The Issue The issue in this matter is whether Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for employees of the City of Tampa (the “City”). Respondent was employed with the City from August 1, 1994, through March 16, 2009, when the City terminated his employment. Respondent worked as an Automotive Equipment Operator II in the City’s parks and recreation department. Respondent worked a total of 15 years for the City. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund. After six years of employment, Respondent vested in the pension plan. According to a Notice of Disciplinary Action, dated March 16, 2009, the City terminated Respondent based on a complaint that he had stolen City property. Specifically, in February 2009, the City received information that Respondent was in possession of a City-owned lawn mower at his residence. After receiving the complaint, the City notified the Tampa Police Department (“TPD”). TPD searched Respondent’s home. TPD did not find a City lawn mower. However, during its search, TPD did discover a spool of weed eater line on Respondent’s porch that he admitted belonged to the City. During a subsequent interview with TPD, Respondent confessed to taking the spool from the City’s supplies without permission. Respondent also divulged that he did occasionally take a lawn mower owned by the City and use it on his property. Following the TPD interview, Respondent was arrested and charged with theft of the City property under section 812.014, Florida Statutes. Respondent, however, was never prosecuted for the crime. After completing a pre-trial intervention program, Respondent’s theft charge was dismissed. The City, however, terminated Respondent’s employment based, in part, on his admission to stealing the weed eater line. Kimberly Marple, an Employee Relations Specialist Supervisor for the City, testified on behalf of the City and explained that the City maintains a zero tolerance policy for removal of or taking City property for personal use. Consequently, when the City learned of Respondent’s admission to TPD that he took City property, he was fired. At the final hearing, Petitioner admitted to “borrowing” the City lawn mower from time to time to use at his home. He expressed, however, that he always returned it to the City. Respondent claimed that he never considered permanently taking the lawn mower. Respondent did, however, confirm that he took the weed eater line from the City, without authority, for personal use and did not intend to return it. Respondent relayed that a spool of weed eater line costs approximately $80. Respondent voiced that he was an exemplary employee for the City during his 15 years of employment. Respondent represented that, prior to this incident, he had never received any disciplinary action from the City. Respondent’s testimony is supported by his annual performance evaluations which record that he dependably and diligently performed his responsibilities for the City parks and recreation department. Respondent’s performance was frequently marked as excellent or outstanding. Based on the evidence and testimony presented at the final hearing, the preponderance of the evidence establishes that the City terminated Respondent’s employment by reason of his admission to theft of City property. Therefore, the Fund met its burden of proving that Respondent must forfeit all rights and benefits to the Fund’s pension plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order finding that Respondent, Robert Ramshardt, a public employee who, by reason of his admitted commission of a “specified offense” under section 112.3173(2)(e), forfeited all rights and benefits in the pension plan administered by the Fund. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 22nd day of February, 2017.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the decision of the Division of Retirement to terminate the retirement benefits of Peter C. Versage be sustained, and that said benefits be terminated until the amount of $1,261.96 is repaid to the trust together with interest at ten percent per annum from the date of May 23, 1977. DONE and ORDERED this 2nd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32304 Peter C. Versage 6929 NW 34th Avenue Fort Lauderdale, Florida 33309
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.
The Issue The issue in this matter is whether Petitioner is entitled to retroactive disability retirement benefits from June 1, 1999, through April 30, 2001.
