The Issue Whether Petitioner's application for disability retirement benefits should be reinstated.
Findings Of Fact Petitioner Edna Shepherd is a member of the Florida Retirement System. In September 2001, Ms. Shepherd submitted an application for disability retirement benefits to the Division of Retirement. The application was not complete and several documents were needed to process the application. By letter dated September 27, 2001, the Division wrote Ms. Shepherd acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application. Petitioner did not respond to the September 27, 2001, letter, so the Division mailed another request on October 29, 2001. Again two blank FR-13bs were included with the letter. On November 29, 2001, the Division mailed a third request for information to Petitioner. Blank forms were also included with this letter. By letter dated January 3, 2002, the Division mailed a fourth request to Ms. Shepherd again requesting information necessary to complete her application for disability retirement benefits. After the Division did not receive a response to its previous letters mailed to Petitioner, it sent a letter dated February 4, 2002, by certified mail to Ms. Shepherd advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Finally, after more than six months since submission of her application, the Division sent a letter dated March 25, 2002, by certified mail to Ms. Shepherd notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter and this timely appeal followed. Petitioner's attorney made two submissions to the Division dated September 14, 2001, and February 22, 2002; however, they did not contain the requested physician statements. As of the hearing, the requested physician statements still had not been supplied to the Division. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement issue a Final Order denying the request of Petitioner Edna M. Shepherd to reinstate her disability retirement application. DONE AND ENTERED this 18th day of September, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of September, 2002. COPIES FURNISHED: Leon M. Boyajan, II, Esquire 2303 West Highway 44 Inverness, Florida 34453-3809 Thomas E. Wright, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
Findings Of Fact Petitioner and Respondent agreed to the following facts: On November 23, 1975, Herschel and Audi Motes, a deputy sheriff with the Putnam County Sheriff's Department, died of a heart attack while arresting an individual who struggled with the arresting Louise Motes, Petitioner in this cause, was married to Herschel Audi Motes at the time of his death, thereby becoming his widow. Mrs. Motes remains unmarried to date and is qualified as to her status for all of the rights and benefits granted January 21, 1976, Sheriff E.W. Pellicer wrote a letter to the Department of Administration, Division of Personnel and Retirement, furnishing the Department with the record of Mr. Motes' salary, contributions to the retirement fund, together with the dates of his employment. The letter concluded by stating, "I would appreciate hearing from you at an early date and if anything further is needed, please advise." The letter was signed by E.W. Pellicer, Sheriff, Putnam County, Florida. On March 10, 1976, Mrs. Motes received a letter from Marjorie B. Smith, Retirement Benefits Specialist, with the letter showing a copy to Mr. E.W. Pellicer. The letter stated as follows: "As the designated beneficiary and surviving spouse of Herschel A. Motes, who died November 23, 1975, you are entitled to the refund of the accumulated retirement contributions which amount to $4,325.69 or the Option 3 monthly retirement benefit. If you desire the refund of the contributions, you should execute a request for refund, form . . . which must be completed in the personnel office of the Putnam County Sheriff's Department If you prefer the Option 3 monthly retirement benefit, which has been computed to be $125.29 based on 18.30 years of service, you should execute the enclosed form FST-11b on which a single beneficiary must be designated and send your personal remittance in the amount of $1,089.23 made payable to the Florida Retirement System. This payment is necessary to allow credit for four years of military service, service rendered from April through August 1963, and complete payment of the necessary contributions for the 1963-64 and 1964-65 years. This monthly benefit, if elected instead of the refund, is a lifetime income which will continue even though you should remarry. In the event of your death prior to receiving in monthly benefits an amount equal to the total accumulated retirement contributions, any contribution on deposit in excess of the total monthly benefits paid will be refunded to your beneficiary. Please let us know if we may be of further assistance." (emphasis added). Enclosed with this letter was form FST-11b which is an "Application of Beneficiary for Monthly Benefits." The form. Joint Exhibit I, contained no reference whatsoever to any rights or benefits under Section 121.091(7)(c)(1), Florida Statutes (the death in the line of duty benefits). Either the Division of Retirement or a Mrs. Key, with the Sheriff's Office of Putnam County, had filled in the blank portions of the first sentence of the form by writing "121" and "3" in the blanks where the form states "Chapter 121, Option 3." The remainder of the form is typed in except for the signature of Louise A. Motes. After filing the "application" through the Putnam County Sheriff's Office, and receiving her first benefit check, Mrs. Motes had a conversation with a Mr. Ronald Clark of Palatka, Florida, about workmens' compensation comprehension benefits. As a result of that conversation, she went to an attorney, who filed a workmens' compensation claim for her. Sometime thereafter, Mrs. Motes was going through some of her husband's papers, which were contained in a filing cabinet at the Sheriff's Office, which her sons brought home. In those papers, she found a newspaper article that Mr. Motes had cut out and saved which told about the death in the line of duty benefits, a copy of the newspaper articles is attached to and made part of Joint Exhibit K. In response thereto, Mrs. Motes went back to the attorney who had filed her workmens' compensation claim and inquired about the "death in the line of duty retirement benefits" of Section 121.091(7)(c), Florida Statutes. At no time prior to or during her filing out the "application" from the State of Florida, Bureau of Retirement, was she informed by anyone that she might possibly entitled to higher benefits because of the manner in which her husband died. At no time prior to filling out the retirement "application" did she have any actual knowledge that the State paid benefits other than those benefits which had been presented to her which were listed on said application. At no time did the Sheriff's Office inform her that she had any possibility of benefits other than the benefits listed on the above stated State of Florida, Bureau of Retirement, application form. By letter of November 7, 1977, Steven S. Mathues, Assistant Division Attorney for the Division of Retirement, Department of Administration, informed Ms. Jill Brown (the attorney for Mrs. Motes who began the original inquiry as to obtaining the "death in the line of duty benefits"), that " . . . it is this Division's position that all retirement benefits and options become fixed when the first warrant is cashed. However, it would appear that under Chapter 120, Florida Statutes, your client would have a right to challenge this position . . . . As I see it, the issue would be whether Mrs. Motes' notarized application . . . and continued acceptance of benefits would estop her from now attempting to change the benefit " Thereafter, Mrs. Motes' case was referred to Mr. Maynard, who after several conferences with Mr. Mathues, the attorney for the Division of Retirement, filed a Petition for Administrative Hearing on Mrs. Motes' behalf, alleging, among other things, that Herschel Audi Motes was killed in the line of duty within the meaning of Section 121.091(7)(c)(1), Florida Statutes. The petition also alleged that the Division's "policy" that as of the moment Mrs. Motes had cashed one of her benefit checks her retirement benefits had vested and could not be changed by her subsequent to that event was within the definition of a rule as defined by Section 120.54(14), Florida Statutes, and that the Division of Retirement had never promulgated such a rule in accord with the procedures required by Chapter 120. Depositions were taken in Daytona, Palatka, and Tallahassee on the issue of whether or not Mr. Motes had been "killed in the line of duty." Subsequent to those depositions, Mr. Mathues informed Petitioner that the Division of Retirement no longer wanted to contest the in line of duty issue. Thereafter, Mr. Mathues and Mr. Maynard, attorney for Petitioner, executed a "Joint Motion for Continuance" which states as follows: "1. The parties