The Issue Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985.
Findings Of Fact On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact. The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence. The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3. The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence. The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause. The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the 780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June 30, 1985. The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66. DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1990.
The Issue The central issue in this case is whether Petitioner is entitled to benefits for a deceased Florida Retirement System member.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: William H. Schlussler, Jr. was employed with the police department for Metro-Dade County beginning in June, 1970. On December 1, 1970, Mr. Schlussler became a member of the Florida Retirement System. Mr. Schlussler remained continuously employed and a member of the System until his death on September 30, 1986. On July 13, 1970, Mr. Schlussler designated his father, William H. Schlussler, Sr., as the sole beneficiary of benefits under the retirement system. On July 14, 1972, Mr. Schlussler married Mirta Schlussler, Petitioner herein. The couple remained continuously married until the time of Mr. Schlussler's death. Throughout the course of their marriage, the Schlusslers acquired property in their joint names. Property which Mr. Schlussler had owned prior to his marriage was transferred to include Mirta Schlussler. In connection with his work, Mr. Schlussler participated in a group life insurance program. After his marriage, Mr. Schlussler amended the beneficiary forms to provide Mirta Schlussler as his sole beneficiary for life insurance proceeds. At his death, Mirta Schlussler received those benefits. Mr. Schlussler intended to designate Mirta Schlussler as his beneficiary for benefits under the Florida Retirement System. And although he stated this intention to several co-workers/friends, documentary evidence to establish that he completed and filed a change of beneficiary form does not exist. Moreover, no one witnessed Mr. Schlussler execute and file a change of beneficiary form for the Florida Retirement System (FRS). The only form on file with the FRS was the one executed on July 13, 1970, which designated William H. Schlussler, Sr. the sole beneficiary. William H. Schlussler, Sr. survived William H. Schlussler, Jr.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration, Division of Retirement enter a Final Order denying benefits to Petitioner. DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2472 Rulings on Proposed Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted but is unnecessary to the determination made herein. Paragraph 5 is accepted but is irrelevant, immaterial, and unnecessary to the determination made herein. With regard to paragraph 6 and its subparts, the first two sentences are rejected as contrary to the weight of the evidence presented. However, subparts a., b., c., d., e., and f. are accepted. There is no doubt William H. Schlussler, Jr. intended his wife to receive all benefits available. Subpart g. is rejected to the extent it suggests Mr. Schlussler did, in fact, execute the required form. There was no direct evidence that this deceased completed the form required to change the beneficiary designation. Subparts h. & i. are accepted but cannot constitute proof of this deceased having executed the required form. Paragraph 7 is accepted but is unnecessary to the resolution of the issue herein. Paragraph 8 is rejected as irrelevant, immaterial and unnecessary. Paragraph 9 is accepted but is irrelevant, immaterial and unnecessary. The file destroyed was a duplicate not the sole file. Paragraph 10 is accepted. Paragraph 11 is rejected. Mr. Schlussler's file did not contain the form in issue. The absence of it does not prove its existence. Moreover, the file required, by statute, would be maintained by the Division. That the local government might also have the form would be a sound argument of its execution. Of course then the argument would be as to filing. In this case, the proof failed as to both execution and filing. The proof offered established only intent. COPIES FURNISHED: Donald D. Slesnick, II, Esquire 2285 Southwest 17th Avenue Miami, Florida 33145 William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32399-1560 Adis Vila, Secretary Department of Administration Division of Retirement 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether the Department of Management Services, Division of Retirement, correctly excluded Petitioner from participation in the Florida Retirement System from August 18, 1995, through November 17, 1996.
