The Issue The issue for determination is whether Petitioner has enough creditable service in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida Statutes (2009),1 to be "vested" and, therefore, eligible for a retirement benefit.
Findings Of Fact Petitioner is not currently an employee of any FRS employer. Petitioner was an employee of several different FRS employers during the 1970's and 1980's. Petitioner proved that he had creditable earnings from three FRS employers. The creditable earnings were from Hillsborough County from October 1977 through April 1978, Pasco County from August 1987 through December 1987, and Hernando County from March 1988 through August 1989. Petitioner has 3.09 years of creditable service in the FRS. The creditable service is not sufficient to vest Petitioner and does not entitle Petitioner to retirement benefits. Petitioner was employed with the City of Largo, Florida, for some time. However, that municipality was not an FRS participating employer during the period of employment. Petitioner worked for the U.S. Postal Service for some time. That agency is not an FRS participating employer. Petitioner was a student on work study at both the University of Florida and Florida State University. Paid student positions at state universities were not positions which were included in the FRS during that time. Petitioner also seeks to purchase his military time of approximately 22 months. Members of the FRS are allowed to purchase certain military service after they vest in the FRS. A preponderance of the evidence does not support a finding that Petitioner has sufficient years of service to vest in the FRS and then purchase military service. Petitioner was employed in some state positions prior to 1975. Until 1975, the FRS was a "contributory" system. Employers withheld contributions to the retirement system from the wages of participating members and forwarded the withheld amounts to the Division. It is undisputed from Petitioner's testimony that no retirement contributions were ever withheld from his wages during the period that FRS was a contributory system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner's request for retirement benefits. DONE AND ENTERED this 5th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 5th day of April, 2010.
Findings Of Fact John L. Durden, Petitioner, was initially employed by the State Road Department (SRD), the predecessor agency to Respondent, on September 29, 1952. He left the SRD on June 30, 1955, and was employed by the Florida Turnpike Authority (FTA) on July 1, 1955. Petitioner was employed by the FTA until October 9, 1958, and was reinstated at the SRD on October 10, 1958, and has been continually employed by this agency and Respondent. At the time Petitioner terminated his employment with the SRD, the Merit System in Florida had not commenced although the law became effective on June 20, 1955, when signed by the Governor. The Merit System became applicable to a state agency when that agency was so designated by the Governor. During the period Durden was employed by the FTA that agency was not placed under the Florida Merit System, but the SRD was placed under the Merit System. Accordingly, when Durden returned to the SRD in 1958, he became covered under the Florida Merit System. Leave policies in effect during the period between 1952 and 1958 provided that an employee earned annual leave at the rate of one working day per month during the first ten years of creditable service and one and one-quarter working days per month from the commencement of the eleventh year of creditable service. After state agencies came under the Merit System, State Personnel Rules promulgated thereafter were applicable only to agencies under the Merit System. When Petitioner returned to the SRD in 1958, there was no provision in the statutes or rules whereby Petitioner could use his prior service with the SRD or his service with the FTA to accrue ten years' creditable service for the purpose of computing earned leave. Accordingly, the entry on his personnel records that he would complete ten years' creditable service in 1968 was correct. In 1968 the personnel rules were changed to allow an employee, working for an agency under the Merit System, to earn ten hours of annual leave per month after five years of continuous and creditable service and twelve hours of annual leave after ten years of continuous and creditable service. These rules specifically provided they would have no retroactive application (Exhibit 11). In 1968 Petitioner completed ten years of continuous and creditable service with the SRD and earned leave in accordance with these rules. At the time Petitioner tendered his resignation to the SRD to accept employment with the FTA sick leave could not be transferred to a different agency. When Petitioner left FTA to return to SRD, any sick leave Petitioner had accrued at the FTA could not be transferred to the SRD because the FTA was not under the Merit System. The FTA was made a state agency by the Legislature when the FTA was created in 1953 Section 340.05, Florida Statutes (1955), but, as noted above, its employees were never covered by the Merit System. The pay records maintained by the Comptroller show that Petitioner was paid by state warrant issued from the Comptroller's office from 1952 until 1955 and from 1958 to the present. This indicates that FTA employees were not paid from appropriated funds but from revenues (or bonds) from the Turnpike.
