVELYN DAY, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2085
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer, on October 12, 1990, in Crestview, Florida. The appearances were as follows:
APPEARANCES
FOR PETITIONER: Joseph G. Stokes
911 "B" Street
Crestview, FL 32536
FOR RESPONDENT: Larry D. Scott, Esq.
Division of Retirement Cedars Executive Center Building C
1639 North Monroe Street Tallahassee, FL 32399-1560
STATEMENT OF THE ISSUES
The issue to be resolved in this proceeding concerns whether the Petitioner, Evelyn S. Day, is entitled to modify her type of retirement benefits from "early service retirement" to "disability retirement."
PRELIMINARY STATEMENT
This action concerns a request by the Petitioner, through her husband and other family members, to change her "early service retirement" benefits, which were applied for on April 25, 1989, to disability retirement benefits. Although the Petitioner has been receiving and negotiating retirement checks since July 1989 (by electronic bank deposit), the Petitioner maintains, through her husband, brother, family members, and friends, that she was not competent to knowingly and properly execute an application for disability retirement at the time she sought early service retirement benefits, due to Alzheimer's disease.
The Petitioner, with the efforts of her husband and brother, who represented her at the hearing, seeks to change her retirement status to disability retirement for the reason that she was not competent to make a proper, knowing election of the type of retirement benefits desired, and for which she was eligible, at the
time the original retirement application was submitted on April 25, 1989. The Respondent agency takes a position, in accordance with Rule 22B-4.002(2), Florida Administrative Code, that once a member of the retirement system files an application for a specific type of retirement, and for which benefit payments were issued and cashed or deposited, that the member's right of entitlement to a different type of retirement is therefore forfeited.
The cause came on for hearing, as noticed, at which the Petitioner presented the testimony of Kitty Davis, Linda Ray, Ernestine Hobby, and Joseph
Stokes. The Respondent presented the testimony of Mark Sadler, Administrator, Disability Determination Section of the Division of Retirement. Petitioner's Exhibits 1-5 were admitted, although Petitioner's Exhibits 3, 4, and 5 were admitted as corroborative hearsay only, pursuant to Section 120.58, Florida Statutes. Respondent's Exhibits 3-7 were admitted.
Upon the conclusion of the proceeding the parties were accorded the right to file Proposed Findings of Fact and Conclusions of Law in the form of Proposed Recommended Orders. Those pleadings have been timely filed and are treated in this Recommended Order and specifically ruled upon, as to Proposed Findings of Fact, in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioner, Evelyn Day, was employed at Crestview High School in the position of "Occupational Specialist" from August 19, 1974 until June, 1989. Mrs. Day had a record of being a very valuable employee of the school system and was a person who always completed her tasks in a highly competent manner, within the allotted time period. She was well respected by faculty, staff and students while employed there.
Linda Ray, is a guidance counselor at the Vocational-Technical School which is an adjunct of the Crestview High School. She testified that the Petitioner in her capacity as Occupational Specialist, had taught her all about the duties of her own position seven years previously. The Petitioner had helped her learn how to complete required forms, reports, and other paper work and was the person to whom she looked to answer any questions she had about occupational training for students and related forms and reports because the Petitioner always demonstrated a high level of competence in such duties and had the capacity to rapidly answer her questions and give clear instructions. Ms. Ray established, however, that approximately one year before the Petitioner retired in June, 1989, that the Petitioner began exhibiting confusion, loss of memory, and the inability to accurately and clearly complete the same work, the same forms and reports, that she had previously taught Ms. Ray how to execute seven years previously. The Petitioner thus had to call on Ms. Ray herself for help for the same duties that she had instructed Ms. Ray on some years previously.
Kitty Davis, a former assistant to the Director of Vocational Education of the Okaloosa County School System, testified about her knowledge of the Petitioner during the time the Petitioner worked for the school system as an Occupational Specialist. She established that the Petitioner was extremely intelligent and effective in her work. She was a good leader and enjoyed the high esteem of fellow workers and was always prompt and effective in instructing other workers in their duties in the Occupational Training endeavor of the school system and her school. She was instrumental in helping fellow employees become more effective in their duties and was known as the best Occupational Specialist in the county school system. In fact, the Petitioner, on her own
initiative started the Career Day Program at the Crestview High school. Ms. Davis established that, for approximately a two-year period immediately before the Petitioner's retirement, she began having difficulty with her forms and other paper work and reports. This difficulty got progressively worse and Ms. Davis referred to one specific instance in which a report which the Petitioner had commonly executed throughout her years as an Occupational Specialist, had to be returned to the Petitioner seven times for correction and that finally the Petitioner had to get the assistance of another person to complete the report.
