The Issue Whether the Petition has forfeited his rights and benefits under the Florida Retirement System (FRS) as a result of a guilty plea in the United States District Court, Southern District of Florida, for acts committed in connection with Petitioner's employment with the Broward County Sheriff's Department.
Findings Of Fact From the Joint Stipulation of Facts: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS on behalf of the Department of Management Services. Petitioner was employed as an Assistant State Attorney by the State Attorney's Office from December 1972 to January 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed as Executive Director of the Broward County Charter Commission from January 1974 to November 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed by the Broward County Board of County Commissioners from March 1975 to November 1978. During this time, Petitioner was a member of the FRS, and this service is credited as service under the FRS. In November 1978, Petitioner was elected to serve as a member of the Florida Legislature; he continued to serve as a state legislator for approximately 18 years. As a state legislator, Petitioner was a member of the FRS class of State Elected Officers, and this service is credited service under the FRS. Most recently, Petitioner was the elected Sheriff of Broward County. By reason of his service as Sheriff, Petitioner was a member of the FRS. Petitioner was initially appointed Sheriff in January 1998 by then-Governor Lawton Chiles. Petitioner was subsequently elected Sheriff in 1998 and reelected in 2000 and 2004. As Sheriff of Broward County, Petitioner was Broward County's chief law enforcement officer and was responsible for directing the Broward County Sheriff's Office ("BSO"), a law enforcement agency that currently employs over 6,000 employees. The office of Sheriff is a constitutional office established under Article VIII, Section 1(d), Constitution of Florida. Upon assuming his duties as Sheriff of Broward County, Petitioner took an oath to support, protect, and defend the Constitution and Government of the United States and the State of Florida and to faithfully perform the duties of sheriff pursuant to Article II, Section 5(b), Constitution of Florida. On or about September 4, 2007, Petitioner wrote a letter to Governor Charlie Crist notifying him of his resignation from the office of Sheriff of Broward County. By reply letter of the same date, Governor Crist accepted Petitioner's resignation. Petitioner is not retired from the FRS and currently does not receive FRS retirement benefits. On or about September 4, 2007, Petitioner was charged, by information, in the United States District Court for the Southern District of Florida, in case number 0:07-cr-60209-WPB, with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 371, and three counts of filing a false tax return, in violation of Title 26, United States Code, Section 7206(1). The same four-count information is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr- 60209-WPB as document 1. At all times relevant to the information, Petitioner was the Sheriff of Broward County. The section of the information entitled "General Allegations" contains numerous references to Petitioner's service as Sheriff of Broward County and the power and authority vested in that position. The "Objects of the Conspiracy" contained in count one of the information states: An object of the conspiracy was for JENNE to unlawfully enrich himself by obtaining monies from P.P. and L.N., who were Broward Sheriff's Office vendors, by making false representations, omitting to state material facts, and concealing material facts concerning, among other things, the ultimate destination of monies that JENNE asked P.P. and L.N. to give to his secretaries, A.V. and M.Y. It was further an object of the scheme for JENNE to perpetuate and conceal the scheme and the actions taken in furtherance of it by, among other things, making false, misleading, and incomplete statements in public filings and to investigators. The "Manner and Means of the Conspiracy" contained in count one of the information states: JENNE and M.Y. arranged for JENNE to receive $20,000 from P.P. by having the money transferred from P.P. through JENNE's secretary, M.Y., to JENNE. JENNE and M.Y. did this in order to conceal that JENNE was the true recipient of the funds. JENNE provided L.N. with access to off- duty Broward Sheriff's Office deputies, who L.N. hired to do work for his companies. On two different occasions, in exchange for the access to the deputies, JENNE instructed L.N. to pay money to JENNE's secretary, A.V., purportedly to compensate A.V. for work done for L.N. JENNE instructed A.V. to cash checks given to her by L.N. and to have the cash deposited into JENNE's bank account. JENNE and A.V. did this in order to conceal that JENNE was the true recipient of the funds, which totaled $5,500. JENNE perpetuated this fraud and attempted to prevent its detection by mailing incomplete and misleading annual financial disclosure forms, which did not list his receipt of the payments from P.P. and L.N., to the Florida Commission on Ethics. On or about September 5, 2007, after being advised of the nature of the charges against him, the above-referenced information, and of his rights, Petitioner waived in open court prosecution by indictment and consented to proceeding by information. The same waiver of indictment is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 13. On or about September 5, 2007, Petitioner entered into an agreement with the United States of America to plead guilty as charged in the four-count information. The same