STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PORT EVERGLADES AUTHORITY, ) JOSEPH DELILLO, WALTER J. BROWNE, ) JEAN FITZGERALD, JAMES G. KANE, ) ELIZABETH H. KRANT, MICHAEL J. ) MARINELLI, ALAN R. MARKS, CHARLES )
SHAW, MICHAEL BLOCK, MAURICE ) BERKOWITZ, ROBERT BARBER, HAROLD ) DYER, BULL STAN HARRIS, THOMAS N. ) KEARNS, PHYLLIS L. LOCONTO, and ) MARTIN L. WYNEKEN, )
)
Petitioners, )
)
vs. ) CASE NO. 92-3650
) DEPARTMENT OF MANAGEMENT SERVICES, ) 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 October 13 and 14, 1992, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioners: Michael Moskowitz, Esquire
William G. Salim, Jr., Esq.
Borkson, Simon, Moskowitz & Mandell, P.A. 1500 Northwest 49th Street
Suite 401
Ft. Lauderdale, Florida 33309
For Respondent: Stanley M. Danek, Esquire
Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C
Tallahassee, Florida 32399 STATEMENT OF THE ISSUE
Whether the individual Petitioners are entitled to participate in the Elected State and County Officer's Class (ESCOC) of the Florida Retirement System created by Section 121.052(2)(d), Florida Statutes, and the conditions, if any, that should be imposed on such participation. There is no contention
that the Port Everglades Port Authority is entitled to membership or benefits from the ESCOC. The following sub-issues are also presented:
Whether the commissioners who serve in appointed positions are entitled to membership in the ESCOC retirement class.
Whether the elected commissioners who held office on or after July 1, 1990, are entitled to ESCOC credit for service prior to July 1, 1990, (the date these commissioners became compulsory members of ESCOC) as "past service" or "prior service" as those terms are defined by Sections 121.021(18) and (19), Florida Statutes.
If the second sub-issue is resolved in the negative, whether the Respondent can receive from the Port the necessary contributions to upgrade the retirement status of the elected commissioners who held office on or after July 30, 1990, or whether those contributions can only be received by Respondent from the individual commissioners who fall into that category.
Whether commissioners who left office prior to 1985 are eligible for membership in, or other benefits pursuant to, ESCOC.
Whether Respondent is estopped from denying the individual Petitioners retroactive membership in ESCOC.
PRELIMINARY STATEMENT
The Petitioners in this proceeding are the Port Everglades Authority (Port) and the present and former commissioners of the Port whose eligibility, membership, or retirement benefits may be determined by this proceeding. Prior to the formal hearing, Thomas McDonald and Herbert Myers were withdrawn as Petitioners. The style of the case has been amended to reflect that withdrawal.
The Port, located in Broward County, exercises county-wide jurisdiction through its seven member commission. Five of the commission seats are elected by the electors of Broward County. The other two Port commission seats are appointed positions with the commissioners who fill those seats being appointed by the Broward County Commission.
For ease of reference, the individual Petitioners are divided into five categories as follows:
CATEGORY 1: Commissioners DeLillo, Marks, and Krant, who were elected to office and in office as of July 1, 1990.
CATEGORY 2: Commissioners Browne, Kane, and Fitzgerald, who were appointed to office.
CATEGORY 3: Commissioner Marinelli, who was elected to office and in office as of July 1, 1990, but who retired as of December 1, 1990, and who began receiving retirement benefits shortly thereafter.
CATEGORY 4: Commissioners Kearns, Block, Berkowitz, Barber, Shaw, Dyer, Wyneken, and Loconto, who were elected to office, but who left office prior December 1984.
CATEGORY 5: Commissioner Harris, who died with 5.76 years of creditable service.
The ESCOC retirement class was created (and named) by Chapter 90-274, Laws of Florida, now codified at Section 121.052, Florida Statutes. Prior thereto, the class was named Elected State Officers' Class. For convenience and to reduce confusion, the reference throughout will be to ESCOC and should be deemed to refer to both classes.
Until July 1, 1986, the effective date of Chapter 86-180, Laws of Florida, the commissioners of the Port were not entitled to participate in the ESCOC due to the wording of Section 121.052, Florida Statutes, the provision of law that created the subject retirement class. Section 8 of Chapter 86-180, Laws of Florida, amended the provisions of Section 121.052, Florida Statues, to include for the first time in the ESCOC class "... any elected officer of any entity with county wide jurisdiction who, pursuant to general or special law, exercises power and duties that, but for said general or special law would be exercised by any of the aforementioned constitutional county elected officers ..." The parties agree that at that time, the elected members of the commission were given the option of becoming members of the ESCOC by the provisions of Chapter 86-180, Laws of Florida.
The next significant amendment to Section 121.052, Florida Statutes, was by Section 8 of Chapter 90-274, Laws of Florida, effective July 1, 1990. By this amendment membership in ESCOC became compulsory for the elected commissioners.
Subsequent to the enactment of Chapter 90-274, Laws of Florida, a dispute arose between Respondent and the Port as to the appropriate retirement classification of the various commissioners. The parties agree that, with the exception of Commissioner Marinelli, the elected commissioners who held office on or after July 1, 1990, are entitled to retroactive membership in ESCOC back to July 1, 1990, when the membership became compulsory. Since this dispute arose after Commissioner Marinelli retired, Respondent contends that it is too late to change his classification or to adjust the benefits to which he might have otherwise been entitled. The parties stipulated that Respondent has accepted from the Port contributions retroactive to July 1, 1990, for the commissioners (with the exception of Marinelli) who became compulsory members of ESCOC pursuant to Chapter 90-274, Laws of Florida.
Respondent recognizes the right of certain of the Petitioners (the CATEGORY
1 commissioners) to upgrade their retirement status by making additional contributions for prior years of service pursuant to Section 121.052(5), Florida Statutes (1991). Respondent contends that it can accept contributions for the upgrade only from the individual commissioners. Petitioners contend that the Port should be allowed to make the contribution on behalf of the individual commissioners because it is a correction of a mistake or because the credit should be construed to be "past service" or "prior service" as those terms are defined by Section 121.021(18) and (19), Florida Statutes (1991).
Respondent has denied the commissioners who serve in appointive seats the right to participate in ESCOC. Petitioners contend that the commissioners serving in appointive seats should be entitled to participate in ESCOC because
they are appointed by an elected county commission and because they exercise the same rights, duties, and responsibilities as the elected commissioners.
Petitioners contend that Respondent is estopped to deny ESCOC rights and benefits to the individual Petitioners because Respondent failed to adequately advise the Port as to the right of its commissioners to elect membership in ESCOC during the time membership was optional. Petitioners further contend that Respondent is estopped to deny these rights and benefits to the individual Petitioners because of communications between the staff of the Port and employees of Respondent. Respondent disputes those contentions and asserts that it provided adequate notice to the Port and that the communications referred to by Petitioners fail to establish estoppel.
At the formal hearing, Petitioners presented the testimony of Russell Morrison, John Curry, Andrew Deering, Bonnie Shaw, Andrew Snuggs, and Mary Meynarez. Mr. Morrison is the Assistant Port attorney, Mr. Curry is the Port Director of Administration, Mr. Deering if the Port Human Resources and Risk Management Administrator, Ms. Shaw is a Port Personnel Specialist, Mr. Snuggs is employed by Respondent as its Retirement Administrator of its Bureau of Retirement Calculations, and Ms. Meynarez is the Port Director of Finance.
Petitioners presented a total of 41 exhibits, six of which (marked P-U, P-V, P- W, P-X, P-DD, and P-EE) were withdrawn as being duplicative of pre-marked Respondent exhibits. At the formal hearing, Respondent recalled Andrew Snuggs and presented the additional testimony of David W. Ragsdale, who is Respondent's Retirement Administrator of its Bureau of Enrollment and Contributions.
Respondent presented 31 exhibits, each of which was accepted into evidence. Among Respondent's exhibits were the depositions of Virginia W. Bryant, Carolyn McGlamery, Patricia R. Ochoa, Sarabeth Snuggs, and Patty Bollinger Martin. Ms. Bryant is Respondent's Administrator of Research, Education and Policy of its Bureau of Administration, Ms. McGlamery is Respondent's Retirement Administrator of its Bureau of Benefit Payments, Ms. Ochoa is one of Respondent's Retirement Services Representatives of its Bureau of Enrollment and Contributions, Ms.
Snuggs is Respondent's Bureau Chief for its Bureau of Enrollment and Contributions, and Ms. Martin is a former employee of the Port whose last position with the Port was as its Assistant Director of Administration.
