Findings Of Fact The ultimate issue to be decided is whether the Petitioner is eligible to transfer from Florida Teacher Retirement Plan A to Florida Teacher Retirement Plan E and if so, whether he should be allowed to do so at this time. Robert L. Wonsick, the Petitioner, served as a classroom teacher in the Pinellas County School System for approximately 19 years. He resigned from his employment as a school teacher on approximately June 14, 1972 which resignation was accepted by his employer. At that time, Petitioner advised duly the employer through its agent, Jerry J. Switts, Director of Elementary Placement and Retirement, that he was unable to return too work the 72-73 school year due to illness; therefore he opted to, void his Florida Retirement System Transfer Ballot which would have been effective July 1, 1972, and requested disability retirement under the Teacher's Retirement System Plan. Petitioner was advised by Switt's to submit a written request for final decision on his application filed for disability retirement. As indicated by his petition filed on or about March 5, 1976, Petitioner takes the position that he should be entitled to transfer from Teachers Retirement System (hereinafter referred to as TRS) Plan A to TRS Plan E. Petitioner attempted to elect to transfer to the Florida Retirement System (hereinafter sometimes referred to as FRS) in 1972, the effective date to be July 1, 1972. This was denied inasmuch as Petitioner had already resigned his employment and never worked under or contributed to FRS, since by his own testimony he resigned in August, 1972, on or about the second day of pre-school. Respondent therefore denied the application for transfer based on Section 121.051(2)(a) 3(a), Florida Statutes. Petitioner submitted his transfer ballot which was received by Respondent along with numerous other employees in 1972. By letter dated September 8, 1972, Petitioner requested that his transfer ballot be cancelled. Upon learning that Petitioner had in fact not worked after July 1, 1972, the transfer ballot was forwarded for reasons previously stated by way of "Application for Retirement Acknowledgement Form" dated September 11, 1972. Petitioner was requested to supply certain information to Respondent and by that same form was advised that he might wish to transfer from TRS Plan A to TRS Plan B. By letter dated December 12, 1972, Petitioner was supplied with estimates of retirement benefits showing that his monthly benefits under Plan A would be approximately $129.00 per month and the benefits under Plan E would be approximately $260.00 per month with the caveat that in order to effectuate the transfer to Plan E (an option open to him at that time) it would be necessary for him to pay in approximately $2,550 in contributions. Said contributions were necessary to meet the statutory contribution rates for Plan E if Petitioner desired to become a member of said plan. Section 238.09, Florida Statutes. Petitioner was also notified that he would have to remit $228.47 if he wished to receive retirement credit for a leave of absence utilized by him during school year 1970-1971. Within the next few days i.e., December 15, 1972, Petitioner indicated without question that he intended to remain a member of Plan A and remitted the requested $228.47 in required contributions to receive retirement credit for the above mentioned leave of absence. During a hiatus of a considerable period, adequate medical evidence was provided to Respondent to demonstrate Petitioner's disability and he began receiving monthly benefits under his monthly benefit i.e., Plan A. Thereafter on September 12, 1973, Petitioner inquired of Respondent concerning difference in benefits available under Plan A and Plan E, and possibility of changing from one plan to the other. Respondent answered Petitioner's inquiry by letter dated January 4, 1974, informing him of his previous choice to remain in Plan A. In addition, Respondent informed him that inasmuch as he had chosen not to remit the additional $2,550 necessary to transfer to Plan E in 1972, there were no provisions under the law allowing a change in retirement plans to be made after an employee had elected to retire under another plan. It should be noted that Petitioner had been advised in December of 1972 of all options available to him prior to the time of his retirement and his subsequent choice of Retirement Plan was unequivocally made by him. Again, on May 9, 1974, Petitioner requested that his claim be reevaluated whereupon Respondent replied by letter dated May 20, 1974, advising that Respondent had followed his (Petitioner's) written instructions and had taken the action permitting him to retire under plan A per his request. He was again reminded of the status of the law which did not permit a change in retirement plans. He was reminded that assuming for the sake of argument that his account could be reopened