STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY CLAIRE JANSZEN, )

)

Petitioner, )

)

vs. ) Case No. 02-0063

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on March 6, 2002, in Orlando, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Mary Claire Janszen, pro se

360 Killarney Bay Court

Winter Park, Florida 32789-2996

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue for determination is whether Section 121.091, Florida Statutes (2001), authorizes Petitioner to participate in the Florida Retirement System (FRS) beginning on February

1, 2001, or precludes Petitioner from receiving retirement benefits prior to April 1, 2001. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated August 20, 2001, Respondent issued a letter denying Petitioner's request that her retirement benefits begin on February 1, 2001, rather than on April 1, 2001. Petitioner timely requested an administrative hearing.

At the hearing, Petitioner testified, presented the testimony of two additional witnesses, and submitted one exhibit for admission into evidence. Respondent called one witness and submitted one exhibit for admission into evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing. Neither party requested a transcript of the hearing. Petitioner did not file a proposed recommended order (PRO).

Respondent timely filed its PRO on March 18, 2002.

FINDINGS OF FACT

1. Petitioner is a retired member of the FRS. Petitioner resigned from the Florida Department of Revenue (the Department) on January 19, 2001.

2. On January 12, 2001, Petitioner made her first inquiries regarding her retirement. Between January 12, 2001, and the first week in February 2001, Petitioner made

   approximately six telephone calls to a Ms. Sherrie Ferrell, the retirement coordinator for the Department.

3. Sometime during the first week in February 2001, Ms. Ferrell promised to mail the documents needed by Petitioner to apply for retirement benefits. Petitioner received the documents sometime during the last week of February 2001.

4. On February 28, 2001, Petitioner mailed an Option Selection Form and application for retirement benefits to the Department at its main office in Tallahassee, Florida. The Department received the documents on March 6, 2001, but lost the documents.

5. Petitioner filed a second application for retirement benefits with the Department at its main office in Tallahassee. The Department forwarded the second application to Respondent on April 10, 2001.

6. Florida Administrative Code Rule 60S-4.0035(3)(a), in relevant part, provides that the effective retirement date is the first day of the month following the month in which Respondent receives the member's application. Pursuant to Rule 60S-4.0035(3)(a), Respondent established May 1, 2001, as Petitioner's effective date of retirement. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order).

7. The Department eventually found the first application that the Department received on March 6, 2001. By letter dated May 2, 2001, the Department requested that Respondent establish the effective retirement date as April 1, 2001.

8. Pursuant to Rule 60S-4.0035(3)(a), Respondent correctly changed the effective retirement date to April 1, 2001. April 1, 2001, was the first day of the month following March 6, 2001.

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction over the parties and the subject matter in this proceeding. Sections 120.569 and 120.57(1). The parties received adequate notice of the administrative hearing.

10. Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of the evidence that she is entitled to membership in the FRS as of February 1, 2001. Section 120.57(1)(j) and (k); Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993), Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

11. Petitioner failed to satisfy her burden of proof.

    
    

    Petitioner failed to show that she was entitled to retirement benefits prior to April 1, 2001.

12. Section 121.091, in relevant part, provides:

    
    

    Benefits may not be paid under this section unless the member has terminated employment

    . . . and a proper application has been filed in the manner prescribed by the department [Division of Retirement].

    
    

    1. NORMAL RETIREMENT BENEFIT.-Upon attaining his or her normal retirement date, the member, upon application to the administrator, shall receive a monthly benefit which shall begin to accrue on the first day of the month of retirement and be payable on the last day of that month and each month thereafter during his or her lifetime. . . .

       
       

13. Rule 60S-4.0035, in relevant part, provides:

    
    

    1. The Division [of Retirement] shall establish the member's effective retirement date as follows:

       
       

       1. For a member who makes application for a normal retirement . . . benefit . .

    ., the effective retirement date shall be the first day of the month following the month in which the member's termination occurs, provided the Division [of Retirement] receives such member's application for retirement no later than 30 calendar days after such termination. If a member fails to apply for retirement within

    30 calendar days after termination ,

    the effective retirement date shall be the first day of the month following the month in which the Division receives the member's application. . . .

14. Petitioner terminated her employment with the Department on January 19, 2001. The first day of the following month was February 1, 2001. In order for Petitioner's retirement benefits to accrue on February 1, 2001, Rule 60S-4.0035(3)(a) required Petitioner to apply for retirement benefits no later than February 19, 2001. Petitioner did not apply for retirement benefits until March 6, 2001. Rule 60S-4.0035(3)(a) requires that Petitioner's retirement benefits begin to accrue on April 1, 2001.

15. Petitioner argued at the hearing that Respondent caused the delay in her application for retirement benefits until March 6, 2001. However, the preponderance of evidence does not satisfy the requirements for estoppel or laches. At most, the evidence shows that Petitioner waited until January 12, 2001, to make her first inquiry regarding retirement benefits and was not satisfied with the delay she experienced in the response from the Department. Moreover, it was the Department, rather than Respondent, that allegedly caused the delay experienced by Petitioner.

16. As Respondent's witness explained at the hearing, Rule 60S-4.0035(3)(a) prohibits the retroactive payment of retirement benefits prior to the receipt of an application for retirement benefits when the application is filed more than

    30 days after the date of termination. Unlike the rule,

    however, Section 121.091 provides that monthly retirement benefits begin to accrue on the first day of the month of retirement. Section 121.021(41) defines the effective date of retirement as the first day of the month in which benefit payments begin to accrue pursuant to Section 121.091.

17. Neither Section 121.091 nor 121.021(41) defines the month of retirement as the month following the month in which Respondent receives an application for retirement benefits. Rather, Section 121.091 makes receipt of an application a condition precedent to the obligation to pay retirement benefits, but expressly states that, after the application is received, the monthly benefits begin to accrue on the first day of the month of retirement. Unlike the rule, the literal terms of Sections 121.021(41) and 121.091 do not prohibit the retroactive payment of monthly retirement benefits when an application is received more than 30 days after the effective date of retirement.

18. When an application is filed more than 30 days after the effective date of retirement, Rule 60S-4.0035(a) arguably may modify the statute by providing that monthly retirement benefits begin to accrue on the first day of the month following the month of application rather than on the first day of the month of retirement prescribed in Section 121.091. If it were determined that the rule modifies the statute, the

    modification would effectively result in a forfeiture of benefits earned by members of the FRS for the period between the first day of the month of retirement and the first day of the month following the month of application.

19. Petitioner did not challenge Rule 60S-4.0035(3)(a) as an invalid exercise of delegated legislative authority. Section 120.56. Nor is the proposed agency action in this case based on an unadopted rule within the meaning of Section 120.57(1)(e).

20. In the absence of a successful rule challenge, Rule 60S-4.0035(3)(a) is a valid existing rule and has the force and effect of law. If Respondent were to deviate from such a rule, the action would be subject to remand by the appropriate appellate court. Section 120.68(7).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for retirement benefits that begin on February 1, 2001.

DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL MANRY

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2002.

COPIES FURNISHED:

Mary Claire Janszen

360 Killarney Bay Court

Winter Park, Florida 32789-2996

Thomas E. Wright, Esquire Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin B. Sjostrom, Director Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Emily Moore, Chief General Counsel Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950

Monesia Taylor Brown, Acting 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 written 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: 02-000063

Orders for Case No: 02-000063