Official recognition was taken of Chapter 121, Florida Statutes, and of Chapter 22B, Florida Administrative Code, which has been transferred to Chapter 60S, Florida Administrative Code.
A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to this cause, the Port Everglades Authority (Port) was an independent special district created under the laws of the State of Florida that exercised county wide jurisdiction that would have otherwise been exercised by the Broward County Commission.
The Port is derived from Laws of Florida, Chapter 59-1157, as amended in full by Laws of Florida, Chapter 89-427.
At all times pertinent hereto, the Port was a member of the Florida Retirement System pursuant to the provision of Chapter 121, Florida Statutes, and the rules promulgated pursuant thereto found in Chapter 60S, Florida Administrative Code.
At all times pertinent hereto, the Port was governed by a commission consisting of seven commissioners. Five of the commission seats were elected positions with the commissioners being elected by the voters of Broward County. The other two commission seats were appointed positions, with those commissioners being appointed to their positions by the Broward County Board of County Commissioners. There is no difference between the duties, responsibilities, and obligations of the elected and appointed commissioners serving on the Port.
At all times prior to this controversy, the Port commissioners, both elected and appointed, were treated as members of the regular class of service in the FRS under the provisions of Chapter 121, Florida Statutes. As regular class members, each commissioner earned 1.6% annual percentage for their service, and vested in ten years. In comparison, each member of ESCOC earns 3% annual percentage for his or her service and vests in eight years.
Prior to July 1, 1986, the effective date of Section 8 of Chapter 86- 180, Laws of Florida, the Port commissioners, both elected and appointed, were not eligible for membership in ESCOC. Section 8 of Chapter 86-180, Laws of Florida, amended Section 121.052(1)(g), Florida Statutes, and provided the elected Port commissioners who took office, or were in office, on or after July 1, 1986, the option to elect membership in the ESCOC. If a commissioner did not make an election, his or her retirement status did not change.
The provisions of Section 121.052(1)(g), Florida Statutes, were amended again in 1990, by Section 8, Chapter 90-274, Laws of Florida. Pursuant to this amendment, the elected Port commissioners who took office, or were in office, on or after July 1, 1990, became mandatory members of the ESCOC class of service in the FRS, effective July 1, 1990.
Whether the appointed commissioners are eligible for membership in ESCOC is a question of law that will be resolved in the Conclusions of Law portion of this Recommended Order.
Prior to this controversy, the Port's unwritten policy was to enroll its commissioners as regular members of the FRS.
The individual Petitioners status can be divided into five categories as follows:
CATEGORY 1: Commissioners DeLillo, Marks, and Krant, who were elected to office and in office as of July 1, 1990.
CATEGORY 2: Commissioners Browne, Kane, and Fitzgerald, who were appointed to office.
CATEGORY 3: Commissioner Marinelli, who was elected to office and in office as of July 1, 1990, but who retired as of December 1, 1990, and who began receiving retirement benefits shortly thereafter.
CATEGORY 4: Commissioners Kearns, Block, Berkowitz, Barber, Shaw, Dyer, Wyneken, and Loconto, who were
elected to office, but who left office prior December 1984.
CATEGORY 5: Commissioner Harris, who died with 5.76 years of creditable service.
The commissioners falling into CATEGORY 1 have been placed in the ESCOC class retroactive to July 1, 1990. Respondent billed the Port for ESCOC contributions retroactive to July 1, 1990, to correct the error that was made as to their retirement status. Respondent has the general authority to correct errors.
Each commissioner in CATEGORY 1 has been given the right to upgrade his retirement status pursuant to Section 121.052(5), Florida Statutes (1991), by purchasing credit for the period he served before he became a compulsory member of ESCOC. The parties dispute whether Respondent can accept from the Port the contribution necessary to upgrade the classification for the CATEGORY 1 commissioners. The Port is willing to pay the contributions for the respective CATEGORY 1 commissioners to purchase this additional credit and has tendered to Respondent the amounts necessary to do so. Respondent has refused to accept those amounts, contending that the contributions can only be received from the individual commissioners. For the reasons discussed in the Conclusions of Law portion of this Recommended Order, it is concluded that Respondent's determination that the individual commissioners have to pay for the upgrade should be upheld.
Each commissioner falling into CATEGORY 2 held or holds an appointed position. Whether a person who serves in an appointed office is eligible for membership in the ESCOC retirement class created by Section 121.052, Florida Statutes, is a conclusion of law. As discussed in the Conclusions of Law portion of this Recommended Order, those commissioners are not entitled to participate in the ESCOC because the statute creating the classification pertains only to elected officers.
Commissioner Marinelli, the only commissioner in CATEGORY 3, was a compulsory member of the ESCOC at the time of his retirement. At the time Commissioner Marinelli retired effective December 1, 1990, both he and Respondent were unaware that he was a compulsory member of ESCOC. Because of this mutual mistake by Commissioner Marinelli and by Respondent, Commissioner Marinelli retired as a member of the regular class of the FRS, and his retirement benefits may be lower than they should be. It is inferred, in the absence of evidence to the contrary, that Commissioner Marinelli received and cashed his retirement checks. Mr. Marinelli has been denied the option of upgrading his retirement class for his service prior to July 1, 1990, the date he became a compulsory member of the ESCOC. Had Commissioner Marinelli been properly enrolled as a member of ESCOC at the time of his retirement, he would have had the option to purchase service credit for time he served the Port from January 1975 to July 1, 1990. Respondent asserts that it is prohibited from
changing Commissioner Marinelli's retirement status since he has retired and has presumably received and cashed certain retirement benefits. Respondent did not bill the Port for retroactive contributions to ESCOC for Mr. Marinelli from the date of his retirement to July 1, 1990. Respondent billed the Port for retroactive ESCOC contributions for all elected commissioners sitting on or after July 1, 1990, excepting Commissioner Marinelli.
The commissioners in CATEGORY 4 left office prior to the time they became compulsory members of ESCOC. Section 8 of Chapter 86-180, Laws of Florida, amended the provisions of Section 121.052(1)(g), Florida Statutes, to read, in pertinent part, as follows:
(1)(g) On or after July 1, 1981, participa- tion in the Elected State Officers' Class shall be optional with the time provided herein for any constitutional county elected officer, including any sheriff, tax collector, property appraiser, supervisor of elections, or elected school board superintendent. In addition, any elected officer of any entity with county wide jurisdiction who, pursuant to general or special law, exercises power and duties that, but for
said general or special law would be exercised by any of the aforementioned constitutional county elected officers, shall also be eligible for membership in the Elected State Officers' Class. Any such officer may, upon application to the administrator of the Florida Retirement System within 1 year from the date the officer first becomes eligible for membership by virtue of the office he holds, transfer to and participate in
the Elected State Officers' Class. [Underlined
language was added to Section 121.052(1)(g), Florida Statutes, by Section 8 of Chapter 86-180, Laws of Florida.]
These commissioners falling into CATEGORY 4 arguably had the option of electing membership in ESCOC on July 1, 1986, the date Chapter 86-180, Laws of Florida, became law. Pursuant to Section 121.052(1)(g), Florida Statutes (1986), these CATEGORY 4 commissioners had, at most, a period of one year from July 1, 1986, to make such an election. These CATEGORY 4 commissioners did not make a timely election pursuant to Section 121.052(1)(g), Florida Statutes (1986).
Section 7 of Chapter 86-180, Laws of Florida, added the following subparagraph 6. to Section 121.052(1)(d), Florida Statutes, so that Section 121.052(1)(d)6., Florida Statutes (1986), read, in pertinent part, as follows:
6. An elected county officer, who declares
his intention to purchase additional retirement credit in the Elected State Officers' Class pursuant to this paragraph from October 1, 1986, through December 31, 1987, need only pay one-half the contributions and interest due the Florida Retirement System Trust Fund if an equal amount
is paid by the county employer ... . A county ...
may not pay such contributions and interest with
respect to any elected county officer who declares his intention to purchase such retirement credit after December 31, 1987. To declare his intentions, the officer shall pay during the above specified dates a sum of not less than $1,000 to the system trust fund with the remainder, plus interest as required, due prior to retirement.
The CATEGORY 4 commissioners did not make a timely election pursuant to Section 121.052(1)(d)6., Florida Statutes (1986).
Petitioners contend that the CATEGORY 4 commissioners are nonetheless entitled to membership in ESCOC and that Respondent should be estopped from denying these commissioners membership in ESCOC at this time based on two theories. First, Petitioners argue that Respondent failed to adequately advise the Petitioners in CATEGORY 4 of their right to elect membership in the ESCOC pursuant to Section 8 of Chapter 86-180, Laws of Florida. Second, Petitioners argue that representations made to Patty Bollinger Martin during a telephone call estops Respondent from not accepting the CATEGORY 4 Petitioners as members in the ESCOC and estops Respondent from denying to those Petitioners credit for their prior years of service.
