STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSA M. GREEN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5691

)

DEPARTMENT OF MANAGEMENT ) SERVICES, DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on Janaury 12, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: William du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 South West Third Avenue Suite One Miami, Florida 33129

For Respondent: Stanley M. Danak, Esquire

Division of Retirement

Department of Management Services Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner is eligible to transfer from the State and County Officers and Employees Retirement System (SCOERS) to the Florida Retirement System (FRS), and thereby retire under FRS as opposed to SCOERS.

PRELIMINARY STATEMENT

By letter of July 24, 1992, respondent, Department of Management Services, Division of Retirement (Department), advised petitioner, Rosa M. Green, that her request to participate in the FRS rather than as a member of SCOERS was denied. The predicate for the Department's denial was respondent's failure to elect membership in FRS during any of the transfer periods approved by the Florida Legislature.

Respondent filed a request for formal hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner testified on her own behalf, and called Edward Whittaker, a questioned document examiner, as a witness. Petitioner's exhibits 1-4 were received into evidence. Respondent called Arthur Miles as a witness and its exhibits 1-21 were received into evidence.

Following the conclusion of the hearing, the record was held open to accord the Department an opportunity to depose John F. McCarthy, an examiner of questioned documents, and to file such deposition as a late-filed exhibit. Such deposition was filed January 19, 1993, marked as respondent's exhibit 22, and received into evidence.

The transcript of hearing was not ordered, so the parties were granted leave to file proposed findings of fact within ten days of the date the deposition of John F. McCarthy was filed. The parties' proposals have been addressed in the appendix to this recommended order.

Background

1. Petitioner, Rosa M. Green, was originally employed by the Dade County Public School System on February 6, 1970, as a part-time cafeteria worker, and remained so employed for approximately two and one-half months. Thereafter, petitioner was employed as a full-time teacher's assistant for approximately five years; a full-time teacher's aid for approximately seven years; and a full- time teacher from October 1982, when she received her four-year college degree, until August 14, 1992, her date of retirement.

   
   

2. From February 6, 1970, the date of her initial employment with the Dade County Public School System, until her retirement in August 1992, petitioner was enrolled as a member of the State and County Officers and Employees Retirement System (SCOERS).

   
   

3. In 1970, the Florida Legislature enacted the "Florida Retirement Systems Act," Chapter 121, Florida Statutes. The purpose of the law was to consolidate existing retirement systems for government employees and officers, including SCOERS, and anyone employed on or after December 1, 1970, was relegated to membership in the Florida Retirement System (FRS).

   
   

4. As to government employees and officers employed prior to December 1, 1970, who had elected membership in one of the existing retirement systems, including SCOERS, the law recognized such employees had vested rights in the existing retirement systems and did not propose to impair those rights. However, to encourage consolidation, the law provided members of the existing retirement systems an opportunity to transfer to the FRS, by electing to do so between October 15, 1970, through November 30, 1970. If an election was made, the member's transfer to the FRS would have an effective date of December 1, 1970.

   
   

5. Subsequently, to encourage consolidation, other opportunities for members of existing systems to transfer to the FRS were granted. To this end, the Legislature mandated open enrollment periods during the following years: 1971, 1972, 1974, 1978, and 1982.

6. Here, there is no dispute that petitioner remained enrolled as a member of SCOERS, and did not elect to transfer to FRS, during all of the option periods, except for the open enrollment period in 1982. In fact, petitioner expressly declined such opportunities.

   
   

7. With regard to the open enrollment period in 1982, petitioner contends that she was unaware of or was not afforded the opportunity to transfer membership, and that, if accorded such opportunity, she would have elected to do so. The proof is, however, to the contrary.

   
   

   The 1982 open enrollment period

   
   

8. The 1982 open enrollment period established by the Florida Legislature, and codified at Section 121.051(2)(b)5a, Florida Statutes (1981), provided:

   
   

   Any officer or employee who was a member of an existing system on December 1, 1970, and who is still a member of an existing system . . . may elect, if eligible, to become a member of this system [FRS] at any time between January 2, 1982, and May 31, 1982, inclusive, by notifying his employer in writing of his desire to transfer membership from the existing system to this system. This decision to transfer or not to transfer shall become irrevocable on May 31, 1982. All members electing to transfer during the transfer period shall become members of the Florida Retirement System on July 1, 1982, and shall be subject to the provisions of the Florida Retirement System on and after that date. Any officer or employee who was a member of an existing system on December 1, 1970, and who does not elect to become a member of this system shall continue to be covered under the existing system. . . .