For the last six months of the Petitioner's employment, Ms. Davis established that she could no longer do the simplest duties in connection with her position as an Occupational Specialist. The Petitioner previously, throughout her years of employment, had demonstrated excellent personal appearance and grooming habits. For approximately the last six months of her duties, she had allowed her personal appearance to deteriorate to a state of poor grooming which had never been a characteristic of her personal habits in the past.
Ms. Davis established that in Ms. Day's position it was very important that student progress reports from employers, for students placed for occupational training, be promptly filed. By 1989, Ms. Day was unable to promptly file reports and soon was unable to do them at all. In fact, she soon became unable to complete the reports at all and was observed to simply "turn forms over" aimlessly without being able to work on them and execute them. She would make phone calls and forget why she made the phone calls during the course of the call. She was observed to forget, minutes later, that she had just met a certain person. This aberrant behavior, first observed a year or two before her retirement in June of 1989, was totally out of character for the Petitioner.
She had always been intelligent, energetic and outgoing. In fact, she had been chosen to be the hostess for her high school because of her outgoing, friendly nature. That progressively changed such that her personality appeared characterized by mental confusion, disorientation, memory loss, and poor grooming habits. In fact, it is established, by Ms. Ray and Ms. Davis, that by 1989, Ms. Day was unable to follow any directions at all, in essence, and could not keep her mind on a single subject matter. Indeed, she would forget the subject matter of a conversation in mid-discussion.
Ms. Ernestine Hobby is Mrs. Day's older sister. She is a retired Finance Officer for the Santa Rosa County School System. Sometime in the spring of 1988 Ms. Day first expressed the wish to retire. Her memory and thought processes had evidentially had already begun deteriorating because Mrs. Day was unable to ask questions concerning her retirement rights, responsibilities, and entitlements very well. Because of this condition, Ms. Hobby agreed to accompany her to the offices of the Division of Retirement in order to ascertain what her retirement rights, entitlements, and responsibilities might be preparatory to Mrs. Day electing to retire. Ms. Hobby made notes of that meeting in order to have written informatibn for Mrs. Day to refer to in making her retirement arrangements, because of her faulty memory. She gave the notes of that meeting to Mrs. Day after the meeting, but Mrs. Day lost the notes. Ultimately, Mrs. Day elected not to retire at that time but rather to try work one more year.
Approximately one year later, Mrs. Day decided to retire, apparently at the urging of friends, colleagues and family members. Because of her deteriorated mental state, Mrs. Day was unable to properly fill out the necessary retirement forms, including the application for retirement and, therefore, Ms. Hobby did this for her. Ms. Hobby actually filled out her retirement application in April or May of 1989. Neither the Petitioner nor Ms. Hobby was aware that once the retiree elected a certain type of retirement and
negotiated the first retirement check, the type of retirement could not be changed, according to the rule referenced below. The other witnesses on behalf of the Petitioner, including Mr. Stokes, were unaware of this rule. Ms. Hobby filled out all the forms required for the Petitioner to effect her retirement status and the Petitioner only signed the application after being told to by Ms. Hobby. Although the application on its face indicates an election to seek early service retirement (instead of disability retirement), the totality of the evidence of record, which was unrefuted by any evidence by the Respondent, establishes that the Petitioner was not aware of the nature of the retirement benefits she had applied for nor the type of retirement she had elected or the consequences of that election. The evidence clearly shows that by the time the application form was filled out, signed and submitted that the Petitioner was incompetent to make the election to take early service retirement as opposed to disability retirement. This is born out by testimony of Ms. Hobby, corroborated by a letter from Dr. Axley, a neurologist in Pensacola, to the effect that the Petitioner indeed suffered from Alzheimer's disease. In fact, the doctor diagnosed her condition as the "second stage" of Alzheimer's disease sometime before March 2, 1990 and opined that the disease had been progressing for approximately one and half years. The doctor anticipates that the condition will continue to deteriorate. Her condition is characterized by memory loss, mental confusion, and disorientation. In fact, as of the time of the hearing, as established by Ms. Hobby's testimony, the Petitioner is significantly disoriented in her thought processes and memory such that she cannot accomplish the simplest household tasks any longer.