Respondent notified the Port that Section 121.052(1)(g), Florida Statutes, had been amended by Section 8 of Chapter 86-180, Laws of Florida. Respondent put the Port on notice that its commissioners might be entitled to participate in the ESCOC by providing a copy of the law with the changes emphasized and by delivering to all FRS Reporting Agencies Memorandum No. 86- 141, dated August 1, 1986.
The Port received a copy of Memorandum 86-141 which was addressed to "All Florida Retirement System Reporting Agencies" and which pertained to "1986 Legislation." The Memorandum provided, in pertinent part, as follows:
The 1986 Legislature passed 6 bills that affected the benefits of members of the Florida Retirement System ... . The are as follows:
SB 353 (Chapter 86-180 Laws of Florida) - Effective upon becoming law. Approved by the Governor on July 1, 1986
* * *
Section 8 amends s. 121.052, F.S. to clarify for retirement purposes the definition of
elected county officer. Elected county officers eligible for membership in the ESOC 1/ shall include any constitutional county elected officer, or any elected officer with county wide jurisdiction who, pursuant to general or special law, exercises the powers and duties of a constitutional county elected officer. Constitutional county officers include the following offices: Sheriff, tax collector, property appraiser, supervisor of elections, clerk of circuit court, county commissioner, school board member or school board superintendent.
In addition, Respondent sent to all FRS members the "FRS Bulletin" for December 1986 pertaining to "1986 Retirement Legislation." This bulletin
advised FRS members, in pertinent part, of the amendment and that elected officers who exercise county wide jurisdiction are eligible for membership in the ESCOC.
Respondent thereafter prepared a "coded" copy of the rules adopted as the result of the 1986 changes to the law which struck through the deleted language and underlined the added language. A copy of the "coded" rule changes was sent to the personnel officer at the Port. Thereafter, the complete rules were reprinted with the 1986 changes, effective March 1987, and distributed in August 1987.
The parties agree that Respondent has the general responsibility to advise member agencies as to their rights and responsibilities under the FRS.
It was established that Respondent did not issue a memorandum specifically addressed to special districts after the 1986 amendment advising those districts that their members may now be eligible for ESCOC membership, nor did Respondent specifically advise the Port as to that possibility. However, there was no showing by Petitioners that Respondent had the responsibility to issue such a memorandum. It is found that Respondent met the duty it has to disseminate information to member agencies following the 1986 amendment.
Patty Bollinger Martin was employed by the Port between 1980 and July 1988. She began her employment as a file clerk, was soon promoted to a personnel clerk and served as the personnel manager for the Port from June, 1983 through the latter part of 1986. In the latter part of 1986 she was promoted to Assistant Director of Administration of the Port and served in that capacity until she left the Port's employment in July 1988.
Ms. Martin testified by deposition as to a telephone call that occurred between the time she was promoted to a personnel clerk shortly after her employment in 1980 and the time she became Assistant Director of Administration in the latter part of 1986. Ms. Martin was able to recall that she spoke to someone employed by Respondent between 1980 and the latter part of 1986 and asked if the commissioners were eligible for membership in ESCOC. Ms. Martin was able to recall that she was told that the commissioners were not eligible for membership in ESCOC because the Port was a special agency of the state, because the Port did not appear to have county wide jurisdiction, and because the Commissioners did not serve on a full time basis.
Ms. Martin could not state when this telephone call occurred, only that it was between 1980 and 1986. She did not remember the name of the person with whom she spoke, she could not remember the person's job title, and she could not remember whether the person was male or female. She could not recall who asked her to make the call. While she testified that reference was made during the call to the Port charter, she did not recall whether the FRS employee had a copy of the charter before him or her during the course of the conversation. The precise questions asked and the precise answers given were not established. The information the FRS employee had available was unknown. She did not consider the telephone call to be an important matter, and she did not keep notes or otherwise document the call. Following the telephone conversation, Ms. Martin told her subordinate, Bonnie Shaw, that the commissioners would remain in the regular class of the FRS, but she did not otherwise discuss the conversation with Ms. Shaw. There was no evidence that Ms. Martin, or anyone else on behalf of the Port or its commissioners, took further action or made further inquiry.
Ms. Martin's testimony that the FRS employee gave the Port's lack of county wide jurisdiction as a reason for its answer suggests that the call was placed after the amendment in Chapter 86-180, Laws of Florida, because the issue was moot before that time. Even if one were to assume that the call occurred after July 1, 1986, and that the information given to Ms. Martin was erroneous, Petitioners failed to establish that it was reasonable for the Port to rely on the information it received from this unknown person in the employ of Respondent.
The following individual Petitioners were first enrolled as regular members at a time they had no option to become members of ESCOC: Joseph DeLillo Walter J. Browne, Jean Fitzgerald, Michael J. Marinelli, Alan R. Marks, Charles
K. Shaw, Maurice Berkowitz, Robert F. Barber, Phyllis F. Loconto, Harold Dyer, Martin L. Wyneken, Michael Block, and Thomas N. Kearns. The initial enrollment of these commissioners clearly was not influenced by the telephone call about which Ms. Martin testified.
Respondent's policy at the times pertinent hereto was to require that inquiries as to classification eligibility be submitted in writing with all pertinent supporting documents. Respondent's determination of whether an entity has county wide jurisdiction is done on a case-by-case basis, considering the facts of each entity and the language of the governing statute. There is no controlling rule or regulation.
In early 1991, Andrew Deering, Human Resources and Risk Management Administrator for the Port became concerned that the Port commissioners were not included in ESCOC. This concern was triggered by Mr. Deering's routine review of one of Respondent's retirement pamphlets. Mr. Deering contacted Ms. Pat Ochoa, one of Respondent's Retirement Services Representatives, described the Port's situation, and inquired as to the proper retirement classification for the commissioners. Mr. Deering was told by Ms. Ochoa that the Port commissioners were not entitled to participate in ESCOC because they were not officers of an entity with county wide jurisdiction. After discussing the matter with John Curry, the Port's Director of Administration, Mr. Deering called Ms. Ochoa again and informed her that the Port did have county wide jurisdiction. Ms. Ochoa continued to maintain that the Port did not have county wide jurisdiction and that the commissioners were not eligible for membership in ESCOC. Neither Mr. Deering or Mr. Curry made notes of their conversation. Mr. Deering did not make any notes of the conversations he had with Ms. Ochoa.
Thereafter, in late September or early October 1991, Russell Morrison, an in-house attorney for the Port, contacted Ms. Pat Ochoa, one of Respondent's Retirement Services Representatives to discuss the matter further. Ms. Ochoa asserted the position that the Port commissioners were not entitled to membership in ESCOC.
By letter dated October 3, 1991, the Port, through its counsel on behalf of all Petitioners, asserted the position that the commissioners were eligible for membership in ESCOC and explained in writing the rationale for its positions. No distinction was made in the letter of October 3, 1991, between elected commissioners and appointed commissioners.
By letter dated November 15, 1991, Respondent changed its position and agreed that the Port had county wide jurisdiction and that its commissioners were eligible for membership in ESCOC. No distinction was made in the letter of November 15, 1991, between elected commissioners and appointed commissioners.
At no time prior to November 15, 1991, did Respondent specifically advise the Port that its commissioners were entitled to participate in the ESCOC.
By letter dated December 10, 1991, the Port provided information to Respondent that was necessary to obtain ESCOC coverage for its commissioners. By letter dated January 10, 1992, the Port provided additional information to Respondent to obtain ESCOC coverage, and corrected the dates of the commissions of Commissioners Fitzgerald and Marinelli. Having received no response to its request, the Port again wrote Respondent to obtain ESCOC participation for its commissioners.
By letter dated January 14, 1992, to the Port, Respondent asserted the position that only elected officers could participate in the ESCOC, and that the appointed commissioners were not eligible. The letter of January 14, 1992, expressed the following rationale (which is consistent with the position taken by Respondent at the formal hearing) for its position that appointed commissioners are not eligible for membership in the ESCOC:
Section 121.052(2)(d), Florida Statutes, establishes the membership eligibility for elected officers of an entity with county-wide jurisdiction. Those Commissioners filling
appointed positions are not eligible for membership in ESCOC.
Although there was verbal communications between the Port staff and Respondent's staff, there was no written request by the Port prior to October 3, 1991, for ESCOC membership for the commissioners. On May 15, 1992, Respondent issued its final agency action to Petitioner.