Findings Of Fact Petitioner was hired by Dixie County on August 18, 1995, to work the roll-off site in Jena, Dixie County, Florida. At the time of his hiring, Petitioner's position was described as "Temporary Roll-Off Site Fill In." A roll-off site is where people take their garbage which is then transferred to the main facility for disposal. A "Temporary Roll-Off Site Fill In" is defined as someone who is called to work as needed. According to the Dixie County Payroll Records, Petitioner was employed as a "Temporary Roll-Off Site Fill In" from August 19, 1995, until November 18, 1996, when he became a "Part-Time Fill In Roll-Off" with an 80-hour biweekly schedule, until a permanent position could be filled. In July 1998, Petitioner's position became classified as permanent and his position description was changed to "Full Time Roll-Off Site." Testimony from Howard Reid, the road superintendent who was Petitioner's supervisor at the Jena roll-off site during the time period of August 18, 1995, to November 17, 1996, was that Petitioner was employed to fill the full-time position of Houston O. ("Hugh") Markham who had been fired from his employment with Dixie County in August 1995. Mr. Reid testified that Petitioner was employed in a regularly established position during this time period. No documentation was produced to substantiate the claim that Petitioner worked in a regularly established position from August 18, 1995, to November 17, 1996. Respondent's records show that Houston O. Markham was employed by Dixie County during the period of August 18, 1995, to November 17, 1996. Houston Markham was paid by Dixie County until December 1, 1996. December 1, 1996 is the pay date for the period beginning November 18, 1996. Based upon the payroll records, Petitioner began working 80 hours, biweekly, on November 18, 1996. This date coincides with Respondent's records for the last pay date of Houston Markham. The only time records in evidence for Petitioner are for the time period of November 3, 1996, to July 26, 1998. For the pay date of November 3, 1996, Petitioner was paid for 42 hours of work. For the pay date of November 17, 1996, Petitioner was paid for 53 hours of work. Thereafter, for the next 43 pay periods, Petitioner was paid for 80 hours of work biweekly (with one exception, the pay date of July 13, 1997, for which he was paid 76 hours). Petitioner's other witnesses, Joseph Ruth and Arthur Bellot, were not in a supervisory position over Petitioner from August 18, 1995, to November 17, 1996, and could not attest to Petitioner's employment during that time. Membership in the Florida Retirement System is compulsory for any person who fills a regularly established position, as defined by statute. A person filling a temporary position, as defined by statute, is not eligible to participate in the FRS. The agency would not report the temporary employee's work to Respondent. The first time Dixie County ever reported Petitioner for retirement purposes was in January 1998. After review, Respondent found that Petitioner was eligible to participate in the FRS effective November 18, 1996, based upon a Payroll Change Notice from Dixie County. The number of hours a state employee works is not dispositive of the issue of whether he or she is an employee in a regularly established position. An employee who works only two days a week, for example, would be a participant in the FRS if employed in a regularly established position. Based upon the documentation in its possession, Respondent enrolled Petitioner in the FRS effective November 18, 1996. Respondent requested that Petitioner submit tax documentation to demonstrate that he had worked full-time for Dixie County during the August 18, 1995, to November 17, 1996, period, as he claimed. Respondent submitted no documentation to support his claim to have been either a full-time employee or an employee in a regularly established position.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioner's request for participation in the Florida Retirement System for the period of August 18, 1995, through November 17, 1996. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2004. COPIES FURNISHED: Spencer Kraemer, Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Joseph Lander, Esquire Lander & Lander, Attorneys at Law Post Office Box 2007 Cross City, Florida 32628 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether Petitioners are entitled to, and should receive, survivor retirement benefits from the Florida Retirement System account of their deceased mother, Adrianna Davis, which are presently being paid to their sister, Earnese Davis?