Findings Of Fact Respondent, Department of Legal Affairs (Department) is an agency of the State of Florida. Petitioner, Calvin L. Fox (Fox), was employed by the Department from April 24, 1978 to June 26, 1987, and consequently accrued nine years, two months and two days of creditable state service. Immediately prior to his employment with the Department, Fox had been employed by a county government. That employment, which commenced March 17, 1976, is creditable under the state retirement system but is not considered creditable state service for other termination benefits. Upon his resignation from the Department, Fox was paid $966.31 for accumulated sick leave based on the erroneous conclusion that March 17, 1976, as opposed to April 24, 1978, was the date he commenced creditable state service. 1/ Commencing in 1985, Fox was engaged in litigation against the Department arising from his employment with the State of Florida. While the record does not disclose the specifics of that litigation, it does establish that the parties resolved their dispute through the execution of a mutual release dated August 7, 1987, and a joint stipulation of voluntary dismissal with prejudice of a Federal court action on the same date. Pertinent to this case, the joint stipulation provided: In consideration for such mutual releases and voluntary dismissal with prejudice, the parties agree to provide the consideration agreed upon in the Mutual Release attached as Exhibit 1 as full settlement of all claims alleged or which could have been alleged in this cause of action. By accepting the terms of this stipulation and the mutual release which may pertain, the parties do not admit liability or wrongdoing in this action. The parties agree to mutual releases and the payment of consideration solely to accomplish the compromise and settlement of any and all claims, demands, actions, causes of action, or suits of any kind or nature whatsoever, including all attorney fees and costs, arising from Plaintiff's employment or non- employment, by the Defendants. All parties stipulate and agree that this document, with the attached release, represents the entire agreement between them, and that the terms contained herein may not be changed or altered without the express written consent of all parties. The mutual release provided: In consideration of Employee Fox's voluntary dismissal with prejudice and his voluntary resignation, the sufficiency of which is hereby acknowledged, the State, for itself and its legal representatives and assigns, agrees to release, acquit, satisfy and forever discharge Employee Fox, his agents or servants and all heirs, legal representatives, successors or assigns, from all claims alleged or which could have been alleged in the above-styled actions and from all causes of action, claims or demands whatsoever in law or in equity as a result of any loss known or unknown at this time, or which may hereafter become known, develop or accrue, occasioned by or arising out of, directly or indirectly, any of the matters set forth or which could have been set forth in the above-referenced or any other litigation between the parties. * * * The undersigned have read the foregoing release and fully understand it and voluntarily accept it for the purpose of making a full and final compromise, adjustment and settlement of any and all claims based upon the allegations of the above-referenced litigation or any other litigation between the parties and for the express purpose of precluding forever any further or additional claims arising out of Employee Fox's employment or non-employment. In March 1988, the erroneous payment of accumulated sick leave to Fox was disclosed during a routine audit of the Department by the Auditor General. Fox has denied liability for the repayment of such monies predicated on the parties execution of the joint stipulation and mutual release discussed supra.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order which terminates any further efforts to collect the subject monies from Fox. DONE and ENTERED this 31st day of March, 1989, 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 31st day of March, 1989.
Findings Of Fact Petitioner served on active duty in the U.S. Air Force from July 17, 1958 through April 1, 1963. On April 1, 1963 Petitioner left active duty and entered the active Air Force reserve program from which he retired in December 1980. Petitioner commenced working for a governmental unit in Florida July 1, 1965 and has been continuously employed since that time, except for a short period he was on active military duty for training. From April 8, 1971 until July 3, 1971 Petitioner was on extended active duty for training during which time he was being trained to fly helicopters in combat. This period exceeded the two weeks leave Petitioner is allowed annually for military training and the annual leave Petitioner had on the books at the time. Accordingly, he was in a leave without pay status for the last month of this period. It is for the period of active duty while in a leave without pay status that Petitioner claims qualifies him to purchase the retirement credits for wartime military service. Rule 2213-2.05 Florida Administrative Code establishes wartime service periods during which an employee may become eligible to purchase retirement credits. For the purpose of Petitioner's application the period in which he claims to be qualified is the Vietnam Era, service from August 5, 1964 through May 7, 1975. Petitioner's active duty from 1958-1963 clearly does not fall in a wartime category. In determining these dates of wartime service Respondent uses the periods contained in Title 38 USCS 101. Respondent also uses the definition of "active duty" contained in 38 USCS 101 (21)A which is "full-time duty in the Armed Forces, other than active duty for training."
