STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALMA SLOCUM, )

)

Petitioner, )

)

vs. ) Case No. 99-2399

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on September 14, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Sandra E. Allen, Esquire

314 West Jefferson Street Tallahassee, Florida 32301

For Respondent: Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Should Petitioner Alma Slocum receive either the Option 3 or Option 4 retirement benefits retroactive to the death of Clyde Slocum in March 1975?

PRELIMINARY STATEMENT

By letter dated March 26, 1999, the Division of Retirement (Division) advised Petitioner Alma Slocum that her request to receive either Option 3 or Option 4 retirement benefits retroactive to the death of Clyde Slocum had been denied. By an undated Petition for Formal hearing, Alma Slocum, through her granddaughter, Theresa L. Crosby, requested a formal hearing on the matter. Thereafter, the Division, by letter dated May 27, 1999, referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner testified on her own behalf and presented the testimony of Theresa L. Crosby. Petitioner's Composite Exhibit numbered 1 was admitted in evidence. The Division presented the testimony of Larry Hunnicutt. The Division's Composite Exhibit numbered 1 was admitted in evidence.

At the close of the hearing, the parties requested, and were granted additional time to submit their Proposed Findings of Fact and Conclusions of Law with the understanding that any time constraint imposed under Rule 28-1.06.216(1), Florida Administrative Code, was waived in accordance with

Rule 28-1.06.216(2), Florida Administrative Code. The parties filed their Proposed Recommended Orders under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Clyde Slocum (Slocum), deceased, was a member of the State and County Officers Retirement System (SCOERS) under Chapter 122, Florida Statutes. Slocum was employed by the Suwannee County School Board as a school bus driver until he became physically unable to work in June 1970. Slocum married Alma Sanchez in October 1934, and was continuously married to her until his death on March 30. 1975.

2. By letter dated May 6, 1968, Slocum made an inquiry to the Division regarding the benefits he would be eligible for if he retired from his employment as a school bus driver with the Suwannee County School Board. Slocum noted in the letter that he was not ready to quit work but wanted to know what benefits would be available, if and when he retired.

3. The Division, by letter dated June 20, 1968, notified Slocum of the amount of his contributions on file and the benefits he would be eligible for under Options 1 through 4. It was pointed out that Options 3 and 4 would provide a smaller monthly benefit. However, these options would provide survivor benefits for his wife. It was also stated that proof of age for Slocum and his wife, Alma Slocum, would be required, if he selected Option 3 or 4.

4. The following information was provided to Slocum: (a) Option 1 would provide $43.60 a month, but upon his death, no further benefits would be paid; (b) Option 2 would be 13 cents lower at $43.47, but in the event he died, his beneficiary would receive any balance of the amount of his contribution ($1,006.81) not paid; (c) Option 3 would provide a reduced monthly payment of

   $35.58 and one-half of that amount ($17.79) to his wife upon his death; and (d) Option 4 would provide for a payment of $30.08 and the same benefit to the wife upon his death.

5. By letter dated August 5, 1970, Lavada Reuthinger, daughter of Slocum, sought information on the three different ways that Slocum could receive his retirement benefits.

6. By letter dated August 7, 1970, Elizabeth Smith, Supervisor, Benefits Section, notified Slocum of the availability of an option election that would provide benefits for his wife after his death. The letter also notified Slocum that proof of his age was required, and if he chose benefits for his wife, then proof of her age was required as well.

7. An estimate, dated September 22, 1970, of benefit amounts, similar to the estimate sent to Slocum in 1968, was prepared by the Division, and sent to Slocum. This estimate of benefits was for Options 1 an 2 only, and did not set forth a benefit amount for Options 3 and 4. The letter stated: "Only the first two options apply in your case." Apparently, the Division assumed that Slocum was retiring under disability.

8. By letter dated October 2, 1970, the Division was notified by Dr. G. L. Emmel that Slocum was disabled and was not able to work.

9. Elizabeth Smith notified Dr. Emmel of the statutory language requirement for an application for disability.

10. Using a form provided by the Division, Slocum, on October 10. 1970, also under the assumption that he was retiring on disability, elected to receive benefits under Option 2. At this point, Slocum had been advised by the Division that neither Option 3 or Option 4 were available to him.

11. Dr. Emmel provided the Department with the requested documentation that Slocum was permanently disabled.

12. On October 26, 1970, Elizabeth Smith requested that Slocum submit proof of his age. By letter dated November 13, 1970, Elizabeth Smith advised Slocum that he had failed to furnish proof of his age, but instead he had furnished his wife's birth certificate. Slocum's wife's birth certificate was returned by letter dated November 13, 1970.

13. By letter dated November 21, 1970, Elizabeth Smith advised Slocum that he could not retire under disability because he had reached normal retirement age, but that he could retire under Option 3 or Option 4 which would provide monthly payments to his wife upon his death, if he accepted a reduction in the amount of benefits. Smith further advised Slocum that he would need to furnish proof of his wife's age if he selected Option 3

    or Option 4. Smith further stated that: "It was thought you were retiring under disability when proof [of your wife's age] was returned to you." Smith also advised Slocum that if he waited until June 30, 1970, he would receive the five-year average. The letter does not indicate what the payment amounts would be for the four different options, and the letter does not indicate that a option election form was included with the letter. Furthermore, the letter does not refer to the Option 2 selection form that Slocum had previously submitted to the Division.