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Adrianna Davis was a public school teacher in Broward County for more than 35 years before her retirement in or about the end of January of 1991. She enrolled in the Teacher's Retirement System of Florida in 1955, when she started her teaching career. On the enrollment form that she filled out, she designated her father, Charles Williams, who is now deceased, as her beneficiary. Adrianna subsequently became a member of the Florida Retirement System. At the time of her death, Adrianna had two adult sons, Kevin and Eddie Davis, (the Petitioners in this case) and one adult daughter, Earnese Davis, (the Intervenor in this case), all three of whom lived with her in the house she and the children's aunt co-owned. Adrianna was the undisputed head of the household and its primary decision maker. Although Earnese lived under the same roof as her brothers, she did not have a good relationship with them. Shortly after the beginning of the 1990-91 school year, Adrianna was told by a physician that he suspected that she had cancer. In October or November, she underwent exploratory surgery. The surgery confirmed that she had cancer, which was determined to be inoperable. Following the exploratory surgery, Adrianna received chemotherapy and radiation treatment. Adrianna was admitted to Humana Hospital Bennett (now Westside Regional Medical Center and hereinafter referred to as "Humana") on December 6, 1990. She was brought to Humana by Earnese, who remained with her in the hospital during the entire period of her hospitalization. 1/ After a medical history was taken and a physical examination was conducted, the following initial "assessment" was made of Adrianna's condition by the admitting physician: "Lung carcinoma with dehydration post chemotherapy." Approximately two days prior to her December 6, 1990, hospitalization, Adrianna had asked Earnese to go to the Broward County School Board (hereinafter referred to as the "School Board") offices to obtain a Florida Retirement System Application for Service Retirement form (hereinafter referred to as a "Form 11). Form 11 has four sections that need to be filled out. In the first section of Form 11 (hereinafter referred to as "Section 1"), the following information has to be provided: the applicant's name; the applicant's social security number; the applicant's job title; the applicant's birth date; the applicant's present or last employer; the applicant's home address and home and work phone numbers; and the date of termination of applicant's employment. In the second section of Form 11 (hereinafter referred to as "Section 2"), the following information has to be provided: the name of the beneficiary designated by the applicant; the beneficiary's social security number; the relationship of the beneficiary to the applicant; the beneficiary's home mailing address; and the "option" selected by the applicant. 2/ The following advisement is printed at the top of Section 2: "All previous beneficiary designations are null and void." The third section of Form 11 (hereinafter referred to as "Section 3") contains the following statement, underneath which the applicant has to place his or her signature "in [the] presence of [a] notary:" "I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES." It also has a certificate that has to be completed and signed by the notary public in whose presence the applicant signs this section of the form. The fourth and last section of Form 11 (hereinafter referred to as "Section 4") contains the following certification that has to be completed, signed and dated by an authorized representative of the applicant's employer, "if termination was within the last 2 years:" "This is to certify that was employed by this agency and will terminate or has terminated on / / , with the last day worked on / / ." As her mother had asked her to do, Earnese went to the to the School Board offices at 1320 Southwest 4th Street in Fort Lauderdale to pick up a Form There she met with Victoria Moten, a School Board retirement specialist. 3/ Earnese told Moten about her mother's situation. She explained that her mother was ill and it looked like she was "not going to make it." 4/ Moten obtained a blank Form 11. After typing in the information that needed to be provided in Section 1 of the form, Moten handed the partially completed form to Earnese and indicated what further steps needed to be taken in order to complete the application process. After her visit with Moten, Earnese returned home and gave her mother the partially completed Form 11 (with only Section 1 filled in) that Moten had provided Earnese with earlier that day (hereinafter referred to as the "Designation Form"). Adrianna kept the Designation Form in her possession and took it with her (in a knapsack, along with other papers) to the hospital on December 6, 1990. She explained to Earnese that she wanted to have the Designation Form filled out while she was in the hospital. It was Adrianna, not Earnese, who brought up the subject. On the morning of December 10, 1990, while Adrianna was still in the hospital, she told Earnese that she wanted to designate Earnese as the sole beneficiary of her retirement benefits so that Earnese would be able to get her "life together" and she asked Earnese to fill out Section 2 of the Designation Form accordingly. 