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
The Issue The issues are whether Petitioner's employment as a substitute teacher is creditable service under the Florida Retirement System, entitling her to retirement benefits and whether she may purchase retirement credit for out-of-state and federal service prior to vesting.
Findings Of Fact Petitioner, aged 53, applied for retirement benefits from the Florida Retirement System (FRS) on October 20, 2003. Petitioner has 4.53 years of creditable service with the FRS due to her employment as a full-time teacher with the Alachua County School Board (School Board). She worked for the School Board from sometime in the early 1970s through May 1977. In May 1977, Petitioner terminated her employment with the School Board. She then joined the military, serving four years of active duty. After completing her military service in 1981, Petitioner worked out of state as a civil service employee with the Federal government. She also worked for a period of time in the private sector. In the 1990s, Petitioner returned to Alachua County, Florida. She worked as a substitute teacher for the School Board for approximately four years, from November 21, 1999 through February 14, 2002. Before beginning her employment as a substitute teacher/temporary employee in 1999, Petitioner signed a document entitled "Acknowledgement of FRS Status and Alternative Plan." This document clearly advised Petitioner that her employment as a substitute teacher was not covered under FRS. Petitioner was not employed by a participating employer in a regularly established position on July 1, 2001. She needs an additional 1.47 years of credible service in order to vest in FRS with six years of credible service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to FRS benefits. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 13th day of January, 2004. COPIES FURNISHED: Robert R. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Carolyn Johnson-Rollins Apartment N118 2701 Northwest 23rd Boulevard Gainesville, Florida 32605 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issue in this proceeding is whether Petitioner is entitled to retirement service credit for the time period in which he was not employed with the State of Florida.
Findings Of Fact The Department of Management Services (DMS) is responsible for the administration of the Florida Retirement System (FRS) under Chapter 121, Florida Statutes. The Department of Transportation (DOT) is an agency of the State of Florida whose employees qualify for membership in FRS. Petitioner Richard L. Duley is an honorably discharged veteran. He began employment with DOT in 1991. At the same time, he became a member of FRS. Prior to 2001, then-Governor Jeb Bush directed state agencies to reduce their workforce by 25 percent over a five- year period beginning in 2001. The directive was known as the "Service First Initiative." In response to the Governor’s directive, DOT developed an Agency Organizational Efficiency Plan. On January 18, 2005, Petitioner was notified that his position was designated to be deleted under the Agency’s Organizational Efficiency Plan; his position was abolished on June 30, 2005. As a result, Petitioner was dismissed from state employment and was no longer receiving retirement service credit for FRS. However, Petitioner did not receive a clear point of entry to challenge either his termination or whether he was entitled to a veteran's preference by DOT. After his dismissal, Petitioner was hired by a private firm who had contracted with the State to perform the functions that Mr. Duley had previously provided as an employee of the state. The contract terminated in June or July of 2007, and was not renewed. As such, Mr. Duley became unemployed. On July 30, 2007, Petitioner filed a complaint with the Department of Veterans’ Affairs (DVA) alleging that DOT had denied him veteran’s preference in retention during the 2005 layoff. The DVA found that Petitioner's complaint had merit. On November 19, 2007, Petitioner filed a complaint with the Public Employees Relations Commission (PERC), which held an evidentiary hearing on the complaint. PERC is the administrative body that has jurisdiction to determine issues and remedies under the veteran's preference statute. In its Final Order issued April 8, 2007, PERC found that Petitioner was an honorably discharged veteran and was entitled to preferential treatment in employment. PERC also found that DOT violated the veteran’s preference law by not affording Petitioner special consideration in finding alternative employment after the layoff. As a remedy for its violation of the veteran's preference law, PERC ordered DOT to make Petitioner an offer of employment to an existing position comparable to that which he held prior to his layoff. PERC also awarded Petitioner attorneys’ fees and costs. However, and most importantly, PERC did not reinstate Petitioner to his former position because it had been abolished. Similarly, PERC did not rescind Petitioner's termination. Finally, PERC did not award back pay or benefits to Petitioner. As a consequence of the Final Order, neither Petitioner nor DOT paid contributions towards the Retirement Systems Trust Fund for the period that Petitioner was not employed with the State. Additionally, Petitioner was offered and hired into a new position by DOT and again began to accrue retirement service credit in FRS when he was hired by DOT in May of 2008. The PERC Final Order was not appealed and became res judicata on the issues litigated therein. Therefore, since Petitioner's termination was not rescinded and Petitioner was not reinstated by PERC and did not pay contributions into FRS, he is not entitled to receive credit for the time he was not employed by the State and this action should be dismissed.
