STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA THOMAS,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 12-3518

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this matter before the Honorable Diane Cleavinger, Administrative Law Judge of the Division of Administrative Hearings, on March 7, 2013, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Rebecca Thomas, pro se

1929 Hamilton Street

Quincy, Florida 32351

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Division of Retirement

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a refund of retirement contributions for the period from February 1, 1960, through

January 1975.

PRELIMINARY STATEMENT

In 2012, Petitioner, Rebecca Thomas, sought to apply for a refund of retirement benefits. On September 26, 2012, the Respondent, Department of Management Services, Division of Retirement (Respondent or DMS) denied Petitioner’s request. The Respondent’s action was based on its determination that Petitioner had been issued a warrant refunding her retirement contributions in June 1980. Additionally, the Respondent informed Petitioner that she did not have service credit for the period 1960 through January 1975, and was, therefore, ineligible to receive retirement benefits under the Florida Retirement System (FRS) due to insufficient service credit. Petitioner disagreed with Respondent’s decision and requested a formal hearing. The matter was then forwarded to the Division of Administrative Hearings (DOAH).

At final hearing, Petitioner testified on her own behalf.

Respondent presented the testimony of one witness, and the deposition testimony of Kesha White, Fingerprint Analyst, Florida Department of Law Enforcement. Additionally, Respondent offered Exhibits 1 through 3 into evidence.

After the hearing, Petitioner filed a Proposed Recommended Order in letter form on March 13, 2013. Similarly, Respondent filed a Proposed Recommended Order on March 18, 2013.

FINDINGS OF FACT

1. Until January 1975, the Florida Retirement System and its predecessor, the State and County Officers and Employees Retirement System (SCOERS), were contributory retirement plans, in which state employees contributed a portion of their wages toward their retirement benefits.

2. In January 1975, FRS became a non-contributory retirement plan, in which the employer paid all contributions to the plan.

3. On February 1, 1960, Petitioner, who was then known as Rebecca Jamis or James Lee, began her state employment at Florida State Hospital (FSH), located in Chattahoochee, Florida. During her employment, Petitioner was enrolled in the state’s retirement plan and contributed $2,188.01 to that plan.

4. In 1980, Petitioner was convicted of a felony offense and was sentenced to prison. She began serving her sentence in state prison in June 1980. Due to her imprisonment, Petitioner’s employment at FSH terminated on July 29, 1980.

5. At some unknown date, Respondent received form FRS-M81 requesting a refund of Petitioner's contributions to the state’s retirement plan. Pursuant to the state's document retention

   
   

   policy, the original form was destroyed many years ago with a microfilmed copy of the front of the form retained by DMS.

6. The microfilmed copy of this form does not reflect the date the form was signed. Additionally, except for the agency number and various signatures, information contained in the refund request form was typed in. The date of termination of Petitioner’s employment was also typed on the form, indicating the form was completed after Petitioner was imprisoned.

7. More importantly, the form was purportedly signed by Petitioner with the name she used at the time. However, the address on the request was not Petitioner’s residence but was the 1980 address of Florida State Hospital Credit Union. At the time, Petitioner had a loan at the credit union, although she denies having an account there. Petitioner also did not hear any more from the Credit Union about her loan and does not know what happened to it.

8. The regularly kept records of the Division indicate that on November 4, 1980, pursuant to this request for refund, Respondent issued Warrant No. 264829 in the amount due Petitioner for a refund of her retirement contributions. The warrant was issued to Petitioner and mailed as instructed to the address of the credit union. Again due to the passage of time, a copy of this warrant is no longer available. Moreover, the credit union records are not available.

   
   

9. However, Charlene Fansler performed a search of un- cashed state warrants for Warrant No. 264829. The warrant was not on the list of warrants that remained outstanding. Further, the warrant had not escheated to the State as abandoned property. As such, the evidence demonstrated that the warrant was paid by the State.

