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 At issue in this proceeding is whether petitioner's rights and benefits under the Florida Retirement System are subject to forfeiture.
Findings Of Fact Petitioner, Robert T. Lacey (Lacey), was employed as the Director of the Criminal Justice Institute, Broward Community College, Broward County, Florida, from at least January 1, 1985, until his resignation in March 1986. At all times pertinent to this case, Broward Community College (BCC) was an employer which participated in the Florida Retirement System, and petitioner, while employed by BCC, was a member of the Florida Retirement System. On February 4, 1987, a Grand Jury impaneled in Broward County, Florida, returned a fourteen (14) count true bill of indictment against Lacey. The matter was ultimately assigned Case No. 87-2056CFA, Circuit Court, Broward County, Florida. Pertinent to this case are Counts I-XII of the indictment, one count for each of the calendar months of 1985 (January through December 1985). Each count charges that Lacey did, while employed by BCC that year, commit the following acts each month: . . . unlawfully and knowingly obtain or endeavor to obtain the property of Broward Community College, to wit: United States Currency, services and/or material, of a value of one hundred dollars ($100.00) or more, with the intent to permanently or temporarily deprive Broward Community College of a right to the property or a benefit thereof, or to appropriate the property to his own use or the use of any person not entitled thereto, contrary to F.S. 812.014(1)(a)., and (1)(b)., and F.S. 812.014(2)(b). The gravamen of such charges was the assertion that while employed as director of the Criminal Justice Institute, an entity within Broward Community College, Lacy used materials, time and personnel to benefit him personally in his consulting business. On February 25, 1988, following a jury trial, the jury returned a verdict of guilty of grand theft, as alleged in Counts I-XII of the indictment, and not guilty as to Counts XIII and XIV of the indictment. Although found guilty by a verdict of the jury, the court withheld adjudication as to each count, placed Lacey on probation for a period of three years, ordered Lacey to pay $3,000 in restitution to BCC, and ordered Lacey to perform 200 hours of community service. Lacey's post trial motions for arrest of judgment, new trial, and renewed motion for judgment of acquittal were denied by the court. Following the true bill of indictment that issued February 4, 1987, Lacey was also charged by direct information filed April 21, 1987, in the Circuit Court, Broward County, Florida, Case No.87-6744CFA, with two counts of official misconduct (Counts I and III), one count of petit theft (Count II), and one count of grand theft (Count IV). Pertinent to this case, Count I of the information charged that on or about September 5, 1985, Lacey did, while a public servant, to wit: . . . an employee of Broward Community College . . . did then and there unlawfully and knowingly falsify, or cause another to falsify, an official record or official document, to-wit: a Broward Community College form entitled "STAFF AND PROGRAM DEVELOPMENT COURSE APPROVAL FORM," with the corrupt intent to obtain a benefit for himself . . . or another, to-wit: for the benefit of JACINDA LYNN FANNIN, contrary to F.S. 839.25(1)(b). Counts III and IV of the information charged Lacey with official misconduct and grand theft, respectively; however, that portion of the information which would have set forth the factual basis for Counts III and IV is not of record, and no conclusion can be drawn as to whether or not the basis for those charges related to Lacey's employment with BCC. In response to the information in Case No. 87-6744 CFA, and following the resolution of Case No. 87-2056CFA, Lacey entered a plea of nolo contendere to all counts. The Court, by order of November 28, 1988, withheld adjudication of guilt, and placed Lacey on probation for three years with regard to Counts I, III and IV and six months as to Court II. All probationary terms were to run concurrent and coterminous with those imposed in Case No.87-2056CFA. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered forfeituring the rights and benefits of petitioner, Robert T. Lacey, under the Florida Retirement System, except for the return of his accumulated contributions. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of March 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March 1994.
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2009.
The Issue Should the benefits of the Petitioner, Charles Bullock, under the Florida Retirement System Investment Plan, be forfeited due to his plea of no contest and adjudication of guilt to two felony counts of child abuse?