Recommendation Based upon the foregoing, Finding of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a Final Order dismissing this action. DONE AND ENTERED this 23rd day of December, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 23rd day of December, 2010. COPIES FURNISHED: Richard L. Duley 5432 Pinderton Way Tallahassee, Florida 32317 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Kristin M. Klein, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 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 Whether Respondent should grant Petitioner's request that he be reclassified (for retirement purposes) as "Special Risk Administrative Support," effective January 1, 1994.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1972, employed by Miami-Dade County's Correction and Rehabilitation Department. He began work in 1972 as a Correctional Officer. He now is the Assistant Director of General Administration. In 1993, Petitioner held the position of Assistant Director of Corrections and Rehabilitation Services (position number 4594), and was a member of the Special Risk Administrative Support Class within the Florida Retirement System (FRS). Miami-Dade County placed notices in the September 11, 1993, and September 18, 1993, editions of the Miami Herald of its intention to designate Petitioner's position (position number 4594) and others for inclusion in the Senior Management Service Class of the FRS, effective January 1, 1994. Thereafter, Beth Carlton, Miami-Dade County's Employee Benefits Coordinator, issued a two-page memorandum, dated October 13, 1993, on the subject of "[c]hange in [r]etirement [c]lass [d]esignation." The first page of the memorandum read as follows: A recent legislative change allows local government employers to designate certain positions to be included in the Senior Management Service Class (SMSC) of the Florida Retirement System (FRS). As required by statute, a notice of intent was published and the Board of County Commissioners has designated executive positions in groups 1 and 2 as positions to be included in the SMSC. Effective January 1, 1994, your position is designated as one belonging to the SMSC. Attached is a booklet from FRS explaining the SMSC. Senior Management Service Class There are essentially two differences between the Senior Management Service Class and Regular Class under FRS. Under the SMSC you are vested after you have completed 7 years of Senior Management service (or 10 years of any FRS service). You may retire without reduction in benefits due to age if you are 62 and have 7 years of Senior Management service, or 10 years of any FRS service. Each year of creditable Senior Management service earns you a 2% credit. Regular service earns 1.6% credit. Additionally, in accordance with state statutes, the Board of County Commissioners has authorized the County to upgrade to SMSC service any creditable service you may have earned in a designated Senior Management position since February 1, 1987. This means that you will receive the 2% service credit for any upgraded service. This upgrade will take place after January 1, 1994, and will apply only to those employees occupying designated Senior Management positions on January 1, 1994. Lifetime Monthly Annuity Program Employees in positions designated Senior Management may instead elect to withdraw from the Florida Retirement System altogether and participate in a lifetime monthly annuity program. The second page of the memorandum read as follows: Members of the SMSC who elect to withdraw from FRS and participate in the annuity program do not earn additional FRS credit while they are in the annuity program and are not eligible for disability benefits under FRS. Your decision to withdraw from FRS and participate in the annuity program is irrevocable as long as you remain in a Senior Management position. Should anyone occupying a position designated as Senior Management elect the Lifetime Monthly Annuity Program, the County would need to establish and fund a separate supplemental retirement program. The County would contribute 12.62% of the covered compensation of any such employee to the annuity program, and 10.45% to FRS for unfunded actuarial accrued liability (rates set by Florida legislature). For SMSC participants, the County will contribute 23.63% of covered compensation. The annuity program does not guarantee any benefits payable on retirement, but merely guarantees the amount of contributions and actual investment earnings. The health insurance subsidy is not paid for service under the annuity program. Next Steps You will receive an election form from FRS. Forms are still being developed and are not currently available for distribution. On the election form you will elect either to remain in SMSC or to withdraw from FRS. We are automatically preparing paperwork for FRS to upgrade all eligible prior service to SMSC and