plea agreement is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 3. Paragraph 7.c. of the plea agreement provides: 7. The United States and the defendant agree that, although not binding on the probation office or the court, they will jointly recommend that the court make the following findings and conclusions as to the sentence to be imposed: * * * c. Advisory sentencing range on the conspiracy to commit mail fraud count: That, pursuant to U.S.S.G. § 2X1.1, the applicable guideline to be used in calculating the defendant's advisory sentencing range on the conspiracy to commit mail fraud count is § 2B1.1; that under § 2B1.1(a)(1), the Base Offense Level is 7; that under § 2B1.1(b)(1)(C), four levels are added because the loss was between $10,000 and $30,000; that under § 3B1.3, two levels are added because of the defendant's abuse of his position of public trust; and that under § 3E1.1(b), two levels are subtracted for acceptance of responsibility . . . The United States Sentencing Guide, Section 3B1.3, referenced in paragraph 7.c of the plea agreement, provides in relevant part that "[i]f the defendant abused a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." USSG § 3B1.3. Paragraphs 10. and 12. of the plea agreement provide: 10. The defendant confirms that he is guilty of the offenses to which he is pleading guilty; that his decision to plead guilty is the decision that he has made; and that nobody has forced, threatened, or coerced him into pleading guilty. The defendant affirms that he has discussed this matter thoroughly with his attorneys. The defendant further affirms that his discussions with his attorneys have included discussion of possible defenses that he may raise if the case were to go to trial, as well as possible issues and arguments that he may raise at sentencing. The defendant additionally affirms that he is satisfied with the representation provided by his attorneys. The defendant accordingly affirms that he is entering into this agreement knowingly, voluntarily, and intelligently, and with the benefit of full, complete, and effective assistance by his attorneys. * * * 12. This is the entire agreement and understanding between the United States and the defendant. There are no other agreements, promises, representations, or understandings. On or about September 5, 2007, Petitioner entered a statement of factual basis for guilty plea with the United States of America (hereinafter "factual proffer"), wherein he agreed that, if the case went to trial, the government would have been able to establish the facts recited therein beyond a reasonable doubt. The same factual proffer is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 8. On or about September 5, 2007, a hearing was held in which Petitioner pled guilty as charged in the information. At the hearing, Petitioner admitted to committing the acts set forth in the charges and to which he pled guilty. In addition, at the hearing Petitioner admitted to the following facts and to committing the following actions: At no point in time did Petitioner ever disclose to the public that he received an $8,130 benefit from P.P. in November 2001 in connection with the demolition of a house he owned in Lake Worth, Florida. Within P.P.'s internal accounting system, the $8,130 check was attributed to the "HIDTA project" (i.e., a lease committing BSO and HIDTA as tenants of an office building owned by P.P.). Petitioner never reported the $8,130 benefit on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. At no point in time did Petitioner ever disclose to the public that, in September 2002, he had received $10,000 from P.P. as a reward for his work concerning a new company called SuperTech Products, Inc. Petitioner never reported the $10,000 payment on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. Prior to becoming Sheriff, Petitioner was a partner in Conrad, Scherer & Jenne, a law firm located in Fort Lauderdale. Petitioner was with the firm from 1992 through the beginning of 1998, when he left to become Sheriff. While Petitioner was at the firm, he, like some other partners, drove a car paid for by the firm's investment arm, CSJ Investments. In October, 1997, at Petitioner's request, the law firm, through CSJ Investments, bought a used 1994 Mercedes E320 convertible for Petitioner to drive. The price of the Mercedes was $61,297. Rather than pay for the car all at once, the firm financed the car with a 60-month loan. When Petitioner left the firm in early 1998 following his appointment as Sheriff, he took the Mercedes with him. Despite the fact that Petitioner no longer worked for the firm, the firm continued to pay off the Mercedes loan for the balance of the loan term, making the final payment in 2003. The loan payments were $1,320 per month, resulting in a total eventual cost to the firm of approximately $79,234 in loan payments, all but approximately $1,320, of which were made after Petitioner had already left the firm to become Sheriff. In addition, after Petitioner left the law firm, the firm continued to pay for the insurance on the Mercedes. The insurance payments continued even unto September 2007. At that time, the firm had made a total of approximately $30,961 in insurance payments on Petitioner's behalf, all but approximately $880, of which were made after Petitioner had already left the firm to become Sheriff. Petitioner never disclosed any of the loan payments or insurance payments made by the firm on his behalf on any state ethics filing. During the time that Petitioner was receiving these undisclosed payments from Conrad, Scherer, the firm was billing BCSO for legal work that it was doing on its behalf. At the