STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELORES F. JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 04-1685

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 2, 2004, by video teleconference, with the Petitioner appearing in Miami, Florida, and the Respondent appearing in Tallahassee, Florida, before Patricia Hart Malono, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Delores F. Johnson, pro se

1448 Northeast 179th Street Miami, Florida 33162

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 is entitled to either a refund of employee contributions to the Florida State and County Officers' and Employees' Retirement System ("SCOERS") made from August 26, 1966, through June 3, 1974, or service credit toward retirement for this period of time.

PRELIMINARY STATEMENT

In correspondence dated February 27, 2004, the Department of Management Services, Division of Retirement ("Department") responded to an inquiry made by Delores F. Johnson regarding the status of her retirement account, dealing specifically with the status of her participation in the SCOERS from August 1966 through June 1974, when Ms. Johnson was employed by Jackson Memorial Hospital. The Department advised Ms. Johnson that, pursuant to her request, a refund of her employee contributions to the SCOERS from 1966 through 1974 had been sent to her in July 1974 and January 1975 and that she could purchase the service credit for this period for a total of $9,673.37, with interest accruing each year on July 1. Ms. Johnson timely requested a formal administrative hearing, and the Department forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, a formal administrative hearing was held by video teleconference on August 2, 2004.

At the hearing, the Department presented the testimony of Larry Hunnicutt, and Agency Exhibits 1 through 4 were offered and received into evidence. Ms. Johnson testified in her own behalf, but offered no exhibits into evidence. At the Department's request, official recognition was taken of Sections 121.071(6)(c), 121.081(2)(a), and 122.10, Florida

Statutes (2003),1 and Florida Administrative Code Rule 60S-3.002.

No transcript of the proceedings was filed with the Division of Administrative Hearings. The Department timely submitted proposed findings of fact and conclusions of law, and Ms. Johnson timely filed a post-hearing statement in support of her request for a refund or service credit. These submittals have been considered in the preparation of this 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 Department is the state agency responsible for the administration of the Florida Retirement System ("FRS").

   § 121.025, Fla. Stat. (2004).

   
   

2. Ms. Johnson has been employed by Jackson Memorial Hospital since February 1985, and she is an active member of the FRS.

3. Ms. Johnson was also employed by Jackson Memorial Hospital from August 26, 1966, through June 3, 1974, and was a member of the SCOERS during that time.

4. Under the SCOERS, both members and employers paid contributions into the system. Members of the SCOERS could request a refund of employee contributions into the system upon termination of employment.2

5. When Ms. Johnson terminated her employment at Jackson Memorial Hospital in June 1974, she completed a Division of Retirement Request for Refund card, in which she requested a refund of her contributions to the SCOERS.

6. Ms. Johnson signed the Request for Refund Card, which directs that the refund be sent to the 17th Floor of the Dade County Courthouse, which was the address for the Miami-Dade County Finance Department.

7. Ms. Johnson was an employee of Miami-Dade County when she worked for Jackson Memorial Hospital from 1966 until 1974. At the time Ms. Johnson terminated her employment in 1974, refund checks for employees of Miami-Dade County were sent to Miami-Dade County rather than to the employee, and all Request for Refund cards completed by Miami-Dade County employees had typed on the cards the Dade County Courthouse address of Miami- Dade County's Finance Department.

8. Included on the Request for Refund card signed by Ms. Johnson was a statement that, by requesting a refund of contributions to the SCOERS, she waived the right to any retirement service credit for the time period covered by the refund.

9. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to notify the Comptroller's office to send the refund requested by a SCOERS member to the address indicated on the Request for Refund card.

10. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to affix to the Request for Refund card labels provided by the Comptroller's office confirming that refund checks were mailed to the member requesting the refund.

11. The labels attached to Ms. Johnson's Request for Refund card indicate that two refund payments were sent by the Comptroller on Ms. Johnson's behalf to the address shown on the Request for Refund card: One, in the amount of $2,150.29, was sent on July 19, 1974, and one, in the amount of $242.18, was sent on January 31, 1975.3

12. Although Ms. Johnson claims that she did not receive any refund of her employee contributions to the SCOERS, she did not contact the Division of Retirement regarding the refund

    until August 2003, when she telephoned the Division of Retirement and stated that she had never received the 1974 refund.

13. Because Ms. Johnson is an active member of the FRS, she is entitled to purchase the retirement service credit she accumulated between 1966 and 1974.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).

15. Effective January 1, 1975, the FRS became a non- contributory system, § 121.071, Fla. Stat., and "[u]pon termination of employment for any reason other than retirement, a member shall be entitled to a full refund of the contributions he or she has made prior or subsequent to participation in the noncontributory plan, subject to the restrictions otherwise provided in this chapter." § 121.071(2)(b), Fla. Stat. Furthermore, Section 121.071(6)(c), Florida Statutes, provides that "[b]y obtaining a refund of contributions, a member waives all rights under the Florida Retirement System to the service credit represented by the refunded contributions, except the right to purchase his or her prior service credit in accordance with s. 121.081(2)."4

16. In Wilson v. Department of Administration, Division of Retirement, 538 So. 2d 139, 140, 142 (Fla. 4th DCA 1989), a case whose sole issue was "whether or not the appellant had received the payment of the refund [of retirement contributions], thus eliminating those years for credit towards the retirement benefit without repurchase of the prior service by appellant," the court stated: "Thus, it is the burden of the beneficiary to establish his right to creditable service. That includes the requirement to show that all required contributions have been made. That was the burden of the appellant in this case."

17. This case presents the same issue as the court addressed in Wilson, and, accordingly, Ms. Johnson has the burden of proving by a preponderance of the evidence that she did not receive a refund of her contributions and is entitled to service credit for the period extending from August 1966 through June 1974.

18. Ms. Johnson has failed to carry her burden of proof.

The persuasive evidence establishes that Ms. Johnson requested a refund of her employee contributions to the SCOERS; that the Department followed its normal practice by requesting that the Comptroller issue a warrant to Ms. Johnson; that the Department followed its normal practice by attaching on the Request for Refund card the labels provided by the Comptroller's office to confirm the warrant number and amount of the refund checks sent

to the address specified on the Request for Refund Card.

Ms. Johnson contravened this evidence by denying that she had received the refund. Ms. Johnson's denial is not sufficiently persuasive to establish that she did not receive the refund, especially since she did not inquire of the Department about the refund until 2003.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the request of

Delores F. Johnson for a formal administrative hearing.

DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida.

S

PATRICIA HART MALONO

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 22nd day of September, 2004.

ENDNOTES

1/ Unless otherwise specified, all references to the Florida Statutes herein are to the 2003 edition.

2/ The SCOERS was closed to new members in 1970.

3/ The warrant numbers of the checks are included on the labels, but the Department could not produce the cancelled warrants because they are retained for only 20 years.

4/ Section 121.081(2) defines the terms under which prior service credit may be purchased.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0950

Delores F. Johnson

1448 Northeast 179 Street

Miami, Florida 33162

Sarabeth Snuggs, Interim Director Division of Retirement

Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560

Alberto Dominguez, General Counsel Division of Retirement

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: 04-001685

Orders for Case No: 04-001685