will notify you of the dates of service that we are requesting to upgrade. FRS will not process any upgrades until after January 1, 1994. Upgrades for those Senior Management employees who are planning to retire early in 1994 will be handled first. If you are planning to retire before June of 1994, please notify us immediately. Once the upgrades are complete, you will be informed of your years of creditable Regular service and SMSC service according to FRS records. Petitioner received a copy of the first page of the memorandum; however, he received neither a copy of the second page of the memorandum, nor a copy of the "booklet from FRS" referenced on the first page of the memorandum (FRS Booklet), which explained, among other things, that, in lieu of participating in the Senior Management Service Class, those in the Special Risk or Special Risk Administrative Support Classes had the option of remaining in these classes. For purposes of benefits and compensation, executive positions in Miami-Dade County government are placed in one of three "Executive Benefit Groups" (Groups 1, 2, and 3). At the time of the issuance of Ms. Carlton's October 13, 1993, memorandum, Petitioner occupied a position (position 4594) in Executive Benefit Group 2. (Earlier, in December of 1991, when his position was reclassified to Assistant Director of Corrections and Rehabilitation Services, a Personnel Change Document was filled out which recommended that his position be included in Executive Benefit Group 3 instead of Executive Benefit Group 2. This recommendation, however, was not acted upon.) The benefits and compensation package received by Petitioner and the other executives in Executive Benefit Group 2 was more generous than those received by executives in Executive Benefit Group 3 and less generous than those received by executives in Executive Benefit Group 1. In January of 1994, Andrea Romisher, Miami-Dade County's Employee Benefits Manager, issued a memorandum, dated January 11, 1994, addressed to "Group 1 and Group 2 Executives," on the subject of "[e]nrollment in the Senior Management Class of the FRS." The memorandum read as follows: You received a memorandum in October which detailed the expansion of the Senior Management Class of the Florida Retirement System as of January 1, 1994. We have received the necessary forms from the Division of Retirement and are in the process of formally designating executive positions in groups 1 and 2. However, prior to our changing your retirement class, you must complete the enclosed FRS M-10. To enroll in the Senior Management Service Class: Complete the top of the form; Attach a copy of your Social Security card on the form; Designate a beneficiary by choosing either section 1, 2, or 3 under the designation of beneficiaries section; Sign and date the form. Return the form to the Office of Labor Management and Employee Benefits, 111 N.W. 1st Street, Suite 2140 no later than January 21, 1994. Please direct the form to me or Beth Carlton. The prior memorandum also explained the provision whereby members of the SMSC may irrevocably elect to withdraw from the Florida Retirement System and participate in an optional annuity program. We have contacted one of our providers and anticipate having the optional annuity program available in the near future. We have been instructed by the Division of Retirement to enroll all eligible executives in the SMSC in the interim. If you are interested in participating in the optional annuity program, please advise either me or Beth Carlton so that we may send you an election form and details of the plan when it has been finalized. Additionally, you may elect to irrevocably withdraw from the Florida Retirement System and participate in the optional annuity program at any time you occupy a position which is covered by the SMSC. If you have any questions, please call us at 375-5633. Petitioner received a copy of the foregoing memorandum. After reading the memorandum, Petitioner was of the view that remaining in the Special Risk Administrative Support Class was not an option available to him. He believed that his only alternatives were to be in the Senior Management Service Class, or "to withdraw from the Florida Retirement System altogether and participate in a lifetime monthly annuity program." On February 4, 1994, Petitioner signed and dated the following Ballot/Enrollment Form for Local Agency Employees (Division Form SMS-3) with which he had been provided: TO BE COMPLETED BY MEMBER: Name Social Security Number Position Title Position Number DATE YOU BEGAN EMPLOYMENT IN CURRENT SMSC POSITION: I understand that I am in a position designated to the Senior Management Service Class (SMSC) or either I am a compulsory member of the SMSC as provided in Section 121.055(1)(b), Florida Statutes. I also understand that in lieu of participation in the SMSC, I may now or at a later date