and benefits be computed under the Florida Retirement System, it would be necessary for him too contribute more than $2,200.00 to his account which he had previously elected not to do when given the option. Accordingly, his request for reevaluation was denied by Respondent. Again, by letter dated June 5, 1974, Petitioner requested that he be credited with approximately $2,250.00 that he would have been eligible to receive had he retired under Plan E and requested that said amount be credited to his account in order to facilitate his transfer into Plan E. These requests were denied by Respondent by letter dated June 13, 1974. Thereafter, Petitioner wrote a series of letters to various state officials and agencies including federal agencies requesting reconsideration of Respondent's decision to decline his request to reevaluate his claim that he had not been afforded ample information to assist him in making an informed choice concerning his retirement benefits. Petitioner appeared and testified at the hearing and recalled the series of transactions entered into by him in transferring from the various plans. He testified that he was aware of the difference in benefits or that he became aware of the difference in benefits after he had made the decision to transfer from Plan E to Plan A. He voiced the opinion that he probably could not raise the additional $2,500.00 that would be required assuming that he was given the option of now transferring to Plan E. He indicated that he had received no public assistance and that his large family and the mental problems prevented him from making an intelligent choice at the time he made the election to retire under Plan A. During the hearing, he admitted that he had received full cooperation and assistance from Respondent but that it was his mental condition and other financial problems which hampered his ability to make an intelligent choice based on psychological problems, etc. Based on all the evidence presented in this case, it is clear that the Respondent afforded Petitioner all of the information requested and explained all the options available to him including the differences in the benefits of the various plans and his contributions for retirement in such plans. It is further clear that at each juncture, he was permitted to change his mind about enrolling in various plans when the change could be effectuated within the permissible guidelines under the law. With these facts in mind and inasmuch as there is no provisions in the law which permits a retiree from changing plans after his effective date of retirement, Petitioner's claim that he was wrongfully denied the opportunity to retire or to change his retirement plan to Plan E must fall as being unsubstantiated by the record evidence. I shall therefore recommend that his petition requesting permission to allow him to change from Plan A to Plan E be denied.
Recommendation Based on the above facts and conclusions of law, I recommend than the Petition filed herein requesting permission to retire from Plan A to Plan E be disallowed. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Lawrence L. Black, Esquire 152 8th Avenue, Southwest Largo, Florida 33540 Robert L. Wonsick 6260 Second Avenue, South St. Petersburg, Florida 33707
The Issue The issue for consideration in this matter is whether Peter McRedmond, the deceased, should have been permitted to change the beneficiary on his state retirement plan to elect an annuity for the benefit of his estate and the Intervenor, Martin Horton.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Division of Retirement, was the state agency responsible for the control, operation and monitoring of the State Retirement System. Petitioner, Eugene McRedmond, is the surviving brother of Peter McRedmond, deceased, a former member of the Florida Retirement System. Intervenor, Martin V. Horton, is the former live-in friend and companion to Peter McRedmond and the individual who claims an interest in Peter's retirements benefits. For some period prior to 1988, Peter McRedmond was employed at Manatee Community College as a psychology professor and as such was a member of the Florida Retirement System, (FRS). He was so employed until he retired for disability in early 1990. Before that time, however, in August or September, 1988, he was diagnosed as having AIDS by Dr. Warren D. Kuippers, a physician with the Community Migrant Health Center. Tests taken at or around that time indicated he was suffering from toxoplasmosis, a disease of the brain in which significant portions of that organ are eaten by parasites, resulting in intermittent periods of impaired judgement and reasoning ability. He also suffered numerous other medical problems including weight loss, a wasting syndrome, general weakness and fatigue. Notwithstanding the seriousness of his illness, because Mr. McRedmond wanted to qualify for retirement under the FRS system, he