Mr. Joseph G. Stokes is the Petitioner's brother. He was the Okaloosa County Tax Collector for twenty-eight years. He lives next door to the Petitioner and is in a position to constantly observe her behavior and deteriorating mental and physical condition. Because of his concern for her deteriorating condition in the past year or two he attempted to urge her to see a doctor. Indeed, a family member is a doctor. The Petitioner however refused to see a doctor for a substantial period of time apparently because she did not wish to confront the fact of her illness and wanted to continue to try to maintain employment. When the Petitioner finally was taken to the neurologist, Dr. Axley, the witness learned that the problem had been slowly progressing for some years and by that time the Petitioner could not even remember journeying to Tallahassee to meet with representatives of the Division of Retirement to fill out retirement forms. Like the other witnesses for Petitioner, Mr. Stokes testified regarding the high level of competency the Petitioner had formerly exhibited in performing her job as an Occupational Specialist at the Crestview High School. Additionally, she had worked at intellectually demanding jobs as Payroll Officer for the Okaloosa County School System, the Accountant for the Okaloosa County Tax Collector's Office and had handled all the financial affairs of that office. She had also in the past worked as an Accountant for a Lincoln- Mercury dealership in Crestview and Fort Walton.
Mr. Stokes had suspected for more than a year that something was wrong with his sister. He finally became convinced of that when, approximately one year to one and one-half years prior to her retirement, a party from New York contacted her about leasing a small parcel of land some 20 feet by 30 feet in size for purposes of installing a microwave tower. The property had planted pine trees growing on it at the time. The potential lessee offered the Petitioner a monthly rental of $1,000.00 for this very small parcel of property and yet she illogically rejected this offer because she believed that she and her husband were going "to plant soy beans on the parcel". This was such an irrational decision under the circumstances that Mr. Stokes became convinced that the Petitioner's mental condition had significantly deteriorated. In fact,
according to Mr. Stokes testimony, his sister has reached the point where she is unable to do anything to care for herself or her household. He bases this on his opportunity to observe her on a daily basis because he resides next door.
He also testified, like Ms. Hobby, that Ms. Hobby had filled out her retirement application papers because the Petitioner simply was not capable of doing so.
Mr. Mark Sadler, the Administrator of the Disability Determination Section of the Respondent introduced retirement documents submitted on behalf of the Petitioner. He testified concerning the language in the application, and Respondent's Exhibit 6, to the effect that retirement could not be changed as to option (that is as to the manner in which benefits are paid) or length of service claimed, after the cashing of the first disability check. He acknowledged that the rule at issue cited below, added one other condition that was not in the notice to the Petitioner, represented by Exbibit 6, and that was the fact that the rule language also contained the admonition that the type of retirement could not be changed once the first retirement benefit check has been cashed or deposited.
In any event, as to alluded to aboNe, in April or May of 1989 an application was prepared for the Petitioner by Ms. Hobby and signed by the Petitioner at the direction of Ms. Hobby or other family members, for "early service retirement." After receiving retirement benefit checks for early service retirement for some months a request for change of retirement status from early service retirement to disability retirement was made on behalf of the Petitioner. The Petitioner was not competent to make that election or decision either and it was made for her by family members who in fact prepared and submitted the request. On March 12, 1990 the Department of Administration, Division of Retirement denied the requested change in retirement status because of the admonition in Rule 22B-4.002(2), Florida Administrative Code, to the effect that once a member files an application which is approved for a specific type of retirement and a benefit payment is issued and cashed or deposited, the member's entitlement to a different type of retirement is forfeited.
Thereafter, by letter of March 21, 1990 the Petitioner's husband formally advised the Pespondent of disagreement with the denial of the request for change of retirement type or status and requested a formal proceeding which ultimately ensued before this Hearing Officer.
