STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLEN L. HESSLER, )

)

Petitioner, )

)

vs. ) Case No. 03-2118

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on August 19, 2003, in Vero Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eric C. Barkett, Esquire

2165 15th Avenue

Vero Beach, Florida 32960

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether the Petitioner, Glen L. Hessler (Petitioner) is entitled to participate in the Deferred Retirement Option Program (DROP).

PRELIMINARY STATEMENT

On March 28, 2003, the Respondent, Department of Management Services, Division of Retirement (Respondent or Department), issued a letter to the Petitioner that advised him he was not eligible to join DROP. The basis for the denial was stated to be the Petitioner's failure to timely elect participation in the program. Thereafter, the Petitioner filed a petition to challenge the Department's decision.

The matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 5, 2003. The case was then scheduled for formal hearing.

At the hearing, the Petitioner testified in his own behalf and offered testimony from David C. Nolte, ASA, the Indian River County Property Appraiser. The Petitioner's Exhibits 1-6 were admitted into evidence. The Respondent presented testimony from Ira Gaines, a Retirement Administrator employed by the Department. The Respondent's Exhibit 1 was received in evidence. The parties submitted a Joint Exhibit 1 that was also admitted in evidence.

A transcript of the proceedings has not been filed. Both parties timely filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.

All references to sections are to the 2002 compilation of the Florida Statutes, unless otherwise noted.

FINDINGS OF FACT

1. The Petitioner is employed by the Indian River County Property Appraiser and is entitled by virtue of such employment to membership in the Florida Retirement System (FRS). For all purposes material to this case, it is undisputed the Petitioner began such employment (and thereby participated in the FRS) on November 9, 1992.

2. The Petitioner was born on August 9, 1938. For purposes of this case, the Department has not disputed the accuracy of such date.

3. In July 2000 an amendment to Section 121.021 took effect whereby employees within the FRS were "vested" after six years of service. This change in the law reduced the time to vest for retirement purposes from the 10 years previously set forth in the statute.

4. As a result of the change, the Petitioner, who immediately became vested with the change, was eligible to apply for DROP on August 1, 2001.

5. It is undisputed the Petitioner did not apply for DROP within 12 months of such date.

6. The Petitioner maintains he was not given notice of the need to apply for DROP. The Petitioner maintains he was

   not timely notified of the change in the law affecting the time of his vesting. Finally, the Petitioner maintains he applied for DROP after 10 years of service. The Petitioner maintains that such application was timely filed as it was filed when he would have been eligible to apply but for the change in the statute. The Department disputes all assertions raised by the Petitioner.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57.

8. As the applicant, the Petitioner bears the burden of proof to establish he is entitled to participate in DROP. He has failed to meet that burden.

9. DROP is an optional retirement program offered through the Division of Retirement. Participation in DROP allows an employee to retire and continue to work for an FRS employer for a maximum of 60 months. The amount of an employee's retirement benefit is not reduced by not being allowed to participate in DROP.

10. In this case, the Petitioner had 12 months to elect to participate in DROP. He simply did not do so. The Petitioner's claim that he was unaware of the change in the vesting law is not persuasive.

11. The Petitioner's mistake in determining when he should apply for DROP does not excuse the burden placed on him as the employee to timely elect participation. After the Legislature passed the statute change, the public was on notice as to this material aspect of the DROP election. That this employee's employer did not notify him of the change is not the responsibility of the Department. Moreover, the retirement statutes do not require the Department to notify all participants individually in the FRS when statutory changes may impact their retirement options.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying the Petitioner's request for participation in DROP.

DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida.

S

___________________________________

J. D. Parrish 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 29th day of September, 2003.

COPIES FURNISHED:

Erin Sjostrom, 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 Division of Retirement

Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-1560

Eric Barkett, Esquire 2165 15th Avenue

Vero Beach, Florida 32960

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

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: 03-002118

Orders for Case No: 03-002118