hearing, Petitioner did not take any exception or make any objections to the facts as summarized in the factual proffer. In fact, with the exception of one non-substantive addition, Petitioner accepted the factual proffer as indicated. On or about November 16, 2007, a judgment was entered on the aforesaid guilty plea, wherein Petitioner was adjudicated guilty of all counts charged in the four-count information. The same judgment is filed in U.S. District Court (S.D. Fla.) in case number 0:07-cr-60209-WPB as document 59. By certified letter dated January 24, 2008, Petitioner was notified of Respondent's proposed action to forfeit his FRS rights and benefits as a result of the aforesaid guilty plea. The notice set forth the basis for the Division's decision and informed Petitioner of his right to an administrative hearing. Petitioner, by and through counsel, timely requested a formal administrative hearing to challenge said proposed agency action. [End of Stipulated Facts] The parties agreed that the following exhibits would be considered in this cause: Petitioner's resignation letter dated September 4, 2007; Governor Crist's letter accepting Petitioner's resignation dated September 4, 2007; The Information filed against Petitioner on September 4, 2007, in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Plea Agreement offered in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Statement of Factual Basis for Guilty Plea of Defendant Kenneth C. Jenne in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Transcript of the Plea of Guilty before the Honorable William P. Dimitrouleas, U.S. District Judge, United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209- WPB, United States District Court, Southern District of Florida; The Waiver of Indictment from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Judgment in a Criminal Case from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Agency Action letter dated January 24, 2008; Form 6 Full and Public Disclosure of Financial Interests 2001 (with attachments and amendments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, June 27, 2002; Form 6 Full and Public Disclosure of Financial Interests 2002 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 7, 2003; and Form 6 Full and Public Disclosure of Financial Interests 2004 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 1, 2005. Petitioner did not have a trial on the merits of the charges against him. Instead, he voluntarily accepted and admitted to the factual allegations set forth in the charging and plea documents. The factual statements set forth in those documents are not subject to interpretation or conjecture. They must be considered facts of this case based upon the stipulation of the parties. Petitioner was notified of the Department's preliminary decision to forfeit the FRS benefits and rights and Petitioner timely challenged that decision.
Recommendation Based upon the Findings of Fact and the Conclusions of Law set forth above, it is RECOMMENDED that Respondent enter a final order finding Petitioner was convicted of crimes that require the forfeiture of his rights and benefits under the FRS, pursuant to Florida law. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 3rd day of March, 2009. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mark Herron, Esquire Thomas M. Findley, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317-5579 Clifford A. Taylor, Esquire Barbara M. Crosier, Esquire Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
Findings Of Fact Upon consideration of the joint stipulation of facts submitted by the parties, the following relevant facts are found: The petitioner was elected to the office of tax assessor, Bay County, for successive regular terms in 1952, 1956, 1960, 1964, 1968, and 1972. He was commissioned for that office on January 6, 1953, January 8, 1957, January 3, 1961, January 5, 1965, January 7, 1969, and January 2, 1973. As tax assessor, petitioner was a member of the retirement system now known as the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. By two written ballots, petitioner rejected membership in the Florida Retirement System, Chapter 121, Florida Statutes, to be effective December 1, 1970, and January 1, 1975. The constitutional office of tax assessor was abolished and the constitutional office of property appraiser was created in its stead by amendment to Article 8, Section (1)(d) in 1974. The petitioner was elected to the office of property appraiser in 1976, and commissioned on January 4, 1977. The petitioner's duties as property appraiser were and are the same as they were when he was the tax assessor. Petitioner has been in office continually since January 6, 1953, either as tax assessor or property appraiser. He has not terminated his employment and received a refund of contributions; has not had a non-creditable leave of absence; nor was he off the payroll for at least one calendar month.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's demand for admittance into the Florida Retirement System as of January 4, 1977, be denied. DONE and ENTERED this 20th of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William A. Cooper, Jr., Esquire Davenport, Johnston, Harris, Gerde and Harrison 406 Magnolia Avenue Robert L. Kennedy, Jr. Panama City, Florida 32401 State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303 Stephen S. Mathues, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207-C, Box 81 Tallahassee, Florida 32303
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Evelyn S. Day, is entitled to modify her type of retirement benefits from "early service retirement" to "disability retirement."