The estimate of retirement benefits form contained in Respondent's Exhibit 6, as well as the "acknowledgment of retirement application", Respondent's Exhibit 4 in evidence contains the admonition that "once you retire you cannot add additional service or change options reetirement becomes final when any benefit check is cashed or deposited!" These forms, containing this notice to the Petitioner did not contain the additional caveat that retirement type could not be changed based upon the cashing or depositing of the first benefit check. The rule referenced above does contain that additional caveat, however. That rule states, however, that the prohibition concerning entitlement to a different type of retirement takes effect "once the member files an application which is approved for a specific type of retirement and a benefit payment is issued and cashed or deposited, . . ." Here, in actuality, the "member", that is, Mrs. Day, did not actually file the application in point of fact. Mrs. Day, without dispute, clearly signed the application but all the information written on that application form and submitted to the Division of Retirement, which was accepted by the Division, was executed by Ms. Hobby on Mrs. Day's behalf. Mrs. Day, according to the unrefuted evidence in this record, was clearly not competent to consider and reflect on the questions or requests for information on the application form nor to make a rational decision as to how to answer those questions or requests for information. Due to the
progression of her Alzheimer's disease disability, it is found that she was clearly incompetent to make a rational, knowing election concerning arrangements for her retirement. The unrefuted evidence of record shows that she simply could not, as a member of the retirement system under the above-cited rule, make a knowing, intelligent, rational election concerning the retirement status or type she should seek and that, therefore, the application filed for early service retirement was filed by mistake and in error due to her condition and the uninformed assistance she received from Ms. Hobby concerning her retirement rights and entitlements. This situation is corroborated by the fact that the Federal Social Security Administration has adjudicated her as 100% disabled for social security purposes due to her Alzheimer's disease condition and in fact she was receiving 100% social security disability benefits at the time of the hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).
Section 121.031, Florida Statutes, provides pertinently as follows: "The Department of Administration, through the Division of Retirement, shall make such rules as are necessary for the effective and efficient administration of the system."
In accordance with that statutory grant of authority the Department and the Division have promulgated Chapter 22B-4, Florida Administrative Code pertinent to this action, 22B- 4.002(1)(2), Florida Administrative Code provides in pertinent part as follows:
22B-4.002 Statements of Policy.
All benefits and refunds of accumulated contributions provided for under this Chapter shall be payable only upon termination of employment and proper application to the Administrator.
It shall be the responsibility of the member to notify the Administrator of
the date on which he wishes to retire and make proper application for normal, early, or disability retirement benefits as provided in Sections 22B-4.004, 22B- 4.005, and 22B-4.007, respectively.
Once the member files an application which is approved for a specific type of retirement and a benefit payment is issued and cashed or deposited, the member's right of entitlement to a different type of retirement is forfeited and a different type of application may not be submitted, except in the following circumstances.
A member who recovers from disability and returns to work as provided in 22B-4.007(a) and subsequently applies for retirement; or
A member retired from an existing system or the Florida Retirement System who holds an elected public office and participates again as an active member as provided in 22B- 2.008.
After a retirement benefit payment has been cashed or deposited, no additional service may be purchased and this
election of an option may not be changed.
The Petitioner's request for change of retirement status to that of disability retirement is based upon the contention that the Petitioner was suffering from Alzheimer's disease at the time her request for "early service retirement" was made in April or May of 1989. The Petitioner is not contending that her request for modification meets the two exceptions cited at paragraph 2(a) and (b) of the rule above.
The gravamen of the Petitioner's case, which was supported by unrefuted evidence culminating in the above Findings of Fact, is that the Petitioner was incompetent to make a rational, intelligent election of her retirement status at the time her initial retirement application was submitted in April, 1989. In this regard, the testimony of Petitioner's witnesses, supportive of the above Findings of Fact, shows that her mental health was significantly deteriorated at the time she had her retirement application completed by Ms. Hobby and signed that application. The evidence of record contained in the testimony of the above noted witnesses for Petitioner, and corroborated by the diagnosis contained in the letter from Dr. Axley, establishes that at that time, she was suffering a significantly deteriorated mental status due to progression of Alzheimer's disease which had been affecting her for at least one and one-half to two years at the time of that application.