have settled all of the questions which relate to the issue of whether Herschel Audi Motes, his widow, to the in line of duty death benefits provided in Chapter121, Florida Statues. The only remaining issue in dispute is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided in Chapter 121, Florida Statutes, because she has been cashing her benefit checks since 1975. The remaining issue is solely a legal issue and does not require any testimony by witnesses, with the possible exception of testimony by Mrs. Motes and/or affidavits from Mrs. Motes and the Putnam County Sheriff's Office if the parties cannot agree to a stipulation of facts. Therefore, this issue can be argued by the undersigned attorneys for the parties in Tallahassee, Florida, at the time and place stated above." The Joint Motion was signed by both Mr. Maynard and Mr. Mathues. In response to that Motion, the hearing officer promulgated an Order entitled "Order of Continuance" which stated: "The parties in the above styled cause have filed a Joint Motion for Continuance of the hearing from February 15, 1979, at 1:00 p.m. in Palatka, Florida, to February 26, 1979, at 10:00 a.m., in Room 103, Collins Building, in Tallahassee, Florida. The Motion is granted. Done and Ordered this 12th day of February, 1979, in Tallahassee, Leon County, Florida." With the Division of Retirement, Department of Administration, no longer contesting the in line of duty issue, a final hearing was held on February 26, 1979, on the only remaining issue in dispute which is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided by Chapter 121, Florida Statutes, because she has been cashing retirement benefit checks since 1975. The issue as to whether Petitioner's husband died in such a manner as to entitle her to in-line-of-duty death benefits has been settled by agreement of the parties in Petitioner's favor. This Administrative Hearing was held to resolve the issue of whether Petitioner waived her right to the in-line-of-duty death benefits provided in Section 121.091(7)(c)(1), Florida Statutes, inasmuch as she has been cashing benefit checks awarded her pursuant to Section 121.091(6)(a)(3). Inquiry to the Respondent as to subject retirement claim was made by Petitioner, Louise Motes, when she became aware of the possibility of her entitlement to in-line-of-duty death benefits. No rules have been promulgated in relation to Section 121.091(7) Death benefits, although Rule 22B-4.10(5) was promulgated in 1972 (amended 1974) under authority of Section 212.091(6), Florida Statutes.
Recommendation Deny the request of Petitioner to change the retirement benefits she now receives to in-line-of-duty death benefits provided in Chapter 121, Florida Statutes. DONE and ORDERED this 1st day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stephen S. Mathues, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32301 Zollie M. Maynard, Esquire 502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT LOUISE MOTES, Petitioner, vs. DOAH Case NO. 78-2105 DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.
Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was 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. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 10th day of July, 2006.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Waltraud E. Paehler, was a classroom teacher in the Clay County public school system until 1993, and says she had a total of nineteen years of service. During that time period, she participated in the Florida Retirement System, which is administered by respondent, Division of Retirement (Division). In 1992, petitioner was suffering from a number of illnesses, including chronic kidney failure and congestive heart failure, which impaired her ability to continue working as a teacher. She also suffered from depression. These conditions continued into 1993. During this time period, she was hospitalized on at least two occasions. Because her work was very stressful, and tended to exacerbate her medical condition, petitioner accepted her physician's advice and decided to resign her teaching position effective April 14, 1993. On April 21, 1993, or a week later, she executed her application for retirement and opted to take early retirement effective May 1, 1993, when she was fifty-four years of age. Even though the local school board had periodically distributed information booklets to all teachers, including petitioner, concerning early, normal and disability types of retirement, and the various retirement options were discussed annually at each school's in-service training seminar, petitioner says she was still unaware of the disability retirement option. Thus, she elected to take early retirement on April 21, 1993. Because of her age, her retirement benefits were reduced by forty percent, or five percent for each year under the normal retirement age of sixty-two. Assuming she was qualified, had she elected to take disability retirement, there would have been no penalty because of her age. At or about the time petitioner decided to resign her teaching position, her daughter, who was assisting petitioner in her personal affairs, telephoned the local school board in an effort to ascertain potential retirement options for her mother. She spoke with an unknown individual in the school personnel office who the daughter says was not "very knowledgeable." The two discussed "in general what (her) mother could do" with respect to retirement, but the daughter says she received no specifics other than the fact that her mother would be "entitled to partial pay." She also requested that an application for service retirement form be mailed to her mother. The daughter then relayed this sketchy information to her mother. Because of financial constraints, and in order to receive her benefits immediately, petitioner decided to take early retirement rather than wait until normal retirement age. After selecting the option 1 benefit, which entitled her to benefits for her lifetime only, petitioner carried the form to her school's personnel office where she executed it on April 21, 1993, before the principal's secretary, a notary public. Although the secretary could not recall the specific event, she affirmed that she would not allow anyone to sign a document who did not appear to be competent. In selecting option 1, which gave the highest monthly benefits for early retirement, petitioner acknowledged she understood the ramifications of making that choice when she did so on April 21, 1993. Thus, on that date she possessed sufficient mental capacity to know that these benefits would last only during her lifetime, and her daughters would not receive any benefits after her death. At final hearing she confirmed that, prior to executing the form, she had reviewed the various options under early retirement and selected the first option since she "figure(d) (she had) done enough for them all (of her) life, they can take care of themselves." In June 1994, petitioner read an article in a teacher trade publication and learned that a number of states offered disability retirement as an option and did not penalize retirees for early retirement due to a disability. This article prompted petitioner the following month to write a letter to the Division. When petitioner made inquiry with the Division in July 1994 concerning a change from early (service) to disability retirement, she was told that under Rule 60S-4.002(4), Florida Administrative Code, she could not do so after cashing her first check. By then, petitioner had long since cashed the first retirement check mailed to her at the end of May 1993. That advice prompted her to eventually challenge the Division's rejection of her claim on the theory that she was "incapacitated" when she made her decision to take early retirement. In support of her contention that in 1993 she lacked the necessary mental capacity to make a reasoned decision concerning her retirement, petitioner presented the testimony of three health professionals from whom she was receiving care in 1993. Their deposition testimony is found in petitioner's exhibits 1-3 received in evidence. Dr. Hardin, a family physician, was petitioner's primary treating physician from February 1992 until April 1993. In the spring of 1993, he recalled petitioner as being "confused," "in an imbalanced state," suffering "mental duress," dependent on explicit instructions for appointments, and taking a variety of prescribed medications for tobacco cessation, chronic renal failure, congestive cardiac condition, high blood pressure, cardiomyopathy, tremors, anxiety and migraine headaches. Because of these conditions, Dr. Hardin found it difficult to believe that she could "handle" a more complicated matter such as choosing a retirement option. Dr. Hardin acknowledged, however, that during the spring of 1993, he had little chance "to follow her" since another physician, Dr. Stoneburner, was managing petitioner's most important illness, renal failure. Dr. Stoneburner, a nephrologist