STATE BO OF ADMINISTRATION

FLORIDA

1801 HE ITAGE BOULEVARD TALLAH SSEE, FLORIDA 32308 850) 488-4406

FFICE BOX 13300

32317-3300

RON DESANTIS GOVERNOR

JIMMY PATRONIS

. CHIEF FINANCIAL OFFICER

ASHLEY MOODY ATTORNEY GENERAL

ASH WILLIAMS

EXECUTIVE DIRECTOR & CIO

June 30, 2020

Lawrence P. Stevenson Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Adrian Wa inistration- DOAH Case No. 19-4954

Dear Judge Stevenson:

As required by section 120.57(1)(m), lorida Statutes, attached is the Final Order issued by the State Board of Administration in regar s to the above referenced case.

Please let us know should you need an hing further.

Sincerely,

0}u_a_

Tina Joanos Agency Clerk

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STATED

TATE OF FLORIDA

ARD OF ADMINISTRATION

ADRIAN WAGNER,

Petitioner,

vs.

STATE BOARD OF ADMINIST

Respondent.

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) TION, )

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DOAH Case No. 19-4954 SBA Case No. 2019-0195

On January 8, 2020, Adm.

FINAL ORDER

·strative Law Judge Lawrence P. Stevenson (hereafter

"ALJ") submitted his Recommend Order to the State Board of Administration (hereafter "SBA") in this proceeding. A cop of the Recommended Order indicates that copies were served upon counsel for the Petitio er and upon counsel for the Respondent. Both Petitioner an<;l Respondent filed Pr posed Recommended Orders. Petitioner was granted a one day extension to file exceptio on January 24, 2020. A copy of the Recommended Order is attached hereto as Exhibit A. The matter is now pending before the Chief of Defined Contribution Programs fo final agency action.

Statement of the Issue in the Reco ended Order as if fully set forth herein.

The State Board of Admini ation adopts and incorporates in this Final Order the Preliminary Statement in the Reco ended Order as if fully set forth herein.

f.

STANDARDS OF AG NCY REVIEW OF RECOMMENDED ORDERS

The findings of fact of an dministrative Law Judge cannot be rejected or modified by a reviewing agency in its final rder " ... unless the agency first determines from a review of the entire record, and states wi particularity in the order, that the findings were not based upon competent substantial vidence...." See Section 120.57(1)(1), Florida Statutes. Accord, Dunham v. Highlands Cty School Brd, 652 So.2d 894 (Fla 2nd DCA 1995); Dietz v.

Florida Unemployment Appeals C mm,. 634 So.2d 272 (Fla. 4th DCA 1994); Florida Dept.

of Corrections v. Bradley,. 510 So. d 1122 (Fla. l st DCA 1987). A seminal case defining the "competent substantial evidence" dard is De Groot v. Sheffield,. 95 So.2d 912, 916 (Fla 1957), in which the Florida Sup e Court defined it as "such evidence as will establish a substantial basis of fact from whic the fact at issue can be reasonably inferred" or such

evidence as is "sufficiently relevan and material that a reasonable mind would accept it as adequate to support the conclusion reached."

An agency reviewing a Di sion of Administrative Hearings ("DOAH") recommended order may not rewei h evidence, resolve conflicts therein, or judge the credibility of witnesses, as those w evidentiary matters within the province of

administrative law judges as the tri rs of the facts. Belleau v. Dept of Environmental

Protection, 695 So.2d 1305, 1307 la is• DCA 1997); Maynard v. Unemployment_Appeals

Comm:., 609 So.2d 143, 145 (Fla. 4 DCA 19932). Thus, if the record discloses any competent substantial evidence sup rting finding of fact in the ALJ's Recommended Order, the Final Order will be bo d by such factual finding.

Pursuant to Section 120.57(1)(1), Florida Statutes, however, a reviewing agency has

the general authority to "reject or oclify [an administrative law judge's] conclusions oflaw

over which it has substantive juri diction and interpretation of administrative rules over which it has substantive jurisdicti n."

With respect to exceptions Section 120.57(1)(k), Florida Statutes, provides that

"... an agency need not rule on an xception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the

legal basis for the exception, or record."

does not include appropriate and specific citations to the

h49

Without any discussion or uthority, Petitioner argues that the language set forth in Section 121.4501(4)(f), Florida S tes, that provides that elections"... are effective on the

first day of the month following re eipt of the election by the third party administrator"

[emphasis supplied], does not "as matter of law" refer to the "ISP provider Alight Solutions" but rather to an "[a]pp ved provider'' that has been selected to offer investment products or services to the FRS In estment Plan, as provided under Section 121.4501(2)(a), . Florida Statutes.