continued to work for another year to meet the minimum requirements for retirement. On April 27, 1990, he made application for disability retirement to be effective July 1, 1990. As a part of that application, Mr. McRedmond selected Option 1 under the FRS as the method under which he desired his benefits be paid and named the Intervenor, Mr. Horton, as his designated beneficiary to receive any benefits legally due after his death. Mr. McRedmond could have elected to receive benefits under either Option 1 or Option 2 of the plan. Option 3 was not available to him because of his marital status. Under Option 1, he would receive payments of $639.33 per month for the remainder of his life, regardless of how long he lived. Under Option 2, he would have been paid a slightly lesser monthly sum, $587.51, for the rest of his life, but not less than 10 calendar years, and if he were to die before 10 years were up, the payments would go to his designated beneficiary. In May, 1990, consistent with the procedure then in effect within the Division, Mr. McRedmond was sent a second Option selection form to give him as much information as was possib1e and to make sure he understood what he was doing as it related to his option selection. Mr. McRedmond again selected Option 1, had his signature notarized, and returned the executed form to the Division. The individual who performed the notary service did not recall the transaction but indicated her routine practice was not to notarize a document for anyone who did not appear to know what he was doing. Peter McRedmond died on August 23, 1990 from the disease with which he was afflicted. Several months before his death, in mid June, 1990, Mr. McRedmond and Mr. Horton discussed finances and what Horton could expect after McRedmond's death. It is clear that Mr. McRedmond wanted to make arrangements for Mr. Horton to finish his education without having to work while doing so. At that time, McRedmond's life insurance policy, in the face amount of $60,000.00, had Horton as the beneficiary. Shortly before his death, however, upon the prompting of his brother, Eugene, Petitioner herein, Peter McRedmond directed the policy be changed to make his estate the beneficiary. This was done by Eugene through a power of attorney. There was also some discussion of an additional $500.00 per month which was to go to Mr. Horton, but no one, other than Mr. Horton, recalls this. Also shortly before his death, Mr. McRedmond and Mr. Horton travelled to the family home in Connecticut for several weeks. During that time, Mr. McRedmond had at least one major seizure and family members noticed that while he was sometimes forgetful, for the most part his thinking was rational and normal. There can be little doubt that Mr. McRedmond had deep feelings for Mr. Horton and wanted the latter to be provided for after his death. Friends of both relate the numerous comments McRedmond made to that effect and are convinced that at the time he made the contested election, Mr. McRedmond was not of sound mind sufficient to knowingly make the choice he made. To be sure, the ravages of his disease had taken its toll and there were numerous occasions on which he was not lucid or competent to determine issues such as here. On the other hand, the benefits administrator with whom McRedmond talked at the time he selected his retirement plan option was totally satisfied that at that time, he fully understood the nature and effect of the option he selected and was choosing that which was consistent with his desires at the time. By the same token, the notary, whose testimony was noted previously herein, also was satisfied he knew what he was doing at the time of the second election. In its final configuration, Mr. McRedmond's estate includes all his assets, including the proceeds of the insurance policy previously designated to go to Mr. Horton, for a total of approximately $120,000.00. According to the terms of the will, the estate is to be put into a trust from which Mr. Norton is to receive $1,000.00 per month for his lifetime, as well as all his medical expenses. Since Mr. Horton has tested HIV positive, these can be expected to be extensive. Eugene McRedmond is the executor of the estate. Petitioner and Mr. Horton claim that since the trust contains all of Peter's assets existing at his death, the only other source of the additional $500.00 per month would be the benefits from the FRS. Both cite this as evidence of Mr. McRedmond's intent that the option selection providing for payment after death was his intention. This does not necessarily follow, however. Notwithstanding what Petitioner and Intervenor state were his intentions, Mr. McRedomnd took no action to make the change in option selection which would have effectuated them. Instead, he went out of town to visit family for several weeks, and even after receipt of the first retirement check, received on July 31, 