withdraw from the Florida Retirement System (FRS) and participate in a lifetime monthly annuity program which may be provided by my employer. I hereby select the following: I elect to remain in the Florida Retirement System's SMSC, or I elect to withdraw from the FRS and participate in a lifetime monthly annuity program. I understand that my decision to withdraw from the FRS is irrevocable for as long as I hold a position eligible for the membership in the SMSC. I also understand information concerning the annuity program will need to be obtained through my employer. Member's Signature Date TO BE COMPLETED BY EMPLOYER: I certify that the above member's payroll records have been changed effective to reflect the above member's choice of membership. Signature of Personnel Officer Date Name of Employing Agency Reporting Unit Number Inasmuch as he "did not want to leave FRS," Petitioner indicated on the form that he "elect[ed] to remain in the Florida Retirement System's SMSC." Had Petitioner known that he had the option of staying in the Special Risk Administrative Support Class, he would have elected this option instead of the one that he selected. The Miami-Dade County "Personnel Officer" who completed the bottom portion of the form indicated thereon that Petitioner's "pay roll records ha[d] been changed effective 1/1/94 to reflect [Petitioner's] choice of membership." The completed Division Form SMS-3 was sent to the Division of Retirement (Division). The Division also received a form completed by Miami- Dade County which reflected that Miami-Dade County had "published notice of [its] intent to include [Petitioner's position, among others] in the SMSC [Senior Management Service Class] in the Miami Herald on 9/11/93 and 9/18/93," and that the position had been so designated for inclusion in the SMSC in accordance with the requirements of Section 121.055(3) and (7), Florida Statutes. In 1997, after learning that he had to wait another five years to retire with full benefits because of his having been "place[d] . . . in the Senior Management Service Class" in 1994, Petitioner, by memorandum dated December 26, 1997, formally requested Miami-Dade County's Employee Benefits Supervisor, Daniel Gonzales, to "take the appropriate action to accomplish [his] conversion to the [S]pecial [R]isk [A]dministrative [S]upport [Class] for the period [he has been] included in [the] SMSC." Petitioner received the following written response to his request: This memo is in response to your request to change your retirement class from the Senior Management Service Class (SMSC) to the Special Risk Administrative Support Class. In February 1994, Metro Dade designated your position to be included in the Senior Management Service Class. Simultaneously, you completed a FRS-M10 Form [Designation of Beneficiaries form] and Form SMS-3 thereby enrolling in the SMSC. This election enabled you to receive an increase in your annual retirement percentage from 1.6% for Special Risk Administrative Support Class to 2.0% for the Senior Management Service Class. Since 1994, the Employee Benefits Office has been working with the Florida Retirement System (FRS) to upgrade the service time of all executives serving in a position designated as Executive Benefits Level 2 or higher. Based on the elections you made in February 1994, the effective date of your SMSC service is January 1994. On July 3, 1997, you requested that your service from January 1987 through December 1993, not be upgraded until you received a decision from the FRS regarding your Special Risk Service Class. Although you received a determination on the Special Risk Service Class, your memo dated December 26, 1997, indicated that there are still some pending issues with the FRS. Therefore, we will continue to honor your request until all your issues with the FRS are resolved. In regards to changing your retirement class to Special Risk Administrative Support, we are unable to process your request. As specified in the Florida Retirement System Rules Chapter 60S-1.0057(2)(a), a member may elect to remain in the Special Risk Class in lieu of participating in SMSC, however such election must be made in writing and filed with the employer and the Division within 90 days after employment begins in a Senior Management Service Class position. By completing the SMSC enrollment paperwork, you made a decision to join the Senior Management Class. A copy of the Florida Retirement System Rules Chapter 60S-1.0057 has been attached for your review. Further questions on this issue should be directed to Mr. David Ragsdale, Division of Retirement, Bureau of Enrollment and Contributions, 2639-C, North Monroe Street, Tallahassee, Florida, 32399- 1560. Petitioner subsequently requested the Division to change his classification. By letter dated July 31, 1998, which provided in pertinent part as follows, the State Retirement Director