The Issue Whether Respondent is entitled to contest the forfeiture of his retirement benefits.
Findings Of Fact On December 28, 2006, Respondent sent a Notice of Forfeiture to Petitioner at 2848 Carriage Court, Kissimmee, Florida 34772, via certified mail. Petitioner’s actual residence was not in Kissimmee, but rather located at 2848 Carriage Court, Saint Cloud, Florida 34772. The certified mail receipt for the Notice of Forfeiture was returned unsigned. A printout of the United States Postal Service’s website scanned in as part of Petitioner's file with the Division indicates that the Notice of Forfeiture was delivered on January 6, 2007, in Saint Cloud, Florida 34772. A handwritten notation on the copy of the printout indicates that: “must file petition on or before Jan 29, 2007.” On January 22, 2007, Robert Augustus Harper, who represented himself as counsel for Petitioner, sent a letter to Respondent requesting “all records and documents on Mr. Day.” This letter was stamped as received on January 25, 2007, in Respondent’s records. Respondent’s records do not indicate whether a response was ever sent to Mr. Harper or Petitioner. On April 8, 2009, Petitioner sent a letter to Respondent regarding the appeal of his criminal case, which was stamped as received on April 10, 2009, by Respondent. The letter advised that it was “to update your office of my retirement account with the State.” The letter further stated: At this time I have gone through one appeal process of criminal offences [sic] filed against me, out of the original 15 charges filed 13 has [sic] been reversed or found not guilty by either the Circuit Court or Appeals Court [sic] We are in the process of further appealing the remaining two counts. Enclosed is a letter from my attorney which was sent to you prior to our first appeal. After over 30 years of retirement payments made and a few years paid by myself in the 1970’s I hope this results in a favorable ending to myself. No response was sent to this letter by Respondent. On July 26, 2017, Petitioner met with employees of Respondent and received a copy of the Notice of Forfeiture. At that meeting, an employee of the Division, identified as Mr. Dame, submitted the following electronic inquiry: “Member never received reply to his letter dated April 8, 2009. He would like a reply ASAP. He also would like to know the disposition of his contributions.” On August 9, 2017, Kathy Gould, bureau chief of Benefit Calculations for Respondent, sent Petitioner a letter in response to his inquiry of July 26, 2017. The August 9, 2017, letter from Ms. Gould to Petitioner stated in pertinent part: The Division has reviewed the legal circumstances surrounding the forfeiture of your Florida Retirement System Benefits. On December 28, 2006, a Notice of Forfeiture of Retirement Benefits was sent by certified mail to you. This notice also included a statement of your rights to appeal the forfeiture decision by administrative hearing within 21 days, if you believed your rights under Chapter 121, F.S. were improperly or wrongfully determined. We have no evidence that you filed an appeal with the Division within 21 days. You have $315.89 in employee contributions on deposit. I am enclosing a Request For Refund of Employee Contributions (form FRS- M81) for your completion. Please contact our office if you have any questions or need additional information. On September 18, 2017, Petitioner sent Respondent a letter addressed to Ms. Gould stating in pertinent part: Thank you for your letter dated August 9, 2017. Although your letter indicates that a Notice of Retirement Benefits was sent by certified mail on December 28, 2006, I did not receive the notice. In fact, when I visited with staff of the Division of Retirement on July 26, 2017, I was advised of the existence of the forfeiture notice and provided a copy of the Certified Mail Receipt from my file. Importantly, the receipt is unsigned and the mailing address was incorrect. The file also includes a request from my attorney for a copy of all records and documents related to myself. The letter is dated January 22, 2007. No documents, records, or other response, however, was provided. The timing of the forfeiture letter is very curious to me. At the time the letter was mailed, my convictions were under appeal. A decision was not issued until February 22, 2008. Day v. State, 977 So. 2d 664 (Fla. 5th DCA 2008). That decision reversed all of the convictions for the misdemeanor offenses. The two felony convictions were upheld but, as of the date of the forfeiture letter, they were on appeal and not yet final. My file also includes a letter dated April 8, 2009, from myself to the Division of Retirement advising that the process of further appealing the remaining two felony counts was continuing. The letter attached the previous letter from my attorney requesting a copy of my file. Again, no response from the Division was received. I believe that I have a meritorious argument regarding whether the retirement benefits for my 30-years of service were lawfully forfeited. Under the circumstances, it would be greatly appreciated if you would review my file and advise whether the Division will re-issue the forfeiture letter so as to allow me appropriate notice and an opportunity to contest the determination. The letter was stamped as received by Respondent on September 21, 2017. On October 12, 2017, Respondent, through its Assistant General Counsel Mitchell Herring sent a letter to Petitioner denying his request to reissue the forfeiture letter. The pertinent part of the letter states: I am responding to your letter dated September 18, 2017 addressed to Kathy Gould. Based on a review of the original legal file related to the forfeiture of your retirement benefits, a Notice of Forfeiture of Retirement Benefits was mailed to 2848 Carriage Court, Kissimmee, FL on December 28, 2006 and delivered to that address on January 6, 2007. This was the address that you provided to the Florida Retirement System as your home address, and therefore constituted your address of record. Accordingly, this Notice was effective pursuant to section 120.569, Florida Statutes (2006), and your opportunity to file a petition expired on January 27, 2007. There is no record indicating that a petition was filed. More importantly, our records indicate that the Department was not provided with any notice that an appeal of your criminal conviction was occurring until more than two years after the Notice had originally been sent. Regardless of this, had the appeal overturned all convictions which could have served as the basis for the forfeiture of your retirement benefits, the forfeiture would have been reversed. However, this did not occur, as either of the two convictions for grand theft which still stand are independently sufficient bases for the forfeiture of retirement benefits pursuant to section 112.3173, Florida Statutes (2001-2017), and were included as justification for the forfeiture in the Notice of Forfeiture of Retirement Benefits. Because it has been more than ten years since the Department notified you of its forfeiture of your rights and benefits under the Florida Retirement System, a sufficient basis for the forfeiture still exists, and the Department provided effective notice of its intended action pursuant to law, the Notice of Forfeiture of Retirement Benefits will not be re-issued. At the