vs.
Respondent.
) Case No. 04-0309
A hearing was held pursuant to notice, on March 19, 2004, in Shalimar, Florida, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioners: James C. Campbell, Esquire
James C. Campbell, P.A.
For Respondent: Thomas E. Wright, Esquire
Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account
of her late husband for the period September 1999 through February 28, 2003.
By letter dated August 7, 2003, Respondent advised Petitioner Angela Roberts that her request for payment of retirement benefits from the Florida Retirement System account of her husband, Robert Randall Roberts, retroactive to September 1, 1999, was denied. The denial letter further
informed Mrs. Roberts that Respondent established March 2003, as a new effective date for payment of benefits. The denial letter relied upon Section 121.091, Florida Statutes, and Florida Administrative Code Rule 60S-4.0035(3)c.
Petitioner disputed the denial and on or about August 28, 2003, timely requested an administrative hearing. The request for hearing was not forwarded to the Division of Administrative Hearings until on or about January 27, 2004. A formal hearing was scheduled for March 19, 2004.
At hearing, Petitioner testified on her own behalf and presented the testimony of Nicole Tuttle. Petitioner's Exhibits lettered A through V were admitted into evidence. Respondent presented the deposition testimony of one witness, Ms. Stanley Colvin. Respondent's Exhibits numbered 1 through 25 were admitted into evidence.
Official Recognition was requested of Section 121.091, Florida Statutes (1999), Section 26.012, Florida Statutes (2003) and Florida Administrative Code Rule 60S-4.0035. The request was granted.
The hearing was not transcribed. The parties timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.
Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of
Commissioners and had approximately 25 years of creditable FRS service at the time of his death.
Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made.
Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner.
According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death.
After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567.
However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband.
Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death.
On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows:
We are sorry to learn of the death of Robert Roberts on August 20, 1999.
According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member
occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received.
If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207.
At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter.
In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not.
Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late
husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court.
The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed.
On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows:
This is in reference to the retirement account of Robert R. Roberts.
According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate.
If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999.
To receive the Option 3 benefit, the following documents are needed:
Copy of member’s death certificate.
Proof of member’s date of birth.
Proof of your date of birth.
Completed application, Form FST-11B.
Copy of your marriage certificate.
The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced
in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter.
No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division.
The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits:
If you will furnish this information within
30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999.
Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information.
Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to
Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that
blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts.
Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both
Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation.
Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records.
Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003.
Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given.
Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither
Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing.
The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on
February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected.
A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate.
On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document.
Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits.
On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts.
On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following:
As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately
$561.35 effective March 1, 2003.
To receive the Option 3 benefit, we need the following:
A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003.
Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin,
Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date.
Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred.
Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
Section 121.091, Florida Statutes (1999), reads as follows:
Benefits may not be paid under this section unless the member has terminated employment as provided in s. 121.021(39)(a) . . . and a proper application has been filed in the manner prescribed by the department.
Florida Administrative Code Rule 60S-4.0035 reads in pertinent 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 . . . Application for . . . retirement . . . shall be made on . . . form FST-11b if by the beneficiary of a deceased member as provided in 60S-4.008. . . .
* * *
(3) The Division shall establish the member's effective retirement date as follows:
(c) For a member who dies prior to an effective retirement date established pursuant to paragraph (a) or (b), the effective retirement date shall be the first day of the month following the month in which the member died, provided the joint annuitant makes timely application for benefits; or, for a deferred monthly benefit, the first day of the month following the month in which the Division
receives the joint annuitant's application for benefits, or the first day of a later month specified by the joint annuitant. (emphasis supplied)
The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is established otherwise by statute. Young v. State, Department of Community Affairs, 567 So. 2d 2 (Fla. 3rd DCA 1990); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner has the burden of proof in this proceeding.
There is no dispute that Mrs. Roberts is entitled to her deceased husband’s retirement benefits and is, indeed, receiving such monthly benefits. The only question is whether she should receive retroactive benefits amounting to approximately $23,000.
The preponderance of the evidence shows that Mrs. Roberts did not have knowledge of any entitlement to
retirement benefits from her late husband until 2001, when she was so informed by her former step-daughter. She was not informed of any 30-day deadline until March 2002, when she began the process of hiring an attorney to get the death certificate corrected.
Once she retained an attorney in January 2003, it took approximately four months to go through the entire process of getting a death certificate corrected. While a 30-day window of time was insufficient to get a death certificate corrected,
Mrs. Roberts took well over one year to submit anything to the Division in response to the March 2002 letter.
Because two-year extensions of time are contrary to Division policy and because Ms. Colvin, the only person with the authority to grant any extension, did not grant such an extension, there was no authority for such an extension. Therefore, any estoppel argument must fail. See Greenhut Construction Company, Inc. v. Harry A. Knott, Inc., 247 So. 2d
517 (Fla. 1st DCA 1971); (under no circumstances may the state be estopped by unauthorized acts or representations of its officers.) State Department of Revenue v. Anderson, 403 So. 2d
397 (Fla. 1989) (equitable estoppel will be applied against the state only in rare instances and exceptional circumstances.)
Section 121.091, Florida Statutes (1999) prohibits payment of benefits unless the member has terminated employment and a proper application has been filed in a manner prescribed by the Department. That section also authorizes the Division to cancel an application for retirement benefits when the member or beneficiary fails to timely provide the information and documents required under the statutes and Division’s rules.
The Division did not cancel Petitioner's application, but determined that retroactive benefits were not justified under the circumstances.
Florida Administrative Code Rule 60S-4.0035 places the responsibility on the member or beneficiary to make proper application. The rule further specifies that the effective retirement date shall be the first day of the month in which the member died, provided the joint annuitant makes a timely application for benefits. In the alternative, the effective date for a deferred monthly benefit is the first day of the month following the month in which the Division receives the application. While Mrs. Roberts did not request a deferment, the application and required documents were not filed in a timely fashion.
While there are exceptional circumstances surrounding the events that transpired prior to the March 2002 letter from the Division to Mrs. Roberts, there was a period of approximately one year after that letter was written before any meaningful information was received by the Division. The end result is harsh under all of the circumstances of this case. However, as pointed out by the Division in its Proposed Recommended Order, the undersigned does not have jurisdiction to grant equitable remedies.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999.
DONE AND ENTERED this 27th day of April, 2004, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2004.
James C. Campbell, Esquire James C. Campbell, P.A.
Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260
Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
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.