The unrefuted evidence of record clearly shows substantial indicia of mental deterioration in terms of memory loss, irrational thought processes, and progressive lack of ability, due to mental confusion, of the Petitioner to even care for the simplest of her everyday needs. This condition was progressing steadily both before and after her April, 1989 retirement date, as shown by the above Findings of Fact. Thus, the conclusion is inescapable that she was disabled due to Alzheimer's disease and resulting mental deterioration so that she could not formulate a rational decision about her retirement arrangements, including the election of what retirement type or status to apply for and accept. Indeed, by the language of the above-quoted rule, the member files the application but, yet, although Mrs. Day signed the application at issue, she did not, in actuality, file the application because she did not complete the information requested on the application form nor make any decisions regarding what information to supply and what type of retirement status to elect to receive. She was simply not sufficiently mentally competent to make a knowing and intelligent election and file the application for the same.
The witnesses, who established this mental incapacity, established it by their unrefuted testimony; and it is particularly persuasive because these witnesses, friends, colleagues and family members observed the Petitioner on almost a daily basis for years and were particularly competent to testify regarding the progressive deterioration in her mental condition. See Section 90- 701, Florida Statutes, and Fields v State, 46 Fla. 84, 35 So. 185 (1903); Butler v. State, App. 261 So.2d 508 (1972); U.S. v. Milne, C.A. 487 F.2d 1232 (1973), appeal after remand, 498 F.2d 329, cert. den., 95 S.Ct. 808, 419 U.S. 1123, 42 L.Ed. 2d 823. Their testimony is clearly corroborated by the letter from her treating neurologist and is also persuasively corroborated by the fact that the Social Security Administration has found the Petitioner to be permanently, totally disabled under the relevant Social Security Statute and Regulations and that the Petitioner is entitled to disability benefits due to her Alzheimer's disease condition as of approximately June, 1989. While that finding by the Social Security Administration may not be binding as a matter of law on the Respondent agency, it is factually persuasive of the fact of the Alzheimer's disease- related disability, as well as the circumstance that it was progressing well before the Petitioner's retirement date.
In summary, it is concluded that the putative election by the Petitioner to seek early service retirement was not a knowing and rational election and should be treated as an improperly filed application which she was not mentally competent to file. Therefore, it is concluded that the Petitioner should be accorded the opportunity to seek disability retirement status by an appropriately filed application, reviewed in accordance with the provisions of Section 121.091., Florida Statutes, which permits the agency to have her examined by two Florida-licensed physicians prior to a grant of her application. It is specifically concluded, however, that the fact of her disability due to Alzheimer's disease has been proven in this case.
Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED:
That a Final Order be entered by the Department of Administration, Division of Retirement, according the Petitioner, Evelyn Day, the opportunity to change the status of her retirement benefits from early retirement to disability retirement, effective as of the date her earlier retirement application was accepted by the agency.
DONE AND ORDERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 48B-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2085
PETITIONER'S PROPOSED FINDINGS OF FACT
1-8. Accepted.
RESPONDENT'S PROPOSED FINDINGS OF FACT
Accepted.
Accepted to the extent that the record establishes that the Petitioner signed the application.
Accepted to the extent that it was established that Petitioner has received the retirement checks. It is not established that the Petitioner cashed or deposited those retirement checks by preponderant evidence of record.
Accepted insofar as it recites the Respondent's position in this matter.
Accepted.
Accepted.
COPIES FURNISHED:
Aletta Shutes, Secretary Department of Administration
435 Carlton Building Tallahassee, FL 32399-1550
Augustus D. Aikens, Jr., Esq. General Counsel
Department of Administration
435 Carlton Building Tallahassee, FL 32399-1550
Mr. Joseph G. Stokes 911 "B" Street
Crestview, Florida 32536
Larry D. Scott, Esq. Division of Retirement Cedars Executive Center Building C
1639 North Monroe Street Tallahassee, Florida 32399-1560
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DIVISION OF RETIREMENT
EVELYN DAY,
Petitioner, Case No. DR9O-O1
DOAH Case No. 90-2085
vs.
DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
On January 3, 1991, the duly appointed Hearing Officer of the Division of Administrative Hearings in the above-styled and numbered cause, completed and submitted to the Division of Retirement of the Department of Administration and to all parties in the cause, a Recommended Order. A copy of that Recommended Order is attached hereto, incorporated by reference herein, and made a part hereof as "Exhibit A".
Pursuant to Rule 28-5.404, Florida Administrative Code, and Section 120.57(1)(b)4, Florida Statutes, the parties were allowed twenty (20) days within which to submit written exceptions to that Recommended Order. Neither
petitioner nor the Respondent submitted any written exceptions. Pursuant to Section 120.57(1)(b), Florida Statutes, that Recommended Order came before the undersigned Director of the Division of Retirement, an agency head, for final agency action and for a final agency order in the cause.