and internist who has treated petitioner for a kidney disease since 1985, felt that in the spring of 1993 she "was not in a very good position to make a competent decision based on her emotional state." Just prior to her retirement, he observed petitioner as having "significant depression" and "a lack of desire to work." She was also taking as many as six or seven medications at one time which could "possibly" cause "someone to be confused." Based on these circumstances, Dr. Stoneburner opined that petitioner was not competent to make a rational judgment. However, Dr. Stoneburner conceded that if petitioner had been given retirement options explained in layman's terms, and had someone to assist her in explaining the various options, she could have made an intelligent decision. Kristina Crenshaw, a licensed mental health counselor, met with petitioner on four occasions between February 18 and April 12, 1993. Ms. Crenshaw found petitioner to have "significant difficulty with depression," in an "agitated, very stressed, (and) overwhelmed" condition, and with a "strong sense of uncertainty about her future." While the witness believed that petitioner would have understood a pamphlet describing her retirement options, she would not have "necessarily understood all the implications to her own personal life." The witness agreed, however, that once petitioner made a decision to resign her job, she seemed more "upbeat" and "positive." Further, petitioner had told her by telephone on April 15, 1993, that she felt "much better" after retiring from her job. The counselor did not know if petitioner was mentally competent when she opted for early retirement a week later. Nothwithstanding the testimony of the health professionals, the findings in paragraph 7 are deemed to be more compelling on the critical issue of competency, and it is found that on April 21, 1993, petitioner understood the nature and consequences of her acts, and she was capable of binding herself by the retirement application. Therefore, her request to have rule 60S-4.002(4) waived, or to have her "contract" with the Division set aside, should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a Final Order determining that petitioner was mentally competent when she elected to take early retirement and that her request to have rule 60S-4.0002(4) waived so as to permit her to file a request for disability retirement be denied. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4841 Petitioner: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 12. 4-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-9. Partially accepted in finding of fact 4. 10-11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. 14-20. Partially accepted in finding of fact 12. 21-24. Partially accepted in finding of fact 11. 25-31. Partially accepted in finding of fact 13. 32-37. Partially accepted in finding of fact 6. 38-39. Partially accepted in finding of fact 5. 40. Covered in preliminary statement. 41-43. Rejected as being unnecessary. Respondent: Rejected since the evidence shows that petitioner was employed by the Clay County School Board and not the Duval County School Board. Also, the only evidence of record as to years of service is the testimony of petitioner that she had nineteen years of service. However, this fact is not necessary to resolve the dispute. Partially accepted in finding of fact 8. Partially accepted in findings of fact 8 and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 6-7. Partially accepted in finding of fact 12. 8-9. Partially accepted in finding of fact 11. 10-12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Rejected as being unnecessary. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for the resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Mark H. Levine, Esquire 245 East Virginia Street Tallahassee, Florida 32301-1263 Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Petitioner, Timothy Green (Green), was born on April 19, 1941. Green was employed by Manatee County as a Highway Maintenance Technician on March 26, 1966. As a Highway Maintenance Technician, Green cleared ditches, brush and culverts. He also installed storm drainage pipe and operated chain saws and related tools. On September 24, 1984, Green was terminated from his job because of his inability to perform his assigned duties. Green referred to his termination as a "retirement." Having been promoted to Highway Maintenance Technician II, Green was earning $1,016.01 per month gross pay at the time he was terminated. He had accumulated 18.40 years of creditable service under the Florida Retirement System (FRS). Green is unable to read and has had no formal schooling other than the attendance of what he describes as "opportunity classes all his life." Green has not been found by any court to be incompetent to handle his personal affairs and generally paid his personal bills through money orders he purchased at convenience stores. However, Green's mental capabilities and ability to communicate are obviously quite limited, and his more complicated personal affairs were handled by his mother and sister. On September 28, 1984, Green sought out and met with Mr. A1 Chandler, Records Manager for Manatee County, at Chandler's office. Green thought that Manatee County already had "retired" him because of his disability and just wanted to get his retirement benefits. He did not understand the various optional benefits available to him as a member of the FRS. Green was able to communicate to Chandler only that he wanted to get all his money from retirement, or words to that effect. Chandler interpreted those words to mean that Green wanted to withdraw his contributions to the system. Based on his general familiarity with the FRS, Chandler discouraged Green from doing what he believed Green wanted to do (i.e.. withdraw his contributions from the system). Chandler believed intuitively that Green should not withdraw his contributions because he had accumulated 18.40 years of creditable service under the FRS. Chandler understood that Green's years of creditable service would entitle him to favorable benefits upon normal retirement at age 62. He therefore advised Green to wait and not to withdraw the contributions. Green, who never clearly understood the difference between getting his money (or benefits) out of the retirement system and withdrawing his contributions to the retirement system, decided that he did not want to wait as Chandler advised. Accordingly, Chandler gave Green a form to request a refund of his contributions to the FRS, and Green signed the form. The Request For Refund Form FRS-M81 Green signed contains the following information above his signature: TO THE DIVISION OF RETIREMENT: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. However, Green could not read the refund language. He did not think there was any reason to ask Chandler to read it to him, and Chandler did not read it or explain it to him. Neither Chandler nor anyone else fully explained to Green what optional benefits he might be entitled to as a member of the Florida Retirement System other than to wait until normal retirement or withdraw his contributions. Specifically, neither Chandler nor anyone else explained to Green that his request for refund of his accumulated contributions would eliminate his right to apply for disability retirement benefits. In fact, on that same day, September 28, 1984, Green began completing an application for disability retirement benefits. On October 2, 1984, Green's Statement Of Disability By Employer was received by Manatee County's Personnel Office. The form was completed by Green's former immediate supervisors. On October 3, 1984, Green's Request For A Refund Form FRS-M81 was mailed to Respondent, Department of Administration, Division of Retirement (Division) by Manatee County. Sometime between October 18, 1984 and November 20, 1984, Green's completed Florida Retirement System Application For Disability Retirement, with his Statement Disability By Employer, was sent to and received by the Division. On October 29, 1984 the Division sent Green the refund of his accumulated contributions totaling $1,686.52. Until Green received the refund, he expected to receive monthly checks. When he received the refund, Green realized for the first time that he would not be receiving monthly checks and that his lump sum check would be in the amount of only $1,686.52. Green never had any actual intent to relinquish his right to apply for disability retirement benefits from the FRS.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent Department of Administration, Division of Retirement: (1) enter a final order granting the Petition For Formal Proceedings in this case and determining that Petitioner, Timothy Green, has not waived his right to apply for disability retirement benefits: and (2) process the application of Petitioner, Timothy Green, for disability retirement benefits. RECOMMENDED this 4th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1985.