hearing, Petitioner persuasively testified and offered evidence that he neither received the Notice of Forfeiture in January 2007, nor was aware that such a notice had been issued until his meeting with an employee of the Division near the end of July 2017. When Petitioner obtained a copy of the Notice of Forfeiture during his July 2017 meeting, he noticed that it had an incorrect address, i.e., it was mailed to Kissimmee instead of St. Cloud. Kissimmee and St. Cloud are distinct cities and the only two incorporated cities in Osceola County. Petitioner further explained that his home in St. Cloud was located about a quarter-mile down a private dirt road from a county-maintained road. His home was situated on five acres, with a fence surrounding the property and a locked gate at the driveway. He purchased the property in 2001 and resided there until 2011. Petitioner testified that all of the mailboxes for homes on the private dirt road were clustered together and located at the end of the road where it intersected with the county-maintained road. Anyone from the post office would have been unable to access Petitioner's home because of the fence and locked gate. Petitioner also had a “cur dog” that would not let anybody on the property. The other individuals residing in Petitioner's home in January 2007 were his wife and daughter. Petitioner's wife worked during the week and his daughter went to school and worked part-time. Petitioner testified that there would have been no one around during the week to receive any certified mail delivered at his home from the post office. There were occasions where the post office would leave certified mail slips in Petitioner’s mailbox at the end of the road. On such occasions, Petitioner would go into town to the post office to pick them up. Petitioner did not recall, however, the delivery of, or anyone showing up at his home with, a certified mail letter from the Division. The fact that Petitioner was aware that his criminal convictions could impact his ability to obtain retirement benefits does not demonstrate that he received the Notice of Forfeiture in January 2007. Petitioner acknowledged that he never asked for his deferred retirement option program (DROP) proceeds to be distributed. However, when asked why he sent his letter in April 2009, advising the Division of the status of his appeals and post-conviction efforts, if he was unaware of the forfeiture letter, Petitioner explained that he was still able to work, he was not 62 at the time, and that he wanted to let the Division know that he was still out there. Petitioner further explained that he informed the Division about the status of his appeals because he thought that he could receive his retirement benefits if he won in the appeal process. Petitioner's testimony that he did not receive the Notice of Forfeiture until his meeting with a Division employee in July 2017 was credible. The location and physical description of Petitioner’s home was uncontested and it appears unlikely that the postal service would have been able to deliver the certified mail to Petitioner. Other than the printout of the United States Postal Service website indicating that the Notice of Forfeiture was delivered on January 6, 2007, in St. Cloud, Florida, the Division produced no evidence that Petitioner, in fact, received it. The absence of a signed receipt, when considered with the postal service’s Track and Confirm printout indicating delivery, could, at best, suggest that Petitioner deliberately failed to pick up the certified mail letter. If delivered to St. Cloud, it is plausible that the certified mail slip was placed in the wrong mailbox. The evidence is insufficient, however, to show that Petitioner refused to accept the certified mail letter. The Division’s records do not include any notation that the certified mail was undeliverable or refused. Considering the evidence in light of all of the surrounding facts and circumstances, it is found, as a matter of fact, that the evidence is insufficient to show that Petitioner received the Notice of Forfeiture in January 2007. The Department presented no testimony regarding the practices and policies of the Division when the Notice of Forfeiture was issued. Division employees who were historically involved with Petitioner’s retirement forfeiture issues have either retired or obtained employment elsewhere. The deposition testimony of Mary Katherine Gould, the present bureau chief of the Division’s Benefit Calculations, discussed the Division’s current practice regarding unsigned certified mail receipts for notices of forfeiture. Ms. Gould testified that, currently, additional efforts are undertaken to locate the member and additional certified mailings are attempted to obtain the member’s signature on the return receipt. She also indicated that current practice would include further review of a member’s file to discover any other addresses. Petitioner’s retirement file with the Division shows that the general counsel for the Department at the time was aware that the certified mail return receipt was neither signed nor dated. And, there is nothing in the file indicating that Petitioner was avoiding delivery of the certified mail. Based on her review of Petitioner’s file, Ms. Gould could not determine whether any additional efforts had been made to search for a different address to attempt another certified mail delivery. Had the Division reviewed its own files, it could have easily discovered Petitioner’s correct mailing address. There are letters, applications, and other retirement form submittals within Petitioner’s file reflecting that his correct mailing address at the time was 2848 Carriage Court, St. Cloud, Florida 34772. For example, there are several documents from Petitioner related to his DROP application and submittals that contain his correct mailing address. His file also contains several letters and documents mailed from the Division to Petitioner at his correct address. The Division’s file for Petitioner further reveals that it received the public records request by Petitioner’s attorney, Robert Harper, on January 25, 2007. At the hearing, Petitioner explained that he had retained Mr. Harper to represent him in the appeals of his convictions, which were ongoing at the time of the public records request. Petitioner also asked Mr. Harper to help him “keep track of . . . the retirement part.” There is no evidence that the Department ever responded to Mr. Harper’s request. According to practice, the Division calendars the 21-day time period for the challenge of a forfeiture as commencing on the date the notice is received by the member. Although there is no certified mail return receipt, the purported delivery date of the Notice of Forfeiture indicated by the postal service was January 6, 2007. Therefore, had Petitioner actually received the Notice of Forfeiture, there was still time for Petitioner to contest the forfeiture, when the Division received the public records request by Mr. Harper on January 25, 2007. On January 30, 2007, five days after Mr. Harper’s public records request, the Division sent a memorandum to the General Counsel’s office. The subject of the memorandum is “Request for OGC Assistance with Public Records Request." The memo specifically advised that the public records request was for a copy of Petitioner’s retirement file and that there was a “legal block of