STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM C. STRICKLAND,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 03-4031

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RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in the above-styled case on January 30, 2004, in Ft. Myers, Florida, before William R. Pfeiffer, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William C. Strickland, pro se

8230 Ebson Drive

North Fort Myers, Florida 33917

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue in this matter is whether Petitioner is entitled to retroactive disability retirement benefits from June 1, 1999, through April 30, 2001.

PRELIMINARY STATEMENT

Petitioner, William C. Strickland, applied for in-line-of- duty disability benefits on January 25, 2002. He was approved and began receiving benefits effective February 1, 2002.

Thereafter he requested the Division of Retirement (Division) to change his effective retirement date to April 1, 2001. After reviewing his Florida Retirement System (FRS) file, the Division established his effective retirement date as May 1, 2001.

Thereafter, Petitioner again requested that his effective retirement date be reestablished to June 1, 1999. The Division denied his request and this timely appeal followed.

At the final hearing, Petitioner appeared pro se and testified on his own behalf. Respondent presented the testimony of Barbara Griffin (Griffin), Personnel Coordinator of Lee County Schools, and Deena Howell (Howell), Benefits Administrator of Disability Determinations of the Division of Retirement, who was accepted as an expert witness in the area of disability benefits under the Florida Retirement System.

Respondent submitted eight exhibits without objection. Official recognition was taken of Chapter 121, Florida Statutes (2002), which codifies the Florida Retirement System and Florida Administrative Code Rule 60S-4.

No transcript was ordered. The parties timely filed their respective proposed recommended orders which have been carefully considered in the preparation of this order.

FINDINGS OF FACT

1. Petitioner was a bus driver employed by the Lee County School Board. He has a tenth-grade education and is of normal intelligence.

2. Petitioner had worked for Lee County Schools for over eight years when he had a work related injury in March 1997. Upon settlement of his claim for workers' compensation, he resigned his position with Lee County Schools on June 22, 1999.

3. On April 20, 2001, Petitioner, for the first time, sought information regarding disability retirement benefits from his personnel office and met with Griffin for that purpose. At that time, Petitioner had 8.33 years of creditable service.

4. After meeting with Petitioner, Griffin sent an e-mail to Mark Sadler (Sadler), who at that time served as the Disability Administrator for the Division. During the e-mail exchange, in-line-of-duty disability benefits were not mentioned.

5. Regular disability benefits under the FRS require that a member be "vested." In this case, that required a member, including Petitioner, to have ten years of creditable service (it has since been changed by the Legislature to six years).

   In-line-of-duty disability benefits, on the other hand, were available from the first day of employment.

6. On August 1, 2001, Petitioner contacted the Division to inquire about benefits. As a result of the call, the Division sent a disability handbook and application to Petitioner on August 14, 2001. The disability handbook contains a description of all disability benefits available to members, as well as requirements for obtaining those benefits.

7. On January 25, 2002, the Division received an application for in-line-of-duty disability benefits from Petitioner.

8. After receiving and reviewing the relevant materials, the Division approved his application for benefits and added him to the retired payroll effective February 1, 2002.

9. Shortly after being approved, Petitioner requested the Division to re-establish his effective date of retirement to April 1, 2001, based on the e-mail exchange between Griffin and Sadler.

10. After reviewing Petitioner's file, the Division determined that he had attempted to apply on April 20, 2001, and accordingly re-established his effective retirement date as

    May 1, 2001, the first day of the following month.

    
    

11. Shortly after the Division changed his effective retirement date to May 1, 2001, Petitioner then requested the

    Division to re-establish it as June 1, 1999, to correspond with his resignation.

12. Howell again reviewed his file. Since there was no evidence of any earlier attempt to apply for benefits, the Division correctly determined that Petitioner's May 1, 2001, effective date was accurate.

13. On July 23, 2003, the Division issued the Final Agency Action denying his request for a June 1, 1999, effective retirement date, and Petitioner timely appealed.

14. According to the rules adopted by the Division, when a member applies for retirement benefits more than 30 days after his or her termination, the effective retirement date is established as the first day of the month following receipt of the application by the Division.

15. The Lee County School System does not routinely provide termination or worker's compensation information to the Division, unless it is in connection with an application for benefits. Since Petitioner made no application for benefits, the Division was not aware that Petitioner's employment was terminated as of June 22, 1999, until the e-mail exchange in April 2001.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2003).

17. Petitioner maintains the burden of proving the affirmative in this administrative proceeding. See § 120.57(1)(j), Fla. Stat. (2002), and Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).

18. The Florida Retirement System is codified in Chapter 121, Florida Statutes (2002). Section 121.051, Florida Statutes (2002), provides for compulsory participation in the Florida Retirement System for all employees hired after December 1, 1970. Section 121.021(11), Florida Statutes (2002), defines employee as "any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group."

19. Section 121.091, Florida Statutes (2002), provides in relevant part that "[b]enefits 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."

20. Florida Administrative Code Rule 60S-4.0035 provides, in relevant part:

    1. It shall be the responsibility of the member, or the beneficiary in the event of the member's death, to make proper application to the Division for retirement benefits. A member may apply for retirement benefits within 6 months prior to his date of termination of employment. If a member terminates his employment and elects to defer his retirement to some future date, he may apply for deferred benefits up to 6 months prior to the date he desires his retirement to become effective. Application for normal or early retirement as provided in Rules 60S-4.004 and 60S-4.005, F.A.C., respectively shall be made on Form FR-11, or on Form FST-11b. . . .

       
       

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

          1. For a member who makes application for a normal or early retirement benefit as provided in Rule 60S-4.004 or 60S-4.005, F.A.C, 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 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 or if the member chooses to defer his retirement to a later date, the effective retirement date shall be the first day of the month following the month in which the Division receives the member's application, or the first day of a later month specified by the member. . . .

       
       

21. Petitioner admits that he never sought any information about FRS disability retirement benefits until April 20, 2001.

22. Essentially, Petitioner argues that the Division should be estopped from denying his request to re-establish his date of retirement from May 1, 2001, to June 1, 1999, since neither his employer nor the Division proactively advised him of retirement application benefits and requirements.

23. Nothing in the Florida Statutes requires the Division or Petitioner's employer to proactively advise Petitioner of retirement application benefits and requirements. Petitioner is of normal intelligence. He is charted with having knowledge of the law. See State v. Beasley, 580 So. 2d 139 (Fla. 1991). See

    also Hessler v. Department of Management Services, Division of Retirement, DOAH Case No. 03-2118 (2003).

24. DOAH does not have jurisdiction to grant equitable remedies. See § 26.012, Fla. Stat. (2002).

25. There is no evidence that the Division employees provided Petitioner with any inaccurate or incomplete information prior to April 20, 2001. Accordingly, the Division properly reestablished Petitioner's effective retirement date as May 1, 2001.

26. Petitioner has failed to prove that the Division's proposed action is improper.

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 Petitioner's request for an effective retirement date of June 1, 1999.

DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

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 March, 2004.

COPIES FURNISHED:

William C. Strickland 8230 Ebson Drive

North Fort Myers, Florida 33917

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

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399

Sarabeth Snuggs, Interim Director Division of Retirement

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

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: 03-004031

Orders for Case No: 03-004031