1990, still took no action to make the change. During this period, after the return from Connecticut, Mr. McRedmond's condition deteriorated to the point he was often bedridden and was periodically unaware. However, there is ample evidence to indicate that he was often lucid during this period and still took no action to change his retirement option. During this time, Mr. Horton conducted come of Mr. McRedmond's business affairs for him pursuant to specific instructions. These included making bank deposits and as a part of one of these deposits, when Horton was to deposit two checks as requested by McRedmond, he also deposited the first retirement check. Horton and Eugene McRedmond both claim that at no time did Peter McRedmond ask or authorize him to do so. In a visit that Petitioner made to his brother in early August, 1990, just weeks prior to Peter's death, according to Petitioner his brother explained he had selected the wrong retirement option and requested that Eugene attempt to change the election. Peter gave Eugene a Power of Attorney with which he was to do this as well as to change the beneficiary on the life insurance policy. Consistent with those instructions, Eugene wrote a letter to the Division explaining the situation and that the check had been deposited by mistake. On August 13, 1990, Eugene telephonically contacted the Division where he spoke with Melanie White. During this conversation, in which he again spelled out the circumstances which he believed constituted the mistaken election, he was told to file a power of attorney. When he did this, the Division would not honor it claiming that since it had been executed in May, 1990, some three months earlier, it was not current. Subsequent to the death of Peter McRedmond and the filing of the claim against the Division, Eugene McRedmond and Martin Horton have entered into an agreement whereby any sums recovered from the Division will be split with 25% going to Mr. Horton and 75% going to the Trust. Upon the death of Mr. Horton, any sums remaining in the trust will be split by Eugene McRedmond and another brother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's and Intervenor's claims for retirement benefits under Option 2 of the Florida Retirement System retirement plan, on behalf of Peter McRedmond, be denied. RECOMMENDED in Tallahassee, Florida this 29th day of July, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Buildi5g 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clark of the Division of Administrative Hearings this 29th day of July, 1991 APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7104 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER AND INTERVENOR: Accepted and incorporated herein. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Third sentence not proven. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted that Peter McRedmond had numerous conversations with friends about providing for Mr. Horton, but it was not established that he mentioned using his retirement benefits for that purpose. & 9. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not necessarily following from the facts. Rejected as speculation not supported by fact, except that Petitioner claims Peter desired to change the option selection. First sentence accepted. Second sentence accepted in so far as it asserts Peter told Horton he would receive a monthly sum of $1,000.00. Balance rejected. Accepted and incorporated herein. Rejected as speculation and conclusion except for first sentence and first clause of second sentence. Accepted and incorporated herein. 17.-20. Accepted and incorporated herein. 21. First and second and last sentences accepted. 22.-24. Accepted. Accepted and incorporated herein. Accepted. & 28. Accepted. 29. Irrelevant. FOR THE RESPONDENT: 1-4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. 8.-10. Accepted. Ultimate finding accepted. On the date he filed his application, Peter McRedmond was capable of understanding what he was doing and the implications thereof. & 13. Rejected as comments of the evidence and not Findings of Fact. First four sentences accepted. Remainder rejected except that McRedmond wanted Horton to get at least $1,000.00 per month for life, and more if possible. & 16. Accepted except for last two sentences of 16. Accepted except for last sentence which is a comment on the evidence and not a Finding of Fact. Accepted. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. COPIES FURNISHED: Edward S. Stafman, Esquire Stafman & Saunders 318 North Calhoun Street Tallahassee, Florida 32301 Stanley M. Danek, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Bldg. C 1639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether at the time of his father's death, Armando Martinez, Jr., was a "dependent beneficiary" of his father, a vested member of the Florida Retirement System, so as to be entitled to his father's retirement benefits?