Mr. Day’s retirement account because of possible forfeiture. There should be a file in the Legal Office.” An interoffice memorandum regarding the matter from Sarabeth Snuggs, director of the Division, to Geoffrey Christian, Office of General Counsel, dated February 1, 2007, states, in part: The return receipt was neither signed nor dated. However, according to the postal service’s track and confirm website, the letter was delivered on January 6, 2007. The member has failed to protest the forfeiture action within the 21-day time limit. The benefits are now forfeited and the legal file is closed. In other words, even though the certified mail receipt was returned unsigned, and despite the fact that the Division and its general counsel were aware of the pending unanswered public record’s request from Petitioner’s counsel, the Division closed Petitioner’s file on the grounds that Petitioner failed to timely challenge the forfeiture. Regarding Petitioner’s meeting with Division employee, Mr. Dame, on July 26, 2017, Petitioner provided undisputed and persuasive testimony that Mr. Dame provided him with a copy of the Notice of Forfeiture, the certified mail return receipt, and the Postal Service Track and Confirm printout. During the meeting, Mr. Dame pointed out the fact that the return receipt was unsigned. At the time, Mr. Dame also advised Petitioner that he was going to send an inquiry regarding the issue and that Petitioner should “sit tight, we’ll see what happens.” Mr. Dame never advised Petitioner that his 21-day time period to challenge the forfeiture letter would re-commence based upon the fact that Petitioner received a copy of the Notice of Forfeiture during that July 2017 meeting. Petitioner filed the Petition in this case in response to the letter from the Department’s Assistant General Counsel Mitchell Herring, dated October 12, 2017, because it had a case number on it. The letter referenced Petitioner’s September 18, 2017, letter and “OGC Case No. 17-36457.” Prior to that time, Petitioner's understanding was that the Division was investigating the circumstances surrounding his forfeiture letter. Based upon these facts, it is found that the Department never provided Petitioner with a clear point of entry within which to contest the forfeiture of his retirement benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, either reissue the Notice of Forfeiture of Retirement Benefits to Petitioner or otherwise allow him a point of entry with a 21-day time period within which to contest the forfeiture of retirement benefits. DONE AND ENTERED this 14th day of May, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2015.
The Issue The issue in this case is whether Petitioner, a surviving beneficiary, is entitled to change the Florida Retirement System retirement benefits 1 All references to chapter 120 are to the 2019 version. payment option selected by her now-deceased spouse, a member of the Florida Retirement System.
Findings Of Fact Respondent, Department of Management Services, Division of Retirement, is the state agency charged under chapter 121, Florida Statutes (2002),2 with administering the Florida Retirement System ("FRS"). Petitioner is the spouse of James L. Williams, now deceased, who was employed by the School District of Palm Beach ("District) for 38 years, and was a member of the FRS. Williams retired from his employment with the District on August 23, 2002. At that time, he executed the Florida Retirement System Application for Service Retirement Form, Form FR-11. On Form FR-11, he designated Petitioner as his primary beneficiary and Jones as his contingent beneficiary. Williams signed this form, and his signature was notarized. Also on August 23, 2002, Williams executed the Florida Retirement System Option Selection for FRS Members Form, Form FRS-11o. On that form, he selected FRS retirement benefits payment Option 2, and designated that choice by writing an "X" on the line next to Option 2. Option 2 was described on Form FRS-11o as: A reduced monthly payment for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. 2 All references to chapter 121 are to the 2002 version of the Florida Statutes, which was in effect at the time that the retirement benefits application and option selection forms that have given rise to this proceeding were executed. Form FRS-11o contained a section, immediately below the description of Option 2, that was required to be completed by the spouse of a married FRS member who had selected Option 1 or Option 2. On August 23, 2002, Petitioner completed, signed, and dated that section, confirming that she was the legal spouse of Williams and acknowledging that she was informed that Williams had selected either Option 1 or Option 2. The purpose of that section on Form FRS-11o is to inform the spouse of the FRS member that, by the member's selection of either Option 1 or Option 2, the surviving spouse is not entitled to receive a continuing benefit for the rest of his or her life. The last sentence on Form FRS-11o, immediately above the space for the FRS member's signature, states in pertinent part: "[m]y retirement becomes final when any payment is cashed . . . [or] deposited." DeVonnia Jones was present with Williams at the time he was given Form FR-11 and Form FRS-11o to execute. Jones testified that when Williams arrived at the District office on August 23, 2002, Form FR-11 and Form FRS-11o already had been filled out by District staff, and were presented to him by his supervisor, who informed him that he needed to retire or he would be terminated. According to Jones, Williams did not wish to retire at that time. Jones asked District staff how much more Williams' monthly benefits would be if he did not retire for another year or two, and was told that Williams' benefits would be between $25 and $30 more per month. According to Jones, "my dad basically shed a couple tears. He was not comfortable, but he went ahead and signed it because I told him to, because they made it seem like he wasn't going to be eligible to get what he was supposed to get." Williams signed and dated Form FRS-11o on August 23, 2002, and his signature was notarized. On August 28, 2002, Respondent sent Williams a document titled "Acknowledgement of Service Retirement Application." This document stated, among other things, that Williams had selected FRS Option 2, and that his retirement was effective September 2002. At the bottom of this document was a standalone paragraph, in bold face type, that read: "ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED!" Also on August 28, 2002, Respondent sent Williams a document titled "Florida Division of Retirement Estimate of Retirement Benefit (Estimate only, subject to final verification of all factors)." This document provided information regarding the amount of the monthly benefits Williams would receive for the four options offered under the FRS. A statement in bold face type at the bottom of the document read: "Comments: You have chosen Option 2. Your option selection cannot be changed after you cash or deposit any benefit payment." Had Williams wished to change his retirement benefits payment option, he could have done so up to the time he cashed or deposited a retirement benefits payment. Williams began receiving his monthly FRS retirement benefits payments from Respondent on October 4, 2002. He cashed or deposited the first FRS benefits warrant (Warrant #0618275) that he received. Thereafter, Williams received monthly FRS retirement benefits payments until his death on April 26, 2010. Williams received a total of 92 monthly benefits payments before his death. All of the FRS retirement benefits payment warrants issued to Williams were deposited or cashed. On May 17, 2010, Respondent contacted Petitioner to inform her that she needed to complete a Florida Retirement System Pension Plan Application for Beneficiary of Monthly Retirement Benefits Form, Form FST- 11b, in order for her to receive monthly FRS retirement benefits payments as Williams' beneficiary. In the contact letter, Respondent informed Petitioner that "you will receive the same gross monthly benefits to which the member was entitled through August 31, 2012." Petitioner completed Form FST-11b on June 25, 2010, and began receiving FRS monthly benefits payments on June 30, 2010. Petitioner received a total of 28 FRS retirement monthly benefits payments. The last warrant issued to Petitioner (Warrant #0375196) was issued on August 31, 2012. All of the warrants issued to Petitioner were cashed or deposited. In sum, Williams and Petitioner collectively received a total of 120 FRS retirement monthly benefits payments, pursuant to Option 2. All of the warrants issued to Williams, and then to Petitioner, as his beneficiary, were deposited or cashed. Petitioner testified that beginning in 2003, she made numerous attempts, over a period of years, to contact the District and Respondent regarding changing the FRS retirement benefits payment option that Williams had selected on August 23, 2002. During this time, Williams and Petitioner continued to cash or deposit the benefits payment warrants they received from Respondent. In this proceeding, Petitioner does not claim that Williams accidentally selected Option 2, or that he intended to select another option, when he signed Form FRS-11o on August 23, 2002. Rather, she asserts that at the time Williams retired, he suffered from confusion and memory loss such that he did not understand the option he chose—effectively, that he lacked the mental capacity to have chosen Option 2 as his retirement benefits payment option. Alternatively, Petitioner contends that because Williams was forced to retire under threat of termination from his employment, he was under duress when he chose Option 2 on Form FRS-11o. On these grounds, Petitioner asserts that she should be permitted to change Williams' choice of retirement benefits payment option.3 3 Here, Petitioner, has requested that she be allowed to "change" Williams' choice of Option 2 on the FRS retirement option selection forms. She did not identify, or present evidence, Petitioner's impassioned testimony at the final hearing shows that she fervently believes her husband was wrongly treated by the District when it required him to retire in 2002, against his desire to continue to work.4 However, as was explained to Petitioner at the final hearing, the purpose of this proceeding was not to determine whether the District wrongly forced Williams out of his employment; rather, it is to determine whether there is any factual or legal basis for changing the retirement benefits option that Williams selected when he executed Form FRS-11o nearly 18 years ago. The evidence does not support Petitioner's argument that Williams lacked the mental capacity to adequately understand the option that he chose on Form FRS-11o. Although Petitioner testified that Williams had been treated by a neurologist, no direct medical evidence was presented establishing that Williams was mentally incapacitated at the time he executed Form FRS-11o. Additionally, at the time Williams signed the form, he was accompanied by his daughter, who, after speaking to District staff regarding his options, advised him to sign the form. Petitioner herself also was present at the District office and signed Form FRS-11o, expressly acknowledging that she understood Williams had chosen Option 2. Thus, to the extent that Williams may not, on his own, have fully appreciated his choice of options on Form FRS-11o—and there is no competent direct evidence showing that to be the case—both his daughter and wife were present with him when he executed Form FRS-11o, his daughter told him to sign the form, and his wife expressly acknowledged that she understood his choice of Option 2. These circumstances do not support a finding that Williams lacked the mental capacity to understand, or did not adequately regarding which specific option she would choose, if permitted to change Williams' selected FRS benefits option. 4 The evidence indicates that the District required Williams to retire because he began having difficulty with his job as a mail carrier. According to Petitioner, Williams had an accident in a District vehicle and did not report the accident to the District, and that when he was transferred to the mail room, he had difficulty remembering to do certain required tasks. understand, the consequence of choosing Option 2 when he executed Form FRS-11o. The evidence also does not support a finding that Williams' choice of Option 2 should be changed, due to duress. There is no direct evidence establishing that Williams was under duress when he chose Option 2. Although Jones testified, credibly, that her father was upset about being forced to retire when he wanted to continue working, her testimony that he was under duress was based on her subjective conclusion. Furthermore, even if Williams was emotionally distressed when he signed the FRS benefits options forms, there is no evidence showing that as result of such distress, he chose Option 2 instead of a different option. It also is noted that Form FR-11 and Form FRS-11o both expressly informed Williams that once his retirement became final—which would occur when any benefit payment was cashed or deposited—his retirement benefits option selection would become final and could not be changed. Further, Williams received two more pieces of correspondence from Respondent—both containing statements in bold face type—expressly informing him that once any FRS retirement benefits payments were cashed or deposited, his retirement benefits option choice could not be changed. As noted above, Williams could have changed his FRS benefits option at any time before he cashed or deposited a benefits payment; however, he did not do so. Thus, pursuant to the express terms of Form FR-11 and Form FRS-11o, when Williams cashed or deposited the first benefits payment, his selection of Option 2 became final and could not be changed. In sum, the evidence does not establish any factual basis for permitting Petitioner to change Williams' selection of Option 2 as his FRS retirement benefits payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner's request to change the FRS retirement benefits payment option selected by her husband, an FRS member, when he retired. DONE AND ENTERED this 4th day of March, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 4th day of March, 2020. COPIES FURNISHED: Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Deloris Williams 1219 West Ninth Street Riviera Beach, Florida 33404 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Mangement Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Mangement Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes. Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.