5/ Adrianna also requested Earnese to obtain the services of a notary public to assist in filling out Section 3 of the Designation Form. Earnese thereupon left her mother's hospital room (without the Designation Form, which remained with Adrianna) to find a Florida notary public in the hospital. Her search was successful. She made contact with Elizabeth Sarkissian (now Gassew), a registered nurse and a Florida notary public, 6/ who agreed to help in filling out Section 3 of the Designation Form. Earnese returned to her mother's room with Sarkissian. Earnese filled out Section 2 of the Designation Form in accordance with her mother's previous instructions. Sarkissian, upon entering the room, engaged in conversation with Adrianna, who was sitting up in her hospital bed. Adrianna was alert and oriented. She spoke clearly and responded appropriately to questions Sarkissian asked her. By all appearances, she was in no way mentally incapacitated. After Earnese had finished filling out Section 2 of the Designation Form, Adrianna signed Section 3 of the form in Sarkissian's and Earnese's presence. 7/ Sarkissian then completed and signed the notary certificate underneath Adrianna's signature (in Section 3 of the Designation Form), 8/ after which the form (now with Sections 1, 2 and 3 filled in) was returned to the knapsack in which Adrianna kept the papers she had brought with her to the hospital. Her presence no longer needed, Sarkissian left Adrianna's hospital room. Sarkissian's visit lasted approximately five or ten minutes. Later that day (December 10, 1990), in the evening, Adrianna underwent a surgical procedure involving the insertion of a vascular access port. Adrianna was discharged from the hospital on December 12, 1991. She took the knapsack which contained the Designation Form home with her. Adrianna kept the Designation Form in her possession until January 3, 1991, when she gave it to Earnese, with instructions that Earnese deliver it to Moten for filing. Earnese followed her mother's instructions. Later that same day (January 3, 1991), she went to Moten's office (without her mother) and handed Moten the Designation Form. Moten thereupon completed Section 4 of the form. The now fully completed form was then filed for processing. In June of 1991, Adrianna went into a coma and eventually died. At the time of her death, the Designation Form (which, in Section 2, designated Earnese as the sole Option 2 beneficiary of Adrianna's retirement benefits) was the most recent designation of beneficiary form executed by Adrianna. At no time subsequent to signing the Designation Form did she express to Earnese a desire to make any changes to Section 2 of the form, nor were any such changes made. It has not been shown that Adrianna's designation of Earnese as the sole beneficiary of her retirement benefits was the product of any fraud, misrepresentation, trickery, coercion, undue influence, active procurement, or suggestion on Earnese's part or that it was anything other than a decision made freely, voluntarily and knowingly by a woman who, although terminally ill, was in all respects capable of making such a decision 9/ and fully understood the consequences her decision. On or about July 18, 1991, through the submission of a completed Application of Beneficiary for Retirement Benefits form, Earnese requested that the Division begin to pay her Adrianna's retirement benefits. On the form, Earnese designated her brothers, Eddie and Kevin, as the first and second contingent beneficiaries, respectively, of these benefits in the event of her death. Earnese has received monthly payments from her mother's retirement account since July of 1991. 10/ She currently receives a monthly payment of $1,986.30.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division enter a final order refusing to grant Petitioners' request that it treat as a nullity Adrianna Davis' written designation of Earnese Davis as her sole beneficiary and, based upon such nullification, discontinue paying Adrianna's retirement benefits to Earnese Davis and instead pay them to Petitioners. 13/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1996.
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 31st day of March, 2003.
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.
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.
The Issue Whether Petitioner must forfeit and repay distributions he received from the Deferred Retirement Option Program and subsequent monthly retirement benefits received as a consequence of his election to the position of County Commissioner of Jefferson County within six months of terminating state employment.
