The Issue Whether Petitioners are entitled to, and should receive, survivor retirement benefits from the Florida Retirement System account of their deceased mother, Adrianna Davis, which are presently being paid to their sister, Earnese Davis?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Adrianna Davis was a public school teacher in Broward County for more than 35 years before her retirement in or about the end of January of 1991. She enrolled in the Teacher's Retirement System of Florida in 1955, when she started her teaching career. On the enrollment form that she filled out, she designated her father, Charles Williams, who is now deceased, as her beneficiary. Adrianna subsequently became a member of the Florida Retirement System. At the time of her death, Adrianna had two adult sons, Kevin and Eddie Davis, (the Petitioners in this case) and one adult daughter, Earnese Davis, (the Intervenor in this case), all three of whom lived with her in the house she and the children's aunt co-owned. Adrianna was the undisputed head of the household and its primary decision maker. Although Earnese lived under the same roof as her brothers, she did not have a good relationship with them. Shortly after the beginning of the 1990-91 school year, Adrianna was told by a physician that he suspected that she had cancer. In October or November, she underwent exploratory surgery. The surgery confirmed that she had cancer, which was determined to be inoperable. Following the exploratory surgery, Adrianna received chemotherapy and radiation treatment. Adrianna was admitted to Humana Hospital Bennett (now Westside Regional Medical Center and hereinafter referred to as "Humana") on December 6, 1990. She was brought to Humana by Earnese, who remained with her in the hospital during the entire period of her hospitalization. 1/ After a medical history was taken and a physical examination was conducted, the following initial "assessment" was made of Adrianna's condition by the admitting physician: "Lung carcinoma with dehydration post chemotherapy." Approximately two days prior to her December 6, 1990, hospitalization, Adrianna had asked Earnese to go to the Broward County School Board (hereinafter referred to as the "School Board") offices to obtain a Florida Retirement System Application for Service Retirement form (hereinafter referred to as a "Form 11). Form 11 has four sections that need to be filled out. In the first section of Form 11 (hereinafter referred to as "Section 1"), the following information has to be provided: the applicant's name; the applicant's social security number; the applicant's job title; the applicant's birth date; the applicant's present or last employer; the applicant's home address and home and work phone numbers; and the date of termination of applicant's employment. In the second section of Form 11 (hereinafter referred to as "Section 2"), the following information has to be provided: the name of the beneficiary designated by the applicant; the beneficiary's social security number; the relationship of the beneficiary to the applicant; the beneficiary's home mailing address; and the "option" selected by the applicant. 2/ The following advisement is printed at the top of Section 2: "All previous beneficiary designations are null and void." The third section of Form 11 (hereinafter referred to as "Section 3") contains the following statement, underneath which the applicant has to place his or her signature "in [the] presence of [a] notary:" "I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES." It also has a certificate that has to be completed and signed by the notary public in whose presence the applicant signs this section of the form. The fourth and last section of Form 11 (hereinafter referred to as "Section 4") contains the following certification that has to be completed, signed and dated by an authorized representative of the applicant's employer, "if termination was within the last 2 years:" "This is to certify that was employed by this agency and will terminate or has terminated on / / , with the last day worked on / / ." As her mother had asked her to do, Earnese went to the to the School Board offices at 1320 Southwest 4th Street in Fort Lauderdale to pick up a Form There she met with Victoria Moten, a School Board retirement specialist. 