Findings Of Fact Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2) Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties) Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)
Recommendation That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Theron J. Owen 818 San Juan Boulevard Orlando, Florida 32807 L. Keith Pafford, Esquire Division Attorney Division of Retirement Department of Administration Cedars Executive Center2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302
The Issue The issue in the case is as set forth in the Notice of Forfeiture of Retirement Benefits dated November 10, 2005, and issued by the Department of Management Services, Division of Retirement (Respondent), to Richard Brandenberger (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Orange County Board of County Commissioners as a correctional officer at the county jail and participated in the Florida Retirement System (FRS). The Respondent is the state agency charged with administering the FRS. The applicable position description for employment by Orange County as a correctional officer included, in relevant part, the following description of the job duties: Supervises inmates to prevent altercations, intimidation, undesirable or illegal acts, intercedes when necessary, and to ensure the safety of the facility, other Correctional staff and the inmates. On or about October 29, 2003, a grand jury issued a one-count indictment against the Petitioner as follows: On or about July 3, 2003, in Orange County, Florida, defendant knowingly and intentionally possessed with intent to distribute and distributed Methylenedioxymethamphetamine ("MDMA") commonly known as "ecstasy", and marihuana, controlled substances listed in Schedule I of 21 U.S.C. Section 812, all in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D). The Petitioner was subsequently arrested. He then retired from employment in December 2003 and began receiving benefits from the FRS the following January. On or about January 29, 2004, the Petitioner, represented by legal counsel, entered a plea of guilty to the indictment and executed a written plea agreement that stated in material part as follows: Count Pleading To The defendant shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with possession with intent to distribute and distribution of MDMA and marihuana, in violation of 21 U.S.C. Sections 841(a)(1). * * * Elements of the Offense The defendant acknowledges understanding the nature and elements with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: That defendant knowingly possessed or distributed MDMA or marihuana as charged; and Second: That defendant possessed the substance with the intent to distribute it. * * * Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order stating that the Petitioner has forfeited his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 7th day of February, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 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 The issues are whether Petitioner became an employee of an FRS employer within a calendar month after completing his participation in the Deferred Retirement Option Program (DROP) in violation of Subsection 121.091(13)(c)5.d., Florida Statutes (2006)1; whether Respondent's interpretation of relevant statutes is an unadopted rule; and whether Respondent's interpretation of relevant statutes is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties stipulated to several facts in this proceeding. Respondent is the state agency responsible for administering the FRS. Petitioner was employed as an equipment operator (street sweeper) by the City of Venice, Florida (the City), for more than 35 years until he completed his participation in DROP on January 11, 2007. At that time Petitioner was earning approximately $38,000.00 annually. The City revoked its participation in the FRS effective January 1, 1996, and established a new City retirement plan. The new City retirement plan applies to all employees hired after January 1, 1996. However, the City continued its participation in the FRS for all employees who were members of the FRS prior to January 1, 1996. Petitioner elected to participate in DROP on March 31, 2002. At the conclusion of DROP, Petitioner received a lump-sum payment of approximately $84,279.00 and received monthly benefits until Respondent ceased paying benefits in accordance with the proposed agency action. Petitioner's efforts at reemployment were unsuccessful. On January 31, 2007, the City employed Petitioner to perform the same work he previously performed at a base salary as a "new hire."2 The City assured Petitioner that reemployment would not adversely affect Petitioner's FRS retirement benefits because the City does not consider itself an FRS employer. A member of the City's human resources department contacted a representative for Respondent to verify the City's statutory interpretation. The conversation eventually led to this proceeding. Petitioner was not employed by an employer under the FRS during the next calendar month after completing his participation in DROP on January 11, 2007. Judicial decisions discussed in the Conclusions of Law hold that the issue of whether Petitioner is an employee of an FRS employer is a factual finding. When Petitioner began employment with the City on January 31, 2007, Petitioner was not a member of the FRS within the meaning of Subsection 121.021(12). He was not an employee covered under the FRS because he was hired after January 1, 1996, when the City revoked its participation in FRS. On January 31, 2007, Petitioner was not an employee within the meaning of Subsection 121.021(11). Petitioner was not employed in a covered group within the meaning of Subsection 121.021(34). Petitioner did not become a member under Chapter 121, and the City was not a "city for which coverage under this chapter" was applied for and approved for Petitioner. On January 11, 2007, Petitioner ceased all employment relationships with "employers under this system" within the meaning of Subsection 121.021(39). When Petitioner resumed employment on January 31, 2007, Petitioner did not fail to terminate employment with an employer under the FRS system. Petitioner's new employer was not an employer under the FRS system and had not been such an employer after January 1, 1996. After January 1, 1996, the City was not a covered employer for any employees employed after that date, including Petitioner. On January 31, 2007, Petitioner was not an employee of an employer within the meaning of Subsection 121.021(10). The City did not participate in the FRS system for the benefit of Petitioner. The employment of Petitioner by the City on January 31, 2007, had no financial impact on the FRS, and Petitioner did not begin to accrue new benefits with the FRS. Respondent did not demonstrate in the record why the agency's proposed statutory interpretation requires special agency insight or expertise and did not articulate in the record any underlying technical reasons for deference to agency expertise. Nor did the agency explain in the record or its PRO why the issue of whether Petitioner is an employee of an FRS employer is not an issue of fact that is within the exclusive province of the fact-finder. Respondent proposes a literal interpretation of selected statutory terms without explaining legislative intent for the prohibition against reemployment within the next calendar month.3 Respondent's proposed statutory interpretation also fails to distinguish the economic impact in situations involving what may be fairly characterized as a dual-purpose employer; that is one like the City which is part covered employer and part non-covered employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order reinstating Petitioner's monthly retirement benefits, paying all past due amounts to Petitioner, with interest, and dismissing its request for reimbursement of past FRS benefits from Petitioner. DONE AND ENTERED this 3rd day of June, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2008.
