STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILFORD MACK HELMS, )

)

Petitioner, )

)

vs. ) Case No. 02-0354

) DEPARTMENT OF MANAGEMENT ) SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 5, 2002, via video teleconference, with the Respondent appearing in Tallahassee, Florida, and the Petitioner appearing in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Milford Mack Helms, pro se

Post Office Box 261 Valrico, Florida 33595

For Respondent: Larry D. Scott, Esquire

Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to a refund of or credit for $2,125.88 in employee contributions to the Florida Retirement System ("FRS").

PRELIMINARY STATEMENT

In response to an inquiry from the Petitioner, Milford Mack Helms, the Department of Management Services, Division of Retirement ("Division") notified him in a letter dated December 3, 2001, that an audit revealed that he terminated his employment on June 7, 1974, and received a refund of

$2,125.88, representing his full employee contributions to the FRS, in September 1974. The letter further informed Mr. Helms that by requesting and receiving a refund of his contributions, he had canceled his right to service credit from April 1968 through June 1974. Finally, the letter informed Mr. Helms that he could reinstate this service credit by repaying the $2,125.88 plus accrued interest, for a total of $11,336.61.

Mr. Helms timely requested an administrative hearing, and the Division forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge and the conduct of a formal hearing.

At the hearing, Mr. Helms testified in his own behalf and offered Petitioner's Composite Exhibit 1, which was received into evidence. The Division presented the testimony of Ira Gaines, a retirement administrator for the Division, and offered Respondent's Exhibits 1 through 5, which were received into evidence. Respondent's Exhibit 1 was the deposition testimony of Avlee Askew, a former personnel clerk of the Polk County Board of County Commissioners.

No transcript was filed in this case. The Division timely filed a Proposed Recommended Order, which was duly considered. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Division of Retirement is the state agency charged with the responsibility for administering the FRS. Section 121.031, Florida Statutes.

2. Prior to 1975, the FRS was contributory, meaning that members paid a portion of their salaries into the Florida Retirement Trust Fund as a contribution toward their future retirement benefits. Members who have contributed to the trust fund may request a refund of those contributions at the

   time they leave their FRS-eligible employment. Receipt of such refunds constitutes cancellation of the right to service credit for the subject employment period.

3. Mr. Helms worked for the Polk County Board of County Commissioners, and made contributions to the Florida Retirement Trust Fund. At the time of his termination in June 1974, Mr. Helms had accrued 6.3 years of service in the FRS, and was not vested in the system.

4. In September 1974, the Division received a "Request for Refund" card bearing Mr. Helms' name, social security number, and address; and bearing what purported to be

   Mr. Helms' signature. It was not unusual at the time for non- vested members such as Mr. Helms to request refunds when they terminated their employment.

5. The refund card was countersigned by Avlee Askew, the personnel clerk for the Polk County Board of County Commissioners, as the representative of Mr. Helms' last Florida employer.

6. The Division diligently searched its records, but was unable to find the actual refund checks because they were destroyed by the Comptroller's Office. However, the Division's computer records indicate that the Comptroller issued two checks totaling $2,125.88 and sent them to Box 988, c/o Clerk's Office, Bartow, Florida 33830, in September 1974.

7. The listed address was and still is the address of the Polk County Board of County Commissioners. At the time, it was standard practice for refund checks to be mailed to the Board's offices, where the former employees would pick them up.

8. In July 2000, Mr. Helms began working for a Hillsborough County agency and began to make inquiries regarding credit for his prior 6.3 years of FRS-eligible employment. Mr. Helms contacted the Division requesting information regarding his retirement benefits and was advised by the Division that its records showed that his accumulated contributions of $2,125.88 were paid to him in 1974.

9. Mr. Helms denied signing the "Request for Refund" card, and denied receiving either of the two refund checks.

10. At the hearing, Mr. Helms contended that the signature on the refund card was a forgery. He introduced several samples of his signature in an effort to show that the signature on the refund card was not his. The "Request for Refund" card itself now exists only as a microfilm facsimile, and the poor quality of the reproduction does not permit a comparison of the signature on the refund card to those samples provided by Mr. Helms.

11. Mr. Helms offered no other evidence to support his claim that he did not sign the card and did not receive the refund.

12. The evidence presented in this case is not sufficient to establish that Mr. Helms is now entitled to a refund of or credit for contributions he made to the Florida Retirement Trust Fund prior to September 1974.

    CONCLUSIONS OF LAW

    
    

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

14. In 1975, the FRS became non-contributory. Upon termination for any reason other than retirement, a member could request a full refund of contributions paid prior to the date upon which the FRS became non-contributory. Section 121.071(2)(b), Florida Statutes.

15. If a member receives a refund of contributions, the member waives all rights under the FRS to the service credit represented by the refunded contributions. Section 121.071(6)(c), Florida Statutes; Rule 60S-3.002(6), Florida Administrative Code.

16. Mr. Helms has the burden of proving by a preponderance of the evidence that he is entitled to a refund

    of or credit for the contributions he made to the state retirement system. See Wilson v. Department of Administration, Division of Retirement, 538 So. 2d 139, 141-42 (Fla. 4th DCA 1989); Florida Department of Transportation v.

    J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981)

    
    

    ("'party asserting the affirmative of an issue before an administrative tribunal'" has the burden of proof); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974) (generally, burden of proof before an administrative agency is by a preponderance of the evidence).

17. On the basis of the findings of fact herein,

Mr. Helms has not proven his entitlement to a refund or credit by a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying the request of Milford Mack Helms for a refund of or credit for contributions he made to the Florida Retirement Trust Fund prior to September 1974.

DONE AND ENTERED this 17th day of April, 2002, in Tallahassee, Leon County, Florida.

___________________________________ LAWRENCE P. STEVENSON

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 17th day of April, 2002.

COPIES FURNISHED:

Milford Mack Helms Post Office Box 261

Valrico, Florida 33595

Larry D. Scott, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin Sojostrom, Director Division of Retirement

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

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: 02-000354

Orders for Case No: 02-000354