Findings Of Fact Petitioner was a bus driver employed by the Lee County School Board. He has a tenth-grade education and is of normal intelligence. Petitioner had worked for Lee County Schools for over eight years when he had a work related injury in March 1997. Upon settlement of his claim for workers' compensation, he resigned his position with Lee County Schools on June 22, 1999. On April 20, 2001, Petitioner, for the first time, sought information regarding disability retirement benefits from his personnel office and met with Griffin for that purpose. At that time, Petitioner had 8.33 years of creditable service. After meeting with Petitioner, Griffin sent an e-mail to Mark Sadler (Sadler), who at that time served as the Disability Administrator for the Division. During the e-mail exchange, in-line-of-duty disability benefits were not mentioned. Regular disability benefits under the FRS require that a member be "vested." In this case, that required a member, including Petitioner, to have ten years of creditable service (it has since been changed by the Legislature to six years). In-line-of-duty disability benefits, on the other hand, were available from the first day of employment. On August 1, 2001, Petitioner contacted the Division to inquire about benefits. As a result of the call, the Division sent a disability handbook and application to Petitioner on August 14, 2001. The disability handbook contains a description of all disability benefits available to members, as well as requirements for obtaining those benefits. On January 25, 2002, the Division received an application for in-line-of-duty disability benefits from Petitioner. After receiving and reviewing the relevant materials, the Division approved his application for benefits and added him to the retired payroll effective February 1, 2002. Shortly after being approved, Petitioner requested the Division to re-establish his effective date of retirement to April 1, 2001, based on the e-mail exchange between Griffin and Sadler. After reviewing Petitioner's file, the Division determined that he had attempted to apply on April 20, 2001, and accordingly re-established his effective retirement date as May 1, 2001, the first day of the following month. Shortly after the Division changed his effective retirement date to May 1, 2001, Petitioner then requested the Division to re-establish it as June 1, 1999, to correspond with his resignation. Howell again reviewed his file. Since there was no evidence of any earlier attempt to apply for benefits, the Division correctly determined that Petitioner's May 1, 2001, effective date was accurate. On July 23, 2003, the Division issued the Final Agency Action denying his request for a June 1, 1999, effective retirement date, and Petitioner timely appealed. According to the rules adopted by the Division, when a member applies for retirement benefits more than 30 days after his or her termination, the effective retirement date is established as the first day of the month following receipt of the application by the Division. The Lee County School System does not routinely provide termination or worker's compensation information to the Division, unless it is in connection with an application for benefits. Since Petitioner made no application for benefits, the Division was not aware that Petitioner's employment was terminated as of June 22, 1999, until the e-mail exchange in April 2001.
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 Petitioner's request for an effective retirement date of June 1, 1999. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of March, 2004. COPIES FURNISHED: William C. Strickland 8230 Ebson Drive North Fort Myers, Florida 33917 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether the Petitioner is entitled to a refund of or credit for $2,125.88 in employee contributions to the Florida Retirement System ("FRS").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division of Retirement is the state agency charged with the responsibility for administering the FRS. Section 121.031, Florida Statutes. Prior to 1975, the FRS was contributory, meaning that members paid a portion of their salaries into the Florida Retirement Trust Fund as a contribution toward their future retirement benefits. Members who have contributed to the trust fund may request a refund of those contributions at the time they leave their FRS-eligible employment. Receipt of such refunds constitutes cancellation of the right to service credit for the subject employment period. Mr. Helms worked for the Polk County Board of County Commissioners, and made contributions to the Florida Retirement Trust Fund. At the time of his termination in June 1974, Mr. Helms had accrued 6.3 years of service in the FRS, and was not vested in the system. In September 1974, the Division received a "Request for Refund" card bearing Mr. Helms' name, social security number, and address; and bearing what purported to be Mr. Helms' signature. It was not unusual at the time for non- vested members such as Mr. Helms to request refunds when they terminated their employment. The refund card was countersigned by Avlee Askew, the personnel clerk for the Polk County Board of County Commissioners, as the representative of Mr. Helms' last Florida employer. The Division diligently searched its records, but was unable to find the actual refund checks because they were destroyed by the Comptroller's Office. However, the Division's computer records indicate that the Comptroller issued two checks totaling $2,125.88 and sent them to Box 988, c/o Clerk's Office, Bartow, Florida 33830, in September 1974. The listed address was and still is the address of the Polk County Board of County Commissioners. At the time, it was standard practice for refund checks to be mailed to the Board's offices, where the former employees would pick them up. In July 2000, Mr. Helms began working for a Hillsborough County agency and began to make inquiries regarding credit for his prior 6.3 years of FRS-eligible employment. Mr. Helms contacted the Division requesting information regarding his retirement benefits and was advised by the Division that its records showed that his accumulated contributions of $2,125.88 were paid to him in 1974. Mr. Helms denied signing the "Request for Refund" card, and denied receiving either of the two refund checks. At the hearing, Mr. Helms contended that the signature on the refund card was a forgery. He introduced several samples of his signature in an effort to show that the signature on the refund card was not his. The "Request for Refund" card itself now exists only as a microfilm facsimile, and the poor quality of the reproduction does not permit a comparison of the signature on the refund card to those samples provided by Mr. Helms. Mr. Helms offered no other evidence to support his claim that he did not sign the card and did not receive the refund. The evidence presented in this case is not sufficient to establish that Mr. Helms is now entitled to a refund of or credit for contributions he made to the Florida Retirement Trust Fund prior to September 1974.