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are accepted. The Findings of Fact set forth in paragraph 5 are accepted in part. In that paragraph, the Hearing Officer found as follows: Her memory and thought processes had evidentially [sic] already begun deteriorating because Mrs. Day was unable to ask guestions concerning her retirement rights, responsibilities, and entitlements very well. Because of this condition, Ms. Hobby agreed to accompany her to the offices of the Division of Retirement in order to ascertain what her retirement rights, entitlements, and responsibilities might be preparatory to Mrs. Day electing to retire. The above-quoted findings are rejected as conclusory and not supported by competent, substantial evidence. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence, except the finding that Mrs. Day retired and Ms. Hobby filled out her application for retirement. Additionally, the Hearing Officer's findings that petitioner was incompetent and suffering from Alzheimer's disease are rejected as being legal conclusions not supported by any judicial order or by any competent, substantial evidence in the record. The Findings of Fact as set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted. The Findings of Fact as set forth in paragraph 9 are accepted. That portion of the Findings of Fact in paragraph 10 which concluded the petitioner was incompetent is rejected as not supported by competent, substantial evidence. The petitioner has never been declared incompetent or determined to be incompetent by a medical doctor. Findings of Fact as set forth in paragraph 11 are accepted in part and rejected in part. That portion of the Findings which states that the application for retirement was not filed by Ms. Day is not supported by competent, substantial evidence. In point of fact, the Division has a filed application signed by the petitioner. The portion of the paragraph finding the petitioner incompetent is rejected as not supported by competent, substantial evidence. There has been no legal or medical determination that the Petitioner is incompetent. Additionally, there is no competent, substantial evidence that petitioner is suffering from Alzheimer's disease. The Hearing officer's finding that the petitioner's application was filed in error is not supported by competent, substantial evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Administration, Division of Retirement, according the Petitioner, Evelyn Day, the opportunity to change the status of her retirement benefits from early retirement to disability retirement, effective as of the date her earlier retirement application was accepted by the agency. DONE AND ORDERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 48B-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2085 PETITIONER'S PROPOSED FINDINGS OF FACT 1-8. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted to the extent that the record establishes that the Petitioner signed the application. Accepted to the extent that it was established that Petitioner has received the retirement checks. It is not established that the Petitioner cashed or deposited those retirement checks by preponderant evidence of record. Accepted insofar as it recites the Respondent's position in this matter. Accepted. Accepted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esq. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Mr. Joseph G. Stokes 911 "B" Street Crestview, Florida 32536 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center Building C 1639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether the purported selection of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was valid and effective.
Findings Of Fact On or about June 20, 1990, Lon Emory Sweely executed a Division of Retirement Form FR-13 Florida Retirement System Application for Disability Retirement. The application indicated that Sweely's disability resulted from AIDS-related conditions. It selected Option 1, which the application designates as the "Maximum Benefit" and describes as follows: Full benefits payable to the member for his lifetime. If death occurs before the total benefits paid to member equals the contributions made, the difference, if any, is refunded to beneficiary in a lump sum payment. In so doing, Sweely rejected Option 2, which the application designates as "Ten Years Certain," and describes: Lifetime benefit to member, but not less than 120 monthly payments to someone. A decreased retirement benefit payable to a member during his lifetime, and in the event of his death with a period of ten (10) years after his retirement, the same monthly amount shall be payable for the balance of such ten (10) year period to his beneficiary, or in case the beneficiary is deceased, in accordance with Section 121.091(3), Florida Statutes, as though no beneficiary has been named. The application, also designated the Petitioner, Richard A. Castillo, Jr., as Sweely's sole beneficiary. (Sweely previously had designated the Petitioner as his beneficiary, with the Petitioner's mother as the first contingent beneficiary, on a Division of Retirement Personal History Record Form FRS-M10 (Revised 3/89) executed by Sweely on January 25, 1990.) At the time of Sweely's application for disability retirement, Sweely knew that he had full-blown AIDS and that his life expectancy would have to be estimated at approximately two years or less. There also is evidence that Eulah Lee McWilliams, the principal at the elementary school where Sweely taught, counseled Sweely on his options and advised Sweely to select the "Ten Years Certain" option. It is clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided. McWilliams believed that Sweely wanted the Petitioner to have the benefits of the "Ten Year Certain" Option 2. Based on their conversations, McWilliams believed that Sweely concurred with her recommendation in order to provide the maximum possible benefit to the Petitioner upon Sweely's death. But, in the face of Sweely's knowledge and McWilliams's advice and understanding, the application indicates that Sweely selected Option 1. There was evidence that the Petitioner was present and assisting Sweely when the Form FR-13 was executed and that the Petitioner filled out part of the form at Sweely's direction, as writing was inconvenient and difficult for Sweely at the time. But there was no evidence that Sweely was unable to make informed decisions when he executed Division of Retirement Form FR-13 on or about June 20, 1990. The evidence also did not prove that Sweely's choice of Option 1 was inadvertent error. At that point in time, Sweely may have wanted to be optimistic and to be able to enjoy and share with the