Findings Of Fact Armando Martinez, Jr., was born on February 22, 1974, to Natalie M. Martinez and the late Armando Martinez, Sr. In 1992, when Armando, Jr., was eighteen years old, Mr. and Mrs. Martinez were divorced. The following year, 1993, less than two weeks after Armando, Jr.'s, nineteenth birthday, Armando Martinez, Sr., died. The cause of death was liver cancer, a disease from which Ms. Martinez presently suffers. At the time of his death on March 7, 1993, Mr. Martinez was a vested member of the Florida Retirement System. A municipal employee, he had been a bus operator. At some point close to commencement of his employment, slightly more than ten years prior to his death, Armando Martinez, Sr., had executed a Form M-10. The form named his wife, Natalie, as his primary beneficiary. Armando, Jr., the only child of Armando, Sr., and Natalie Martinez, was named as the sole contingency beneficiary. Following Mr. Martinez, Sr.'s death, Ms. Martinez disclaimed Florida Retirement System benefits. She did so in order for Armando, Jr., as the contingent beneficiary, to be able to receive the benefits. On February 17, 1997, the Division of Retirement denied Armando, Jr., survivor benefits. Had Mr. Martinez, Sr., died one-year and several weeks earlier, that is, prior to Armando, Jr.'s eighteenth birthday, the Division would have approved distribution of survivor benefits to him. But, although he was still a high school student, since he was older than nineteen by a few days at the time of his father's death, the Division required proof that Armando, Jr., had received half of his support from his father at the time of his father's death. No such proof was provided to the Division prior to or at the time of its preliminary denial. In fact, in his 1992 tax return, Mr. Martinez did not claim his son Armando, Jr., as a dependent. In this formal administrative proceeding, however, Armando Martinez, Jr., provided such proof, proof which was lacking until hearing. The year 1992 was very difficult for Armando Martinez, Jr., and his family. His parents separated, Armando, Jr., lived with his mother. Armando, Sr., lived elsewhere. Prior to his death, divorce proceedings were finalized. In the meantime, Ms. Martinez had lost her job. She remained unemployed for the entire year and in early 1993 as well. Armando, Jr., was still in high school at the time of his father's death. During the 1992-93 school year, to support himself and his mother, he obtained work part-time while he remained in school. Ms. Martinez paid the rent for their apartment at a rate of between $370 and $500 per month. The monthly phone bill of Ms. Martinez and Armando, Jr., was approximately $50; utility payments $70; groceries $300; gasoline $10, automobile insurance $100; and school supplies $40. There were other expenses, clothes, for example, that occurred from time-to-time. In addition to minimal government support to Ms. Martinez and Armando, Jr.'s, part-time employment income, Armando, Jr., was supported by cash payments provided by his father. Two or three times a month, Armando's father and a girl friend, Karen Jones, would drive to the front of the house. Because of his illness, Mr. Martinez remained in the car while Ms. Jones brought cash, usually between two and five hundred dollars in an envelope to the front door. On more than one of these occasions, Ms. Jones, the envelope, and the cash were observed by friends of the family at the moment of delivery. Ms. Martinez log of the estimates of these payments totals approximately $8,500, an amount in excess of Mr. Martinez's income reported in his 1992 tax return filed before his death in 1993 to be $6,389.00. But, Mr. Martinez, Sr. had access to other means of support and other monies including proceeds from insurance policies. The $8,500 provided to Armando, Jr., by Armando Martinez, Sr. constituted more than half of Armando, Jr.'s, support for the year 1992 and up until Mr. Martinez, Sr.'s, death in early 1993.
Recommendation Accordingly, it is hereby recommended that the Division of Retirement recognize Armando Martinez, Jr., to have been the dependent beneficiary of Armando Martinez, Sr., at the time of Mr. Martinez, Sr.'s, death, and therefore entitled to retirement benefits. DONE AND ORDERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Natalie Martinez Suite 3811 3801 Northgreen Avenue Tampa, Florida 33624 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 A.J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The basic issue in this case is whether the Petitioner, Mr. Joseph M. Lesko, violated the provisions of Section 238.181(2)(a), Florida Statutes, by being reemployed within twelve (12) months of retirement by an agency participating in the Florida Retirement System, and, if so, whether his retirement benefits were overpaid and need to be refunded to the Florida Retirement System.