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 Milford Mack Helms for a refund of or credit for contributions he made to the Florida Retirement Trust Fund prior to September 1974. DONE AND ENTERED this 17th day of April, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON 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 17th day of April, 2002. COPIES FURNISHED: Milford Mack Helms Post Office Box 261 Valrico, Florida 33595 Larry D. Scott, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sojostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact The petitioner Petitioner, Huey G. Manges, was employed as a fire fighter by the Port Everglades Authority (the Port) in September 1961, and over the years rose through the ranks until in 1975 or 1976 he became Chief of the department. Petitioner served as Chief until 1988 or 1989, and was then promoted to Public Safety Director. As an employee of the Port, petitioner was a member of the Florida Retirement System. The Port's deferred compensation plan In 1983, the Port adopted a deferred compensation plan for all employees. The plan provided that employees could "make contributions into the fund in an amount not to exceed 33.3 [percent] of base salary, with a maximum cap of $7500." Under the plan, the Port, as the employer, made no contribution to the plan. In September 1984, the plan was amended to create a special provision for "key management persons," as an incentive to motivate them to perform in an outstanding manner and to encourage their continued commitment to the Port. At the time, it was observed that such employees have "extensive responsibilities," and "are not compensated for the many hours they work beyond the normal '40- hour' work week." As amended, the Port matched the qualified "key management person['s]" contribution on a dollar for dollar basis, not to exceed a maximum of 5 [percent] of base salary." The combined employer/employee contribution was limited to $7,500, annually. Among the positions designated as "key management persons" was the position of Fire Chief. Subsequently, at a date not apparent from the record, but at least 5 years before petitioner's retirement, the plan was amended to its current format, and further refined the classes of participants. For employees, such as petitioner, who had attained senior management Grade 9 or higher under the Port's management pay plan, and who elected to participate in the plan by executing a participation agreement, the Port agreed to contribute, on behalf of the employee, "an annual amount equal to the lesser of (i) $7,500 or (ii) 10 [percent] of such Employee's Compensation," regardless of whether they contribute to the plan. For employees below senior management Grade 9, and who elected to participate in the plan, the Port agreed to make "a matching contribution equal to 100 [percent] of the amount of a Participant's annual Deferred Compensation, up to an annual maximum matching contribution of 5 [percent] of the Participant's Compensation." According to petitioner, he participated in the plan from its inception, and "maxed it" each year. [Transcript, page 56]. By such testimony, it is concluded that the annual contribution to his deferred compensation account was $7,500, and that the Port's contribution varied, over the years, from a "dollar for dollar" match under the September 1984 amendment, to a full $7,500 contribution during the period that included, at least, petitioner's last five years of employment with the Port. Petitioner's retirement and subsequent events In or about June 1994, petitioner applied with respondent, Division of Retirement, for retirement under the Florida Retirement System, and his request was approved effective July 1, 1994. Since that date, petitioner has duly received his monthly retirement benefits, as calculated from the Division's records at the time of his retirement. On March 8, 1995, petitioner, through counsel, wrote to the Division and requested that his retirement benefits be recalculated predicated on an error he felt was committed by the Port in its contributions to the Florida Retirement System on his behalf. Such error, petitioner contended, was the Port's failure to treat the contributions it made to his deferred compensation account as retirement creditable wages, and to make the necessary contributions to the State Retirement Account. Essentially, petitioner wanted the Division to collect the contributions from the Port, and then recalculate his average final compensation to include the $7,500 annual contribution by the Port, and adjust his pension payments accordingly. 