3/ Earnese told Moten about her mother's situation. She explained that her mother was ill and it looked like she was "not going to make it." 4/ Moten obtained a blank Form 11. After typing in the information that needed to be provided in Section 1 of the form, Moten handed the partially completed form to Earnese and indicated what further steps needed to be taken in order to complete the application process. After her visit with Moten, Earnese returned home and gave her mother the partially completed Form 11 (with only Section 1 filled in) that Moten had provided Earnese with earlier that day (hereinafter referred to as the "Designation Form"). Adrianna kept the Designation Form in her possession and took it with her (in a knapsack, along with other papers) to the hospital on December 6, 1990. She explained to Earnese that she wanted to have the Designation Form filled out while she was in the hospital. It was Adrianna, not Earnese, who brought up the subject. On the morning of December 10, 1990, while Adrianna was still in the hospital, she told Earnese that she wanted to designate Earnese as the sole beneficiary of her retirement benefits so that Earnese would be able to get her "life together" and she asked Earnese to fill out Section 2 of the Designation Form accordingly. 5/ Adrianna also requested Earnese to obtain the services of a notary public to assist in filling out Section 3 of the Designation Form. Earnese thereupon left her mother's hospital room (without the Designation Form, which remained with Adrianna) to find a Florida notary public in the hospital. Her search was successful. She made contact with Elizabeth Sarkissian (now Gassew), a registered nurse and a Florida notary public, 6/ who agreed to help in filling out Section 3 of the Designation Form. Earnese returned to her mother's room with Sarkissian. Earnese filled out Section 2 of the Designation Form in accordance with her mother's previous instructions. Sarkissian, upon entering the room, engaged in conversation with Adrianna, who was sitting up in her hospital bed. Adrianna was alert and oriented. She spoke clearly and responded appropriately to questions Sarkissian asked her. By all appearances, she was in no way mentally incapacitated. After Earnese had finished filling out Section 2 of the Designation Form, Adrianna signed Section 3 of the form in Sarkissian's and Earnese's presence. 7/ Sarkissian then completed and signed the notary certificate underneath Adrianna's signature (in Section 3 of the Designation Form), 8/ after which the form (now with Sections 1, 2 and 3 filled in) was returned to the knapsack in which Adrianna kept the papers she had brought with her to the hospital. Her presence no longer needed, Sarkissian left Adrianna's hospital room. Sarkissian's visit lasted approximately five or ten minutes. Later that day (December 10, 1990), in the evening, Adrianna underwent a surgical procedure involving the insertion of a vascular access port. Adrianna was discharged from the hospital on December 12, 1991. She took the knapsack which contained the Designation Form home with her. Adrianna kept the Designation Form in her possession until January 3, 1991, when she gave it to Earnese, with instructions that Earnese deliver it to Moten for filing. Earnese followed her mother's instructions. Later that same day (January 3, 1991), she went to Moten's office (without her mother) and handed Moten the Designation Form. Moten thereupon completed Section 4 of the form. The now fully completed form was then filed for processing. In June of 1991, Adrianna went into a coma and eventually died. At the time of her death, the Designation Form (which, in Section 2, designated Earnese as the sole Option 2 beneficiary of Adrianna's retirement benefits) was the most recent designation of beneficiary form executed by Adrianna. At no time subsequent to signing the Designation Form did she express to Earnese a desire to make any changes to Section 2 of the form, nor were any such changes made. It has not been shown that Adrianna's designation of Earnese as the sole beneficiary of her retirement benefits was the product of any fraud, misrepresentation, trickery, coercion, undue influence, active procurement, or suggestion on Earnese's part or that it was anything other than a decision made freely, voluntarily and knowingly by a woman who, although terminally ill, was in all respects capable of making such a decision 9/ and fully understood the consequences her decision. On or about July 18, 1991, through the submission of a completed Application of Beneficiary for Retirement Benefits form, Earnese requested that the Division begin to pay her Adrianna's retirement benefits. On the form, Earnese designated her brothers, Eddie and Kevin, as the first and second contingent beneficiaries, respectively, of these benefits in the event of her death. Earnese has received monthly payments from her mother's retirement account since July of 1991. 10/ She currently receives a monthly payment of $1,986.30.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division enter a final order refusing to grant Petitioners' request that it treat as a nullity Adrianna Davis' written designation of Earnese Davis as her sole beneficiary and, based upon such nullification, discontinue paying Adrianna's retirement benefits to Earnese Davis and instead pay them to Petitioners. 13/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of February, 1996. STUART M. LERNER, 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 8th day of February, 1996.