Findings Of Fact Mr. Joseph M. Lesko was employed as an instructor with the Palm Beach Community College (hereinafter "the College") and retired under the provisions of the Teachers' Retirement System (hereinafter "TRS"), Chapter 238, Florida Statutes, on July 1, 1986. In October of 1986 a science instructor at the College suffered a stroke and was unable to continue working. Dr. Paul Dasher, then the Chairman of the College's Science Department, called Mr. Lesko and asked him to be a substitute instructor for some of the classes of the instructor who had suffered the stroke. Mr. Lesko, a former Senior instructor in Chemistry, was the only qualified candidate who was known to be available on short notice. Although Mr. Lesko had not intended to teach at that point in his retirement, he agreed to teach for the balance of the semester to help the College during the incapacity of the stricken instructor. When the stricken instructor was unable to return during the next semester, Mr. Lesko also agreed to substitute in Chemistry for the following semester. The incapacitated instructor died in March of 1987, and Mr. Lesko finished substitute teaching for the balance of the semester. At the time Mr. Lesko was reemployed as described above, the College's Director of Human Resources, Mr. Schneider, was not aware that Mr. Lesko had retired under the TRS, because the vast majority of the College's instructors retire under the Florida Retirement System. Mr. Schneider believed that Mr. Lesko was covered by certain amendments to the Florida Retirement System that became effective in July of 1986. Those amendments allowed retired instructors who retired under the Florida Retirement System to be reemployed by community colleges on a noncontractual and part time basis after one month of retirement without loss of retirement benefits. Mr. Schneider was under the erroneous impression that those amendments applied to all retired instructors, because he did not recall receiving any information from the Division of Retirement indicating that retirees under TRS were to be treated differently from retirees under the Florida Retirement System for purposes of eligibility for reemployment. Three other instructors who retired at the same time as Mr. Lesko, and who were rehired during the same time period as Mr. Lesko, have not been required to repay any retirement benefits because they all retired under the Florida Retirement System. Neither Mr. Schneider nor Mr. Lesko were aware that Mr. Lesko's retirement benefit would be jeopardized by his returning to work for the College in October of 1986. Both believe that the information regarding TRS retirees provided by the Division of Retirement is at least unclear, if not misleading. Mr. Lesko would not have returned to teach at the College during the first year of his retirement if he had been aware that doing so would require him to lose his retirement benefits during that period. During the period from October 1986 through May 1987, Mr. Lesko earned $4,460.60 for the services he provided to the College. During that same period he received retirement benefits of $6,506.72.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be issued in this case requiring Mr. Lesko to repay retirement benefits to the Division of Retirement in the amount of $6,506.72. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2 day of April, 1990. MICHAEL M. PARRISH 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 Administrative Hearings this 2 day of April, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5717 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: First page, First unnumbered paragraph: All covered in the Preliminary statement portion of this Recommended Order. First Page, Second unnumbered paragraph: Accepted in substance. Second Page, Paragraph No. 1: Accepted in substance. Second Page, Paragraph No. 2: Accepted in substance. Second Page, Paragraph No. 3: Accepted in part and rejected in part; rejected portion is portion following the comma. The rejected portion is contrary to the greater weight of the evidence. Second Page, paragraph No. 4: Accepted in substance. Third Page, Paragraph No. 5: Rejected as irrelevant to the disposition of this case. Third Page, Paragraph No. 6: Rejected as constituting subordinate and unnecessary details. Third Page, Paragraph No. 7: First sentence accepted in substance. Second sentence rejected as constituting argument, rather than findings of fact. Third Page, Last paragraph of Findings: Rejected as constituting commentary about the proceedings, rather than proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with certain unnecessary details omitted. Paragraphs 3 and 4: Rejected as subordinate and unnecessary procedural details. Paragraphs 5 and 6: Accepted in substance. Paragraph 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Mr. Joseph M. Lesko 184 Meadows Drive Boynton Beach, Florida 33462 Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Between October 1, 1988 and September 30, 1991, Petitioner's