Carolyn McGlamery was the Administrator of the Enrollments Section of Respondent's Bureau of Enrollment and Contribution from September 6, 1986, to December 1991. The policies she used were the same as her predecessor's, which were to enroll persons in the correct class of service as shown on the form referred to as the M-10. If there were any questions as to the correct class, her subordinates were instructed to bring the issue to her attention for resolution. Ms. McGlamery was aware of the change in the law on July 1, 1986, concerning optional membership in ESCOC for elected officials. Her section did not have a procedure for identifying agencies which might come under the criteria of the amended law and used the numbered memoranda to notify agencies of their possible eligibility. A retirement technician did not have the authority to determine the retirement classification of Port commissioners. Ms. McGlamery did not speak to any representative of the Port about the eligibility of the Port commissioners for membership in ESCOC prior to September 1991. Ms. McGlamery was unaware of the telephone call about which Ms. Martin testified.
The elements of estoppel are not in dispute. Those elements are: (1) A representation as to a material fact that is contrary to a later-asserted position; (2) Reliance on that position; and (3) A change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. It is clear that the essential elements of estoppel have not been established by Petitioners under any theory they advanced.
The correspondence between the representatives of the Port and Respondent does not estop the Respondent to deny membership in ESCOC to the appointed members of the Port commission.
It is Respondent's interpretation of the pertinent statues and rules that pertain to the upgrading of classification that the employee can, if otherwise qualified to do so, purchase the upgrade at his or her own expense. It is Respondent's interpretation that Respondent cannot receive the contribution from the agency. The cost to the individual commissioners to purchase retroactive ESCOC credit pursuant to Section 121.052(5), Florida Statutes (1991) will be substantial.
Petitioners failed to establish that the estate of Commissioner Harris, the only former commissioner in CATEGORY 5, now has the option to upgrade from the regular retirement class to ESCOC. There was no showing that the estate of Commissioner Harris would be entitled to any ESCOC benefit if his retirement status was changed from regular class to ESCOC. At the time of his death, Commissioner Harris had 5.76 years of creditable service, which was an insufficient length of service to vest in either the ESCOC or the regular retirement class.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
The CATEGORY 1 commissioners were elected commissioners who had not retired and who held office as of July 1, 1990, when they became compulsory members of ESCOC. Respondent has recognized those commissioners as members of ESCOC and has billed the Port for the additional contributions that should have been made on behalf of these commissioners as of July 1, 1990. This contribution has been paid by the Port.
Petitioners failed to establish that Respondent is estopped to deny these CATEGORY 1 commissioners membership in ESCOC prior to July 1, 1990. Consequently, Petitioners argument that the service of any of these CATEGORY 1 commissioners to the Port prior to the date these commissioners became compulsory members of the ESCOC under the theory that the pre-July 1, 1990, service was "past service" or "prior service" as those terms are defined by Section 121.021(18) and (19), Florida Statutes (1991) is rejected. As recognized by Respondent, these CATEGORY 1 commissioners have the right to upgrade their service by purchasing additional credit pursuant to Section 121.052(5), Florida Statutes (1991).
The CATEGORY 1 commissioners are entitled to upgrade their retirement status by purchasing additional credit pursuant to 121.052(5), Florida Statutes (1992), which provides, in pertinent part, as follows:
UPGRADED SERVICE; PURCHASE OF ADDITIONAL CREDIT.--
As provided in paragraph (b) ... an elected officer, or former elected officer, as described in subparagraph (b)2., may purchase at his own expense additional retirement credit in the Elected State and County Officers Class for all creditable service as an officer within the
purview of this class, and for such other creditable service as authorized hereunder ....
To receive additional retirement credit for service within the purview of the Elected
State and County Officers' Class as authorized in paragraph (a)
A serving elected officer shall pay a sum ...
A former elected officer who held office after his subclass of the Elected State and County Officers' Class was established, and who opted
for membership in another membership class of the Florida Retirement System rather than the Elected State and County Officers' Class shall pay ... [The CATEGORY 4 commissioners left office before their subclass of the ESCOC was created and are, consequently, not entitled to upgrade under this provision.]
The parties disagree as to whether the Port can pay for the upgrade. The CATEGORY 1 commissioners and the Port assert that the Port can pay and that the Port is willing to pay for the upgrade. Respondent asserts that it can only receive payment for the upgrade from the individual CATEGORY 1 commissioners.
An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).
Respondent's construction of Section 121.052(5), Florida Statutes (1992) is consistent with the wording of the statute and is a permissible construction of a statute that Respondent administers. Consequently, deference should be given to Respondent's construction that it can receive the subject contributions only from the individual employee and not from the employing agency. It is concluded that Respondent's determination that it can receive the contributions necessary for the upgrade only from the individual commissioners should be upheld.
The CATEGORY 2 commissioners, who served in appointed seats, are not eligible for membership in ESCOC. Both before and after the amendments to Section 121.052, Florida Statutes, by Section 8 of Chapter 86-180, Laws of Florida, and Section 8 of Chapter 90-274, Laws of Florida, the retirement classification created thereby pertained exclusively to elected positions. The pertinent portions of Section 121.052, Florida Statutes (1991) have not changed and are as follows:
ESTABLISHMENT OF CLASS.--There is hereby established a separate class of members with the Florida Retirement System, which hereafter may be cited as the "Elected State and County Officers' Class." Unless the context otherwise requires,
any reference to said class shall also be construed as a reference to the Elected State Officers' Class, as the same existed prior to July 3, 1990.
MEMBERSHIP.--The following holders of state and county elective office, hereinafter referred
to as "elected officers", whether assuming elective
office by election, reelection, or appointment, are compulsory members of the Elected State and County Officers' Class, ...
* * *
(d) ...[A]ny elected officer of any entity with countywide jurisdiction assuming office on or after July 1, 1981, who, pursuant to general or special law, exercises powers and duties that, but for such general or special law, would be exercised by any of the constitutional county elected officers set forth in this paragraph.
* * *
PARTICIPATION AND WITHDRAWAL, GENERALLY.-- Effective July 1, 1990, participation in the Elected State and County Officers' Class shall be compulsory for elected officers listed in paragraphs (2)(a)-(d) assuming office on or after said date ... (Emphasis added.)
A distinction has been drawn by the legislature between elected and appointed positions for retirement purposes. A commissioner who is appointed by the Broward County Commission to fill one of the two appointed seats on the Port commission is not an elected officer and is not, consequently, eligible for membership in the ESCOC pursuant to Section 121.052, Florida Statutes. A commissioner who serves in one of the five elected commission seats, regardless of whether he was elected to his position or was appointed to complete a term, is an elected officer and eligible for membership in ESCOC. Petitioners argue that the reference to "appointed" officers in Section 121.052(2), Florida Statutes (1991), make the CATEGORY 2 commissioners eligible for ESCOC membership. That argument is without merit. The reference is clearly to officers who are appointed to an "elective office". The CATEGORY 2 commissioners are appointed to an appointive office and are, consequently, not eligible in the ESCOC.
While Petitioners have established that there is no difference between the duties and responsibilities of those two categories of commissioners, the plain wording of the statute is consistent with Respondent's interpretation thereof. Respondent's interpretation of its governing statute is not "clearly erroneous", and its denial of eligibility in the ESCOC to the members of the Port commissioners in CATEGORY 2 should be upheld.
Petitioners's constitutional issues will have to be resolved by another forum. See, Palm Harbor Special Fire Control District v. Kelly, 516 So.2d 249 (Fla. 1987).
Petitioners make a compelling argument that the retirement status of Commissioner Marinelli, the only commissioner in CATEGORY 3, should be changed to correct what can only be considered as a mutual mistake. Respondent contends that it is prevented from now changing Commissioner Marinelli status based on the authority of Arnow v. Williams, et al., 343 So.2d 1309 (Fla. 1st DCA 1977) and of Rule 60S-4.002(a), Florida Administrative Code.
Arnow does not, as Respondent contends, prevent it from correcting this mutual mistake. Arnow involved a knowing election made by a retiree at the time of his retirement. Because his circumstances changed following his retirement, the retiree sought to change the election he had made at his retirement. In Arnow, the Court upheld Respondent's determination that the
retiree could not change his election since his benefits had vested with the election he had made at retirement. Because Commissioner Marinelli was a compulsory member of the ESCOC at the time he retired, but placed in the regular class by error, the rationale of Arnow does not prevent the correction of the error as requested by Commissioner Marinelli.