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 The central issue is whether the Petitioner is entitled to modify her deceased husband's retirement benefit option.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact. Petitioner is the surviving spouse of Lamar W. Whaley, Jr., deceased. From 1972 to 1990, Mr. Whaley was employed by the Hillsborough County Board of County Commissioners (Board) and as such was a member of the Florida Retirement System. Mr. Whaley retired from his position as a minibus driver with the Board on June 29, 1990. In anticipation of his retirement, Mr. Whaley filed an FR-9 Form with the Division of Retirement (Division). The FR-9 Form, entitled "Request for Audit," was signed by Mr. Whaley and dated November 6, 1989. The FR-9 Form is used by members of the Florida Retirement System who want estimates of the monthly payments which they will receive after they retire. The FR-9 Form provided a space where Mr. Whaley could list the name and birthdate of a joint annuitant. On the FR-9 Form, Mr. Whaley named the Petitioner and the Petitioner's birthdate in these spaces. On the line immediately after the spaces provided for name and birthdate of the joint annuitant, the FR-9 expressly states that "This is not an official beneficiary designation." By listing a joint annuitant and that individual's birthday on the FR-9 Form, the Division is able to calculate the monthly benefits that would be payable to a member under each of the four retirement options available. In response to Mr. Whaley's audit request, the Division calculated the amount of the monthly payments he and/or his survivor would receive under the four retirement options available. On or about November 22, 1989, the Division sent Mr. Whaley information which reflected an estimate of the monthly benefits he and/or his survivor would receive under each of the four retirement options from which he was eligible to select. Included with the estimate of retirement benefits sent to Mr. Whaley, was a document entitled, "What Retirement Option Should I Choose?". This information sheet listed sent to Mr. Whaley listed and described the four different options. In 1990, members of the Retirement System contemplating retirement were provided a Division Form FR-11, Florida Retirement System Application for Service Retirement (Application). The application listed the four different options and provided a brief description of each. Next to Option 1 was the following: "Benefit for the Member Only." A further notation on the application read, "SEE THE REVERSE SIDE FOR AN EXPLANATION OF THESE OPTIONS." The Application adequately described the consequences of the election of each option. The explanation read as follows: Option 1: A monthly benefit payable to you for your lifetime. This option does not provide continuing benefit to a beneficiary. Upon your death, the monthly benefit will stop and you beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. If you wish to provide a beneficiary with a continued monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial factors to the option 1 benefit. Option 2: A reduced monthly benefit payable to you for your lifetime. If you die before receiving 120 monthly benefit payments, your designated beneficiary will receive a monthly benefit payment in the same amount as you were receiving until the total monthly benefit payments to both you and your beneficiary equal 120 monthly payments. No further benefits are then payable. Option 3: A reduced monthly benefit payable to you for your lifetime. Upon your death, your joint annuitant (spouse or financial dependent), if living, will receive a lifetime monthly benefit payment in the same amount as you were receiving. No further benefits are payable after both you and your joint annuitant are deceased. Option 4: An adjusted monthly benefit payable to you while both you and your joint annuitant (spouse or financial dependent) are living. Upon the death of either you or your joint annuitant, the monthly benefit payable to the survivor is reduced to two- thirds of the monthly benefit you were receiving when both were living. No further benefits are payable after both you and your joint annuitant are deceased. (Emphasis in original text.) On January 12, 1990, Mr. Whaley executed an Application. The Application listed the Petitioner as beneficiary and indicated that the retirement option selected was Option 1. In selecting Option 1, Mr. Whaley rejected all other options. The fact that Petitioner was listed on the application as a beneficiary is of no consequence given that Mr. Whaley chose Option 1. An explanation on the back of the retirement application expressly states, "This option does not provide continuing benefit to a beneficiary." Because Mr. Whaley chose Option 1, Petitioner, as his beneficiary, would have been entitled only to a refund of Mr. Whaley's contributions in the event that Mr. Whaley's contribution exceeded the amount of monthly benefits paid to him before prior to his death. Petitioner did not assert, nor did the evidence establish that the refund provision in Option 1 applies in the instant case. Petitioner stated that Mr. Whaley could read and was not mentally impaired at the time he completed the retirement application, yet Petitioner testified that the agency did not explain to Mr. Whaley