STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDITH E. MILLS,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 10-9855

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on December 21, 2010, by video teleconference at sites in Melbourne and Tallahassee, Florida, before Thomas P. Crapps, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

Petitioner: Judith E. Mills, pro se

152 Eden Avenue

Satellite Beach, Florida 32937

Respondent: Thomas E. Wright, Esquire

Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner showed by the preponderance of the evidence that she is entitled to receive Mr. Carl Kemper's retirement benefits. The specific factual issue for resolution is whether Petitioner brought forward evidence showing that

Mr. Carl Kemper had selected Florida Retirement System Option 2 of Form FRS-11o, which would allow her to receive the monthly benefits, as opposed to Respondent's records, which show that Mr. Carl Kemper selected Option 1 of Form FRS-11o, which does not allow for continued benefit payments after his death.

PRELIMINARY STATEMENT

On December 21, 2009, Respondent, Department of Management Services, Division of Retirement (Division), sent a certified letter to Petitioner, Ms. Judith E. Mills (Ms. Mills), denying her request to receive monthly retirement benefits concerning Mr. Carl Kemper (Mr. Kemper). The Division explained that on July 5, 2002, Mr. Kemper applied to the State of Florida for disability retirement, which the State of Florida later granted. Further, the Division stated that according to its records, on August 7, 2002, Mr. Kemper had selected an Option 1 disability retirement on Form FRS-11o. Mr. Kemper's Option 1 selection provided him with a monthly benefit that would stop upon his death. The Division noted that Mr. Kemper had also designated Ms. Mills, his cousin, as a beneficiary. As the beneficiary,

Ms. Mills would only receive a refund of any contributions that Mr. Kemper had paid which were in excess of the amount he had received in benefits. Mr. Kemper's selection of the retirement option could not be changed once Mr. Kemper retired; thus, she was not entitled to any retirement benefits. The Division informed Ms. Mills that its December 21, 2009, letter constituted a final agency action and provided her notice of her rights to an administrative proceeding.

On January 19, 2010, Ms. Mills filed a Petition to Declare

Retirement Benefits to be Paid to Judith E. Mills, seeking review of the Division's decision. Specifically, Ms. Mills claimed that Mr. Kemper's selection of Option 1 on Form FRS-11o was a mistake and "in fact not his intention." Ms. Mills stated that "on the same day, same notary, the mistake was corrected and duly executed by marking option two (2)." Thus, Ms. Mills requested a hearing to present evidence showing her entitlement to Mr. Kemper's retirement benefits.

On October 25, 2010, the Division forwarded Ms. Mills' petition to the Division of Administrative Hearings for a final hearing. A final hearing was set for December 21, 2010.

On December 21, 2010, Administrative Law Judge Thomas P. Crapps conducted the final hearing. Ms. Mills presented the testimony of Mr. Franklin Kelly, Ms. Melissa Hunter, Ms. Erica Broward, and herself and submitted one exhibit, a "living will"

into evidence.1/ The Division presented the testimony of Ms. Catherine Patterson, Mr. Timothy Carlisle, and Ms. Paula

Kazmirski and introduced three exhibits that were admitted into evidence without objection.

A transcript of the proceedings was not ordered by either party. The Department submitted a Proposed Recommended Order on January 11, 2011. Ms. Mills filed an untimely Proposed Recommended Order. The undersigned read and considered the parties' filings in preparation of the Recommended Order.

FINDING OF FACTS

1. The Division is charged with the management of the Florida Retirement System. § 121.025, Fla. Stat. (2009).

2. Mr. Kemper was an employee of Brevard County, Florida, and a member of the Florida Retirement System with approximately

   25 years of creditable service.

   
   

3. On July 5, 2002, Mr. Kemper applied for a disability retirement. On August 7, 2002, Mr. Kemper completed Form FRS- 11o, Florida Retirement System Option Selection for FRS Members. The evidence clearly shows that Mr. Kemper selected Option 1, which reads as follows:

   A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not

   
   

   provide a continuing benefit to my beneficiary.

   
   

4. Mr. Kemper's selection of Option 1 also shows that he was not married. On that same date, Mr. Kemper designated

   Ms. Mills as his beneficiary, under the Option 1, to receive any refund of contributions in excess of any benefits that he received.

5. Ms. Catherine Patterson (Ms. Patterson), the Brevard County human resource specialist, credibly testified about

   Mr. Kemper's retirement selection. Ms. Patterson testified that she recalled helping Mr. Kemper to apply for Social Security Disability, in addition to helping him understand his Florida Retirement System options. Specifically, Ms. Patterson recalled that Mr. Kemper was concerned about maximizing the amount of money that he would receive during his retirement. Based on his concern, Ms. Patterson testified that Mr. Kemper had selected Option 1 of the retirement plan. If he had selected Option 2, the amount that Mr. Kemper would have received each month would have been significantly less than what he would receive under Option 1. Importantly, Ms. Patterson testified that

   Mr. Kemper's retirement file contained the original Florida Retirement Option Selection document, dated August 7, 2002, selecting Option 1, and supporting medical documentation for his retirement with disability. Absent from the file was a document

   
   

   purporting to show that Mr. Kemper selected Option 2 on the same date, August 7, 2002.