Respondent asserts that it is prevented from granting the relief sought by Commissioner Marinelli by Rule 60S-4.002(a), Florida Administrative Code, which provides as follows:
After a retirement benefit has been cashed or deposited: (a) No additional service, which remained unclaimed at retirement, may be claimed or purchased;
Had Section 121.052, Florida Statutes, not been amended by Section 8 of Chapter 86-180, Laws of Florida, Commissioner Marinelli would have had only an option to become a member of the ESCOC retirement class at the time he retired, and Rule 60S-4.002(a), Florida Administrative Code, would have prevented him from now changing from the regular retirement class to ESCOC. However, he had more than an option of becoming a member of the class because Section 8 of Chapter 86-180, Laws of Florida, made him a compulsory member of the class before he retired. This duly enacted law prevails over Respondent's rule. See, Section 120.52(8)(c), Florida Statutes (1991). The rule does not prevent Respondent from correcting the mistake that was made when Commissioner Marinelli retired as a member of the regular retirement class, and the rule cannot serve to deprive Commissioner Marinelli of rights and benefits that are conferred by statute. Since Commissioner Marinelli is entitled by law to membership in ESCOC, his retirement status should be changed from the regular class to ESCOC. Because the right to purchase additional credit pursuant to Section 121.052(5), Florida Statutes (1991), is a right attendant to membership in ESCOC, Commissioner Marinelli should be given a reasonable period of time to exercise that right.
The CATEGORY 4 commissioners did not timely elect membership in the ESCOC following the 1986 amendment, Section 8 of Chapter 86-180, Laws of Florida. At most, this amendment gave these commissioners a right to elect membership in this optional retirement class for a stated period, and there was no election by any of these commissioners within that time period. Petitioners have failed to establish that Respondent should be estopped to deny the CATEGORY
4 commissioners or the CATEGORY 5 commissioner membership in the ESCOC. For the reasons discussed in the Findings of Fact portion of the Recommended Order, it is concluded that the elements of estoppel have not been established by Petitioners in this proceeding. The application of the doctrine of estoppel is to be applied against a state agency only under exceptional circumstances. See, Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986); State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981); and Salz v. Department of Administration, 432 So.2d 1376 (Fla. 3d DCA 1983). Consequently, it is concluded that Respondent's denial of eligibility of membership in ESCOC to the Port commissioners in CATEGORY 4 on the grounds that there was no timely election should be upheld.
Petitioners failed to establish the right of the late Commissioner Harris, or his estate, to membership in ESCOC. This issue is moot since
Commissioner Harris died with only 5.76 years of service and it takes eight years to vest under the ESCOC. The determination by Respondent that Commissioner Harris (or his estate) was entitled to no additional benefits should be upheld.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Respondent which changes the
retirement status of Commissioner Marinelli from the regular class to ESCOC, which permits Commissioner Marinelli and the individual commissioners in CATEGORY 1 to upgrade their service by purchasing additional credit pursuant to Section 121.052(5), Florida Statutes (1991), and which denies the remaining Petitioners eligibility for membership or benefits under the ESCOC.
DONE AND ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
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 22nd day of December, 1992.
ENDNOTES
1/ This is the same retirement class that is referred to in this Recommended Order as ESCOC.
APPENDIX TO THE RECOMMENDED ORDER
The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, and 60 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 15 are rejected to the extent they are contrary to the findings made as to the telephone call.
The proposed findings of fact in paragraph 16 are rejected to the extent they are contrary to the findings made. The testimony of Ms. Shaw is found to be more credible than the vague testimony of Ms. Martin as to what they discussed following Ms. Martin's telephone call to Respondent.
The proposed findings of fact in paragraphs 17 and 18 are rejected as being unsubstantiated by credible evidence. While there is support in Ms. Martin's vague testimony for these proposed findings, it is concluded that her testimony lacks sufficient probative value to form the basis for such findings.
The proposed findings of fact in paragraphs 23, 55, 56, 57, and 58 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraphs 41, 40, 51, 52, 53, 54, and
59 are rejected as being subordinate to the findings made.
The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.
The proposed findings of fact in paragraphs 1, 2, 4, 14, 15, and 26 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraphs 3, 8, 9, 10, 11, 12, 13, 16, and 19 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony that is subordinate to the findings made.
The proposed findings of fact in paragraphs 5, 6, 7, 17, and 23 are adopted in part by the Recommended Order, and are rejected in part as being either argument or the recitation of testimony that is subordinate to the findings made.
The proposed findings of fact in paragraphs 18 and 25 are rejected as being subordinate to the findings made.
The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the conclusions reached.
COPIES FURNISHED:
Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street Building C
Tallahassee, Florida 32399-1560
William G. Salim, Jr., Esquire Borkson, Simon, Moskowitz & Mandell 1500 Northwest 49th Street
Suite 401
Fort Lauderdale, Florida 33301
J. McMullian, III, Director Division of Retirement
Cedars Executive Center Building C
2639 N. Monroe Street Tallahassee, Florida 32399-1560
Larry Strong, Acting Secretary Department of Management Services Knight Building, Suite 307
2737 Centerview Drive
Tallahassee, Florida 32399-0950
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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES
DIVISION OF RETIREMENT
PORT EVERGLADES AUTHORITY, ET AL.,
Petitioner,
vs. DOR Case No. D92-10
(DOAH Case No. 92-3650)
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This matter came up for hearing in Ft. Lauderdale, Florida, on October 13 & 14, 1992, before Claude Arrington, a duly appointed Hearing Officer of the Division of Administrative Hearings. Petitioners are the Port Everglades Authority (hereinafter, the Authority), a member of the Florida Retirement System (hereinafter, the FRS) and the individual Commissioners of the Authority who are claiming membership in the Elected State and County Officers Class (hereinafter, the ESCOC) of FRS. Petitioners ordered a transcript of the hearing, and the Parties were allowed ten (10) days after the filing of the transcript with the Hearing Officer to submit proposed findings of fact and conclusions of law. The Parties are as follows:
For Petitioner:
Michael Moskowitz and William G. Salim, Jr. Borkson, Simon, Moskowitz & Mandell, P.A. Attorneys at Law
1500 Northwest 49th Street Suite 401
Ft. Lauderdale, Florida 33309 For Respondent:
Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C
Tallahassee, Florida 32399
A Recommended Order was issued on December 22, 1992. A copy of the Recommended Order is attached hereto, incorporated by reference and made a part of this Final Order as an exhibit. The Petitioner filed Exceptions to the Recommended Order as permitted by law which Exceptions will now be considered.
EXCEPTION TO THE PRELIMINARY STATEMENT -
EXCEPTION: Petitioners dispute the statement of the Hearing Officer that the individuals were given the option on July 1, 1986, to become members of ESCOC.
RESPONSE: The Division agrees that the individual commissioners or the Authority were not given personal notice but were given notice by Chapter 86- 180, Laws of Florida.
EXCEPTION TO FINDING OF FACT NO. 11 -
EXCEPTION: Petitioners agree with the statement in the Recommended Order but argue that the Hearing Officer did not go far enough to hold that the failure to place the individuals in ESCOC was a result of a mutual mistake by and between the Parties.
RESPONSE: a) Petitioners agreed that this point is not contested.
Further, this Finding of Fact is fully supported by the evidence in the case. At no time has the Division agreed that the individuals were not included in ESCOC by mutual mistake. If at any time the Division had agreed that a mutual mistake had taken place, it would have advised the Authority and enrolled the commissioners in ESCOC. However, there is no evidence in the record to support such a finding of fact.
Mrs. Martin testified that under the Charter, the Authority did not have jurisdiction outside of the Authority property (Deposition testimony, pages 16-17) and that conclusion was made by the FRS person to whom she talked.
Mrs. Martin did not believe that matter was important (Id, pages 20 to 25), did not remember the year she called FRS, did not remember the name or sex of the person she talked to at FRS (Id, page 11), did not make any written memorandum of the conversation (Id, page 19), didn't remember if she talked to
anyone besides Ms. Shaw (Id, page 24), and didn't talk to anyone else about ESCOC membership for the commissioners up to the date she left her employment (Id, page 23).
It is uncertain what year Mrs. Martin called the FRS about the ESCOC class of membership. She testified that it was anytime from 1980 to 1986. Assuming that she called before July 1, 1986, the date that ESCOC membership became optional for the commissioners, then the answer she allegedly received was correct and the commissioners were not eligible for membership. Assuming that she called after July 1, 1986, the way the answer was given was not in accord with Division procedure at the time. An issue such as ESCOC membership would not have been made on the basis of the routine telephone call without a request that the Authority make its request in writing with appropriate supporting documents. This is especially true for two reasons: first, Mrs. Martin did not recall if the individual at FRS had a copy of the charter in front of him/her. (Id, pages 16-17)
Mrs. Martin further stated that as the result of her telephone call, she relied on the information and placed the commissioners in the regular class and advised all the employees to do the same (Id, page 12). Therefore, if Mrs. Martin's memory is even reasonably correct, the above information shows that the telephone call may have occurred as early as November, 1980.