The Issue The central issue is whether the Petitioner is entitled to modify her deceased husband's retirement benefit option.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact. Petitioner is the surviving spouse of Lamar W. Whaley, Jr., deceased. From 1972 to 1990, Mr. Whaley was employed by the Hillsborough County Board of County Commissioners (Board) and as such was a member of the Florida Retirement System. Mr. Whaley retired from his position as a minibus driver with the Board on June 29, 1990. In anticipation of his retirement, Mr. Whaley filed an FR-9 Form with the Division of Retirement (Division). The FR-9 Form, entitled "Request for Audit," was signed by Mr. Whaley and dated November 6, 1989. The FR-9 Form is used by members of the Florida Retirement System who want estimates of the monthly payments which they will receive after they retire. The FR-9 Form provided a space where Mr. Whaley could list the name and birthdate of a joint annuitant. On the FR-9 Form, Mr. Whaley named the Petitioner and the Petitioner's birthdate in these spaces. On the line immediately after the spaces provided for name and birthdate of the joint annuitant, the FR-9 expressly states that "This is not an official beneficiary designation." By listing a joint annuitant and that individual's birthday on the FR-9 Form, the Division is able to calculate the monthly benefits that would be payable to a member under each of the four retirement options available. In response to Mr. Whaley's audit request, the Division calculated the amount of the monthly payments he and/or his survivor would receive under the four retirement options available. On or about November 22, 1989, the Division sent Mr. Whaley information which reflected an estimate of the monthly benefits he and/or his survivor would receive under each of the four retirement options from which he was eligible to select. Included with the estimate of retirement benefits sent to Mr. Whaley, was a document entitled, "What Retirement Option Should I Choose?". This information sheet listed sent to Mr. Whaley listed and described the four different options. In 1990, members of the Retirement System contemplating retirement were provided a Division Form FR-11, Florida Retirement System Application for Service Retirement (Application). The application listed the four different options and provided a brief description of each. Next to Option 1 was the following: "Benefit for the Member Only." A further notation on the application read, "SEE THE REVERSE SIDE FOR AN EXPLANATION OF THESE OPTIONS." The Application adequately described the consequences of the election of each option. The explanation read as follows: Option 1: A monthly benefit payable to you for your lifetime. This option does not provide continuing benefit to a beneficiary. Upon your death, the monthly benefit will stop and you beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. If you wish to provide a beneficiary with a continued monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial factors to the option 1 benefit. Option 2: A reduced monthly benefit payable to you for your lifetime. If you die before receiving 120 monthly benefit payments, your designated beneficiary will receive a monthly benefit payment in the same amount as you were receiving until the total monthly benefit payments to both you and your beneficiary equal 120 monthly payments. No further benefits are then payable. Option 3: A reduced monthly benefit payable to you for your lifetime. Upon your death, your joint annuitant (spouse or financial dependent), if living, will receive a lifetime monthly benefit payment in the same amount as you were receiving. No further benefits are payable after both you and your joint annuitant are deceased. Option 4: An adjusted monthly benefit payable to you while both you and your joint annuitant (spouse or financial dependent) are living. Upon the death of either you or your joint annuitant, the monthly benefit payable to the survivor is reduced to two- thirds of the monthly benefit you were receiving when both were living. No further benefits are payable after both you and your joint annuitant are deceased. (Emphasis in original text.) On January 12, 1990, Mr. Whaley executed an Application. The Application listed the Petitioner as beneficiary and indicated that the retirement option selected was Option 1. In selecting Option 1, Mr. Whaley rejected all other options. The fact that Petitioner was listed on the application as a beneficiary is of no consequence given that Mr. Whaley chose Option 1. An explanation on the back of the retirement application expressly states, "This option does not provide continuing benefit to a beneficiary." Because Mr. Whaley chose Option 1, Petitioner, as his beneficiary, would have been entitled only to a refund of Mr. Whaley's contributions in the event that Mr. Whaley's contribution exceeded the amount of monthly benefits paid to him before prior to his death. Petitioner did not assert, nor did the evidence establish that the refund provision in Option 1 applies in the instant case. Petitioner stated that Mr. Whaley could read and was not mentally impaired at the time he completed the retirement application, yet Petitioner testified that the agency did not explain to Mr. Whaley the benefits of the plan which he selected. According to the testimony of Stanley Colvin, administrator and supervisor of the Division's Survivor Benefits Section, staff members are available to provide counseling to members who come in or call with questions relative to their retirement. There is no record that Mr. Whaley ever contacted the Division with questions regarding the various options. The pastor of the church which Petitioner is a member testified that Mr. Whaley may have needed help to understand the ramifications of legal documents. Mr. Whaley's daughter also testified that her father may not have understood the retirement option he chose. Both the pastor and Mr. Whaley's daughter testified further that in conversations with Mr. Whaley, he had indicated to them that he had taken care of the legal work necessary to ensure that his was family was taken care of in the event of his death. Notwithstanding the testimony of Petitioner and others, there is no evidence that at the time Mr. Whaley selected Option 1 he did not fully understand the nature and effect of his selection. Neither does the evidence support the claim that the selection of Option 1 by Mr. Whaley was inconsistent with his desire or intention at the time the choice was made. At the time of Mr. Whaley's retirement, he was in good health. Given this fact it is not unusual that he selected the option that would provide him with the maximum monthly benefit. Statements by Mr. Whaley that he had taken care of matters and that "things were in order" do not provide substantial evidence that the selection of Option 1 by Mr. Whaley was made only because he did not fully understand the consequences of his choice. The testimony revealed that upon Mr. Whaley's death, the Petitioner was the beneficiary of his life insurance policy and also the recipient of benefits under his social security. Under these circumstances, Mr. Whaley's selection of Option 1 was not necessarily inconsistent with his statement that things "were in order" or his listing Petitioner as beneficiary on the Application. On several documents provided to and/or completed by Mr. Whaley, it was clearly stated that once a member begins to receive his benefit, the option selection cannot be changed. The information sheet, "What Retirement Option Should You Choose?," mailed to Mr. Whaley