Petitioner the maximum possible monthly benefit for as long as Sweely lived. McWilliams testified that, at the time, Sweely was trying to remain "up-beat" concerning his illness, in part thinking that this might extend his lifetime. A decision to choose Option 1, contrary to McWilliams's recommendation, also would not have been inconsistent with an earlier decision by Sweely in April, 1990, (this time in conformance with McWilliams's recommendation) to postpone applying for retirement benefits until he exhausted all of his accumulated fully-paid sick leave. Had Sweely died while on sick leave, the Petitioner would not have received the additional retirement benefits he is seeking in this case. (It is not clear from the record exactly what the benefits would have been, but it seems that the Petitioner would not have been entitled to any of the additional retirement benefits he is seeking in this case. Cf. Section 121.091(7), Fla. Stat. (Supp. 1990); F.A.C. Rule 60S-4.008.) A little over a month later, Sweely's condition worsened, and on or about August 14, 1990, he had to be hospitalized again (as already had happened from time to time during Sweely's full-blown AIDS.) On or about August 15, 1990, the Division of Retirement approved Sweely's application for disability retirement, effective July 1, 1990. On the same date, the Division of Retirement also sent Sweely a Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and a blank FRS- 11o "Option Selection Form for FRS Members." The Form FST-40c (R5/89) requested that Sweely "review carefully how the option one and two are paid to your beneficiary." The descriptions of the options in the Form FRS-11o were somewhat different from those in the Form FR-13 application. Option 1 was not called the "Maximum Benefit," and it was described as follows: A monthly benefit payable for my lifetime. Upon my death, the monthy benefit will stop and my beneficiary will receive only a refund of any contributionss 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. (Emphasis in the original.) Option 2 was not called "Ten Years Certain," and it was described as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly benefit payments, my designated beneficiary will receive a monthly benefit payment in the same amount as I was receiving until the monthly benefit payments to both me and my beneficiary equal 120 monthly payments. No further benefits are then payable. The FRS-11o "Option Selection Form for FRS Members" also stated in bold and underlined upper case type: "MEMBER MUST SIGN AND DATE IN THE PRESENCE OF A NOTARY PUBLIC." Whenever Sweely was hospitalized, the emotional strain on the Petitioner increased, and the time spent with Sweely in the hospital left the Petitioner less time to accomplish normal household tasks. The Petitioner's life and home usually became disorganized during Sweely's hospitalizations, and the Petitioner often allowed mail to pile up at their home at these times. The Petitioner testified that, notwithstanding Sweely's hospitalization and its disruptive effect on his life and habits, he happened to collect and read the mail on August 16, 1990. He testified that among the items of mail he read that day was the envelope postmarked the day before in Tallahassee, Florida, containing the Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and the blank FRS-11o "Option Selection Form for FRS Members." The Petitioner testified that he telephoned McWilliams to discuss the forms with her, and she asked him to bring them to the hospital. He testified, and she confirmed, that she met with the Petitioner at the hospital, looked at the forms, and explained them to the Petitioner. Believing, based on the conversations she had with Sweely before June 20, 1990, that Option 2 was Sweely's actual choice, McWilliams advised the Petitioner to choose Option 2. McWilliams testified that she discussed the matter with Sweely and with the Petitioner in Sweely's presence on August 16, 1990. (It certainly is possible that, had they discussed the matter with Sweely on August 16, 1990, Sweely might have chosen Option 2 at that time.) But the Petitioner testified that they did not discuss the matter with Sweely on August 16, 1990. The Petitioner explained that, although Sweely was oriented and physically able to write his name and, from time to time, was mentally lucid on that day, the Petitioner did not think that Sweely was in a position to give full consideration to the matter at the time they were discussing the forms because he was on morphine, was lethargic, and was having difficulty breathing without a non-rebreather mask. The Petitioner also did not think it was necessary to trouble Sweely with the matter, since the Petitioner believed that the selection of Option 2 on the Form FRS-11o was redundant and also that he was authorized to execute the form for Sweely as his attorney-in-fact under a purported durable power of attorney which Sweely executed on or about February 28, 1990, authorizing the Petitoner to act in Sweely's behalf in all matters. Under the circumstances on the afternoon of August 16, 1990, the Petitioner did not think that Sweely would have wanted to be troubled with the matter unnecessarily. He checked Option 2 and signed Sweely's name to the Form FRS-11o. On numerous previous occasions, the Petitioner had signed Sweely's name on Sweely's personal checks to pay Sweely's bills. In doing so, the Petitioner believed that he was acting properly under the authority of the purported durable power of attorney, and the bank always honored the checks the Petitioner signed this way. But on June 13, 1990, a physician insisted that the Petitioner sign a Division of Retirement medical records release form FR-13b in his own name as attorney-in-fact for Sweely. Himself not thinking well or clearly under the circumstances, the Petitioner assumed that his signature on the Form FRS-11o was valid. The Petitioner testified that it did not occur to him that there were notary services available for his use at the hospital. He testified that, after checking Option 2 and signing the Form FRS-11o, he telephoned his father, who was a notary, and asked him to come to the hospital to notarize something for him. The Petitioner's father confirmed this and also confirmed the Petitioner's testimony that they met in the hallway outside Sweely's hospital room, where the Petitioner gave his father the signed form and asked him to notarize it. Both testified that they did not discuss the form in any detail before the Petitioner returned to Sweely's hospital room. The Petitioner's father testified that he notarized the form thinking that Sweely had signed it. Sweely died two days later on August 18, 1990.