It is not logical nor was it in compliance with Division procedures that an employee at FRS would make such a decision on the telephone without even having a copy of the charter in front of him. Second, from a review of the law, it is clear that there has never been a distinction between full time and part time employees being members of FRS. This is such a fundamental concept of Chapter 121, Florida Statutes, that it is doubtful that anyone with the Division gave advice otherwise. It is concluded that while Mrs. Martin did make the telephone call, her recollection of the call is so poor as to be unusable in determining any material facts of this case.
The testimony of the other witnesses for the Petitioners was not relevant to the issue of enrollment retroactive to July 1, 1986.
Lastly, the Division was not even aware that the Authority's commissioners were eligible for ESCOC membership until the letter of October 3, 1991, from its counsel.
Finding of Fact No. 11 of the Hearing Officer was supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO FINDING OF FACT NO. 12 -
EXCEPTION: Petitioners reassert their argument that "all Parties hereto made a mistake as to the eligibility of the individual petitioners to participate in ESCOC."
RESPONSE: a) As has been already stated, there has not been any mistake by the Division in the enrollment of the individual commissioners. The mistake, if any, was made by the Authority in 1986 by not taking the proper action required as a result of change in the law. As to the statement that the individual commissioners would have opted to participate in ESCOC, there is no basis in the record for such a statement. In fact, many elected officials who are eligible for ESCOC membership do not elect it because they feel it is an undue burden on taxpayers, among other reasons.
As to the statement that the change of the individual commissioners from regular membership status at 1.6% per annum accrual rate to 3.0% per annum, that change has always been termed an "upgrade" because the new service accrual rate is at a higher level than the previous accrual rate. That would have nothing to do with whether or not there was a "mutual mistake" in this case.
Finding of Fact No. 12 of the Hearing Officer was supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO FINDING OF FACT NO. 13 -
EXCEPTION: Petitioners state that the Finding of Fact No. 13 is irrelevant to the determination in this matter.
RESPONSE: a) This Exception is rejected as being without merit. While the ultimate decision regarding the appointed officers is based on the law, the Hearing Officer was dealing with each of the five (5) categories of commissioners and was dealing with the eligibility status vel non of each. In this context, it was appropriate to discuss the status of Category 2 since to omit such discussion would be to interrupt and create gaps in the discussion of the facts of the case.
b) In that context, the Finding of Fact No. 13 is supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO FINDINGS OF FACT NO. 16 and 18 -
EXCEPTION: Petitioners argue with the Findings of Fact as found by the Hearing Officer that they did not make a timely election to participate in the ESCOC.
RESPONSE: a) Petitioners agree that they did not make any physical application for ESCOC membership but then argue that they would have made an application "but for" the mistake they allege has occurred. Unfortunately, the only act that would have gotten them ESCOC membership was the "physical application". The election under the law is not one that the Division either gives or denies, but is one which an eligible person has as a matter of right. Further, the Division does not interpret either of these Findings of Fact to deal with the estoppel argument.
b) The Findings of Fact No. 16 and 18 are supported by competent, substantial evidence and are adopted by the Division.
EXCEPTION TO FINDINGS OF FACT NO. 19, ET SEQ -
EXCEPTION: Petitioners' argument that estoppel should apply is raised
here.
RESPONSE: a) This argument was rejected by the Hearing Officer who
held that the Division had met its statutory responsibility to notify affected agencies with the numerous numbered memoranda, extracts of the statutory changes and the pamphlets issued by the Division. All of this material was sent to the Authority as well as many other agencies. It is not necessary under the law for the Division to notify each agency or person individually as claimed by Petitioners. Findings of Fact No. 19, et seq., of the Hearing Officer were supported by competent, substantial evidence and are adopted by the Division.
b) The Findings of Fact No. 19 et seq., are supported by competent, substantial evidence and are adopted by the Division.
EXCEPTION TO FINDINGS OF FACT NO. 25, ET SEQ -
EXCEPTION: Petitioners argue that estoppel should be applicable because of the telephone call between Mrs. Martin and some employee of the Division.
RESPONSE: a) This argument is also rejected by the Division. The substance of what Mrs. Martin recalled was so speculative so as to be of no use. This has been discussed infra. In fact, the Division receives dozens of calls a day about membership of agencies and individual members. It is not physically possible and the law does not require that the Division do any more than answer the inquiry as given. It is entirely up to the agency or the person to follow up in writing if they believe that they have been denied or are eligible for Some benefit. Findings of Fact No. 25, et seq., of the Hearing Officer were Supported by competent, substantial evidence and are adopted by the Division.
b) The Findings of Fact No. 25 et seq., are Supported by competent, Substantial evidence and are adopted by the Division.
EXCEPTION TO FINDING OF FACT NO. 29 -
EXCEPTION: Petitioners next argue that the initial enrollment of the Specified commissioners was not influenced by Mrs. Martin but that it was the change of plans to ESCOC that was influenced by her.
RESPONSE: a) This Finding of Fact is a recitation of the positions of the various commissioners mentioned who were enrolled prior to July 1, 1986.
According to the "Personal History Record" (FRS Form M-1O) of several of the commissioners, they were first enrolled in the regular class beginning in some cases in the late 1970's (Respondent's Exhibit No. 25). Some of these are as follows:
COMMISSIONER DATE OF INITIAL ENROLLMENT
DeLillo, Joseph | 12/20/84 |
Browne, Walter J. | 12/20/84 |
Myers, Herbert | 12/28/84 |
Fitzgerald, Jean | 1/7/85 |
Marinelli, Michael J. | 2/21/78 |
Marks, Alan R. | 1/14/83 |
Shaw, Charles | 12/1/80 |
Berkowitz, Maurice | 1/12/76 |
Harris, Burl Stan | 12/1/80 |
Barber, Robert F. | 11/25/80 |
Loconto, Phyllis F. | 11/26/80 |
Dyer, Harold | 1/5/83 |
Wyneken, Martin L. | 12/22/81 |
Block, Michael | 12/1/82 |
Kearns, Thomas N. | 12/29/80 |
The fact that the telephone conversation between Mrs. Martin and an employee of the Division took place is factually and legally insufficient to invoke estoppel against the Division. The Finding of Fact of the Hearing Officer was correct, and no evidence to the contrary was introduced by Petitioners. Their argument is not evidence.
b) The Finding of Fact No. 29 is supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO PETITIONERS' PROPOSED FINDINGS OF FACT 58 & 59 -
EXCEPTION: Petitioners next argue that their Proposed Findings of Fact No. 58 and 59 should have been adopted by the Hearing Officer.
RESPONSE: a) Petitioner's Exhibit NN was the Final Order in the Escambia County Utilities Authority, et al., vs. State of Florida, Department of Administration, Division of Retirement, DOAH Case No. 85-1718, final order issued July 30, 1986, and did not constitute notice to the Division of any confusion on the part of special districts generally or specifically. It was an application by a new special district for membership in ESCOC. It did not alert the Division of any other problems with other special districts.
b) Petitioner's Proposed Findings of Fact 58 and 59 are not supported by competent, substantial evidence and are rejected by the Division.
The remainder of Petitioner's Exceptions to the Recommended Order are rejected as being repetitious and already discussed in one of the responses to its Exceptions as discussed above. The Findings of Fact in the Recommended Order of the Hearing Officer are adopted by the Division with the addition of the above explanations given where such were appropriate.
CONCLUSIONS OF LAW
The Conclusions of Law as stated in the Recommended Order are adopted by the Division with the exception of No. 44 which does not apply. The Division agrees that retired Commissioner Marinelli was a compulsory member of ESCOC and should have been enrolled retroactive from the date of retirement back to July 1, 1990. Since the Division may adopt conclusions of law without reference to those contained in a recommended order, it need not address the Conclusions of Law contained in the Exceptions of the Petitioners.
It is, accordingly,
ORDERED and DIRECTED that those Petitioners who were in elected office effective July 1, 1990, may upgrade their prior service as an elected officer at their own expense. It is further, ORDERED and DIRECTED that the membership status of Commissioner Marinelli, retired, be changed by the Division to reflect that he was a mandatory member of ESCOC effective July 1, 1990, that the Authority pay the appropriate contributions on that service and that his retirement benefit be recalculated accordingly. It is further,
ORDERED and DIRECTED that the commissioners appointed to office are not eligible for ESCOC membership. It is further,
ORDERED and DIRECTED that the remaining commissioners mentioned in this Order are not eligible to purchase their ESCOC service on the grounds and for the reasons stated in the Recommended Order and this Final Order.