on or about November 22, 1989, contained the following provision: Option Choice Cannot Be Changed Once you begin to receive your benefit your option selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before making your decision . . . . The Application submitted to the Division by Mr. Whaley on or about January 25, 1990, contained a statement that "[o]nce you retire, you cannot add additional service nor change options." Finally, the Acknowledgment of Retirement Application sent to Mr. Whaley by the Division on or about February 8, 1990, provided in relevant part the following: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT CHECK IS CASHED OR DEPOSITED! Mr. Whaley received his first retirement check on or about the last working day in July 1990. Petitioner testified that Mr. Whaley cashed this check in July or August of that same year. By cashing that check, Mr. Whaley was precluded from thereafter changing his retirement option. By selecting Option 1, Mr. Whaley received the maximum benefits payable to him during his lifetime. However, under the provisions of retirement Option 1, upon Mr. Whaley's death, his beneficiary, the Petitioner is not entitled to receive any benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order denying the request of Petitioner to modify the retirement benefits elected by Mr. Whaley, the deceased husband of Petitioner. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 1st day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0059 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1a-1c. Rejected as not being supported by competent and substantial evidence. Respondent's Proposed Findings of Fact. 1-6. Accepted and incorporated herein. 7-8. Accepted. 9-11. Accepted and incorporated herein. COPIES FURNISHED: Gladys Whaley 3807 East Norfolk Street Tampa, Florida 33604 Robert B.Button, Esquire Division of Retirement Legal Office Cedars Executive Center-Building C 2639 North Monroe Street Tallahassee Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, Esquire General Counsel Department of Management Services 4050 Esplanade Way, Suite 265 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes. Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.
Findings Of Fact Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2) Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties) Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)
Recommendation That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Theron J. Owen 818 San Juan Boulevard Orlando, Florida 32807 L. Keith Pafford, Esquire Division Attorney Division of Retirement Department of Administration Cedars Executive Center2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner, William Bright, is entitled to receive retirement benefits of his deceased son, Ronald Bright.
Findings Of Fact Petitioner, William Bright (Petitioner/William Bright), is the 84-year-old father and beneficiary of Ronald Bright. Ronald Bright was an employee of Brevard County with approximately 29.5 years of creditable service in the Florida Retirement System (FRS), which is administered by the Division. Ronald Bright was diagnosed with lung cancer in December 2001, and two months later, he underwent surgery to have a lung removed. Thereafter, he received radiation treatments and chemotherapy. Despite his being diagnosed and treated for cancer, Ronald Bright was optimistic about his future and continued to work part-time for the Brevard County Planning Department. In October 2002, Ronald Bright entered the hospital and underwent further surgery, when it was determined that his cancer had spread to his colon. After five days in the hospital, he was placed in intensive care. On October 28, 2002, William Bright first learned from Ronald Bright's doctor that his son was terminally ill. That same day, Joanne Adams, Ronald Bright's supervisor in the Brevard County Planning Department, also first learned that Ronald Bright was terminally ill. Upon learning that his son, Ronald Bright, was terminally ill, Petitioner requested a meeting with the Brevard County Human Resources Department (Human Resources) staff to discuss and apply for disability retirement benefits on behalf of his son. The meeting was held on October 31, 2002, in the office of Human Resources. In addition to Petitioner, Joanne Adams, Fannie Gray, and other Brevard County staff attended the meeting. Kathryn Patterson was the primary person in Human Resources charged with the responsibility for assisting employees in filing for retirement benefits, including disability retirement benefits. However, Ms. Patterson did not attend the October 31, 2003, meeting because she was on leave that day. In Ms. Patterson's absence, Fannie Gray, who 12 years before had primary responsibility for assisting employees with retirement applications, provided disability retirement application forms for Ronald Bright to Petitioner. The package of forms Ms. Gray provided to Petitioner on October 31, 2001, did not include an FRS-11o form, Option Selection Form (FRS-11o form). During the October 31, 2002, meeting, Petitioner executed the forms, including the disability retirement application, that were provided to him. These forms were completed by Petitioner pursuant to the durable power of attorney executed by Ronald Bright on March 26, 2003, three months after he was diagnosed with cancer. On October 31, 2002, Ms. Gray faxed to the Division the disability retirement application package for Ronald Bright. The fax cover sheet contained a handwritten legend that said: "This is urgent[.] Thank you." On November 4, 2002, Ms. Patterson returned to work after a short period of leave. Upon her return, she called the Division and spoke with Frederica Edwards to confirm the receipt of Ronald Bright's disability application. Ms. Patterson was informed by Ms. Edwards that only part of the facsimile transmittal had been received. Apparently, the facsimile transmittal initially received and filed by the Division included only the signature page of the application, the facsimile cover sheet, and part of the power of attorney document. Ms. Patterson then immediately re-sent, by facsimile, the disability application, the power of attorney, and the previously-submitted cover sheet with the original handwritten notation, "This is urgent[.]" The disability application package that was re-sent to the Division by facsimile on November 4, 2002, did not include the FRS-11o form. Although the FRS-11o form, could have been filed at the same time as the application, that form was not required for the Division to determine if Ronald Bright was eligible for disability retirement. On November 5, 2002, Frederica Edwards sent a letter to Ronald Bright at his home address informing him that two physician statements were required to make a disability determination. The letter further advised him of items that would be required if the application was approved, including an FRS-11o form. Blank copies of all of the forms mentioned were included with the letter. On November 5, 2002, the same day the Division sent the letter and forms described in paragraph 14, the Human Resource staff sent, by facsimile, one physician report to the Division. That physician's report, completed by Dr. Acosta noted that "[T]his patient [Ronald Bright] is terminal." The following day, November 6, 2002, Human Resources received and faxed to the Division a second physician's statement which also attested to Ronald Bright's disability. Ronald Bright never received the letter and enclosed forms sent out by the Division on November 5, 2002, because he was confined to the