salary as the Director of the Department of Emergency Support Services for Hillsborough County was controlled by the compensation structure set forth in the Hillsborough County Exempt Service Classification and Compensation Plan (the Plan). His retirement system benefits were governed by Chapter 121, Florida Statutes as he was a member of the Florida Retirement System administered by the Division of Retirement. The Plan utilized by the County during this period of time created a pay structure for its exempt service employees that caused annual salary increases to be divided into two categories. The Plan referred to the categories as "merit increase" and "performance pay." Any salary adjustment under the "merit increase" category became part of the employee's adjusted base salary. "Performance pay" was an increase granted for a one year term. It was based upon work performance that exceeded performance standards during the preceding year. According to the Plan, the increase in salary from each of the categories was directly tied to the employees' annual performance rating. The possible percentages of the increases were regulated at the high end of the adjustment scale by a Maximum Performance Compensation Table. The one year "performance pay" increase could only be granted if the maximum "merit increase" was granted during the same evaluation. The method used to establish the pay increases for Petitioner under the Plan were applied because his salary was already above the midpoint of the pay grade the Plan dictated the County was willing to pay for the performance of his job when completed to the required standard. Salary increases above the midpoint were divided into the two separate categories in order to balance two distinct County interests. The first was to keep the maximum salary range in a pay grade aligned with the competitive salary indicators in the geographical area for the same type of work. The second was to annually reward each employee whose performance exceeded standards over the past year and to motivate continued high performance on an individualized basis. Petitioner's salary adjustments were divided between "merit increases" and "performance pay" for the three years which are the subject of this proceeding. During the time period between October 1, 1988 and June 30, 1989, the County was required to make a contribution into the Florida Retirement System for Petitioner's benefit. This contribution was a statutorily designated percentage of his monthly salary, including the annual "performance pay" increase. The inclusion of the "performance pay" increase was required by Subsection 121.021(22), Florida Statutes, which defines "compensation". In spite of this contribution into the system by the County, Subsection 121.021(24), Florida Statutes mandated that the Division had to exclude bonuses, whether paid as salary or otherwise, from the calculation of the "average final compensation" for a member seeking to establish the amount of his or her pension benefits. Effective July 1, 1989, the Legislature removed the provision in Subsection 121.021(22), Florida Statutes, which required employers to make a contribution into the system based upon a definition of "compensation" that included "bonuses" in the calculation. The Florida Retirement Systems Act has never included a definition of the word "bonus" as used in Subsections 121.021(22) and (24), Florida Statutes. The term, as used in Subsection 121.021(24) and as previously used in Subsection 121.021(22), is not plain nor the meaning clear. The term "bonus" is defined by the Division's rules, which excludes Petitioner's "performance pay" from any calculation of his "average final compensation." In its computation of Petitioner's "average final compensation", the Division determined that the "performance pay" category of the Hillsborough County Exempt Service Classification and Compensation Plan is a "bonus", as defined by Rule 22B-6.001(11), Florida Administrative Code. A definition of the term "bonus" is necessary to allow the Division to compute the "average final compensation" for each member of the system and for the determination of an employer's contribution into the Florida Retirement System on behalf of the member based on "compensation." Subsection 121.021(22), Florida Statutes, has consistently contained a clear definition of "compensation." The definition included the term "bonuses" until July 1, 1989 and excluded "bonuses" from the definition after that date. The definitions of "bonus" and "compensation" as set forth in Rules 22B-6.001(11) and (16)(a)3, Florida Administrative Code, establish adequate standards for agency decisions regarding retirement benefits. The definitions are based on relevant factors duly considered by the agency and they have been uniformly applied to all members.
The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether the Petitioner, Mr. Robert P. Hatcher, is eligible to retire under the Florida Retirement System rather than under the Teachers' Retirement System.