DONE and ORDERED this 16th day of March 1993, in Tallahassee, Leon County, Florida.
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 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.
A.J. McMullian III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THE
17th DAY of March, 1993.
Copies furnished to:
Michael Moskowitz and William G. Salim, Jr. Borkson, Simon, Moskowitz & Mandell, P.A. Attorneys at Law
1500 Northwest 49th Street Suite 401
Ft. Lauderdale, Florida 33309
Claude B. Arrington Hearing Officer
Division of Administrative Hearings 1230 DeSoto Building
Tallahassee, Florida 32399
Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C
Tallahassee, Florida 32399
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES
DIVISION OF RETIREMENT
PORT EVERGLADES AUTHORITY, ET AL.,
Petitioner,
vs. DOR Case No. D92-10
(DOAH Case No. 92-3650)
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This matter came up for hearing in Ft. Lauderdale, Florida, on October 13 & 14, 1992, before Claude Arrington, a duly appointed Hearing Officer of the Division of Administrative Hearings. Petitioners are the Port Everglades Authority (hereinafter, the Authority), a member of the Florida Retirement System (hereinafter, the FRS) and the individual Commissioners of the Authority who are claiming membership in the Elected State and County Officers Class (hereinafter, the ESCOC) of FRS. Petitioners ordered a transcript of the hearing, and the Parties were allowed ten (10) days after the filing of the transcript with the Hearing Officer to submit proposed findings of fact and conclusions of law. The Parties are as follows:
For Petitioner:
Michael Moskowitz and William G. Salim, Jr. Borkson, Simon, Moskowitz & Mandell, P.A. Attorneys at Law
1500 Northwest 49th Street Suite 401
Ft. Lauderdale, Florida 33309 For Respondent:
Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C
Tallahassee, Florida 32399
A Recommended Order was issued on December 22, 1992. A copy of the Recommended Order is attached hereto, incorporated by reference and made a part of this Final Order as an exhibit. The Petitioner filed Exceptions to the Recommended Order as permitted by law which Exceptions will now be considered.
EXCEPTION TO THE PRELIMINARY STATEMENT -
EXCEPTION: Petitioners dispute the statement of the Hearing Officer that the individuals were given the option on July 1, 1986, to become members of ESCOC.
RESPONSE: The Division agrees that the individual commissioners or the Authority were not given personal notice but were given notice by Chapter 86- 180, Laws of Florida.
EXCEPTION TO FINDING OF FACT NO. 11 -
EXCEPTION: Petitioners agree with the statement in the Recommended Order but argue that the Hearing Officer did not go far enough to hold that the failure to place the individuals in ESCOC was a result of a mutual mistake by and between the Parties.
RESPONSE: a) Petitioners agreed that this point is not contested.
Further, this Finding of Fact is fully supported by the evidence in the case. At no time has the Division agreed that the individuals were not included in ESCOC by mutual mistake. If at any time the Division had agreed that a mutual mistake had taken place, it would have advised the Authority and enrolled the commissioners in ESCOC. However, there is no evidence in the record to support such a finding of fact.
Mrs. Martin testified that under the Charter, the Authority did not have jurisdiction outside of the Authority property (Deposition testimony, pages 16-17) and that conclusion was made by the FRS person to whom she talked.
Mrs. Martin did not believe that matter was important (Id, pages 20 to 25), did not remember the year she called FRS, did not remember the name or sex of the person she talked to at FRS (Id, page 11), did not make any written memorandum of the conversation (Id, page 19), didn't remember if she talked to anyone besides Ms. Shaw (Id, page 24), and didn't talk to anyone else about ESCOC membership for the commissioners up to the date she left her employment (Id, page 23).
It is uncertain what year Mrs. Martin called the FRS about the ESCOC class of membership. She testified that it was anytime from 1980 to 1986. Assuming that she called before July 1, 1986, the date that ESCOC membership became optional for the commissioners, then the answer she allegedly received was correct and the commissioners were not eligible for membership. Assuming that she called after July 1, 1986, the way the answer was given was not in accord with Division procedure at the time. An issue such as ESCOC membership would not have been made on the basis of the routine telephone call without a request that the Authority make its request in writing with appropriate supporting documents. This is especially true for two reasons: first, Mrs. Martin did not recall if the individual at FRS had a copy of the charter in front of him/her. (Id, pages 16-17)
Mrs. Martin further stated that as the result of her telephone call, she relied on the information and placed the commissioners in the regular class
and advised all the employees to do the same (Id, page 12). Therefore, if Mrs. Martin's memory is even reasonably correct, the above information shows that the telephone call may have occurred as early as November, 1980.
It is not logical nor was it in compliance with Division procedures that an employee at FRS would make such a decision on the telephone without even having a copy of the charter in front of him. Second, from a review of the law, it is clear that there has never been a distinction between full time and part time employees being members of FRS. This is such a fundamental concept of Chapter 121, Florida Statutes, that it is doubtful that anyone with the Division gave advice otherwise. It is concluded that while Mrs. Martin did make the telephone call, her recollection of the call is so poor as to be unusable in determining any material facts of this case.
The testimony of the other witnesses for the Petitioners was not relevant to the issue of enrollment retroactive to July 1, 1986.
Lastly, the Division was not even aware that the Authority's commissioners were eligible for ESCOC membership until the letter of October 3, 1991, from its counsel.
Finding of Fact No. 11 of the Hearing Officer was supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO FINDING OF FACT NO. 12 -
EXCEPTION: Petitioners reassert their argument that "all Parties hereto made a mistake as to the eligibility of the individual petitioners to participate in ESCOC."
RESPONSE: a) As has been already stated, there has not been any mistake by the Division in the enrollment of the individual commissioners. The mistake, if any, was made by the Authority in 1986 by not taking the proper action required as a result of change in the law. As to the statement that the individual commissioners would have opted to participate in ESCOC, there is no basis in the record for such a statement. In fact, many elected officials who are eligible for ESCOC membership do not elect it because they feel it is an undue burden on taxpayers, among other reasons.
As to the statement that the change of the individual commissioners from regular membership status at 1.6% per annum accrual rate to 3.0% per annum, that change has always been termed an "upgrade" because the new service accrual rate is at a higher level than the previous accrual rate. That would have nothing to do with whether or not there was a "mutual mistake" in this case.
Finding of Fact No. 12 of the Hearing Officer was supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO FINDING OF FACT NO. 13 -
EXCEPTION: Petitioners state that the Finding of Fact No. 13 is irrelevant to the determination in this matter.
RESPONSE: a) This Exception is rejected as being without merit. While the ultimate decision regarding the appointed officers is based on the law, the Hearing Officer was dealing with each of the five (5) categories of commissioners and was dealing with the eligibility status vel non of each. In
this context, it was appropriate to discuss the status of Category 2 since to omit such discussion would be to interrupt and create gaps in the discussion of the facts of the case.
b) In that context, the Finding of Fact No. 13 is supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO FINDINGS OF FACT NO. 16 and 18 -
EXCEPTION: Petitioners argue with the Findings of Fact as found by the Hearing Officer that they did not make a timely election to participate in the ESCOC.
RESPONSE: a) Petitioners agree that they did not make any physical application for ESCOC membership but then argue that they would have made an application "but for" the mistake they allege has occurred. Unfortunately, the only act that would have gotten them ESCOC membership was the "physical application". The election under the law is not one that the Division either gives or denies, but is one which an eligible person has as a matter of right. Further, the Division does not interpret either of these Findings of Fact to deal with the estoppel argument.
b) The Findings of Fact No. 16 and 18 are supported by competent, substantial evidence and are adopted by the Division.
EXCEPTION TO FINDINGS OF FACT NO. 19, ET SEQ -
EXCEPTION: Petitioners' argument that estoppel should apply is raised here.
RESPONSE: a) This argument was rejected by the Hearing Officer who held that the Division had met its statutory responsibility to notify affected agencies with the numerous numbered memoranda, extracts of the statutory changes and the pamphlets issued by the Division. All of this material was sent to the Authority as well as many other agencies. It is not necessary under the law for the Division to notify each agency or person individually as claimed by Petitioners. Findings of Fact No. 19, et seq., of the Hearing Officer were supported by competent, substantial evidence and are adopted by the Division.
b) The Findings of Fact No. 19 et seq., are supported by competent, substantial evidence and are adopted by the Division.
EXCEPTION TO FINDINGS OF FACT NO. 25 ET SEQ -
EXCEPTION: Petitioners argue that estoppel should be applicable because of the telephone call between Mrs. Martin and some employee of the Division.