14. Slocum responded to Smith's letter on

    
    

    November 30, 1970, and enclosed a copy of his wife's birth certificate. Slocum also requested "the necessary forms concerning his retirement." Additionally, he notified the Division that since he had not worked since June 1970 he wanted retirement benefits to be paid as soon as possible.

15. The Division did not comply with Slocum's request for the "necessary forms concerning his retirement." A warrant was mailed to Slocum on December 31, 1970, for retirement benefits from July 1, 1970, through December 31, 1970, at $59.17 a month. This benefit amount was the Option 2 retirement benefit amount furnished to Slocum on September 22, 1970, by the Division when it was assumed that he was retiring under disability. No explanation was given to Slocum if, or that, the Division was using Option 2 benefit selection that Slocum had signed and

    submitted to the Division on October 1970, prior to the time the Division had notified Slocum that he could choose Option 3 or Option 4. Slocum and his wife were both under the impression that since Slocum had furnished the Division a copy of his wife's birth certificate that she would receive retirement benefits after his death.

16. Slocum died on March 30, 1975, five years after he retired. The Division advised Alma Slocum by letter dated

    May 19, 1975, that her husband had retired under Option 2 and, therefore, no benefits would be paid to her. A copy of his option election and the computation of his monthly benefits were enclosed in the May 19, 1975, letter from the Division.

17. Thereafter, Petitioner repeatedly inquired of the Division why she was not entitled to retirement benefits as Slocum's widow. These inquires were made from the time of Slocum's death in 1975 through the present. In response to each inquiry the Division replied that Slocum had selected Option 2, and no benefits were payable to Petitioner under that option.

18. In February 1999, Petitioner and her granddaughter, Theresa L. Crosby, visited the Division's office in Tallahassee, Florida and reviewed Slocum's file. After they reviewed the file, it was their position that Petitioner was entitled to receive survivor benefits and made a demand on the Division for Petitioner to receive those benefits. At no time prior to

    February 1999, had the Division advised Petitioner that she was entitled to a formal hearing on the matter.

19. A final agency action letter dated March 26, 1999, was mailed to Petitioner which pointed out that her husband elected and received Option 2 benefits from 1970 until his death in March 1975 and there was no provision under SCOERS, Chapter 122, Florida Statutes, to change the option choice at this time. This letter is the first written notice to Petitioner that she was entitled to request a formal hearing if she disagreed with the Division's decision.

20. A Petition for Formal hearing contesting the Division's denial of a survivor's benefit for Petitioner was received by the Division on April 19, 1999.

21. When Slocum made the selection for Option 2 retirement benefits he did so because he was advised by the Division that only Option 1 or Option 2 were available to him since he was retiring under disability. Once Slocum became aware that his wife could receive retirement benefits after his death, it is clear that he intended to select an option which would provide his wife with benefits after his death. Furthermore, after it was determined that he could not retire under disability, which had limited his options, the Division failed to give Clyde Slocum an opportunity to make a selection of the options offered for retirement benefits, either initially in writing or verbally by

    telephone with a follow-up written option, notwithstanding any testimony to the contrary which, lacks credibility.

    CONCLUSIONS OF LAW

    
    

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

23. The burden of proof is on Petitioner. Mauldin v. State of Florida, Department of Administration, Division of Retirement,

    468 So. 2d 332 (Fla. 1st DCA 1985). To meet this burden, Petitioner must establish facts upon which her allegations are based by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes (1999). Petitioner has met her burden in this regard.

24. The record is clear that Slocum's selection of Option 2 for retirement benefits was made because he was advised by the Division that he could only select Option 1 or Option 2 since it was assumed that he was retiring under disability. Upon determining that he was not retiring under disability, and that he could choose any one of the four options, Slocum's selection of Option 2 became a nullity. At this point, Slocum should have been given an opportunity by the Division to make a new selection. By failing to provide Slocum with the "necessary forms" as requested, the Division deprived Slocum of the opportunity to make a selection under the new set of facts-- normal retirement. It is equally clear, that once he was advised

    that he could choose Option 3 or Option 4, which would provide benefits for Petitioner after his death, it was his intent to choose an option that would provide benefits for Petitioner after his death. Based on Slocum's choice of Option 2 when he was limited to only two options, it appears that he would have chosen Option 3 since that would have given him and his wife a larger amount during Slocum's life, and yet provided Petitioner with some benefits after Slocum's death.

25. The Division contends that since Petitioner failed to bring this matter to hearing timely that laches should apply, and that Petitioner be denied any relief. This contention is without merit. Petitioner continuously inquired of the Division concerning its action regarding her benefits under her husband's retirement, but the Division failed to notify Petitioner of her rights to a hearing until March 26, 1999, after a request to review Slocum's file was made and allowed, and a demand made on the Division by Petitioner that she receive her benefits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order finding Alma Slocum eligible to receive retirement benefits under Option 3 retroactive to Clyde Slocum's death on March 30, 1975, making adjustments for the higher rate paid Clyde Slocum during the years 1970 through his death in 1975, and any adjustments for

interest that may be applicable to the benefits paid Clyde Slocum or those benefits that should have been paid to Alma Slocum.

DONE AND ENTERED this 29th day of December, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1999.

COPIES FURNISHED:

Sandra E. Allen, Esquire

314 West Jefferson Street Tallahassee, Florida 32301

Larry D. Scott, Esquire Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

A. J. McMullian, III, Director Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit exceptions within 15 days from the date of 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: 99-002399

Orders for Case No: 99-002399