The Record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits.
FINDINGS OF FACT
The petitioner did not appear at the Hearing and therefore was not available for examination by the Respondent or the Hearing Officer. In addition, the petitioner's physician was not present to provide competent, expert medical testimony regarding the petitioner's condition; therefore, those findings that diagnosed the petitioner as having Alzheimer's disease are rejected as not supported by competent, substantial evidence in the record.
Section 120.57(1)(b)(10). Florida Statutes (1989), in part provides:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential reguirements of law.
After review of the entire record in the case, the Division is unable to accept all of the Findings of Fact as set forth by the Hearing Officer in his Recommended Order.
RULING ON FINDINGS OF FACT
The Findings of Fact set forth in paragraph 1 are accepted.
The Findings of Fact set forth in paragraph 2 are accepted.
The Findings of Fact set forth in paragraph 3 are accepted.
The Findings of Fact set forth in paragraph 4 are accepted.
The Findings of Fact set forth in paragraph 5 are accepted in part. In that paragraph, the Hearing Officer found as follows:
Her memory and thought processes had evidentially [sic] already begun deteriorating because Mrs. Day was unable to ask guestions concerning her retirement rights, responsibilities, and entitlements very well. Because of this condition, Ms. Hobby agreed to accompany her to the offices of the Division
of Retirement in order to ascertain what her retirement rights, entitlements, and responsibilities might be preparatory to Mrs. Day electing to retire.
The above-quoted findings are rejected as conclusory and not supported by competent, substantial evidence.
The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence, except the finding that Mrs. Day retired and Ms. Hobby filled out her application for retirement. Additionally, the Hearing Officer's findings that petitioner was incompetent and suffering from Alzheimer's disease are rejected as being legal conclusions not supported by any judicial order or by any competent, substantial evidence in the record.
The Findings of Fact as set forth in paragraph 7 are accepted.
The Findings of Fact as set forth in paragraph 8 are accepted.
The Findings of Fact as set forth in paragraph 9 are accepted.
That portion of the Findings of Fact in paragraph 10 which concluded the petitioner was incompetent is rejected as not supported by competent, substantial evidence. The petitioner has never been declared incompetent or determined to be incompetent by a medical doctor.
Findings of Fact as set forth in paragraph 11 are accepted in part and rejected in part. That portion of the Findings which states that the application for retirement was not filed by Ms. Day is not supported by competent, substantial evidence. In point of fact, the Division has a filed application signed by the petitioner. The portion of the paragraph finding the petitioner incompetent is rejected as not supported by competent, substantial evidence. There has been no legal or medical determination that the Petitioner is incompetent. Additionally, there is no competent, substantial evidence that petitioner is suffering from Alzheimer's disease. The Hearing officer's finding that the petitioner's application was filed in error is not supported by competent, substantial evidence.
CONCLUSIONS OF LAW
The Division of Retirement has jurisdiction of the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).
Chapter 121, Florida Statutes (1989), also known as the Florida Retirement System Act, established the Florida Retirement System. Section 121.031(1), Florida Statutes (1989), grants the Division of Retirement authority to promulgate rules for the effective and efficient operation of the retirement system.
The Hearing Officer's conclusions of law are not supported by his findings of fact and constitute a clearly erroneous application of law; therefore, the Hearing Officer's conclusions are rejected.
Pursuant to the legislative grant of authority, the Division promulgated Rule 22B-4.002(1)(2), Florida Administrative Code, which reads in part as follows:
"22B-4 .002 Statements of Policy"
All benefits and refunds of accumulated contributions provided for under this Chapter shall be payable only upon termination of employment and proper application to the Administrator.
It shall be the responsibility of the member to notify the Administrator of the date on which he wishes to retire and make proper application for normal, early or disability retirement benefits as provided in Sections 22B-4.004, 22B-4.005, and
22B-4.007, respectively. Once the member files an application which is approved for a specific type of retirement and a benefit payment is issued and cashed or deposited, the member's right of entitlement to a different type of retirement is forfeited and a different type of application may not be submitted, except in the following circumstances.