RESPONSE: a) This argument is also rejected by the Division. The substance of what Mrs. Martin recalled was so speculative so as to be of no use. This has been discussed infra. In fact, the Division receives dozens of calls a day about membership of agencies and individual members. It is not physically possible and the law does not require that the Division do any more than answer the inquiry as given. It is entirely up to the agency or the person to follow up in writing if they believe that they have been denied or are eligible for some benefit. Findings of Fact No. 25, et seq., of the Hearing Officer were supported by competent, substantial evidence and are adopted by the Division.
b) The Findings of Fact No. 25 et seq., are supported by competent, substantial evidence and are adopted by the Division.
EXCEPTION TO FINDING OF FACT NO. 29 -
EXCEPTION: Petitioners next argue that the initial enrollment of the specified commissioners was not influenced by Mrs. Martin but that it was the change of plans to ESCOC that was influenced by her.
RESPONSE: a) This Finding of Fact is a recitation of the positions of the various commissioners mentioned who were enrolled prior to July 1, 1986.
According to the "Personal History Record" (FRS Form M-10) of several of the commissioners, they were first enrolled in the regular class beginning in some cases in the late 1970's (Respondent's Exhibit No. 25). Some of these are as follows:
COMMISSIONER DATE OF INITIAL ENROLLMENT
DeLillo, Joseph | 12/20/84 |
Browne, Walter J. | 12/20/84 |
Myers, Herbert | 12/28/84 |
Fitzgerald, Jean | 1/7/85 |
Marinelli, Michael J. | 2/21/78 |
Marks, Alan R. | 1/14/83 |
Shaw, Charles K. | 12/1/80 |
Berkowitz, Maurice | 1/12/76 |
Harris, Burl Stan | 12/1/80 |
Barber, Robert F. | 11/25/80 |
Loconto, Phyllis F. | 11/26/80 |
Dyer, Harold | 1/5/83 |
Wyneken, Martin L. | 12/22/81 |
Block, Michael | 12/1/82 |
Kearns, Thomas N. | 12/29/80 |
The fact that the telephone conversation between Mrs. Martin and an employee of the Division took place is factually and legally insufficient to invoke estoppel against the Division. The Finding of Fact of the Hearing Officer was correct, and no evidence to the contrary was introduced by Petitioners. Their argument is not evidence.
b) The Finding of Fact No. 29 is supported by competent, substantial evidence and is adopted by the Division.
EXCEPTION TO PETITIONERS' PROPOSED FINDINGS OF FACT 58 & 59
EXCEPTION: Petitioners next argue that their Proposed Findings of Fact No.
58 and 59 should have been adopted by the Hearing Officer.
RESPONSE: a) Petitioner's Exhibit NN was the Final Order in the Escambia County Utilities Authority, et al., vs. State of Florida, Department of Administration, Division of Retirement, DOAH Case No. 85-1718, final order issued July 30, 1986, and did not constitute notice to the Division of any confusion on the part of special districts generally or specifically. It was an application by a new special district for membership in ESCOC. It did not alert the Division of any other problems with other special districts.
Petitioner's Proposed Findings of Fact 58 and 59 are not supported by competent, substantial evidence and are rejected by the Division.
The remainder of Petitioner's Exceptions to the Recommended Order are rejected as being repetitious and already discussed in one of the responses to its Exceptions as discussed above. The Findings of Fact in the Recommended Order of the Hearing Officer are adopted by the Division with the addition of the above explanations given where such were appropriate.
CONCLUSIONS OF LAW
The Conclusions of Law as stated in the Recommended Order are adopted by the Division with the exception of No. 44 which does not apply. The Division agrees that retired Commissioner Marinelli was a compulsory member of ESCOC and should have been enrolled retroactive from the date of retirement back to July 1, 1990. Since the Division may adopt conclusions of law without reference to those contained in a recommended order, it need not address the Conclusions of Law contained in the Exceptions of the Petitioners.
It is, accordingly,
ORDERED and DIRECTED that those Petitioners who were in elected office effective July 1, 1990, may upgrade their prior service as an elected officer at their own expense. It is further, ORDERED and DIRECTED that the membership status of Commissioner Marinelli, retired, be changed by the Division to reflect that he was a mandatory member of ESCOC effective July 1, 1990, that the Authority pay the appropriate contributions on that service and that his retirement benefit be recalculated accordingly. It is further,
ORDERED and DIRECTED that the commissioners appointed to office are not eligible for ESCOC membership. It is further,
ORDERED and DIRECTED that the remaining commissioners mentioned in this Order are not eligible to purchase their ESCOC service on the grounds and for the reasons stated in the Recommended Order and this Final Order.
DONE and ORDERED this 16th day of March, 1993, in Tallahassee, Leon County, Florida.
J. McMullian III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THE 17TH DAY OF MARCH, 1993.
COPIES FURNISHED:
Michael Moskowitz and William G. Salim, Jr. Borkson, Simon, Moskowitz & Mandell, P.A. Attorneys at Law
1500 Northwest 49th Street Suite 401
Ft. Lauderdale, Florida 33309
Claude B. Arrington Hearing Officer
Division of Administrative Hearings 1230 DeSoto Building
Tallahassee, Florida 32399
Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C
Tallahassee, Florida 32399
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 TEE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY TEE 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.
| Issue Date | Proceedings |
|---|---|
| Mar. 18, 1993 | Final Order filed. |
| Jan. 15, 1993 | Petitioners` Exceptions to Recommended Order of The Hearing Officer filed. |
| Dec. 22, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 10/13-14/92. |
| Nov. 30, 1992 | (Petitioners) Recommended Order - Findings of Fact, Conclusions of Law and Memorandum of Law in Support Thereof filed. |
| Nov. 25, 1992 | Respondent`s Proposed Findings of Fact and Conclusions of Law filed. |
| Nov. 20, 1992 | Letter to CBA from William G. Salim, Jr. (re: confirming authorization to extend the time for filing the Recommended Orders) filed. |
| Nov. 09, 1992 | Transcript (Volumes 1&2) filed. |
| Oct. 12, 1992 | (Petitioner) Notice of Dropping Party Plaintiffs filed. |
| Oct. 09, 1992 | Joint Response to Order of Prehearing Instructions (Pre-Hearing Stipulation) w/Petitioners` Exhibit List filed. |
| Oct. 05, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 05, 1992 | Letter to CBA from Stanley M. Danek (re: Joint Stipulation) filed. |
| Oct. 01, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Sep. 30, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Sep. 17, 1992 | (Respondent) Amended Notice of Taking Deposition filed. |
| Sep. 14, 1992 | Notice of Taking Deposition filed. (From Stanley Danek) |
| Sep. 03, 1992 | Notice of Service of Answers to Interrogatories Propounded to Petitioner; Respondent`s First Interrogatories to Petitioner (answered) filed. |
| Sep. 03, 1992 | Petitioner`s Response to Request for Production of Documents filed. |
| Sep. 03, 1992 | Petitioner`s Response to Request for Admissions filed. |
| Aug. 10, 1992 | Petitioner`s First Set of Interrogatories to Respondent; Petitioner`s Request for Production of Documents filed. |
| Aug. 07, 1992 | Corrected Respondent`s Request for Production of Documents filed. |
| Aug. 04, 1992 | Notice of Service of Respondent`s Interrogatories on Petitioner filed. (From Stanley M. Danek) |
| Aug. 04, 1992 | (Respondent) Motion to Shorten Time for Answers to Interrogatories, for Production of Documents and to Respond to the Request for Admissions filed. |
| Jul. 30, 1992 | Order of Prehearing Instructions sent out. (parties shall file their prehearing stipulation no later than 10 days prior to date set for final hearing) |
| Jul. 30, 1992 | Notice of Hearing sent out. (hearing set for October 13 and 14, 1992; 10:30am; Fort Lauderdale) |
| Jul. 24, 1992 | Joint Response to Initial Order filed. |
| Jul. 14, 1992 | Initial Order issued. |
| Jun. 18, 1992 | Notice of Election to Request Assignment of Hearing Officer; Petition for Administrative Appeal and Request for Formal Proceedings (+ Exhibits) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 16, 1993 | Agency Final Order | |
| Dec. 22, 1992 | Recommended Order | Erroneous retirement status should be changed where statute mandates class estoppel by DOR not establish. DOR should not accept cost of upgrade from Port. |
LOUIS D. P. SILVESTRI vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 92-003650 (1992)
RICHARD S. MITCHELL vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 92-003650 (1992)
ERIN MCGUIRE vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 92-003650 (1992)
EUGENE L. BORUS vs. DIVISION OF RETIREMENT, 92-003650 (1992)