2/ Regarding petitioner's contention, the proof demonstrates that from the inception of the plan until May 1989, the Port, unbeknownst to the Division, had included the contribution it made to an employee's deferred compensation plan in calculating an employee's retirement creditable wages and Florida Retirement System (FRS) contributions. In May 1989, Mary Meynarez, the new director of finance for the Port, wrote to the Division concerning the propriety of such treatment. That letter was in response to a conversation the Port's CPA had with the Division, wherein he was advised that employer contributions to a deferred compensation plan were not subject to FRS contributions because gross or retirement creditable wages do not include matching contributions or fringe benefits. Ms. Meynarez's letter sought written confirmation of the Division's position. By letter of May 19, 1989, the Division advised Ms. Meynarez, consistent with its long established interpretation of the retirement laws, that such was the Division's position. Thereafter, the Port made no further contributions to the FRS based on its contribution to an employee's deferred compensation plan, and it submitted and received from the Division a credit adjustment for the erroneous payments for prior periods. Given the Division's interpretation of the retirement laws, it concluded that the Port properly excluded the contributions it made to his deferred compensation account when calculating FRS contributions, and by letter of July 5, 1995, advised petitioner that his retirement benefits had been correctly calculated and no adjustment would be made. Such letter further advised petitioner of his right to a section 120.57 hearing if he disagreed with the Division's decision. Petitioner timely filed such a request, and this proceeding duly followed. Pertinent legislation and the Division's interpretation Section 121.021(24), Florida Statutes, defines "average final compensation," as that term is used in deriving a members retirement benefits under the Florida Retirement System, to mean: [T]he average of the 5 highest fiscal years of compensation for creditable service prior to retirement, termination, or death . . . The payment for . . . bonuses, whether paid as salary or otherwise, shall not be used in the calculation of the average final compensation. Prior to 1989, section 121.021(22) defined "compensation," as that term is used in the Florida Retirement System, as follows: (22) "Compensation" means the monthly salary paid a member, including overtime payments and bonuses paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compens- ation shall be the total cash remuneration received from such fees. Under no circum- stances shall compensation include fees paid professional persons for special or particular services. During the course of the 1989 Legislative session, proposals were made to amend the provisions of section 121.021(22). The reason for amendment was twofold. First, pursuant to subsection 121.021(22) and (24) bonuses were included in the definition of "compensation" but excluded when calculating "average final compensation." This resulted in a conflict because retirement contributions were due on bonuses, but bonuses could not be used in calculating a member's "average final compensation." Second, the definition of "compensation" was silent with regard to the treatment of salaries paid to employees who participated in a deferred compensation, salary reduction, or tax- sheltered annuity program. Consequently, although the Division had consistently interpreted the subsection to so provide, it was felt appropriate to amend the statute to clearly provide that an employee's election to defer a portion of his salary to a deferred compensation plan did not reduce his retirement creditable wages. As a consequence, pursuant to Chapter 89-126, Section 1, Laws of Florida (1989), subsection 121.021(22), effective June 26, 1989, was amended to read as follows: "Compensation" means the monthly salary paid a member by his or her employer for work per- formed arising from that employment, including overtime payments paid from a salary fund. Under no circumstances shall compensation in- clude fees paid professional persons for special or particular services or include salary payments made from a faculty practice plan operated by rule of the Board of Regents for eligible clinical faculty at the Univer- sity of Florida and the University of South Florida. [For all purposes under this chapter, the compensation or gross compensation of any member participating in any salary reduction, deferred compensation, or tax-sheltered annuity program authorized under the Internal Revenue Code shall be deemed to have been the compen- sation or gross compensation which the member would have received if he or she were not participating in such program] [Emphasis added]. Here, while recognizing that the contributions made by the Port to petitioner's deferred compensation plan may be part of a management package designed to encourage employment fidelity, the Division considers such payments fringe benefits, similar to employer paid health and life insurance, and not "compensation," as defined by subsection 121.021(22) for retirement purposes. In reaching such conclusion, the Division first points to