The Issue Whether Petitioner has forfeited her rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2010).
Findings Of Fact On or about February 11, 1986, Respondent commenced her employment as a police community service officer with the City of Tampa Police Department. As a city employee, Respondent was eligible for, and participated in, the City of Tampa General Employees Retirement Fund, which is a public retirement system. Respondent was continuously employed by the City of Tampa through September 1, 2011. Sometime around May 1994, Respondent was promoted to the position of investigative assistant where she worked closely with a team of detectives. Respondent’s job duties as an investigative assistant included interviewing crime victims, witnesses, and individuals who were suspected of having engaged in criminal activity. As an investigative assistant, Respondent often had access to confidential information, and she understood that confidential information was not to be disclosed to unauthorized individuals. An “officer safety alert” is one such piece of confidential information that Respondent had access to in her position as an investigative assistant, and like other confidential information, Respondent understood that an officer safety alert should only be disclosed to authorized personnel. Officer safety alerts are internal police department missives that are often issued for the purpose of advising officers to proceed with caution when encountering individuals who may be under investigation, but who have not yet been charged with a crime. Around 7:50 a.m. on the morning of January 19, 2011, Respondent’s co-worker, Priscilla Phillips, reviewed an officer safety alert that identified Reginald Dennard Preston as a subject of an ongoing investigation. The officer safety alert contained a picture of Respondent’s nephew, and other individuals, along with the following narrative: The above listed subjects are part of an ongoing investigation. S.I.B./Enforcement Group 2 has purchased firearms from these subject(s) that were taken in a residential burglary. The subjects are still in possession of additional firearms. The subjects are not wanted at this time due to the ongoing nature of the investigation. Use caution when coming into contact with the listed subjects and vehicle. Also use caution if responding to calls at the listed addresses. Due to ongoing investigations, only distribute to TPD Personnel. LAW ENFORCEMENT SENSITIVE The information contained within this bulletin is the property of the Tampa Police Department and constitutes active criminal intelligence information, and is exempt from public record. The information has been collected in accordance with 28 CFR Part 23 and Florida State Statute Chapter 119. It is undisputed that Ms. Phillips knew that Mr. Preston was Respondent’s nephew and that within minutes of reviewing the officer safety alert, she sent Respondent a text message regarding the same. Respondent admits that she sent a reply text message to Ms. Phillips within a minute or so of receiving the initial message. During the morning hours of January 19, 2011, Respondent was home from work on sick leave when, according to Respondent, she received a message from Ms. Phillips informing her that Reginald Preston was “wanted for questioning regarding a burglary.” According to Respondent, Ms. Phillips then took a snapshot of Reginald Preston’s photograph and sent it to Respondent without including any other information from the officer safety alert. In other words, Respondent claims that she had no knowledge that Ms. Phillips had gleaned the information regarding Respondent’s nephew from an officer safety alert, and that as far as she knew, the only issue, as conveyed by Ms. Phillips, was that her nephew was “wanted for questioning regarding a burglary.” Respondent’s credible testimony regarding this issue is as follows: Q: Now, when Ms. Phillips contacted you on January 19th of 2011, she informed you that Preston was part of this officer safety alert; right? A: She did not inform me that he was part of an officer safety alert. She advised me that they want[ed] to speak to my nephew in reference to a burglary. She did not mention an officer safety alert to me, sir. Q: But she did inform you that there was an investigation ongoing that had to do with your nephew, Mr. Preston; right? A: She did not mention an ongoing investigation to me, sir. She indicated that they want[ed] to speak to my nephew in reference to a burglary. Q: You knew that there was an ongoing investigation when you spoke to her regarding your nephew; correct? A: I was not at work, sir. I did not see this bulletin. Q: But my question is: Did you know there was an ongoing investigation at that point regarding your nephew? A: If they want[ed] to speak to him in reference to a burglary, it’s an investigation; correct. Q: Is that a yes, you knew there was an ongoing investigation regarding your nephew; correct? A: It was an ongoing investigation. She told me they wanted to speak to him in reference to a burglary. Tr. pp. 84-85. Armed with the information from Ms. Phillips, Respondent, over the course of about two hours, had multiple conversations with her brother (Reginald Preston’s father), her sister-in-law (Reginald Preston’s mom), and her nephew, Reginald Preston. Respondent disclosed to her relatives that Reginald Preston was “wanted for questioning regarding a burglary” and she told them that Mr. Preston (the nephew) needed to go to the police station to address the situation. As part of the investigation of this matter, the police department secured phone records for both Ms. Phillips and Respondent, and according to the testimony of Brent Holder, neither Respondent’s nor Ms. Phillips’ phone records revealed the substance of the text messages sent or received by either individual. Ms. Phillips did not testify at the final hearing. Also as part of the investigation, Brent Holder conducted a recorded interview of Respondent. Neither the recorded statement nor a transcript thereof was offered into evidence. Brent Holder was employed by the Tampa Police Department from 1987 until his retirement in 2013. Mr. Holder was a detective with the police department for many years. Mr. Holder testified that when he interviewed Respondent on August 24, 2011, she admitted to the following: Q: What did you do next? A: I then conducted an interview with Ms. Harvin and showed her the same memo. And during our interview I asked her questions about it, had she had--had she disclosed the information, had she had conversation with Mr. Preston. I will go back on her cell phone records. That morning after she received the text message from Ms. Phillips, there were numerous calls to Ms. Harvin’s brother, who is the father of Reginald Preston, her sister, and there actually were five phone calls to Reginald Preston himself. Q: From Ms. Harvin’s cell phone? A: From Ms. Harvin’s cell phone, yes. Q: And did she admit to all this during her interview? THE COURT: Did she admit to what? A: She admitted to making the phone calls to her brother, and during the conversation with her brother she explained that this was regarding a burglary and some stolen firearms and that Reginald Preston was the subject of this investigation. And then she also in her conversations with Reginald Preston admitted to telling him that it was regarding firearms taken in a burglary, and she said Mr. Preston’s response was, “I didn’t do nothing.” Q: Did she admit to anything else? A: She admitted to having conversation with her sister. Q: Let me ask you this question: Did Ms. Harvin ever deny learning of the officer safety alert? A: She did not. Q: Did she ever deny contacting Mr. Preston? A: She did not. Q: Did she ever deny informing Mr. Preston of the officer safety alert? A: She did not. * * * Q: Did Ms. Harvin admit to knowing that there was an ongoing investigation? A: She did. She admitted knowing it was an ongoing investigation, that this was confidential information, and that it was not to be disclosed outside of the Tampa Police Department. * * * Q: Did Ms. Harvin admit that the reason or the way she found out [about] the officer safety alert was through Ms. Phillips? A: Yes. Tr. pp. 29-31 As noted previously, Mr. Holder interviewed Respondent on August 24, 2011. There is no indication in the record that Mr. Holder’s recollection as to the specifics of his interview with Respondent from nearly five and a half years ago was refreshed, and the undersigned is not persuaded that Mr. Holder independently recalls, with the specificity testified to, the details of his interview with Respondent. Petitioner suggests that Respondent admitted during her deposition that she received a copy of the officer safety alert from Ms. Phillips and disclosed the contents of the alert to her nephew. Contrary to Petitioner’s assertion, Respondent’s deposition testimony contains no such admission, but does contain an acknowledgement by Respondent that she was confirming “what they wrote up” on the notice of disciplinary action issued to her by Petitioner.