10. In 1990, at the age of 60 and several years after her release from prison, Petitioner requested a refund of her retirement contributions. On May 24, 1990, Respondent denied Petitioner’s request based on the 1980 refund of those contributions. At the time, Respondent did not advise Petitioner of her chapter 120 hearing rights; and therefore, did not provide Petitioner with a clear point of entry for an administrative hearing. However, Petitioner was clearly aware that DMS claimed that she had been issued a refund of her contributions and was, therefore, not entitled to a further refund. Petitioner took no action in 1990 even though she did not personally receive the 1980 refund because and claimed to not have signed the refund request form.

11. In 2012, 32 years after the 1980 warrant was issued and

    
    

    22 years after the 1990 denial of her request for refund, Petitioner, at the age of 82, again requested a refund of her retirement contributions based on her claim that she did not sign

    
    

    the 1980 refund request form and the fact that she did not personally receive the refund warrant.

12. Respondent submitted the microfilmed copy of the signed refund request form and known handwriting exemplars of Petitioner's signature to the Florida Department of Law Enforcement (FDLE) laboratory for analysis.

13. Kesha White, a handwriting analyst with FDLE, analyzed the documents and concluded that they were more likely than not signed by the same person. Her finding was not conclusive due to the limits of analyzing signed documents preserved on microfilm. Indeed, the signatures on the refund form and the known handwriting samples of Petitioner's signature are very similar and appear to be by the same person. In this case, the better evidence demonstrates that Petitioner signed the 1980 refund request form and, due to the passage of time, has simply forgotten that she did so. By signing that form, Petitioner instructed Respondent to issue and mail the warrant to the address for the credit union listed on the form. Respondent complied with that request. Given these facts, Petitioner is not entitled to another refund of her retirement contributions.

    CONCLUSIONS OF LAW

    
    

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

    
    

15. In 1980, a member was not entitled to service credit for the years the states' retirement plans were contributory unless such retirement contributions were paid into the state's retirement plan. See § 121.081, Fla. Stat. (1980). Today, section 121.071(2)(b), Florida Statutes (2012), codifies these restrictions and provides that:

. . . By obtaining a refund of contributions, a member waives all rights under the Florida Retirement System and the health insurance subsidy to the service credit represented by the refunded contributions . . .

1. Moreover, in 1980 and to date, the state permitted a member of FRS or SCORES to elect to receive a refund of retirement contributions made by that member into the retirement system upon termination of employment for reasons other than death or retirement. See § 121.071(3)(b), Fla. Stat. (1980) and

   § 121.071(2)(b), Fla. Stat. (2012).

   
   

2. The Petitioner has the burden to establish her right to credible service or to a refund of the contributions made during her employment. See Delores F. Johnson v. State of Fla., Dep’t of Ret., DOAH Case No. 04-1685, (DOAH Sept. 22, 2004; DMS

   Oct. 28, 2004).

   
   

3. In this case, Petitioner was a member first of SCORES and later FRS. In 1980, she requested a refund of those contributions and that the refund be mailed to the address of the credit union indicated on the refund form she had signed.

Respondent complied with its obligations to Petitioner as a member of the state retirement plan and sent the refund to the address indicated on the form. The warrant was eventually paid. Under these facts, the state has no further obligation to Petitioner to again refund Petitioner's retirement contributions and Petitioner is not entitled to such. Therefore, Petitioner's request for hearing should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order finding that Petitioner was issued a refund of retirement contributions for the period from February 1960, through January 1975, and dismissing Petitioner's request for hearing.

DONE AND ENTERED this 21st day of May, 2013, in Tallahassee,

Leon County, Florida.

S

DIANE CLEAVINGER

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 21st day of May, 2013.

COPIES FURNISHED:

Rebecca Thomas

1929 Hamilton Street

Quincy, Florida 32351

Thomas E. Wright, Esquire Department of Management Services

Division of Retirement Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

Dan Drake, Director Division of Retirement

Department of Management Services Division of Retirement

Post Office Box 9000 Tallahassee, Florida 32315-9000

Jason Dimitris, General Counsel Department of Management Services

Division of Retirement Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

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: 12-003518

Orders for Case No: 12-003518