the benefits of the plan which he selected. According to the testimony of Stanley Colvin, administrator and supervisor of the Division's Survivor Benefits Section, staff members are available to provide counseling to members who come in or call with questions relative to their retirement. There is no record that Mr. Whaley ever contacted the Division with questions regarding the various options. The pastor of the church which Petitioner is a member testified that Mr. Whaley may have needed help to understand the ramifications of legal documents. Mr. Whaley's daughter also testified that her father may not have understood the retirement option he chose. Both the pastor and Mr. Whaley's daughter testified further that in conversations with Mr. Whaley, he had indicated to them that he had taken care of the legal work necessary to ensure that his was family was taken care of in the event of his death. Notwithstanding the testimony of Petitioner and others, there is no evidence that at the time Mr. Whaley selected Option 1 he did not fully understand the nature and effect of his selection. Neither does the evidence support the claim that the selection of Option 1 by Mr. Whaley was inconsistent with his desire or intention at the time the choice was made. At the time of Mr. Whaley's retirement, he was in good health. Given this fact it is not unusual that he selected the option that would provide him with the maximum monthly benefit. Statements by Mr. Whaley that he had taken care of matters and that "things were in order" do not provide substantial evidence that the selection of Option 1 by Mr. Whaley was made only because he did not fully understand the consequences of his choice. The testimony revealed that upon Mr. Whaley's death, the Petitioner was the beneficiary of his life insurance policy and also the recipient of benefits under his social security. Under these circumstances, Mr. Whaley's selection of Option 1 was not necessarily inconsistent with his statement that things "were in order" or his listing Petitioner as beneficiary on the Application. On several documents provided to and/or completed by Mr. Whaley, it was clearly stated that once a member begins to receive his benefit, the option selection cannot be changed. The information sheet, "What Retirement Option Should You Choose?," mailed to Mr. Whaley on or about November 22, 1989, contained the following provision: Option Choice Cannot Be Changed Once you begin to receive your benefit your option selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before making your decision . . . . The Application submitted to the Division by Mr. Whaley on or about January 25, 1990, contained a statement that "[o]nce you retire, you cannot add additional service nor change options." Finally, the Acknowledgment of Retirement Application sent to Mr. Whaley by the Division on or about February 8, 1990, provided in relevant part the following: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT CHECK IS CASHED OR DEPOSITED! Mr. Whaley received his first retirement check on or about the last working day in July 1990. Petitioner testified that Mr. Whaley cashed this check in July or August of that same year. By cashing that check, Mr. Whaley was precluded from thereafter changing his retirement option. By selecting Option 1, Mr. Whaley received the maximum benefits payable to him during his lifetime. However, under the provisions of retirement Option 1, upon Mr. Whaley's death, his beneficiary, the Petitioner is not entitled to receive any benefits.
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 Petitioner to modify the retirement benefits elected by Mr. Whaley, the deceased husband of Petitioner. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 1st day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0059 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1a-1c. Rejected as not being supported by competent and substantial evidence. Respondent's Proposed Findings of Fact. 1-6. Accepted and incorporated herein. 7-8. Accepted. 9-11. Accepted and incorporated herein. COPIES FURNISHED: Gladys Whaley 3807 East Norfolk Street Tampa, Florida 33604 Robert B.Button, Esquire Division of Retirement Legal Office Cedars Executive Center-Building C 2639 North Monroe Street Tallahassee Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, Esquire General Counsel Department of Management Services 4050 Esplanade Way, Suite 265 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003.
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985.
Findings Of Fact On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact. The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence. The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3. The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence. The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause. The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the 780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June 30, 1985. The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66. DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1990.
The Issue The issue is whether the Department of Management Services, Division of Retirement, correctly excluded Petitioner from participation in the Florida Retirement System from August 18, 1995, through November 17, 1996.