the provision of subsection 121.021(22), as amended, which provides that "[f]or all purposes under this chapter, the compensation or gross compensation of any member participating in any salary reduction, deferred compensation, or tax- sheltered annuity program . . . shall be deemed to have been the compensation or gross compensation which the member would have received if he or she were not participating in such program." Since petitioner would not have received the $7,500 Port contribution had he not elected to participate in the Plan, the literal application of the statutory language would exclude such payments from the definition of "compensation or gross compensation" for retirement purposes. In contrast, petitioner points out that the amendment to subsection 121.021(22) relied upon by the Division was not occasioned to address the peculiarities of his situation, but was designed to clarify that the portion of the employee's salary he elected to defer would not reduce his retirement benefits. Such issue is distinct, according to petitioner, from the issue of whether employer contributions to a deferred compensation plan are "compensation" for retirement purposes. While petitioner may be correct as to the purpose of the amendment to subsection 121.021(22), such does not compel the conclusion that the Division's literal application of that subsection, as excluding employer contributions from the calculation of retirement creditable wages, was not consistent with the Legislature's intent. In concluding that the Division's interpretation is reasonable and consistent with the purpose and intent of subsection 121.021(22), it is observed that under that subsection "compensation" is defined to mean "the monthly salary paid a member by his . . . employer for work performed." "Monthly salary," as observed by the Division, is commonly understood and reasonably read to refer to the fixed compensation for services paid to the employee on a regular basis or, as in petitioner's case, his fixed monthly salary under the Port's management pay plan, and does not include fringe benefits, such as employer matching payments or contributions to a deferred compensation plan. 3/ Consequently, the Division's decision to exclude such benefits from the calculation of petitioner's retirement benefits under the Florida Retirement System was reasonable. 4/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing petitioner's petition for formal hearing, and denying his request for additional retirement benefits. DONE AND ENTERED this 13th day of June, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 13th day of June, 1996.
Findings Of Fact The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity: Stipulated Facts Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows: In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions; In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11); In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5). That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business. Stipulated Evidence Exhibit 1 - The deposition of Charles Kellum, Petitioner Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974. Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974. Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974. Exhibit 5 - The reports and deposition of Dr. Samartino. Exhibit 6 - The reports and deposition of Dr. Jacobson. Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36. Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975. Upon a consideration of the evidence further findings of fact are: The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification. The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled." Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman. Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years. His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service. Petitioner contends: That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work; That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty. Respondent contends: That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.
Recommendation Grant Petitioner Charles E. Kellum disability retirement benefits. DONE and ORDERED this 24th day of May, 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: Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building A Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT CHARLES E. KELLUM, Petitioner, vs. DOAH CASE NO. 77-465 DIVISION OF RETIREMENT, Respondent. /
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, as a surviving spouse, is entitled to a continuing benefit from the Florida Retirement System (FRS) based on the retirement account of her deceased husband, George S. Bohler. More specifically, it must be determined whether the forgery of the spousal acknowledgement form renders the member's election of the "Option 1" retirement benefit payment, which precludes a survivor's benefit for his spouse, invalid and void.