Findings Of Fact The Petitioner was employed by the Hillsborough County School Board on August 25, 1959, and was enrolled in the Teachers' Retirement System (TRS) at that time. The Petitioner worked for the Palm Beach County School Board for 27 years, from 1966 through May 15, 1992. The Petitioner worked with no breaks in service during all years in which the Legislature provided open enrollment periods for members of the TRS to transfer to the Florida Retirement System (FRS). The Petitioner was aware of the open enrollment periods, but declined all opportunities to transfer to the FRS. In this regard, the Petitioner specifically rejected membership in the FRS for the 1974 and 1978 open enrollment periods by signed ballots dated November 27, 1974, and November 2, 1978. Petitioner voluntarily terminated his employment with the Palm Beach County School Board on May 15, 1992. Following his termination with the Palm Beach County School Board, Petitioner began seeking employment with an agency that participated in the FRS in order to become eligible to transfer from the TRS to the FRS. The Petitioner's first contact with the Okeechobee County School Board (OCSB) was approximately two years ago when Dr. Mary Gray, Petitioner's acquaintance, introduced Petitioner to Mr. Owens. The Petitioner approached Mr. Owens in an attempt to obtain employment with the OCSB. The Petitioner sought employment with the OCSB for the sole purpose of obtaining entry into the FRS. Mr. Owens recruited and interviewed the Petitioner for the position of Custodian I at the OCSB. At the time the Petitioner was recruited and interviewed, Mr. Owens knew the Petitioner wanted to work for the OCSB for the sole purpose of establishing retirement eligibility. The Petitioner requested that he be hired to work only long enough to establish retirement eligibility by working for a state employer that was a member of the Florida Retirement System. Prior to the Petitioner's request, the OCSB had never had such a request before. The OCSB hired the Petitioner with the knowledge that he had health problems and believing that he would not be able to perform the duties of custodian for more than a short period of time. By letter dated June 23, 1993, the OCSB approved the Petitioner's employment as Custodian I for the OCSB effective June 30, 1993. The Custodian I position was classified as a regular position, not a short-term position. The Petitioner reported to work at the Okeechobee High School on June 30, 1993. He answered phones for several hours, performed some inventory work, then resigned that afternoon. The OCSB acknowledged receipt of the Petitioner's resignation letter, effective June 30, 1993, by letter dated August 2, 1993. The Petitioner submitted an application for membership in the FRS to the OCSB on June 30, 1993. Prior to his employment with the OCSB, the Petitioner investigated the possibility of transferring from the TRS to the FRS. The Petitioner was neither told nor did he receive any written communication by the DOR that he could transfer to the FRS based upon employment for one day. By letter dated August 16, 1993, the Respondent notified the Petitioner that he could not obtain entry into the FRS because his employment was not bona fide, but that he could retire under the TRS. If the Petitioner were to retire under the TRS, his Option 1 monthly benefit payment would be $2,571.64; his Option 3 monthly benefit payment would be $2,396.25. Under the FRS, Petitioner's Option 1 monthly benefit payment would be $3,054.91; his Option 3 monthly benefit payment would be $2,771.20.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Retirement issue a final order concluding that the Petitioner is not eligible for participation in the Florida Retirement System and denying Petitioner's application for transfer from the Teachers' Retirement System to the Florida Retirement System. DONE AND ENTERED this 6th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of January 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs a and b: Accepted in substance. Paragraph c: Accepted in part and rejected in part; accepted that the Petitioner obtained the described employment, but rejected that the employment was bona fide. Paragraph d: Accepted in part and rejected in part. The conclusion that the one day was sufficient to qualify the Petitioner for transfer to FRS is rejected as incorrect and as not warranted by the evidence; the remainder of the facts in this paragraph are accepted. Paragraph e: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Paragraph f: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Findings submitted by Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in whole or in substance in the Findings of Fact made in this Recommended Order. COPIES FURNISHED: Jodi B. Jennings, Esquire Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Allan L. Hoffman, Esquire 1610 Southern Boulevard West Palm Beach, Florida 3406 J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