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 forfeiture of Respondent’s benefits under the retirement plan is not authorized pursuant to section 112.3173, Florida Statutes (2010); and Dismissing the petition for forfeiture, with prejudice. DONE AND ENTERED this 24th day of April, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 24th day of April, 2017. COPIES FURNISHED: Beverly Harvin 423 Benson Street Valrico, Florida 33594 Luis A. Santos, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Natasha Wiederholt, CPA GE Pension Plan Supervisor General Employee Retirement Fund City of Tampa 306 East Jackson Street, 7th Floor Tampa, Florida 33602
The Issue Whether Respondent is subject to a civil penalty for alleged violation of Section 400.424(3)(a), Florida Statutes, and Rule 58A-5, Florida Administrative Code, through failure to provide a timely prorated refund following the death of a resident of Respondent’s facility.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of assisted living facilities, and, in this case, specifically “Holly Hill Care Center” in Holly Hill, Florida. Holly Hill Care Center is operated by a corporation owned by Harry Hartman, President, and Mr. Hartman’s wife. Pursuant to a complaint, Ernest H. Cartwright, a health care evaluator employed by Petitioner, conducted an investigation on November 20, 1997, of Respondent’s facility. The complaint, alleging that a timely prorated refund had not been made to a beneficiary following death of a resident, was confirmed. Beatrice Raverini moved into Holly Hill Care Center on August 24, 1997, and died on September 1, 1997. Her personal belongings were removed from her room on September 8, 1997. While the policy of the facility is to process refunds on the first day of the month following termination, an error in communication occurred between the onsite administrator and the facility’s bookkeeper who is located off-site. As a consequence, the refund was not mailed on October 1, 1997. A refund check was prepared and mailed on or about November 1, 1997, and deposited by Mrs. Raverini’s beneficiary on November 14, 1997, in Canada. Approximately 53 days elapsed before the refund was made. Section 400.424(3)(a), Florida Statutes, requires that the refund occur within 45 days or less. The refund check processed and mailed by Respondent erroneously refunded 958 dollars instead of 616 dollars. Since the room was not vacated of personal belongings until September 8, 1997, the refund should have been calculated from that date instead of the date of September 1, 1997. Respondent refunded 342 dollars in excess of what was owed to the beneficiary.
The Issue Whether Petitioner is entitled to the retirement benefits of her late husband, Frederick Griffith.
Findings Of Fact Frederick Griffith was employed with the Broward County School System from January 4, 1971, until his death on June 9, 1996. Frederick Griffith was enrolled with the State of Florida Retirement System at the time of his death. Frederick Griffith separated from his first wife, Ruth Griffith, in 1976, and they were divorced on October 25, 1989. Frederick Griffith and Petitioner, Joyce Griffith, were married on November 25, 1989, after having been together for approximately 12 years. Joyce and Frederick Griffith were married at the time of his death. Joyce Griffith applied for her husband's benefits as the surviving spouse. The Respondent, Division of Retirement (Division), denied Joyce Griffith benefits as surviving spouse, stating that the beneficiary of record was Ruth Griffith. The Division advised Joyce Griffith that they would recognize her as surviving spouse and pay her a monthly benefit if Ruth Griffith would disclaim her rights as the designated beneficiary. Ruth Griffith refused to disclaim her rights and applied for the benefits as the designated beneficiary. The Division paid her $4,373.94. Because Ruth Griffith was not dependent on Frederick Griffith at the time of his death, she was entitled only to the lump sum amount that Mr. Griffith had paid into the retirement system. On February 2, 1992, Mr. Griffith submitted Retirement Information Request, Form FR-9, to the Division for a calculation of total years of creditable service and the amount due to purchase his creditable military service. On June 15, 1995, the Division replied to the FR-9 request by issuing Form FRS-40, Estimate of Retirement Benefits. The information provided to Mr. Griffith was calculated based on the assumption that Mr. Griffith would retire with a retirement effective date of February, 1997. The Estimate of Retirement Benefits advised Mr. Griffith that there was an apparent discrepancy with the beneficiary listed on his FR-9 and his named beneficiary listed in the Division's official records. Specifically, Mr. Griffith was advised: The spouse listed on the Retirement Information Request, FR-9, and used for this estimate is not your primary beneficiary. If you intend to change your beneficiary designation, please complete a personal history record, FRS-M10, in your personnel office. Mr. Griffith did not file a revised FRS-M10 in response to the advice given by the Division in the June 15, 1995, FRS-40. After Mr. Griffith received the FRS-40, Joyce Griffith insisted that he call the Broward County School Board to verify that she was the designated beneficiary. Joyce Griffith gave her husband the number to call. The school board personnel assured Mr. Griffith that Joyce Griffith was his beneficiary. Apparently, Mr. Griffith called the department which dealt with life insurance benefits and not retirement benefits. Joyce Griffith was the beneficiary of her husband's employer-provided life insurance policy for $150,000. Mr. Griffith had designated her as his beneficiary on a change of beneficiary form dated August, 1990. Mr. Griffith had completed a form entitled Application for Service Retirement designating Joyce Griffith as his primary beneficiary. The form was notarized on November 25, 1995. Mr. Griffith did not indicate a retirement date on the form and never filed the form with either the