Section 12l.4501(4)(f), Fl rida Statutes, clearly refers to a ''third party

of the statute conveys a clear and definite meaning, the statute must be given its plain and bvious meaning. See, e.g., McKenzie Check Advance of Florida, LLC v. Betts, 928 So.2d 1 04 (Fla. 2006). Section 121.4501(8)(a), Florida Statutes, allows the SBA to select and con t with a third party administrator t:Qat will, inter alia,

enroll eligible employees into the RS Investment Plan. The third party administrator selected by the SBA to provide · nistrative services to the FRS Investment Plan is Alight

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Solutions. [Hearing Transcript, pa e 86, lines 5-9]. Thus, elections into the FRS Investment Plan are effective on the first day f the month following receipt of such election by Alight

Petitioner's argument is oneous, and Petitioner fails to identify the legal basis for Petitioner's exception. Therefore, etitioner's Exception 1 hereby is rejected.

tion 2: Exce ti.on to Conclusion of Law 51

Again, without discussion r citing any authority, Petitioner argues that the provisions of Rule 19-11.007(2), .A.C., that provide that a valid second election may be made only if an FRS Investment P an member makes such election and such election is processed by the Plan Choice A inistrator during a month in which the member is actively employed and earning salary and rvice credit, were inapplicable to Petitioner's situation. Petitioner states that such provisio only are applicable to a situation in which a member makes an election at the end of the member's last day of employment with the state, and such election is not processed unt· the next day when the member's employment has terminated. Petitioner exception m rely consists of Petitioner's unsupported opinion, and Petitioner does not identify any le al basis for the exception. Therefore, Petitioner's Exception 2 hereby is rejected.

FINDINGS OF FACT

tion adopts and incorporates in this Final Order the Findings of Fact set forth in the R mmended Order as if fully set forth herein.

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CONCLUSIONS OF LAW

The State Board of Adnri stration adopts and incorporates in this Final Order the Conclusions of Law set forth in th Recommended Order as if fully set forth herein.

ORDERED

The Recommended Order xhibit A) is hereby adopted in its entirety. The Petitioner's Florida Retirement Sy tern Investment Plan Petition for Hearing hereby is dismissed. Petitioner has failed to stablish that she was entitled to the relief requested.

Any party to this proceed· g has the right to seek judicial review of the Final Order

pursuant to Section 120.68, Flori Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Ap ellate Procedure, with the Clerk of the State B_oard of Administration in the Office of the General Counsel; State Board of Administration, 180I Hermitage Boulevard, Suite 100, allahassee, Florida, 32308, and by filing a copy of the Notice of Appeal accompanied by e applicable filing fees with the appropriate District Court of Appeal. The Notice of A peal must be filed within thirty (30) days from the date

the Final Order is filed with the Cl rk of the State Board of Administration.

DONE AND ORDERED 6th day of April, 2020, in Tallahassee, Florida.

STATE OF FLORIDA

STATE BOARD OF ADMINISTRATION

Daniel Beard

Chief of Defined Contribution Programs State Board of Administration

180I Hermitage Boulevard, Suite I00 Tallahassee, Florida 32308

(850) 488-4406

I •

FILED ON THIS DATE PURSU T TO SECTION 120.52, FLORIDA ST TUTES WITH THE DESIGNATED CL OF THE STATE BOARD OF ADMINIS TION, RECEIPT OF WHICH IS HERE Y ACKNOWLEDGED.

TinaJoanos Agency Clerk

CE TIFICATE OF SERVICE

I HEREBY CERTIFY that a tru and correct copy of the foregoing Final Order was sent to

N. Albert Bacharach, Jr., Counsel or Petitioner, both by email transmission to N.A.Bacharachr@att.net and by U.. S. to N. Albert Bacharach, Jr., P.A., 4128 NW 13th Street, Gainesville, Florida 32609 1807; and by email transmission to Deborah Minnis, Esq. (dminnis@ausley.com) and Ruth afek (rvafek@ausley.com; jmcvaney@ausley.com. Ausley & McMullen, P.A., 123 S uth Calhoun Street, P.O. Box 391, Tallahassee, Florida 32301, this 6th day of Ap ·, 2020.

Assistant General Co el

State Board of Administration of Florida 180 I Hermitage Boulevard

Suite 100

Tallahassee, FL 32308

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Docket for Case No: 19-004954

Orders for Case No: 19-004954