A member who recovers from disability and returns to work as provided in
22B-4.007(8) and subseguently applies for retirement; or
A member retired from an existing system or the Florida Retirement System who his an elected public office and participates again as an active member as provided in 22B-2.008.
After a retirement benefit payment has been cashed or deposited, no additional service may be purchased and the selection of an option may not be changed.
The Hearing Officer correctly concluded that rule 22B-4.002(l)(3), Florida Administrative Code, precludes a change in the type of retirement.
A rule is presumed valid in any proceeding under Section 120.57, Florida Statutes, unless it is successfully challenged under Section 120.56, Florida Statutes (1989). T. G. Grantham v. State of Florida, Department of Administration, Division of Retirement, No. 89-2455 (DOA; January 22, 1990).
The Hearing Officer did not find the rule invalid; rather, he failed to apply it to the facts of this case.
Based upon the evidence presented, the Hearing Officer could not find that the petitioner fit within the exceptions set forth in the rule; indeed, the Hearing Officer recognized that petitioner was not contending that she met either exception. The rule makes no exception for a lack of mental competency; consequently, the Hearing Officer's conclusion that the Petitioner was incompetent is irrelevant to this case.
In arriving at his conclusion the Hearing Officer stated, in pertinent part, the following:
The gravamen of the petitioner's case, which was supported by unrefuted evidence culminating in the above Findings of Fact, is that the Petitioner was incompetent to make a rational, intelligent election of her retirement status at the time her initial retirement application was submitted in April, 1989.
Chapter 744, Florida Statutes, sets forth a statutory procedure established by the legislature to inquire into the competency of an individual. See, Donnelly v. Mann, 68 So.2d 584 (Fla. 1953). In addressing the procedure to be followed, the court in Rehrer v. Weeks, 106 So.2d 865, 869 (2d DCA 1958); stated:
Ajudication of mental incapacity leaves an individual bereft and shorn of certain personal rights which give him identity and make him an entity in his own right. The public is interested in a proceeding of this nature; and this court makes these observations, not to indicate any opinion
as to the mental competency or incompetency of appellee, but to lay stress upon his right to due process of law in such a significant and consequential action as an
incompetency inquisition.
The Recommended Order cited no authority in support of the directive to the Division to allow the petitioner to change her type of retirement.
Under Rule 22B-4.002, Florida Administrative Code, the Petitioner is not entitled to submit an application for
disability retirement because she previously applied for and has been receiving early service retirement benefits for more than two years. T. G. Grantham v.
State of Florida Department of Administration, Division of Retirement, No. 89- 2455, (DOA; January 22, 1990).
IT IS ORDERED, that Petitioner, Evelyn Day, be denied the opportunity to change the status of her retirement benefits from early retirement to disability retirement.
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 15th day of March, 1991, at Tallahassee, Leon County, Florida.
J. MCMULLEN III, Director Division of Retirement Cedars Executive Center
2639 North Monroe street Tallahassee, FL 32399-1560
(904) 488-5541
CLERK'S CERTIFICATE
I HEREBY CERTIFY that this Final Order was filed with the clerk of the Division of Retirement on this 18th day of March, 1991.
BETTY ANN LEDFORD
Clerk
Division of Retirement Cedars Executive Center 2639 North Monroe street
Tallahassee, Florida 32399-1560
(904) 487-1230
Copies furnished to:
Mrs. Evelyn S. Day 911 B Street
Crestview, Florida 32536
Mr. Joseph G. Stokes 911 B street
Crestview, Florida 32536
P. Michael Ruff Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Larry D. Scott
Assistant Division Attorney Department of Administration Division of Retirement Cedars Executive Center Building C
2639 North Monroe Street Tallahassee, Florida 32399-1560
| Issue Date | Proceedings |
|---|---|
| Aug. 17, 1995 | Final Order filed. |
| Jan. 03, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 15, 1991 | Agency Final Order | |
| Jan. 03, 1991 | Recommended Order | Petitioner can change retire status to disabled because not mentally competent to make earlier election, proof of alzheimers; allow reapplication. |
RUFUS ROYAL vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 90-002085 (1990)
RENEE RADICELLA vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 90-002085 (1990)
BOBBIE JONES SCOTT vs DIVISION OF RETIREMENT, 90-002085 (1990)
COLLEEN HYLTON-JULIUS vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 90-002085 (1990)
GORDON B. WILLIAMS vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 90-002085 (1990)