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: (1) that the purported selection, on the Form FRS-11o dated August 16, 1990, of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was invalid and ineffective; and (2) that the previous selection of Option 1 on the Form FR-13 executed on or about June 20, 1990, is valid and shall be given effect. RECOMMENDED this 20th day of January, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 January, 1995. APPENDIX TO RECOMMENDED ORDER 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. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to the Petitioner, his actions were not in accordance with the statement.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 12.-14. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) Last sentence, not proven (as to expression of "clear and unqualified acknowledgment and understanding); also rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) 17.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31. "Substantially," rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 32.-35. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (The evidence was that the Patient Care Technician Records were prepared near the beginning of each nursing shift and reflected conditions at that time. Meanwhile, there was evidence that the patient's mental state would "wax" and "wane." When the patient "waned" and was lethargic, it was difficult to communicate with him. Changes during the course of a shift may or may not be noted in the Progress Notes. While the Patient Care Technician Records indicate that the patient was both oriented and lethargic, the 8 a.m. progress notes indicate "lethargic at times." The progress notes also indicate that, earlier in the day, the patient had difficulty breathing without the non-rebreather mask and that, by 2 p.m., he was wearing the mask continuously. Even disregarding the possibility that the morphine dosage was enough to affect his judgment, the patient's lethargy and his difficulty breathing without the mask probably would have made it difficult for him to communicate on legal matters on the afternoon of August 16, 1990.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (He did not allege that Sweely could not communicate or write his name. He testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily. He did not think he had to discuss it with Sweely or have Sweely sign it.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, Dr. Breen's curt medical evaluation of Sweely's general medical condition on August 16, 1990, was not for the purpose of evaluating whether it was possible or prudent to have him considering legal documents and making important legal judgments. In addition, Dr. Breen saw the patient early in the morning and would not have seen changes during the course of the day. 11.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Rejected as contrary to the greater weight of the evidence that Castillo, Jr., "insist[ed] that Sweely was incompetent, unable to provide or receive meaningful communication on August 16--and could not execute the form himself . . .." (Rather, he testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Keith F. Roberts, Esquire 201 North MacDill Avenue Tampa, Florida 33609 Robert B. Button, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue The central issues in this case are (1) whether Petitioner is eligible for membership in and retirement benefits from the Teachers' Retirement System; and (2) whether Petitioner is entitled to receive as a refund contributions paid by his employing agency and, if so, how much and at what interest rate.
Findings Of Fact Petitioner, currently sixty-six years old, was employed as a professor of economics and finance at the University of South Florida (USF), Tampa, Florida, from September 1965 through August 31, 1981, when he terminated employment. As a member of the teaching faculty, Petitioner automatically became a compulsory member of the Teachers' Retirement System (TRS) and remained a member throughout his tenure at USE. When Petitioner originally enrolled in the TRS in September 1965, he signed an enrollment form entitled "Teachers' Retirement System of Florida, Enrollment Blank New Teachers." The form provided general information concerning the TRS, and included information about contributions, service credit, and service retirement benefits under the TRS. The enrollment form provided in part the following: I understand that the full amount of deductions from my compensation for annuity purposes with compound interest will be returned to me if I leave the service without a retirement benefit or will be paid to my beneficiary if I die in active service. At all times relevant hereto, the TRS required that members make contributions of six-quarter percent of their total salaries to their retirement accounts. Of this amount, six percent went into the TRS member's retirement account and the quarter percent was allocated to the Survivors' Benefits Fund. In addition to the contributions made by TRS members, employers were required to contribute matching funds to the TRS Retirement Fund. While employed at USF, the prescribed six quarter percent of Petitioner's salary was deducted, with six percent appropriately posted to his TRS retirement account. During the time Petitioner was employed at USF, the employer contribution paid by USF to match Petitioner's contribution was $23,846.06. Had Petitioner remained a member of TRS, he would have been eligible to begin receiving benefits in February 1993. While employed at USF, Petitioner was given the option to transfer from the TRS to the newly created Florida Retirement System on five different occasions: December 1970; June 1971; July 1972; January 1975; and January 1979. Through information disseminated by Respondent, TRS members were notified that by transferring to the "new" Florida Retirement System, they would become mandatory members of the federal Social Security System. Petitioner chose to remain in TRS rather than transfer to the Florida Retirement System, thereby foregoing membership in the federal Social Security System. In August 1981, prior to his normal age of retirement, Petitioner terminated his employment with USF and requested that Respondent refund Petitioner's retirement contributions. In making the request, Petitioner completed and signed a form entitled, "Request for Refund," FRS M81. Completion of this form is a requisite for receiving retirement refunds and applies to members of any of the Florida retirement systems. The Request for Refund states: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. On the reverse side of the Request for Refund card, is the following: Under the provision of the Florida Statutes, a member MUST