hospital, where he remained until his death on November 9, 2002. On November 14, 2002, Ms. Patterson called Ms. Howell and inquired about the status of the application. Ms. Howell informed Ms. Patterson that everything needed for a disability determination had been received. Notice was also given to Ms. Howell of Ronald Bright's passing. Based on this telephone conversation with Ms. Howell, the Human Resources staff believed that all information required to process Ronald Bright's disability retirement application had been received. On or about November 14 or 15, 2002, a few days after Ronald Bright's death, Petitioner received the November 5, 2002, letter from the Division and the forms included with it. The delay in receipt of the letter was because Petitioner had executed a mail-forwarding directive to the U.S. Postal Service, effective November 6, 2002, directing that all mail for his son be forwarded to Petitioner's residence. Upon receipt of the Division's November 5, 2002, letter and enclosed documents, Petitioner contacted Human Resources regarding the FRS-11o form. As he had done previously, Petitioner relied on Human Resources for assistance and guidance in the disability retirement application process. The FRS-11o form adopted, pursuant to Section 121.091(6), Florida Statutes (2001), provides for four options: Option 1 provides for full benefits for the life of the member; Option 2 is a reduced benefit for ten years with those benefits payable to a beneficiary in the event the member dies before the end of ten years; Option 3 applies to a deceased member who is survived by a joint annuitant, which is defined in Section 121.021(28), Florida Statutes (2001), as a spouse, or children, or a parent, or other person over age 25, for whom the member is the legal guardian and dependent upon the member for over one- half of his or her support; and Option 4 is applicable if there is a joint annuitant and the member desires to elect that the survivor of them would receive a reduced benefit of 66 and 2/3 percent. The FRS-11o form incorporates the following statements in its instructions: "What Retirement Option Should You Choose," which accompany the FRS-11o form. Under Option 2, it states: Option 2 would be particularly appropriate if you are in ill health and your beneficiary does not qualify as a joint annuitant. Anyone can be named as a beneficiary under Option 2, as well as charities, organizations, or your estate or trust. Ronald Bright was a single person who had never been married, had no children, and there was no parent for which he was legal guardian or who was dependent upon him for support. Due to his terminal condition and his family status, the only viable option on the FRS-11o form was Option 2, if an election was made. On October 28, 2002, when Ronald Bright knew that his condition was terminal, in a conversation with Petitioner and with his supervisor, Ms. Adams, he stated his intent that his father receive a ten-year payout of his retirement benefits in the event of his untimely death, which he knew to be imminent. On or about November 18, 2002, after talking to the Human Resources staff and reviewing the FRS-11o form, Petitioner executed the form election, as attorney-in-fact for Ronald Bright, choosing Option 2 benefits for Ronald Bright, with Petitioner as beneficiary. Human Resources then sent the executed FRS-11o form, by facsimile, to the Division. The FRS-11o form executed by Petitioner as attorney- in-fact, on November 18 or 19, 2002, was invalid as a matter of law, pursuant to Section 709.08(3)(b), Florida Statutes (2001), because it was executed after the death of Ronald Bright. On December 26, 2002, Ronald Bright's application for disability benefits was approved and his effective retirement date was November 1, 2002. However, after Ronald Bright's application was approved, the Division determined that the FRS-11o form, was executed after the death of Ronald Bright and was, therefore, invalid. As a result, no continuing benefit under Option 2 was available. On February 4, 2003, the Division officially denied Petitioner's request for payment of the Option 2 retirement benefits of Ronald Bright. The Division receives many disability retirement applications from FRS members that contain the word "Urgent," due to the fact that these members have terminated employment and may have no income. Because of this, employees in the Division's Disability Determination Section process applications with the notation "Urgent," or similar language, like any other application. The Division has no rules or procedures that address or govern expediency in processing disability applications where an FRS member is terminally ill. However, when the Division is notified by telephone, either by a member, a member's family, or an employer that an applicant is terminal and has only a short time to live, the Division's Disability Determination Section's practice is to process that application out-of-order. Because of the Division's practice of disregarding written notations indicating that a particular application is urgent, when the disability retirement application of Ronald Bright was faxed to the Division on October 31, 2002, and again on November 4, 2002, the Division took no special action regarding the application. Moreover, no special action was taken based on the physician's statement faxed to the Division on November 5, 2002, which noted that Ronald Bright was terminal. The Division is responsible for administering the provisions of Chapter 121, Florida Statutes (2001). In accordance with its duties, the Division, which has over 600,000 members, disseminates information handbooks and forms regarding retirement issues to members of the FRS. The Division also provides forms, information, handbooks, and training regarding retirement issues to governmental entities whose employees are a member of the Florida Retirement System. The Division also provides governmental employers with various publications, such as the Employer Handbook and various forms relative to retirement. The Employer Handbook was provided to and used by Brevard County. The introduction of the Employer Handbook contains the following on Page XIII: TO PAYROLL AND PERSONNEL OFFICERS You are the key link between the Division of Retirement and the employees of your organization to ensure that your employees receive information from the Division that informs them of their choices and rights under the Florida Retirement System (FRS) and that the permanent retirement records maintained by the Division are accurate, you must be thoroughly informed of FRS procedures. However, as agency representatives, you are not agents of the Division. The Division will be not be responsible for an erroneous information you may provide to members. Although the governmental employers are liaisons between the Division and FRS members, these entities are not considered agents of the Division.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement issue a final order denying benefits to Petitioner under Option 2. DONE AND ENTERED this 30th day of January, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 January, 2004. COPIES FURNISHED: Wayne L. Allen, Esquire Wayne L. Allen & Associates, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935-8865 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominquez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether Petitioner, Rina Richard DeMichael (“Petitioner”), the surviving spouse of David DeMichael, is entitled to change the Florida Retirement System (“FRS”) retirement benefits payment Option 1 selected by Mr. DeMichael.