Findings Of Fact The Division of Retirement (Division) is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Petitioner, John Nelson, was employed by the Department of Financial Services (DFS) from October 1977 through July 31, 2010. For the last five years of his employment with DFS, Petitioner participated in the Deferred Retirement Option Program (DROP). Prior to ending his DROP participation, Petitioner completed a DROP Termination Notification Form (DP-TERM Rev. 06/06) on April 23, 2010, confirming he would terminate employment on July 31, 2010. The DROP Termination Notification was also signed by a representative from FRS confirming Petitioner's employment termination date and reads in pertinent part: I understand that I cannot work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity including part-time, temporary, other personal services (OPS) or non-Division approved contractual services during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to me enrollment date in the DROP. The above-referenced version of the DP-TERM (Revised 6/06) has been incorporated by reference into Florida Administrative Code Rule 60S-9.001(ee). Due to significant statutory changes made by the Legislature, the Division sent to Petitioner a second DROP Termination Notification, (Form DP-TERM revised 04/10) which he signed on June 9, 2010. The wording in the revised form reflected statutory changes which would take effect July 1, 2010. The revised form states in pertinent part: If your DROP termination date is on or after July 1, 2010: Your termination requirement means you cannot remain employed or become re-employed with any Florida Retirement System (FRS) covered employer during the FIRST SIX calendar months following your DROP termination date. This includes but is not limited to: Part-time work, temporary work, other personal services (OPS), substitute teaching or non-Division approved contractual services. During the 7th-12th calendar months following your DROP termination date, you may return to work for a participating FRS employer but must suspend your retirement benefit for any of these months your[sic] are employed. There are no reemployment exceptions during the reemployment limitation period. After the 12th calendar month following your DROP termination date, there are no employment restrictions. If you fail to meet the termination requirements noted above, you will void (cancel) your retirement and DROP participation, you must repay all retirement benefits received including your DROP accumulation, and you must apply to establish a future retirement date. If you void your retirement your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new termination date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP. (emphasis added). The revised form DP-TERM (Revised 04/10) has not yet been adopted as a rule. At the time of hearing, rulemaking had been initiated. Petitioner terminated his employment with DFS on the agreed termination date of July 31, 2010, and was no longer an employee of DFS after that date. Sometime between July 31, 2010, and November 2010, Petitioner was paid his accumulated DROP monies in the amount of $181,635.09, in the form of a direct rollover into an eligible retirement account. Petitioner was also paid monthly retirement benefits for the months of August through November 2010, in the total amount of $11,286.76. The Division deactivated Petitioner's monthly retirement benefits in December 2011. The total amount of retirement benefits paid to Petitioner after terminating employment with DFS is $191,921.85, which the Division seeks to recover. In April of 2010, at the urging of community members, Petitioner registered to run for public office in Jefferson County, Florida. He won the election and was sworn into office as a Jefferson County Commissioner on November 16, 2010. Tyler McNeill is the Chief Deputy Clerk and Human Resources Officer for Jefferson County. Following Petitioner's election as a County Commissioner, Mr. McNeill began to process a small packet of employment-related documents which he provides to elected officials. Mr. McNeill went to Petitioner's home on a Sunday evening to get the necessary papers signed. Prior to this meeting, Petitioner was unaware that Jefferson County participates in the FRS. Petitioner described his reaction to learning this as "shocking." When Mr. McNeill and Petitioner got to the FRS form, Petitioner did not want to sign it and informed Mr. McNeill of that. Mr. McNeill described Petitioner as appearing physically ill, shocked, and "so upset" upon learning that the County was an FRS participating employer. On November 22, 2010, Petitioner and Mr. McNeill called Ira Gaines, FRS Benefits Administrator, using a speakerphone. At the time they placed this call, Petitioner had not yet signed the employment documents supplied to him by Mr. McNeill, and Petitioner informed Mr. Gaines of this. During this conversation, Petitioner expressed his willingness to resign from office and refuse to