   
   

9. As part of the Divisions of Retirement's (Division's) implementation of the open enrollment/transfer period for 1982, the State Retirement Director issued Memorandum 81-56, dated December 15, 1981, to all FRS reporting units, including the Dade County Public School System (School Board). Essentially, the memo notified the School Board of the time period established by the Legislature for the transfer of employees in older retirement systems to FRS, and advised the units about the documentation needed to demonstrate whether the election had been made by eligible employees. Included with the memo was, inter alia, a computer printout of all non-FRS employees of the School Board, two preprinted transfer ballots for each employee on the list, a supply of enrollment forms (FRS-M10), and transfer brochures for distribution to each employee on the printout. The distribution to the School Board included two preprinted transfer ballots for petitioner, and the computer printout presumably identified petitioner as a non-FRS employee who was still enrolled in SCOERS. 1/

   
   

10. The memorandum further directed the School Board to: (1) update or correct any information on the printout sheet; (2) distribute the FRS transfer information brochures to each employee on the printout sheet; (3) provide each eligible employee with two preprinted ballots for completion and return; (4) provide each eligible employee electing transfer with a Personal History Record

    (Form FRS-M10) for completion and return; (5) return one completed ballot, the Personal History Record, and the updated computer printout to the Division; and,

    (6) retain the second completed ballot in its files.

    
    

11. Subsequently, by memorandum of December 21, 1981, the Division's director requested that all Superintendents of Schools provide space in their January newsletter for an attached news release which advised eligible employees of the open enrollment period for transfer to the FRS.

    
    

12. In response to the directive received from the Division, the School Board, in the normal course of its business, took the following action with regard to non-FRS employees who were, at that time, members of the Teachers Retirement System (TRS) or SCOERS: (1) on January 14, 1982, distributed a memorandum to all work location administrators with directions that the FRS information brochure be distributed to all TRS and SCOERS members; (2) on January 18, 1992, distributed a memorandum to all TRS and SCOERS members advising them to study the FRS information brochure they had recently been sent carefully, and that workshops would be held the week of April 19, 1992, (time and place to be announced) and ballots distributed following the workshops; (3) on February 15, 1982, by announcement in the weekly reader and memorandum to all work location administrators, advised TRS and SCOERS members of information workshops that would be held on April 19-22, 1982, at four area high schools to provide information and answer questions regarding the 1982 transfer period; and, (4) on April 26, 1982, delivered to all work location administrators a memorandum, for delivery to all TRS and SCOERS members. Such memorandum was accompanied by two ballots and a Personal History Record (FRS-M10), and advised such members that:

    
    

    Attached are two (2) ballots on which you are to indicate your irrevocable decision to either transfer into the Florida Retirement System or remain in your existing plan. If you do decide to transfer you must also complete a Personal History Record (Form

    FRS-M10, also attached). . . .

    All completed ballots and M10 Forms must be returned . . . no later than May 7, 1982 [later extended to May 31, 1982].

    
    

13. Pertinent to this case, petitioner's preprinted ballots were duly filed with the School Board. Such ballots, which evidence an election not to transfer to the FRS but remain in her present retirement system, bear an execution date of April 29, 1982, and what purports to be petitioner's signature. The School Board, consistent with the Division's directions, retained one of the ballots for its records and delivered the second to the Division.

    
    

    Petitioner's protest

    
    

14. By letter of July 24, 1992, the Division denied petitioner's request of June 25, 1992, that she be allowed to participate in the FRS rather than as a member of SCOERS. Such denial was based on the ballot on file with the Division, discussed supra, which evidenced an election not to transfer to FRS, and the absence of any express request for transfer by petitioner during any of the official transfer periods provided by law.

15. Petitioner filed a formal request for hearing, pursuant to Chapter 120, Florida Statutes, to contest the Division's decision. Petitioner's protest was premised as follows:

    
    

    It is my contention that I was never given the right to make this decision, and any documents purporting to be an election does not bear my signature.

    
    

    [Petitioner's request for formal hearing, dated September 4, 1992].