6. Ms. Paula Kazmirski (Ms. Kazmirski), the benefits administrator of the Division, credibly testified about the Division's file on Mr. Kemper's retirement. Specifically,

   Ms. Kazmirski testified that the Division's records showed that Mr. Kemper had selected Option 1 on August 1, 2002, which maximized the amount of money that he received in retirement.

   Further, Ms. Kazmirski credibly testified that Mr. Kemper received monthly benefits until his death that matched the Option 1 amount. Furthermore, Ms. Kazmirski credibly testified that it was not until after Mr. Kemper died on December 11, 2009, that the Division received the document showing that

   Mr. Kemper had intended to select Option 2. The document, which purports to show Mr. Kemper's Option 2 selection, was provided by Ms. Mills. The document, if it is to be believed, would result in Ms. Mills receiving Mr. Kemper's monthly retirement benefits.

7. In support of her claim, Ms. Mills relies upon a document titled Florida Retirement System Option Selection for FRS Members. The document was purported to be signed by

   Mr. Kemper on August 7, 2002, showing that he selected Option 2 of Form FRS-11o. According to Ms. Mills, this document shows

   
   

   that Mr. Kemper intended for her to receive monthly retirement benefits upon his death.

8. The Division brought forward the testimony of

   
   

   Mr. Timothy Carlisle (Mr. Carlisle), its inspector general who has over 20 years of criminal investigation experience, concerning the document. Mr. Carlisle credibly testified that the document relied upon by Ms. Mills appeared to be a forgery. Specifically, Mr. Carlisle noted that the document offered by Ms. Mills was "exactly the same" as the Division's document showing the Option 1 selection, with the exception of the option selection. Not only are the signatures exactly the same, but the Notary's stamp is exactly in the same position as the document on file with Brevard County and the Division showing that Mr. Kemper had selected Option 1. Mr. Carlisle testified that it was his opinion, based on his experience, that the Form FRS-11o showing Mr. Kemper's Option 2 selection was a forgery.

9. Ms. Mills' offered testimony of Mr. Franklin Kelley, Ms. Melissa Hunter, and Ms. Erica Broward was not competent to support her claim that the offered document was authentic or trustworthy. None of Ms. Mills' witnesses saw or assisted

   Mr. Kemper in submitting for his disability retirement or in his selection of the retirement options. At best, these witnesses could only testify that Mr. Kemper made statements that he intended for Ms. Mills to have his retirement. These hearsay

   
   

   statements are insufficient to support any factual finding that Mr. Kemper had selected the Option 2 retirement benefit, or that her offered document is trustworthy.

10. Ms. Mills attempted to explain why neither the Division nor Brevard County had a copy of the document showing that Mr. Kemper had selected Option 2 on August 7, 2002. Her uncorroborated testimony was that someone in Brevard County had failed to send the Division Mr. Kemper's true selection of Option 2 because they were mad with her or that the Division may have lost the documents. None of these contentions was supported by evidence.

11. Clearly, the facts show that Mr. Kemper selected Option 1 for his disability retirement, and the document offered to show his selection of Option 2 is a fraud being offered for Ms. Mills' monetary benefit.

12. The facts show that Mr. Kemper received retirement benefits under Option 1 from his date of retirement until his death in December 2009.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2010).

    
    

14. Ms. Mills failed to show by the preponderance of the evidence that she is entitled to Mr. Kemper's retirement benefits.

15. The record abundantly shows that Mr. Kemper selected Option 1 on Form FRS-11o that paid him retirement benefits which ended upon his death.

RECOMMENDATION

Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Judith E. Mills', petition to receive Mr. Kemper's retirement benefits be DENIED.

DONE AND ENTERED this 25th day of January, 2011, in Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2011.

ENDNOTE

1/ Ms. Mills introduced a “living will” into evidence, but did not provide a copy of the document to the Division of Administrative Hearings. Because the hearing was by video teleconference, the undersigned was not able to secure the

exhibit introduced by Ms. Mills. Presumably, the “living will” is with the court reporter, because no transcript has been ordered. In any event, the Petitioner’s exhibit is not relevant to the undersigned’s Recommended Order.

COPIES FURNISHED:

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

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Judith E. Mills

152 Eden Avenue

Satellite Beach, Florida 32937

Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, 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: 10-009855

Orders for Case No: 10-009855