Findings Of Fact Petitioner was hired by Dixie County on August 18, 1995, to work the roll-off site in Jena, Dixie County, Florida. At the time of his hiring, Petitioner's position was described as "Temporary Roll-Off Site Fill In." A roll-off site is where people take their garbage which is then transferred to the main facility for disposal. A "Temporary Roll-Off Site Fill In" is defined as someone who is called to work as needed. According to the Dixie County Payroll Records, Petitioner was employed as a "Temporary Roll-Off Site Fill In" from August 19, 1995, until November 18, 1996, when he became a "Part-Time Fill In Roll-Off" with an 80-hour biweekly schedule, until a permanent position could be filled. In July 1998, Petitioner's position became classified as permanent and his position description was changed to "Full Time Roll-Off Site." Testimony from Howard Reid, the road superintendent who was Petitioner's supervisor at the Jena roll-off site during the time period of August 18, 1995, to November 17, 1996, was that Petitioner was employed to fill the full-time position of Houston O. ("Hugh") Markham who had been fired from his employment with Dixie County in August 1995. Mr. Reid testified that Petitioner was employed in a regularly established position during this time period. No documentation was produced to substantiate the claim that Petitioner worked in a regularly established position from August 18, 1995, to November 17, 1996. Respondent's records show that Houston O. Markham was employed by Dixie County during the period of August 18, 1995, to November 17, 1996. Houston Markham was paid by Dixie County until December 1, 1996. December 1, 1996 is the pay date for the period beginning November 18, 1996. Based upon the payroll records, Petitioner began working 80 hours, biweekly, on November 18, 1996. This date coincides with Respondent's records for the last pay date of Houston Markham. The only time records in evidence for Petitioner are for the time period of November 3, 1996, to July 26, 1998. For the pay date of November 3, 1996, Petitioner was paid for 42 hours of work. For the pay date of November 17, 1996, Petitioner was paid for 53 hours of work. Thereafter, for the next 43 pay periods, Petitioner was paid for 80 hours of work biweekly (with one exception, the pay date of July 13, 1997, for which he was paid 76 hours). Petitioner's other witnesses, Joseph Ruth and Arthur Bellot, were not in a supervisory position over Petitioner from August 18, 1995, to November 17, 1996, and could not attest to Petitioner's employment during that time. Membership in the Florida Retirement System is compulsory for any person who fills a regularly established position, as defined by statute. A person filling a temporary position, as defined by statute, is not eligible to participate in the FRS. The agency would not report the temporary employee's work to Respondent. The first time Dixie County ever reported Petitioner for retirement purposes was in January 1998. After review, Respondent found that Petitioner was eligible to participate in the FRS effective November 18, 1996, based upon a Payroll Change Notice from Dixie County. The number of hours a state employee works is not dispositive of the issue of whether he or she is an employee in a regularly established position. An employee who works only two days a week, for example, would be a participant in the FRS if employed in a regularly established position. Based upon the documentation in its possession, Respondent enrolled Petitioner in the FRS effective November 18, 1996. Respondent requested that Petitioner submit tax documentation to demonstrate that he had worked full-time for Dixie County during the August 18, 1995, to November 17, 1996, period, as he claimed. Respondent submitted no documentation to support his claim to have been either a full-time employee or an employee in a regularly established position.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioner's request for participation in the Florida Retirement System for the period of August 18, 1995, through November 17, 1996. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2004. COPIES FURNISHED: Spencer Kraemer, Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Joseph Lander, Esquire Lander & Lander, Attorneys at Law Post Office Box 2007 Cross City, Florida 32628 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issue presented is whether Petitioner's application for retroactive retirement benefits should be granted.