terminate employment before he can obtain a refund. * * * The refund process may be started upon receipt of this application. It may be necessary to issue a second refund after all payrolls on which a member's name appears are received and audited by the Retirement System Office. A member who has ten or more years of creditable service has a vested interest in retirement and may leave his contributions on deposit indefinitely and qualify for deferred retirement. Pursuant to Petitioner's request, the Division refunded $22,153.10 to Petitioner in October 1981. The refund, which was provided in three warrants, included all employee contributions and earned interest posted to Petitioner's retirement account as of the date of the refund. Petitioner's refund was provided in three separate warrants because the system in place, in 1981, was incapable of generating a single check for an amount in excess of $9,999.99. In late 1995 or early 1996, Petitioner called the Division of Retirement to inquire about his benefits under the TRS. Petitioner made after this call after he reviewed his Social Security wage earning history and learned that no contributions had been posted to his Social Security account during the sixteen years he had been employed at USF. Upon reviewing the Petitioner's request, Respondent discovered that $1,692.96 remained in Petitioner's TRS account. Of the amount remaining in Petitioner's account, $292.63 represented Petitioner's employee contributions, and $1,400.33 was earned interest. Respondent's failure to refund Petitioner's $292.63 and the interest earned thereon as soon as these moneys were posted to Petitioner's account was the result of an unintentional accounting error. Under the procedures used by the Division at that time, Petitioner's most recent employee contributions were not posted to his account until November or December 1981. The interest earned on Petitioner's employee contributions were not posted to Petitioner's account until the end of the 1981/1982 fiscal year. This matter is addressed in the Request for Refund which notified members that "it may be necessary to issue a second refund" after all payrolls on which the member's name appears have been posted. After discovering this inadvertent accounting error, Respondent initially agreed to refund Petitioner the outstanding $1,692.96. Subsequently, the Division of Retirement agreed to pay Petitioner $1,692.96 plus six a-half percent interest from October 1981, for a total amount of $4,088.31. The six and a- half percent interest rate is the current rate established by Respondent. Pursuant to Petitioner's request, Respondent has not yet refunded Petitioner's outstanding employee contributions and interest, pending the culmination of this proceeding. At the time Petitioner completed and signed the Request for Refund, it was his intention to obtain all of his contributions and interest. It was not until Petitioner's inquiry in 1995 or 1996 that he became aware that a small amount of his employee contributions and interest thereon had not been refunded. Petitioner believes that because Respondent did not refund all moneys due him, some $1,692.96, he retained membership in the TRS and is now able to retire from that system with a partial benefit. Alternatively, Petitioner asserts that he is entitled to receive as a refund, all contributions paid into his retirement fund, including the contributions paid by USF. According to Petitioner, his understanding and belief in this regard is based on an explanation provided to him by Dr. John Milliken, the Dean of the College of Business at USF. Petitioner's understanding in this regard was not correct. At some point prior to Petitioner's terminating his employment at USF, he reviewed a Summary Plan Description (SPD) which was issued by the Division of Retirement in 1980. One section of the SPD, Refund of Contributions, provides in relevant part: If a member terminates employment he may elect to receive a refund of all the contributions he has made to the retirement system, except those made to the Survivors' Benefit Trust Fund. Furthermore, the first paragraph of the Summary Plan Description states: This brochure contains basic information on the Teachers' Retirement System, established by Ch. 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers' Retirement System and should not be used in place of the law on questions of interpretation and appli-cation. Any question which are not answered by this brochure may be addressed to the Div. of Retirement, . . . . Based on Petitioner's reading of the provision of the SPD quoted in paragraph 20 above, it was his "judgment" and "impression" that any refund prior to retirement, would include both employee and employer contributions and the interest on these contributions. At no time did Petitioner verify his interpretation with the Division of Retirement or the USE Personnel Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order finding that Petitioner, John C. Deiter, is (1) ineligible for retirement benefits under the Teachers' Retirement System and (2) is not entitled to receive employer contributions and interest thereon. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELDK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Murray B. Silverstein, Esquire POWELL, CARNEY, HAYES and SILVERSTEIN, P.A. Barnett Tower One Progress Plaza, Suite 1210 St. Petersburg, Florida 33701 Stanley M. Danek, Senior Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact The Division of Retirement will make no Findings of Fact relating to whether Petitioner's disability was in-line-of-duty. Accordingly, for the reasons mentioned previously, all findings contained in paragraphs 5, 6, 7, and 8, of the recommended order are rejected. However, the Division accepts the remaining Findings of Fact contained in the recommended order. As taken from the order these findings are: Herman Williams was an employee of the Department of Transportation and a member of the Florida Retirement System. The Division of Retirement approved payment of regular disability benefits to Herman Williams. Herman Williams is currently receiving and accepting these benefits. Herman Williams is an illiterate Seminole Indian, 62 years of age. Williams' duties with the Department of Transportation were driving a mowing tractor and cleaning out roadside ditches. Williams worked for the Department of Transportation approximately 21 years 11 months prior to being placed on the retired roles [sic]. On May 1, 1975, Williams was driving his tractor in the course of his regular employment at the Department of Transportation when the power steering of the tractor malfunctioned causing the front wheels to swerve violently, wrenching the steering wheel in Williams' hands and