notified Petitioner that a final decision had been made that his request could not be granted: This is in response to your June 8, 1998 letter requesting the Division of Retirement reconsider its decision to reclassify your service from the Senior Management Service Class (SMSC) to the Special Risk Administrative Support Class (SRASC). By letter dated April 23 (copy enclosed), we advised you of our determination that there is no provision in the FRS law that would allow the Division to honor your request for reclassification. Enclosed is a copy of Section 60S- 1.0057(2)(a)1., F.A.C. Based on the information provided, it appears you failed to elect to remain in the Special Risk Administrative Support Class within the 90 day period as provided in the law. You indicated an election to remain in the SMSC when you executed a Ballot/Enrollment FORM SMS-3, dated February 4, 1994 (copy enclosed), and are consequently a compulsory member of the SMSC. Therefore, the ruling is now final, and if you do not agree with the decision, you are entitled to an Administrative Hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order granting Petitioner the equitable relief described above. DONE AND ORDERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1999.
The Issue The issue in this case is whether Petitioner should be granted credit in the Florida Retirement System (FRS) for the period from September 1973 through September 1974.
Findings Of Fact Petitioner is a current employee of Miami-Dade County and a participant in the Deferred Retired Option Program (DROP). Petitioner has been an employee of Miami-Dade County since 1973. From 1970 until 1973, Petitioner was employed with the Florida Department of Transportation. Petitioner has 30 years of service credit in the FRS. From September 1973 through September 1974 Petitioner was employed in a position with Miami-Dade County which was funded under Budget Status Code 4. During this 13-month period, under Dade County Personnel Policy, Budget Status Code 4 denoted a "temporary or on call" position. In October of 1974, Petitioner was promoted into a full-time, regularly established position. In 2000, Petitioner was provided an estimate of benefits as he was in preparation to enter the DROP. As a result, Petitioner requested that the Division grant him credit for the September 1973 through September 1974 period. The Division denied this request and Petitioner filed a timely appeal. On March 6, 2001, Petitioner applied for and began participation in the DROP program effective April 1, 2001. Petitioner is now participating in the DROP. When Petitioner enrolled in the DROP program, two of the documents he signed included the following statement: "I cannot add additional service, change options, or change my type of retirement after my DROP begin date."
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 retirement service credit for the period of his employment with Miami-Dade County from September 1973 through September 1974. DONE AND ENTERED this 18th day of October, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. 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 18th day of October, 2001. COPIES FURNISHED: Victor Larger 4421 Southwest Third Street Miami, Florida 33134 Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Post Office Box 3900 Tallahassee, Florida 32399-3900 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Eugene L. Borus began employment with the Department of Transportation (DOT) in February, 1962, and was enrolled in the Florida Retirement System (FRS) as a mandatory member. In April, 1976, he terminated employment and applied for retirement. He was retired effective May 1, 1976, with 12.33 years of credible service (Exhibit 2). Mr. Borus was reemployed on May 23, 1977, by DOT. During 1977 and under the provisions of the "Reemployment After Retirement" provisions of Section 121.091(9), Florida Statutes, Petitioner received both his salary and his retirement benefit up to 500 hours of employment at which point his retirement benefits ceased. Beginning January 1, 1978, and on each January 1 thereafter Petitioner was again paid his retirement benefit up to 500 hours of employment after which the retirement benefit was discontinued. In early 1984, Mr. Borus applied to the Division to have his 1976 retirement cancelled and his employment service with DOT since 1976 included in his creditable service so that at such time as he would again retire, his total creditable service would include all his employment time. If this transpired, his future retirement benefits would be greater than those currently paid. His request was denied by the Respondent by letter dated April 5, 1984 (Exhibit 1). No member of FRS who has retired and drawn retired pay, except for those excepted in Section 120.091(4)(e) and 121.091(9)(d) have ever been "unretired" and allowed to rejoin the FRS.