Findings Of Fact Petitioner was employed by the Palm Beach County Sheriff's Office for approximately twelve years, working in a special risk capacity. As a result of that employment, he was a member of the Florida Retirement System. In 1972 Petitioner completed Respondent's form FRS-M10 setting forth his membership as a special risk member of the Florida Retirement System as of November 1, 1970. Petitioner resigned his position on March 15, 1982, when he was 47 years of age and had more than ten years of creditable service. At the time of his resignation, he was employed in the position of Inspector, Director of Law Enforcement, the third in command at the Sheriff's Office. There are approximately 550,000 active members in the Florida Retirement System. Many members choose not to submit an application for retirement benefits on their normal retirement date for a variety of reasons. An application for retirement benefits is a prerequisite for the establishment of an effective retirement date for a member of the Florida Retirement System. In September of 1991, Petitioner applied for retirement benefits. At the time of his application, he was 57 years of age. Petitioner never contacted Respondent to request information or advice regarding his retirement benefits prior to filing his retirement application in September of 1991. Based upon receipt of Petitioner's application for retirement benefits in September of 1991, Respondent established October 1, 1991, as Petitioner's effective retirement date. In October of 1986 Petitioner received from the Palm Beach County Sheriff's Office a copy of some of Respondent's forms which are utilized by persons filing applications for retirement benefits. Some of the information included in that package relates to persons who are regular members of the Florida Retirement System, not special risk members.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to change his effective retirement date and denying Petitioner's request for retroactive retirement benefits. DONE and ENTERED this 1st day of September, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 1st day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0849 Petitioner's proposed findings of fact numbered 1 and 3-5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being contrary to the evidence in this cause. Petitioner's proposed findings of fact numbered 6-13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Mary Alice Gwynn, Esquire Suite 302 215 Fifth Street West Palm Beach, Florida 33401 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee FL 32399-1560 A. J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner enrolled in "Plan A" of the Teachers Retirement System on August 13, 1954 as a teacher in the Orange County Florida school System. Petitioner transferred to Jacksonville, Florida and began teaching in Duval County on August 18, 1959 and continued hem membership in the Teachers' Retirement System "Plan A". Petitioner requested a change from the Teachers' Retirement System "Plan A" to Teachers' Retirement System "Plan E" by letter dated April 5, 1965. Petitioner was approved on March 26, 1966 for Teachers' Retirement System benefits and received disability retirement benefits for a period of time until she re-entered the teaching profession on November 27, 1970 in Duval County, Florida. She subsequently repaid an overpayment of these disability benefits which been paid for a period of time when she had returned to work in Duval County without notice to the Division of Retirement. Petitioner transferred from the Teachers Retirement System to the Florida Retirement System on October 15, 1970 when she signed a ballot entitled "Social Security Referendum and Application for Florida Retirement System Membership". Petitioner complains that she did not know when she signed the ballot that she was in fact changing her retirement from the Teachers' Retirement System to the Florida Retirement System contending that the statements of the person conducting the meeting at which the ballots were distributed informed the group the ballots were for an election for social security coverage. The ballot, however, clearly reflects that if social security benefits are desired, a change in the retirement system is necessary. Petitioner applied for Florida Retirement System disability benefits on October 20, 1971 and was approved. This benefit is $26.07 per month greater than the benefits she would have received had she remained in the Teachers' Retirement System. On October 3, 1975, Petitioner was supplied with the various documents concerning her actions in regard to her retirement benefits and was informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could be transferred back into the Teachers' Retirement System. She requested a hearing on the transfer.