Findings Of Fact Respondent is the state agency charged under chapter 121, Florida Statutes, with administering the FRS. In 1991, Mr. DeMichael began employment with the Broward County Sheriff’s Office (“BCSO”). Mr. DeMichael was a member of the FRS pension plan based on his employment with the BCSO as a deputy sheriff. Mr. DeMichael married Petitioner on November 19, 2011. On February 11, 2013, Mr. DeMichael retired from the BCSO. At that time, he signed the Florida Retirement System Pension Plan Application for Service Retirement form (“Application for Service Retirement Form”) designating Petitioner as his primary beneficiary. On February 11, 2013, Mr. DeMichael also signed the Florida Retirement System Pension Plan Option Selection for FRS Members form (Form FRS-110)(“Option Selection Form”). On the Option Selection Form, Mr. DeMichael was required to select one of four retirement benefit payment options. The Option Selection Form provided an explanation for each of the four options. Mr. DeMichael selected to receive an Option 1 retirement benefit by checking the line next to the Option 1 benefit payment option. Option 1 provides the maximum benefit for the life of the FRS member with no continuing benefit after the member’s death. On February 11, 2013, Petitioner signed the Spousal Acknowledgement Form (Form SA-1)(“Spousal Acknowledgement Form”) acknowledging that Mr. DeMichael “selected either Option 1 or 2.” The purpose of the Spousal Acknowledgement Form is to inform the spouse that he/she will not receive a lifetime benefit following the FRS member’s death. The Spousal Acknowledgement Form does not give a spouse control over which option the FRS member selects. That option selection decision is the sole choice of the member. The Spousal Acknowledgement Form provided an explanation of the four different retirement payment options available to FRS members. At the hearing, Petitioner acknowledged she signed the Spousal Acknowledgement Form. Ms. Tiffany Pieters was a duly licensed notary with the State of Florida and an employee of BCSO on February 11, 2013. Ms. Pieters notarized the Application for Service Retirement Form and Option Selection Form signed by Mr. DeMichael, and the Spousal Acknowledgement Form signed by Petitioner. The Division received Mr. DeMichael’s Application for Service Retirement Form, Option Selection Form, and Petitioner’s Spousal Acknowledgement Form on or about February 11, 2013. On February 20, 2013, Respondent mailed Mr. DeMichael an Acknowledgement of Service Retirement Application letter acknowledging Respondent’s receipt of Mr. DeMichael’s Application for Service Retirement Form; his selection of Option 1 as the benefit payment option; his employment termination date of February 11, 2013; and retirement date of March 1, 2013. The Acknowledgement of Service Retirement Application letter expressly provides that Mr. DeMichael cannot change the option he selected once his retirement becomes final, and that retirement benefits become final when any payment is cashed or deposited. Mr. DeMichael’s Application for Service Retirement Form and Option Selection Form also expressly provide that he cannot change the option he selected once his retirement becomes final, and that retirement benefits become final when any benefit payment is cashed or deposited. On February 20, 2013, Respondent also mailed Mr. DeMichael an Estimate of Retirement Benefit letter, which provides an estimate of the payment benefit for each of the four options. The letter also acknowledges that Mr. DeMichael selected Option 1, and that his option selection cannot be changed after any payment is cashed or deposited. On April 1, 2013, Respondent mailed a request for birth date verification to Mr. DeMichael. In response, on April 30, 2013, Respondent received Mr. DeMichael’s birth certificate. Based on his selection of Option 1, Mr. DeMichael received an initial retroactive payment of $7,809.76 on May 10, 2013; an initial regular retirement payment of $3,904.88 on May 31, 2013; and a subsequent retirement payment every month in 2013 in the monthly amount of $3,904.88. Mr. DeMichael received a retirement payment every month beginning May 2013 until he died on August 25, 2015. Mr. DeMichael received a total of 29 retirement payments for a total gross benefit amount of $119,832.92. Each retirement payment was cashed or deposited into Mr. DeMichael’s bank account. Respondent was notified of Mr. DeMichael’s death in August 2015. On or about October 6, 2015, Respondent notified Petitioner that Mr. DeMichael’s benefit had ended and that there would be no continuing benefit to her based on Mr. DeMichael’s Option 1 selection. In this proceeding, Petitioner claims she is entitled to change Mr. DeMichael’s Option 1 retirement benefit selection and receive a continuing monthly spousal benefit. In support of her position, Petitioner contends Mr. DeMichael’s selection of Option 1 is invalid because he lacked the mental capacity to make a retirement option at the time his Application for Service Retirement Form and Option Selection Form was submitted to Respondent. Based on the persuasive and credible evidence adduced at hearing, Petitioner failed to establish that Mr. DeMichael lacked the mental capacity to make a retirement option at the time his Application for Service Retirement Form and Option Selection Form were submitted to Respondent. No medical evidence was presented establishing that Mr. DeMichael was mentally incapacitated at the time he executed the Application for Service Retirement Form and Option Selection Form on February 11, 2013. In fact, Mr. DeMichael was released from Sunrise Detoxification Center on February 11, 2013, following in-patient rehabilitative treatment for his alcoholism. Petitioner’s Exhibit 7 expressly states that Mr. DeMichael “was medically stable for discharge” at 8:00 a.m. that morning. Moreover, Petitioner and Mr. DeMichael ate breakfast together later that morning at the BCSO cafeteria. Subsequently, Petitioner was escorted to the BCSO Internal Affairs area where she was questioned about Mr. DeMichael’s alcoholism. After Petitioner refused to answer any questions, she was escorted to the BCSO rooftop terrace. After a while, Mr. DeMichael came to the rooftop terrace. According to Petitioner, Mr. DeMichael was smiling and they exchanged pleasantries. After February 11, 2013, Mr. DeMichael continued to manage his own financial affairs, including his bank account. On April 1, 2013, Respondent sent a request to Mr. DeMichael to provide verification regarding his date of birth. In response, Mr. DeMichael sent his birth certificate to Respondent. Finally, at no time did Petitioner ever seek a guardianship or power of attorney over Mr. DeMichael, and at no time was Mr. DeMichael adjudicated incompetent by a court. Petitioner also claims that Mr. DeMichael’s selection of Option 1 is invalid and that she is entitled to a continuing benefit because she lacked the opportunity to read the Spousal Acknowledgement Form before signing it. Based on the persuasive and credible evidence adduced at hearing, Petitioner failed to establish that she lacked the opportunity to read the Spousal Acknowledgement Form before signing it. In support of her position, Petitioner testified at one point in the hearing that she only saw the area of the form near where she signed it. However, in the area of the form near where Petitioner signed (Respondent’s Exhibit No. 6) is the express “acknowledgement that the member has selected either Option 1 or 2.” At another point in the hearing, Petitioner testified she saw the small writing below her signature at the bottom of the Spousal Acknowledgement Form, but she did not read any of the writing. The small writing below Petitioner’s signature at the bottom of the form provides an explanation of the four retirement benefit payment options. Notably, Petitioner did not testify that she asked Ms. Pieters for any explanation of the Spousal Acknowledgement Form. Further, Petitioner did not testify that she needed or asked for more time to read the Spousal Acknowledgement Form before signing it, or that Ms. Pieters refused to allow her to read the form. Petitioner could have asked Ms. Pieters for more time to read the Spousal Acknowledgement Form if she felt it was necessary, but she did not. At no time did Petitioner ever file a complaint against Ms. Pieters or complain about her handling of the Spousal Acknowledgement Form. Had Petitioner been concerned about the Spousal Acknowledgement form or Mr. DeMichael’s mental capacity on February 11, 2013, she also could have spoken to Judy Cowell, Mr. DeMichael’s supervisor at BCSO. Ms. Cowell greeted Petitioner and Mr. DeMichael at the front office when they arrived at BCSO on the morning of February 11, 2013, and Ms. Cowell escorted them to the cafeteria and rooftop terrace. At hearing, Petitioner testified that Ms. Cowell “was like a mom,” and that she had spoken to her on numerous occasions when Mr. DeMichael had problems with his employment. At hearing, the undersigned had the distinct opportunity to observe Petitioner’s testimony and her demeanor. Petitioner’s testimony regarding Mr. DeMichael’s alleged mental incapacity on February 11, 2013, and her not having the opportunity to read the Spousal Acknowledgement Form and the alleged invalidity of the Spousal Acknowledgement Form, Option Selection Form, and Application for Service Retirement Form, is not credited and is rejected as unpersuasive. In sum, Petitioner is not entitled to change Mr. DeMichael’s selection of Option 1 as his FRS retirement benefits payment option and she is not entitled to a continuing benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to change the Florida Retirement System retirement benefits payment Option 1 selected by Mr. DeMichael and receive a continuing monthly spousal benefit. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 14th day of April, 2020. COPIES FURNISHED: James C. Casey, Esquire Law Offices of Slesnick and Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134 (eServed) Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Albert F. Cook, had a relationship with the Department of Corrections (DOC) at any time during the month of April, 1993, and if so, whether he was eligible to receive a retirement benefit for that month, as well.