Findings Of Fact George Bohler, the FRS member at issue, was employed, at times pertinent, as a Professor of Economics at Florida Community College in Jacksonville. The College is an FRS employer and Mr. Bohler was a member of the FRS retirement system. The Division of Retirement is an administrative agency charged with regulation and operation of the Florida retirement system, including calculation of and determination of entitlement to retirement benefits, under various options and member circumstances. On March 22, 1999, Mr. Bohler filed a completed Florida Retirement System Application for service retirement and the Deferred Retirement Option Program (DROP). This was accomplished through his filing of "Form DP-11." The Form provides a retiree with information pertaining to four options by which his retirement benefits may be paid. One full page of that form provides an explanation of each option. Mr. Bohler selected Option 1, a retirement benefit pay-out plan which provides the highest monthly benefit. The Option 1 selection provides that this highest monthly benefit is payable for the lifetime of the retiree only. Upon his death, the benefit would stop and his beneficiary, here his spouse, the Petitioner, would receive only a refund of any contributions the member might have paid into the FRS which exceeds the amount he had received in benefits. Option 1 provides no continuing or survivor benefit to a beneficiary or surviving spouse. The DP-11 Form filed with the retirement application contained an apparent spousal acknowledgement purportedly signed by Deborah T. Bohler, the spouse of member George Bohler. It appears to acknowledge that the member had elected either Option 1 or Option 2, which provide no survivor/spouse benefit. The DP-11 Form indicated to the Division that the member was married. The parties have stipulated, however, that the Petitioner's signature on the FRS application for service retirement and the DROP program was actually forged. George Bohler, the member, was an FRS member from August 19, 1968, to March 31, 2005. He received FRS retirement benefits based upon the above-referenced application from the Division from April 1, 2000, to October 31, 2007. The Form DP-11 contained a statement to the effect that the retiree member understood that he could not add additional service, change options, or change his type of retirement once his retirement became final. Mr. Bohler began participation in the DROP program on April 1, 2000. Thereafter, his last date of employment was March 31, 2005, and he passed away on October 18, 2007. He received FRS benefits from April 1, 2000, until October 31, 2007. For 28 years, until his death on that date, Mr. Bohler was legally married to the Petitioner, Deborah Bohler, during which time they were never separated or divorced. On March 10, 1999, Mr. Bohler executed the FRS Application for Service Retirement and the DROP program. He had his signature notarized as required for that form. Joint Exhibit 1, in evidence. Mr. Bohler designated the Petitioner as his primary beneficiary on the DROP Application. He elected to begin participation in the DROP program as of April 1, 2000, and to retire from state employment effective March 31, 2005, which he did. There are four options which an FRS member may select for his or her retirement benefits to be paid to the member or to the survivors/beneficiaries. Mr. Bohler selected "Option 1" on his DROP Application form. This results in a significantly higher retirement monthly benefit than does Options 3 or 4, which have survivorship rights. The acknowledgement section on the DROP Application form requires that a member's spouse be notified and must acknowledge a member's selection of Option 1 or Option 2 by signing that DROP Application form, so that the FRS is thus informed that the spouse made a knowing, intelligent waiver of survivorship rights to benefits. The spousal acknowledgement provision or section does not require that the member's spouse's signature be notarized. The form also does not require a member to swear under oath that the spouse was notified. The parties have stipulated that the Petitioner's apparent signature shown on Mr. Bohler's retirement application form was forged. The Petitioner had no knowledge that her name had been placed on the form by some other person, nor did she have any knowledge that Mr. Bohler had selected Option 1 prior to his death. The Petitioner first learned that her husband had selected Option 1 when she contacted the Respondent, after his death, to request that his retirement benefits now be paid to her. She believed that she was entitled to survivorship benefits. Her husband never informed her that he had selected a retirement option which would not pay her survivorship benefits, nor had they discussed the matter before or since his retirement. In their marital and family relationship, the Bohlers had divided certain duties in such a way that Mr. Bohler, the FRS member at issue, handled all financial matters himself. The Petitioner, Mrs. Bohler, dealt with any tax issues or filings the couple was required to make during the years of their marriage. The Petitioner is a certified public accountant. The Petitioner was simply aware that her husband received retirement benefits, and knew the amount of them, but did not know that they represented benefits for Option 1 rather than Option 3 or 4. The Petitioner's signature on the spousal acknowledgment section of the DROP