nearly throwing him from the tractor. Repairs had to be made to Williams' tractor by a Department of Transportation mechanic because the tractor was inoperative. The mechanic discovered a loose nut in the power steering assembly when he exchanged the power steering unit in Williams' tractor with another from the maintenance yard. When the new unit was installed in Williams's tractor it functioned normally. When the power steering from Williams' tractor was installed in the other tractor, it also functioned normally. The mechanic stated that the loose nut which he had discovered could cause the tractor to swerve violently in the manner Williams' had described. On the afternoon of May 1, 1975, Williams reported this instant [sic] to his supervisor, David McQuaig. Mr. McQuaig inquired as to any injuries to Williams and the tractor. Williams reported to McQuaig that the tractor had not been harmed and that he was only sore and stiff. No report of injury was prepared by McQuaig whose duty it was to file such reports. Williams' condition did not materially improve after seeking medical treatment by Dr. Albritton. Williams remained on sick leave until August 11, 1975, when it was exhausted. Williams then took annual leave from August 12, 1975 until September 23, 19975, when his retirement became effective. When the Petitioner's sick leave was exhausted, he was contacted by his supervisor in the Department of Transportation. He suggested that Williams could retire on disability if two physicians would state that he was disabled. This letter was read to Williams by his son, Eddie, because Williams is illiterate. Retirement application forms were provided Williams by the Department of Transportation. The physician report forms were completed by Dr. Albritton and Dr. Wilkerson. The statement of disability by employer form was completed by Williams' supervisor, David A. Young, Maintenance Engineer, for the Department of Transportation. Young stated that he completed the Statement of Disability by Employer, indicating that the application was for regular disability benefits because he had determined that no workman's compensation claim had been made by Williams and because Dr. Wilkerson's medical report had stated that the injuries occurred at Williams's home. The determination that the application was for regular disability benefits was solely Young's. The Application for Disability Retirement signed by Williams was prepared by personnel at the Department of Transportation District Office. This form was signed by Herman Williams; however, this form does not make provision for the member to state the nature of the disability benefits sought. Eddie Williams, son of Herman Williams, took his father to sign the forms at the Department of Transportation office. These forms were not explained to Williams, nor did Eddie Williams read them. Herman Williams was also unaware that such a benefit existed. Herman Williams stated he sought disability benefits based upon his injury on the job. Disability retirement was not discussed between Herman Williams and David Young. Based upon the application submitted in his behalf, the Division of Retirement made a determination that Williams was entitled to regular disability benefits. Williams was unaware that he was not receiving the in-line-of-duty benefits until his son inquired as to how much money he was receiving. When he was advised, he told his father that it appeared to be too little money. At this point Eddie Williams discovered that the application had been for regular disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the administrator permit the applicant to file an amended application for disability in-line-of-duty retirement, and, further, that said application be approved. DONE and ENTERED this 8th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. W. Chalkley, III, Esquire Post Office Box 1793 Ocala, Florida 32670 Douglas Spangler, Jr., Esquire Asst. Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT DEPARTMENT OF ADMINISTRATION HERMAN H. WILLIAMS, Petitioner, vs. CASE NO. 77-982 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. / FINAL AGENCY ORDER A petition for formal proceedings having been duly filed, and a request for hearing officer having been duly made, a hearing was held in the above-styled cause pursuant to the provisions of Section 120.57(1), Florida Statutes, before the Honorable Stephen F. Dean, Hearing Officer, in Ocala, Florida, on September 15, 1977. The Petitioner requested relief from the Division's determination that Petitioner was not entitled to resubmit an application for disability retirement requesting in-line-of-duty disability retirement benefits because he had previously applied for and accepted regular disability retirement. The purpose of the hearing was to determine the factual basis for Petitioner's claim that he should be allowed to apply for in-line-of-duty disability retirement benefits. APPEARANCES AT THE HEARING: Eric E. Wagner, Esquire J. W. Chalkey, III, Esquire Law Offices of Eric E. Wagner, P.A. Post Office Box 1763 Ocala, Florida 32670 For the Petitioner E. Douglas Spangler, Jr., Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 For the Respondent The Hearing Officer entered his Recommended Order on December 8, 1977, in which he sustained Petitioner's assertion and concluded, on the basis of the findings made as a result of the hearing, that Petitioner should be entitled to resubmit his application and request in-line-of-duty disability benefits. In addition to this determination, the Hearing Officer found that Petitioner was in fact entitled to in-line-of-duty disability retirement benefits. In making this latter conclusion, both as a matter of fact and of law, the Hearing Officer went beyond his scope of authority. As will be developed more fully herein, the Hearing Officer was without jurisdiction to consider the issue of whether Petitioner was in fact entitled to the in-line-of-duty benefits. Therefore, so much of the recommended order as purports to address this issue is of no effect, being the result of a hearing that did not comply with the essential requirements of law.
Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985.
Findings Of Fact On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact. The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence. The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3. The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence. The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause. The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the 780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June 30, 1985. The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66. DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1990.