Findings Of Fact The Petitioner was employed at times pertinent hereto by the Department of Corrections (DOC) at its Baker Correctional Institution facility. On February 19, 1993, he was notified of his transfer to the Florida State Prison, purportedly for disciplinary reasons. Upon learning of this eventuality, the Petitioner immediately went on sick leave. He maintains that it was duly- approved sick leave. No medical evidence to that effect was presented, but the Petitioner suggested that his illness might be of a psychiatric nature. He clearly was disgusted with the action taken by the DOC to transfer him. Subsequently thereto, he decided to apply for retirement, effective March 31, 1993. Shortly thereafter, he sought to have his retirement request rescinded or withdrawn; however, that request was denied. He was thereupon removed from the DOC payroll, effective March 31, 1993, essentially as a termination action. He received a retirement benefit check for the period of April 1-30, 1993 in the amount of $2,324.53 from the Division of Retirement. The Petitioner appealed the DOC employment action to the Public Employees Relations Commission and an administrative proceeding ensued. Ultimately, a settlement agreement was reached in that case which resulted in the Petitioner being allowed to resign, effective April 16, 1993, rather than suffer termination effective March 31, 1993. That agreement entered into by the parties in that case specifically stated that "the agency [DOC] will take whatever action is necessary to return the employee [Cook] to the payroll for the period between March 31, 1993 and April 16, 1993". The Division of Retirement was, of course, not a party to that agreement since it was not a party to the litigation involved. The agreement was incorporated into a Final Order issued by the Public Employees Relations Commission in Case No. CF-93-196, entered June 7, 1993. The Petitioner sent a letter to E.I. Perrin, the Superintendent of Florida State Prison, dated April 12, 1993, in which he stated "that if I am still on the payroll, I hereby resign my position with the Florida Department of Corrections effective April 16, 1993 . . .". According to attendance and leave reports signed by both the Petitioner and Marion Bronson, the Personnel Director of Florida State Prison, the Petitioner was on sick leave for the payroll period of March 26, 1993 through April 8, 1993. While the date of the Petitioner's signature on the relevant time sheet was April 8, 1993, the end of the pay period, the Petitioner testified that the time sheets had actually been submitted earlier. Attendance and leave reports for the following pay period indicated that the Petitioner continued on sick leave status through April 16, 1993. The time sheets for the latter period were not signed by the Petitioner but were signed by Marion Bronson. DOC ordered a manual payroll made up to record payment and to pay the Petitioner through April 16, 1993. He received a salary warrant for $1,234.43 for that period from April 1-16, 1993. That salary check and warrant reflects that retirement contributions were paid as to that April payroll period salary. Because he received additional retirement service credit and a new average final compensation as a result of being in a payroll status and being paid for the period of time in April 1993, the Petitioner's monthly retirement benefits actually now exceed what he would receive as retirement benefit payments had he not been compensated as an employee for his service through April 16, 1993. The Petitioner testified at hearing that he was terminated on March 31, 1993 and not re-hired. He further testified that he neither wanted nor expected payment from DOC for the period of March 31, 1993 through April 16, 1993 and that he "merely wanted to clear his name". Nevertheless, he entered into the settlement agreement which provided for him to be compensated and on payroll status through April 16, 1993, when he entered into the settlement with DOC in the proceeding before the Public Employees Relations Commission. He is presumed to have full knowledge of the content of that settlement agreement, and it reflects that he freely and voluntarily entered into it, as does his testimony. According to Mr. Bronson's testimony, during the relevant period from March 31, 1993 through April 16, 1993, the Petitioner was occupying an authorized and established employment position with DOC. His employment relationship continued with the Department, as a result of the settlement agreement, until April 16, 1993. Because Mr. Bronson and DOC are not parties to the present proceeding and have no financial interest in the outcome of this litigation, Mr. Bronson's testimony is deemed credible and is accepted insofar as it may differ from that of the Petitioner. The Respondent agency learned that a payroll had been prepared for the period of time in April of 1993 in question and that a salary warrant was issued on the basis of the settlement agreement extending the Petitioner's employment with DOC through April 16, 1993. The Division of Retirement thus temporarily reduced the Petitioner's retirement benefits to recover the amount of the resulting, unauthorized April retirement check. It was unauthorized because he remained employed for the period of time in April and was paid as though he were employed, as a result of the settlement agreement. Consequently, he was not entitled to retirement benefits for that period of time in April 1993 ending on April 16, 1993. Mr. Snuggs testified that every retirement applicant, such as the Petitioner, receives a form FRS-TAR, entitled "Retirement System Termination and Re-Employment". The Petitioner did not deny receiving that form (Respondent's Exhibit 4) which advises prospective retirees of their rights and obligations in terms of retirement and retirement benefits as it relates to re- employment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Retirement, temporarily reducing the Petitioner's retirement benefits, in the manner already proposed by that agency, until such time as his April 1993 retirement benefit, paid to him previously, has been reimbursed to the agency. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2292 Respondent's Proposed Findings of Fact 1-11. Accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Albert F. Cook Post Office Box 782 Sneads, Florida 32460 Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 A.J. McMullian, III, Director Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