Application form is stipulated to have been forged. The fact of the forgery, and the Petitioner's un-refuted testimony, establishes that she was never notified, nor did she ever acknowledge that her husband had selected Option 1. She was not aware that an attempt to waive or extinguish her survivor's benefits had been made. She believed, during his lifetime, that she was to be accorded survivor benefits. Testimony presented by the Respondent shows that the Respondent Division will not accept a retirement application form, or process it, if a member fails to complete the spousal acknowledgement section or, alternatively, to submit a signed statement explaining why that section is left blank, or the signature of the spouse has not been obtained. The fact that the Division will not accept a retirement or DROP Application form or process the related benefits if the acknowledgement section is unsigned or blank establishes the mandatory nature of the requirement that a spouse acknowledge a member's election to receive benefits under an option which would preclude a spouse's survivorship benefits. The acknowledgement is thus not an optional requirement. In fact, the legislature clearly placed that requirement in the statute, Section 121.091(6)(a), Florida Statutes, as a mandatory requirement so a spouse would know of any such attempt to waive the spouse's survivorship rights and benefits. It is an acknowledgement that the spouse has a vested or property right in such benefits, which must be knowingly and intelligently waived. The Statute says, in fact, that the spouse of any member "shall be notified of and shall acknowledge any such election." Therefore, obtaining a spouse's signature is not the only desired result set forth by the legislature (and under the rule adopted pursuant thereto) because it requires actual notification of the spouse, not merely the obtaining of a spouse's signature, whether genuine or forged. Actual notification is what must be accomplished. The required notification and indeed the obtaining of the Petitioner's signature was not accomplished in the facts of this case. In light of these facts, the act of declaring and accomplishing retired status, and selection of the related benefit option, was never completed. The Option selection was obviously a nullity and void ab initio because the mandatory condition precedent never was accomplished by the member.
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 State of Florida, Department of Management Services, Division of Retirement, awarding the Petitioner retirement benefits based upon her status as a surviving spouse and joint annuitant, in the manner described above, adjusted to reflect re-calculation and recoupment of overpayment based upon the amount of benefits already paid from the subject retirement account pursuant to Option 1. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2009. COPIES FURNISHED: Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 T. A. Delegal, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 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
The Issue May Petitioner be excluded from participating in the Florida Retirement System for the academic/fiscal year 1978-1979?
Findings Of Fact Petitioner was hired by the University of Florida in 1975 and has been employed with the University of Florida from 1976 to the present. Petitioner believed himself to be a member of the Florida Retirement System from 1976 to the present. There is no dispute that he is entitled to Florida Retirement System benefits from 1976 to 1978 and from 1979 to the present, during which years Petitioner was paid from State salaries allocations and worked in a regularly established State position. Petitioner was paid during the years 1976-1980 with a combination of funds from several sources: the State salary budget, the federal Veterans Administration (VA), and a University of Florida practice funding account. The allocation of these funds in the year 1978-1979 created the current problem. During the years 1976-1980, Petitioner performed work for both the University of Florida (State of Florida) and the VA. The Federal Retirement System was a defined plan from 1976 to 1980. Petitioner was an employee of the VA from 1976 to 1980. Petitioner was a participant in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner received retirement credits in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner's employment during the State fiscal year 1978-1979 included job duties and work performed as an employee of the University of Florida (State of Florida) and did not change from previous years. Petitioner's salary during the State fiscal year 1978- 1979 should have included an allocation from State funds. Due to an administrative error, Petitioner's entire salary was paid only with federal VA funds for the State fiscal year 1978-1979. State funds did not contribute to Petitioner's salary during the State fiscal year 1978-1979 solely due to the administrative error in the allocation of funds for Petitioner's salary, and even though the State presumably benefited from his labor. For the 1978-1979 fiscal year, Petitioner received retirement credits in the Federal Retirement System and none have been taken away. Contributions were made to the Federal Retirement System on Petitioner's behalf as an employee of the VA from 1976 to 1980, and Petitioner received retirement credits in the Federal Retirement System as a VA employee for that period. Petitioner earned $2,072.50, in federal retirement contributions in 1977; $2,256.52, in federal retirement contributions in 1978; and $1,931.56, in federal retirement contributions in 1979. When Petitioner discontinued work for the VA in 1980, his federal contributions were paid to him in a lump sum by the federal government. Petitioner placed this money in a private retirement account.