accept payment from the County for his newly elected position. According to Mr. McNeill, Petitioner was not yet eligible to receive compensation from the County because the employment papers had not yet been processed. Mr. McNeill testified that he would have been able to discard the documents. During this telephone conversation, Mr. Gaines advised that Petitioner was legally a person employed by the County by virtue of his being sworn into office on November 16, 2010. Mr. Gaines equated bring sworn into office as being an employee. At hearing, Mr. Gaines reiterated his position: that he did not know any way Petitioner could not be enrolled in FRS when occupying an elected position. As a result of this telephone conversation with Mr. Gaines and in reliance on Mr. Gaines' advice, Mr. McNeill processed Petitioner's employment papers including the FRS reenrollment form. Mr. Gaines then began receiving salary payments for being a county commissioner. On December 6, 2010, Mr. Gaines sent a letter to Petitioner stating that his election to the position of County Commissioner had voided his DROP participation, and consequently, Petitioner would have to repay $181,635.09 for the DROP payment, and $11,286.76 in monthly retirement benefits. The letter further informed that Petitioner will continue to earn credit as an elected official in the Elected Officer's Class of FRS membership and that Petitioner's retirement account would be adjusted to reflect service from August 2005 through July 2010 (his DROP period) which he estimated would increase Petitioner's retirement benefits by $1,200 per month. In response to the December 6, 2010 letter, Petitioner appealed the voiding of his DROP participation. By letter dated February 1, 2011, the Division denied the request. The February 1, 2011 letter also informed Petitioner of his right to request a hearing, which gave rise to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Retirement enter a final order rescinding the February 1, 2011, notification letter requiring reimbursement of Petitioner's DROP distribution and reimbursement of Petitioner's monthly retirement benefits from August 2010 through December 2010 when those benefits were discontinued; reinstating those monthly benefits beginning six months following the completion of Petitioner's DROP period, and nullifying Petitioner's reenrollment in the Elected Officers' Class of FRS membership. DONE AND ENTERED this 8th day of March, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 8th day of March, 2012.
The Issue The issue presented is whether Petitioners are entitled to Option 2 continuing retirement benefits following the death of Linda Prince, a Florida Retirement System member.
Findings Of Fact Linda J. Prince was employed by the Florida Department of Law Enforcement (hereinafter "FDLE") and was a vested, regular class member of the Florida Retirement System (hereinafter "FRS"). After she was diagnosed with a serious health condition, she was able to continue as a full-time employee by participating in the Department's sick leave pool. By November 2008 her family understood that she was terminally ill. About that time, she began alternating staying at the home of her son Brian Prince and at the home of her daughter and son-in- law Wendy and Harrison T. Rivers. During the first week of November 2008, her son, daughter, and son-in-law began discussing whether she should retire rather than remaining in full-pay status. Harrison T. Rivers asked his father Harrison W. Rivers for advice since his father was a retired member of FRS. His father told him that Linda Prince should retire right away under Option 2 since that would guarantee a 10-year payout. One of the persons that Harrison T. Rivers contacted for advice referred him to Annie Lamb, a Personnel Services Specialist at FDLE. He remembers asking her about Option 2 and understood her to tell him that Option 2 required having a spouse or other dependents. She does not recall the conversation. When Harrison T. Rivers conveyed his understanding to Brian Prince, Brian requested that a meeting be set up at FDLE's Personnel Office. The two men met with Samantha Andrews, a different FDLE Personnel Services Specialist, near the end of 2008. All three persons attending the meeting recall that they discussed the sick leave pool, and the two men were assured that there were enough donations to the sick leave pool to cover Linda Prince's continuing need. The attendees at the meeting have different recollections of the other matters discussed. The two men believe they discussed Option 2 and that Samantha Andrews called across the hall to Annie Lamb who confirmed that Option 2 required a spouse. Lamb recalls Andrews asking her a question but does not remember what the question was. Andrews does not recall asking Lamb a question and further does not recall discussing the retirement options at the meeting. At the final hearing, Andrews admitted that she did not understand the differences among the four retirement