Findings Of Fact The Collier County Sheriff's Office employed Mr. Bullock as a law enforcement officer from 1994 through 2010. Due to his employment, Mr. Bullock was a member of the Florida Retirement System Investment Plan. Mr. Bullock worked in the sheriff's office's civil process unit. He and the other civil process deputies routinely met for coffee in the afternoon about 2:00 p.m., to discuss business. They usually met at the Starbucks in the Coastland Mall in Collier County. Sometimes they met at other locations to avoid drawing public attention and adverse comments. For the same reason, after some unfavorable television coverage, they often dispersed their cars in the parking lot, instead of parking together. Mr. Bullock usually did not wear a uniform, badge, gun, or anything else identifying him as a Collier County deputy or a law enforcement officer. On at least three occasions between November 2009 and February 2010, while on duty, Mr. Bullock went to the food court bathroom after these meetings. The evidence does not establish that Mr. Bullock was wearing a uniform, badge, gun, or anything else identifying him as a Collier County deputy or law enforcement officer on those occasions. On the first two of those occasions, Mr. Bullock sexually molested a male, under the age of 16, by forcing him to allow Mr. Bullock to perform oral sex. On the third occasion, Mr. Bullock was approaching the male minor by looking under and over the bathroom stall divider, when he was interrupted by a mall employee. The evidence does not establish that the minor knew on any of the occasions that Mr. Bullock was a deputy or law enforcement officer. The evidence does not otherwise establish that Mr. Bullock's position as a Collier County deputy facilitated, contributed to, provided the opportunity for, or otherwise played a role in his ability to commit the acts described on those three occasions. He committed the offenses in a public place during normal operating hours. His position as a deputy did not provide access to the food court bathroom that any citizen would not have had. As a result of the interruption of the third encounter and the information the mall employee was able to provide, law enforcement conducted an investigation of Mr. Bullock's conduct in the mall bathroom. The investigation culminated on April 19, 2010, in a warrant to arrest Mr. Bullock. The warrant charged Mr. Bullock with lewd or lascivious battery (violation of section 800.04(4)(a), Florida Statutes (2010)), a second-degree felony, and official misconduct (violation of section 838.022, Florida Statutes (2010)), a third-degree felony. On March 10, 2014, Mr. Bullock entered a plea of no contest to a different charge based upon his sexual molestation of the male under the age of 16. The offense to which Mr. Bullock entered a plea of no contest was child abuse, a violation of section 827.03, Florida Statutes (2010), a third-degree felony. At the time of his plea and in this proceeding, Mr. Bullock maintained that he was not guilty of the charges, but chose to plead no contest because of concerns that the nature of the charges would inflame jurors. The court adjudicated Mr. Bullock guilty of the charges to which he pled no contest. It imposed a sentence of two years' probation, prohibited contact with the victim, required payment of $151.00 in court costs, and required Mr. Bullock to give up his law enforcement certification. On March 20, 2014, the Board notified Mr. Bullock that his rights and benefits under the Florida Retirement System were forfeited as a result of his no contest plea to child abuse. This proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, State Board of Administration, enter a final order finding that the Petitioner, Charles Bullock, was not convicted of a specified offense as identified in section 112.3173, Florida Statutes, and directing that he not forfeit his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of September, 2014.
Findings Of Fact The Petitioner, C. DEAN LEWIS, was first employed on March 4, 1966 by the Lafayette County School Board and remained employed by that agency until September 1, 1975. From the time of his employment with that agency, Mr. Lewis was enrolled in the agency retirement system. On September 1, 1975, Petitioner was employed as County Attorney by Suwannee County, Florida. From the time of enrollment in 1966 until such time as the retirement system became non- contributory, sums were withheld from his salary for payment into the retirement fund. When Petitioner became County Attorney for Suwannee County in September 1975, he continued his enrollment in the Florida Retirement System. The evidence presented in the form of enrollment cards fails to show the exact date of enrollment or for what position of employment he was enrolled. However, it is quite clear that Petitioner was enrolled in the Florida Retirement System or its predecessor system continuously since the inception of his employment by a governmental agency. On July 1, 1979, the Division of Retirement issued new rules regarding membership in the Florida Retirement System contained in Section 22B-1.04(5)(6), Florida Administrative Code. On September 15, 1979, the Division of Retirement promulgated its Memorandum No. 79-20, to all Florida Retirement System reporting agencies outlining the new guidelines for enrollment. This memorandum specifically referred to attorneys and encouraged the agency to examine the employment status of attorneys to determine whether that individual was an employee of the agency or merely a contractor. Thereafter on February 26, 1981, the Division of Retirement sent out another memorandum, Number 81-38, again to all retirement system reporting units, which placed specific emphasis on those situations involving employees versus consultants/contractors. This situation clearly pertains to the situation of