    
    

16. Here, the proof fails to support petitioner's contentions. First, with regard to petitioner's assertion that she "was never given the right to make [the] decision [to transfer to the FRS]," the proof is to the contrary. Apart from the provisions of Chapter 80-242, Laws of Florida, which extended such opportunity to petitioner, the Division, as well as the School Board, made reasonable efforts to disseminate information regarding such opportunity to the petitioner and those similarly situated. In this case, there is no reasonable basis to conclude that their efforts were unsuccessful. Notably, petitioner did not testify that she did not receive such information, but merely, that she did not "recall" seeing it. After the elapse of over ten years, such absence of recall is credible. More telling, is petitioner's testimony that "even if she had received it she wouldn't know the difference between FRS and SCORE," and that "until last year [1991] she was not even aware of what retirement system she was in." Under the circumstances, the proof demonstrates, more likely than not, that petitioner's failure to accept the offer to transfer to the FRS was occasioned by her own lack of interest and self motivation, as opposed to any failing to accord her such opportunity. Second, petitioner's assertion that the ballots dated April 29, 1982, do not bear her signature is rejected as not supported by the more persuasive proof. In this regard, it is observed that petitioner's testimony was less than candid or credible, and that the opinion of John F. McCarthy, an expert in the examination of questionable documents, that petitioner signed the ballots dated April 29, 1982, is credited. 2/

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Pertinent to this case, Section 121.051(2)(b)5a, Florida Statutes (1981), provided:

    
    

    Any officer or employee who was a member of an existing system on December 1, 1970, and who is still a member of an existing system . . . may elect, if eligible, to become a member of this system [FRS] at any time between January 2, 1982, and May 31, 1982, inclusive, by notifying his employer in writing of his desire to transfer membership from the existing system to this system. This decision to transfer or not to transfer shall become irrevocable on May 31, 1982. All members electing to transfer during the transfer period shall become members of the Florida Retirement System on July 1, 1982, and shall

    be subject to the provisions of the Florida Retirement System on and after that date. Any officer or employee who was a member of an existing system on December 1, 1970, and who does not elect to become a member of this system shall continue to be covered under the existing system. . . .

    
    

    Petitioner, as a member of SCOERS, was a member of an "existing system," and therefore eligible to elect to transfer to the FRS between January 2, 1982, and May 31, 1982. Section 121.021(2), Florida Statutes (1981).

    
    

19. Petitioner failed, however, to "notify [her] employer in writing of [her] desire to transfer membership from the existing system to [the FRS]" by May 31, 1982. Accordingly, under the provisions of Section 121.051(2)(b)5a, Florida Statutes, petitioner is not now eligible to transfer her membership from SCOERS to the FRS. Moreover, as heretofore found in the findings of fact, petitioner's protest was unpersuasive, and it was found that she affirmatively declined the opportunity to transfer to the FRS by ballot dated April 29, 1982. Such decision is irrevocable. Section 121.051(2)(b)5a, Florida Statutes (1981).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which dismisses petitioner's

request for formal hearing, and denies petitioner's request to transfer from the State and County Officers and Employees Retirement System to the Florida Retirement System.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of February 1993.

WILLIAM J. KENDRICK

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 11th day of February 1993.

ENDNOTES

1/ The preprinted ballot was ultimately returned to the Division, and is discussed infra. From this, there being no proof to the contrary, it is inferred that such ballots were distributed to the Dade County School System, and that petitioner's name appeared on the computer printout.

2/ Petitioner's expert on the examination of questioned documents considered the signatures on the ballots "questionable," but declined to express a definitive opinion.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Rejected as recitation of testimony and not a finding of fact, but see paragraph 16.

1. Not credited in light of petitioner's testimony that she didn't know the difference between FRS and SCORE at that time, and that it was not until 1991 that she even became aware of what retirement system she was in. See paragraph 16.

2. Accepted, but not considered persuasive or relevant to the resolution of the issues raised.

3. Rejected as contrary to the credible proof.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2.

2. Addressed in paragraphs 3-8.

3. Subordinate. See paragraph 16.

4. Not relevant or addressed in paragraphs 14 and 15.

5 & 6. Addressed in paragraphs 9-11.

COPIES FURNISHED:

William du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue Suite One

Miami, Florida 33129

Stanley M. Danak, Esquire Division of Retirement

Department of Management Services Cedars Executive Center

Building C

2639 North Monroe Street Tallahassee, Florida 32399

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399

Susan B. Kirkland General Counsel

Department of Management Services Knight Building, Suite 309

Koger Executive Center 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.

Docket for Case No: 92-005691

Orders for Case No: 92-005691