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a final order which: Finds Petitioner was a federal employee during the 1978-1979 academic/fiscal year and at this time is not entitled to credit therefor in the Florida Retirement System; Provides for his participation in the Florida Retirement System for the 1978-1979 academic/fiscal year if he elects to participate pursuant to Rule 60S-2.007(3) Florida Administrative Code; and Establishes, pursuant to the formula provided in Rule 60S-3.008(3), Florida Administrative Code, the amount by which Petitioner may "buy back" that year of State service, if he elects to do so. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Esteban F. Scornik, Esquire McDonough & Wieland, P.A. Post Office Drawer 1991 Orlando, Florida 32802 Thomas E. Wright, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffman, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner is a resident of Florida and resides at 306 Sweetwater Cove Boulevard, North, Longwood, Florida 32779. Respondent, Department of Administration, Division of Retirement, is an agency of the State of Florida located at Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 32303. Intervenor is a resident of 5448 San Luis Drive, Orlando, Florida 32807. The agency action challenged by the Petition is the determination that the continuing monthly retirement benefit available under Option 4 of the Florida Highway Patrol Pension Plan, which provides for a continuing monthly benefit to the "spouse" of the retiree shall be paid to the person who was the spouse at the time of the retiree's retirement, not the individual who was the spouse of the retiree at the time of the retiree's death. Petitioner was not married to Florida Highway Patrol retiree Jack E. Walden on the date of his retirement, which was November 1, 1972, but was the legal spouse of Jack E. Walden at the time of his death on January 9, 1985. Florida Highway Patrol retiree Jack E. Walden was married to Barbara C. Walden on the date of his retirement; however, subsequently on January 22, 1976, Barbara Walden and Jack Walden were divorced. Thereafter, on February 6, 1976, Jack Walden married Marilyn S. Walden and she remained his spouse during the following nine years until his death. Petitioner has sought to be paid a "surviving spouse" or other benefit available from the Florida Highway Patrol pension plan, however, the Agency has determined that any benefit must be paid to the former spouse of Jack E. Walden, not Petitioner. Intervenor, Barbara C Yeater, was married to Jack E. Walden on January 19, 1949. She was his spouse during the entire time of his service with the Florida Highway Patrol, at the time of his retirement in 1972, and until dissolution of their marriage in 1976. In September, 1972, prior to his retirement, Jack E. Walden designated Barbara Walden as his beneficiary under the Highway Patrol Retirement System. (Exhibit 1)2 On June 27, 1975, Respondent received Exhibit 2,3 but did not respond to it. At the time Exhibit 2 was received by Respondent, it was the Division of Retirement policy that a retiree who had selected Option 4 under Chapter 321, F.S., could not change the previously selected recipient of survivor benefits subsequent to retirement and cashing of the first warrant. A copy of Exhibit 2 was not sent to Barbara Yeater. There was no further communication from Jack E. Walden to Respondent concerning changes in beneficiary or option selection after June 27, 1975. There was an exchange of correspondence between Respondent and Barbara Yeater (Exhibits 3, 4 and 5),4 but copies of that correspondence were not sent to Jack E. Walden. The Petition and final judgment of dissolution between Jack Walden and Barbara Yeater are Exhibits 7 and 8 in evidence. The subject retirement benefits were not disposed of in the final judgment of dissolution. The monthly benefit payable to Jack E. Walden's surviving spouse is $622.00 plus cost-of-living adjustments. Decedent retired with 21.60 years service, which produced an initial benefit of $475.91. Jack E. Walden believed, at the time of his death, that he had accomplished the change in beneficiary which he sought to carry out by filing Exhibit 2 with Respondent. This fact is based on the absence of any reply by Respondent rejecting the proposed change, by Decedent's failure to make other arrangements for Marilyn Walden, by not seeking to modify the alimony payments awarded to Intervenor, and by his statements to Petitioner and to his friend, George Watson, indicating his belief that the change had been effected, and, finally, by the fact that Respondent accepted and thereafter utilized the change of address contained in the change of beneficiary notice. Respondent relied on the Arnow case5 in its decision to award the continuing benefits to Intervenor on the death of Jack E. Walden (discussed below).
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order awarding continuing retirement benefits to Petitioner. DONE and ENTERED this 29th day of August, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985.