options until after Linda Prince's death and that before then she thought that one had to be a spouse or a dependent child to be a beneficiary. Andrews' impression of the meeting is that Linda Prince's children wanted to be sure she remained in full- pay status through the sick leave pool to increase her income and keep her benefits available and at a reasonable cost. After this meeting, Linda Prince remained on full-pay employment status. As a result, she received (1) her full salary rather than a reduced retirement amount, (2) health insurance at a cost of $25 bi-weekly, and (3) a $44,000 life insurance policy at the cost of $2 bi-weekly. If she had retired, she would have had to pay nearly $500 a month for the health insurance and would have lost her $44,000 life insurance policy. Instead, she would have had the option of purchasing either a $10,000 or $2,500 life insurance policy for $29.65 or $7.41 a pay period, respectively. On January 10, 2009, Harrison W. Rivers was visiting at his son's home while Linda Prince was staying there. In a conversation with her, he was surprised to learn that she had not retired as he had strongly advised two months earlier. When he later questioned his son as to why she had not retired, his son told him because she did not have a spouse. Harrison W. Rivers told his son that that information was not correct. On January 20, 2009, Harrison W. Rivers met with his own financial advisor David A. Wengert and relayed the information his son had given him. Wengert agreed with Rivers that the information about a spouse or dependent child was not correct but checked with a contact he had at the Department of Corrections. That person confirmed that the spouse or dependent child requirement did not apply to Option 2 and faxed the necessary forms for retiring under Option 2 to Wengert who gave them to Rivers. Harrison W. Rivers gave the folder from Wengert containing the correct information and required forms to his son and told his son to retire Linda Prince immediately. His son subsequently called Brian Prince, gave him the correct information, and told him that Linda Prince should retire. Brian Prince agreed but was out of town at the time. On February 11, 2009, Harrison T. Rivers drove Annie Lamb from FDLE to where Linda Prince was staying. The forms were completed and signed, and Lamb notarized Linda Prince's signature. The forms provided for Linda Prince to take early retirement under Option 2 with Brian Prince and Wendy Rivers as her equal beneficiaries. The forms were filed with Respondent, the Department of Management Services, Division of Retirement, the same day. The forms she signed selected February 28, 2009, as Linda Prince's termination of employment date. A termination date of February 28, 2009, resulted in a March 1, 2009, retirement date. Linda Prince died on February 14, 2009. On that date, she was still in full-pay status since she had not terminated her employment and retired. Option 2 under the FRS system provides a reduced monthly benefit payable for the member's lifetime, but if the member dies within ten years after his or her retirement date, the designated beneficiary receives a monthly benefit in the same amount for the balance of the ten-year period, and then no further benefits are payable. Option 1 provides for monthly payments for the member's lifetime, and upon the member's death, no further monthly benefits are payable. It, therefore, pays no continuing benefits to a beneficiary. Options 3 and 4 provide for joint annuitants and reduced monthly benefits. Under Option 3, upon the member's death, the joint annuitant, who must be a spouse or a financial dependent, will receive a lifetime monthly benefit payment in the same amount, but there are limitations on the amount and length of those payments for a joint annuitant under 25 who is not a spouse. Option 4 provides an adjusted monthly benefit while the member and the joint annuitant are living, a further reduced monthly benefit after the death of either the member or the joint annuitant, with adjustments if the joint annuitant is under the age of 25 and not a spouse. No benefits are payable after both the member and the joint annuitant are deceased. Thus, only Options 3 and 4 require a spouse or financial dependent in order for continuing benefits to be paid after the member's death. Upon learning of her death, the Division of Retirement researched whether any benefits were due to Linda Prince or her beneficiaries. Since she had paid nothing into the FRS, there were no contributions to refund. Further, since she had not retired, no retirement benefits were payable to her or her beneficiaries. The Division also looked at the dates of birth of her beneficiaries to determine if a beneficiary would qualify as a joint annuitant, but both of her beneficiaries were over the age of 25. The only time that Linda Prince contacted the Division of Retirement was in 2002 when she sent an e-mail asking that her benefits be calculated as to what she would