Division or his employer. After Mr. Griffith's death, Joyce Griffith found an employee copy of a FRS-10 form among Mr. Griffith's military papers. The form was dated November 19, 1991, and signed by Mr. Griffith. The form was not filed with either the School Board of Broward County or the Division. Neither the school board nor the Division have any record of the form being filed. The form was not correctly completed. In the area of the form entitled Designation of Beneficiaries, the employee is supposed to complete only one of three sections. On the form signed by Mr. Griffith, the first section was checked, and the other two sections were filled out with the names of Joyce Griffith and the children of Mr. Griffith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for the retirement benefits of Frederick T. Griffith. DONE AND ORDERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Connie L. Hiaasen, Esquire Regina S. Bushkin, Esquire SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997. 707 Southeast Third Avenue, Suite 101 Fort Lauderdale, Florida 33316 Augustus D. Aikens, Jr., Esquire Department of Management Services Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950
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
The Issue Whether Respondent’s pension should be forfeited based on his conviction for petit theft, a violation of the City of Tampa personnel manual.
Findings Of Fact Respondent was employed by the City as a Parks and Recreation Services Attendant II beginning in June 1999 through notification of his employment termination in 2012. At the time of his employment and on each three-year anniversary of the Union renegotiation of its contract with the City, Respondent was provided a copy of the City’s personnel manual. Specifically, Respondent was provided “Policy B28.2 Discipline Administration – Cause for Dismissal.” The manual states, in relevant part: Employees may be dismissed from employment for a variety of causes. The examples of misconduct and/or unsatisfactory performance enumerated in this policy for which dismissal is considered appropriate are not all inclusive. . . . The City of Tampa Civil Service Rules and Regulations authorize the City to dismiss employees due to incompetence, insubordination, neglect of duty, moral turpitude, and/or breach of peace (Article J. Section 4.a.). The types of conduct and/or performance which fall into these categories which may be considered cause for dismissal are listed below. As stated above, these lists are not all-inclusive. * * * c. Neglect of Duty * * * 9) Use of City equipment, including vehicles, for any unauthorized purpose. * * * d. Moral Turpitude * * * 2) Violation of City Code or other City policies relating to impartiality, use of public property, conflict of interest, disclosure and/or confidentiality. * * * 11) Theft or unauthorized removal or use of City property. The City has a program to recycle metal through a specific pre-selected vendor. All employees are advised of the process by which recycle materials are to be disposed. Should a City employee dispose of City property in a method not contracted for, that employee must secure a letter and additional documentation for the different method of disposal. In or about July 2012, Respondent and a coworker removed at minimum five metal trash cans from the NFL-YET Center, which is City property. Respondent and the coworker, while in their City uniforms, loaded the metal trash cans into a marked City truck. They proceeded to a non-authorized metal recycling center and attempted to sell the five metal trash cans. That metal recycling center declined to buy the trash cans as Respondent and his coworker did not have the appropriate letter or other documentation. Respondent and his coworker returned the metal trash cans to the NFL-YET Center. On July 11, 2012, Respondent and the coworker, while in civilian clothes, returned to the NFL-YET Center and loaded five metal trash cans belonging to the City into a private vehicle. They also had other metal in the vehicle. They proceeded to Trademark Metal Recycling (TMR). At TMR, Respondent and the coworker sold the five metal trash cans for $42.05. TMR staff reported the transaction to the Tampa Police Department (TPD) as the metal trash cans appeared to belong to the City. TPD conducted a criminal investigation. In July 2012, then TPD Detective Hinsz interviewed Respondent. Respondent admitted that he sold the five metal trash cans belonging to the City to TMR. Respondent further admitted to Detective Hinsz that he knew he was not allowed to sell city property. On July 12, 2012, Respondent was arrested and charged with petit theft and dealing in stolen property. On August 6, 2012, a Charge Sheet was filed in State of Florida v. Rodnick Vincent Boyd, Case No. 12-CM-13833, in the County Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, State of Florida, charging Respondent with one count of petit theft. In relevant part, the Charge Sheet: RODNICK VINCENT BOYD, on the 11th day of July, 2012, in the County of Hillsborough and State of Florida, did unlawfully obtain or use, or endeavor to obtain or use certain property of another, to-wit: trash cans, the property of CITY OF TAMPA, the value of said property being less than one hundred ($100.00) dollars in money current in the United States of America; and in so doing the defendant intended either to deprive the said CITY OF TAMPA of a right to the property or benefit there from, or to appropriate the property to his own use or to the use of any person not entitled thereto. On September 24, 2012, Petitioner entered a plea of nolo contendere to count one, petit theft. The Court withheld adjudication of guilt. The City’s retirement system is a public retirement system as defined by Florida law. See § 112.3173(5), Florida Statutes.
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 determining that Respondent has forfeited his rights and benefits under the Retirement Fund. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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.