Recommendation Dismiss the Petition of Petitioner Martha A. Crosson. DONE and ORDERED this 15th day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Martha A. Crosson 801 West Myrtle Independence, Kansas 67301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT MARTHA A. CARSON, Petitioner, vs. CASE NO. 76-1456 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
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 Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS), pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because of his conviction for official misconduct, a third degree felony under section 838.022(1), Florida Statutes.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. In January 1987, Petitioner began employment with the Florida Department of Transportation ("DOT"), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and DOT made contributions to the FRS on his behalf. In March 2001 and March 2005, Petitioner was elected to separate four-year terms as a Commissioner on the City Commission of the City of Deerfield Beach, Florida ("City"), an FRS-participating employer. By reason of his public office as a City Commissioner, Petitioner was enrolled in the FRS, and the City made contributions to the FRS on his behalf. Before entering upon the duties of his public office, pursuant to Florida law and the City Charter, Petitioner was required to take and subscribe substantially to the following oath: I do solemnly swear or affirm that I am a citizen of the State of Florida and of the United States of America and a registered voter and resident of the City of Deerfield Beach, as shown by the public records of Broward County, Florida. I am being employed as a Commissioner of the City of Deerfield Beach and will be a recipient of public funds. As such Commissioner I further swear or affirm that I will support the Charter of the City of Deerfield Beach, the Constitution of the State of Florida, and the Constitution of the United States, and that I will well and faithfully perform the duties of my office upon which I am about to enter. All elected officials of the City were subject to the standards of ethical conduct for public officers set by Florida law and the City Charter. Effective December 11, 2008, Petitioner resigned his position as City Commissioner. On or about December 29, 2008, Petitioner was charged, by information, with one count of grand theft, a third degree felony, in violation of sections 812.014(1)(a) and (b) and (2)(c)2., Florida Statutes; one count of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes; and one count of falsifying records, a first degree misdemeanor, in violation of section 839.13, Florida Statutes. The crimes with which Petitioner was charged were alleged to have occurred between October 6, 2007 and January 10, 2008. The basis for the official misconduct charge was that Petitioner falsified a campaign treasurer's report as part of his campaign for mayor of the City. The campaign treasurer's report is an official record or document belonging to the office of the City Clerk and/or the Florida Department of State, Division of Elections. Petitioner is no longer employed by DOT or the City. Petitioner is not retired from the FRS, and he has not received FRS retirement benefits. On or about May 7, 2010, Petitioner filed with the Division a completed FRS Pension Plan Application for Service Retirement (Form FR-11). By letter dated May 11, 2010, the Division advised Petitioner in relevant part as follows: This letter is to advise you of the status of your application for Florida Retirement System benefits. Our Legal office is reviewing your current legal situation for a determination of whether a forfeiture of benefits has occurred. If the determination is that forfeiture occurred, you will be notified and given information if you wish to appeal that determination. Your retirement application is pending until this review is complete. On May 10, 2011, a jury rendered a verdict which found Petitioner guilty as charged in the information. On July 29, 2011, the court adjudicated Petitioner guilty of the crimes. On or about August 3, 2011, Petitioner filed a notice of appeal in Florida's Fourth District Court of Appeal. On May 1, 2013, the Fourth District Court of Appeal affirmed Petitioner's convictions for grand theft, official misconduct, and falsifying records, and authored an opinion which addressed Petitioner's contention that he was entitled to a judgment of acquittal on the count of official misconduct. The Court wrote in relevant part: Section 838.022(1)(a), Florida Statutes (2007), makes it "unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to ... [f]alsify, or cause another person to falsify, any official record or official document." In this case, the basis for the official misconduct charge was that appellant falsified a campaign report as part of his campaign for mayor of Deerfield Beach. On appeal, appellant focuses on section 838.022(2)(a), which defines "public servant" as not "includ[ing] a candidate who does not otherwise qualify as a public servant," for the argument that "he was not a public servant at the time of the alleged offense" but was "merely a candidate for public office." However, as the State argues, at the time appellant was a candidate for mayor, he "otherwise qualif[ied] as a public servant" by virtue of his status as a city commissioner. Chapter 838 defines "public servant" as including "[a]ny officer or employee of a state, county, municipal, or special district agency or entity." § 838.014 (6)(a), Fla. Stat. (2007). The statute distinguishes a mere candidate from a public job or office holder in order to reach the evil of public servants misusing their office. Here, appellant was not just a candidate at the time of the offense; it was his dual status as a candidate and an incumbent commissioner that brought him within the ambit of the statute. ... Gonot v. State, 112 So. 3d 679, 680 (Fla. 4th DCA 2013)(emphasis in original). ULTIMATE FACTUAL FINDINGS Petitioner forfeited his rights and benefits under the FRS pursuant to sections 112.3173 and 121.091(5)(f), Florida Statutes, because he was convicted of official misconduct, a third degree felony, in violation of section 838.022(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Petitioner was convicted of a felony under section 838.022(1), Florida Statutes, and directing the forfeiture of his FRS retirement rights and benefits. DONE AND ENTERED this 13th day of December, 2013, 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 13th day of December, 2013.