receive if she retired at age 62. The Division performed the calculations and sent her the information as to what her benefits would be under Options 1 and 2. Her file contains her e-mail, the benefits estimates sent to her, and a copy of an informational retirement brochure. Information on the FRS, including descriptions of the Options, has been available on the Division's website, in employee handbooks available from the Division, and was available in written form in FDLE's Personnel Office on the day that Brian Prince and Harrison T. Rivers met with Samantha Andrews. During that meeting, neither Brian Prince nor Harrison T. Rivers requested a copy of the employee handbook or any written materials describing the Options for retirement. Because of Petitioners' estoppel argument, the chronology in this case must be closely reviewed. At least until early November 2008, Linda Prince had made her decision to stay on full-pay status to receive her full salary and benefits rather than take early retirement. In early November, her son, daughter, and son-in-law became involved in that decision. In early November, her son-in-law understood an FDLE employee to say that Linda Prince needed a spouse or financial dependent to qualify for continuing retirement benefits, but his father, who was a retired member of FRS, told him that information was wrong and that Option 2 would provide a ten-year continuing benefit for her beneficiaries. No contact was made on her behalf with the Division of Retirement to ascertain which information was correct. On January 10, 2009, Harrison W. Rivers, upon learning that Linda Prince was still not retired, again told his son that she should be retired under Option 2 and that his son's understanding that she needed a spouse or financial dependent was wrong. Again, no contact was made with the Division of Retirement. On January 20, 2009, Harrison W. Rivers obtained the written information and required forms. Within a few days he gave the information and forms to his son and told him again to see to it that Linda Prince was retired immediately. Yet, the forms were not executed and filed with the Division of Retirement until February 11, 2009. Had Linda Prince or anyone on her behalf contacted the Division of Retirement to clarify which information was correct once they had conflicting information the first week of November 2008, she could have retired starting December 1. Had Linda Prince or anyone on her behalf submitted her application for retirement when Harrison W. Rivers provided the correct information and forms to use in January 2009, she could have retired then with a February 1 retirement date. Even though Petitioners offered evidence to show that they relied upon erroneous information conveyed by Harrison T. Rivers and even though they offered evidence that they received erroneous information from Samantha Andrews, it would have been clear to a reasonable person that such information conflicted with the information given by Harrison W. Rivers, who had gone through the process. Further, in January when Rivers gave them the correct written information and the forms to use, there was no basis for relying upon the erroneous information. If Petitioners had acted to clarify the previous conflicting information or had not delayed in having Linda Prince execute the forms when Rivers provided them, they would have retired her before her death and would have been entitled to continuing benefits. Whatever circumstances caused the further delay in the filing of Linda Prince's application for retirement and supporting documentation, the delay was not caused by the information, erroneous or not, provided by the FDLE employees. Accordingly, Linda Prince was still a full-time employee at the time of her death not as a result of erroneous information provided by FDLE employees as alleged by Petitioners, but as a result of delay in obtaining the easily- accessible correct information from the Division of Retirement and as a result of delay in acting on the correct information when it was provided to them. There are over 960 agencies, including state departments and local governments and school boards, which participate in the FRS. The employer and employee handbooks distributed to those agencies and their employees by the Division of Retirement clearly state that representatives of participating agencies are not the agents of the Division of Retirement but rather only act as a link between employees and the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioners ineligible for an Option 2 benefit from the FRS retirement account of Linda Prince. DONE AND ENTERED this 10th day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 10th day of August, 2009. COPIES FURNISHED: Brian Prince 1063 Walden Road Tallahassee, Florida 32317 Harrison Rivers 4211 Camden Road Tallahassee, Florida 32303 Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 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, Suite 160 Tallahassee, Florida 32399-0950