the Petitioner here. When these memoranda were received by Suwannee County, at least one was inserted in Petitioner's personnel file. At no time, however, was any consideration given to the Petitioner's situation nor was any mention made by the County to the Petitioner regarding these memoranda. In addition, at no time did any representative of the Florida Retirement System or the Division of Retirement have any contact with Petitioner either in person or through correspondence to advise him that his status was under reconsideration and that he had an obligation to clarify his standing to the satisfaction of the Division. In early 1984 the Division of Retirement forwarded an employment relationship questionnaire to the Suwannee County Board of County Commissioners requesting that it complete the questionnaire as it pertained to Petitioner, the County Attorney. This questionnaire was completed by Jerry A. Scarborough, Clerk of the Circuit Court, who was responsible for maintaining the personnel records of Petitioner and most other county employees. On the basis of Mr. Scarborough's answers to various questions, the Division of Retirement on May 14, 1984, advised Petitioner of its intention to disenroll him from the Florida Retirement System. The Division listed some seven areas wherein Mr. Scarborough's answers indicated that Petitioner was a "consultant or other professional person" as defined in Rule 22B-6.01(12), rather than a true employee of the county. As such, Mr. Tom F. Wooten, Chief, Bureau of Enrollment and Contributions, Division of Retirement, concluded that Petitioner was, therefore, not eligible to participate as a member of the Florida Retirement System. Mr. Wooten further indicated the Division's intent to remove him from membership as of July 1, 1979. Thereafter, as was stated previously, on July 6, 1984, Mr. A. J. McMullian, III, State Retirement Director, by letter, advised Petitioner that he had considered his response to the original letter of intent but nonetheless, continued to conclude that he was not eligible to participate as a member of the Florida Retirement System. The July 6, 1984 letter by Mr. McMullian indicated the finality of the Division's decision. It is not now the Division's intention to disenroll Petitioner from the Florida Retirement System effective in 1979. Based on a recent decision of the Florida District Court of Appeals, the Division recognizes that it can reasonably disenroll him no earlier than the date he was first advised of the Division's concern regarding his status. That date is May 14, 1984, the date of the Division's initial letter of intent. The decision by the Division of Retirement to remove Petitioner and other professional contractors from the retirement system is based on its contention that the Petitioner and these other individuals are not bona fide employees of the agency under whose auspices they are enrolled in the system. It is not the position of the Division that only full-time employees can be enrolled. To the contrary, the agency is quite willing to accept that part-time employees are eligible for enrollment providing they meet the other criteria. With regard to the Petitioner and other professionals, primarily attorneys and physicians, it is the Division's contention that they are not true employees of the county but are independent-contractors or consultants who are not eligible for membership in the system. The factors leading to the conclusion drawn by the Division include such things as: Petitioner was not trained or schooled by the county in the professional work he performs; That he is not given instructions as to how the work is to be done; That he is not required to maintain regular office hours established by the county; That the county does not provide him with materials, tools, or equipment to perform his duties; That he is available to provide identical professional services to others in the county and in furtherance of that pursuit, maintains a business listing in the telephone book, and a trade journal to that effect as well as maintaining a private office for the practice of his profession; That he hires, pays, and supervises assistants who assist him in the performance of his law firm duties as well as those duties performed for the county; and That he is not eligible for annual or sick leave from the county. The Petitioner is hired by the county to advise the Board of County Commissioners, constitutional officers, and citizens of the county having business with the county referred to him by the Board. His private law firm also does additional work for the county in other areas for which it is compensated independently. Petitioner's yearly salary, which was recently increased from $6,000.00 to $8,000.00 per year is related solely to his performance of duties as county attorney. In that capacity he does not get involved in the county's litigation. His firm, as well as other firms in the area, is hired by the county separately for that function. Petitioner vehemently denies that any partner of his or any employee substituted or acted for him at meetings of the Board of County Commissioners in his capacity as county attorney. Whenever such partners or employees addressed the Board, they did so on work they were doing for the firm separately from that related to his position as county attorney. Petitioner contends that he spends an average of 10 hours per month on county business of which 80 percent is accomplished at the county courthouse. In addition to these 10 hours per month, citizens of the county, the press, and county officials contact him at home and at other places at all hours of the day and night regarding county business. He is not furnished an office in the county courthouse or any other county building. Though he contended that his seat in the county commission room is his office and the place where he accomplished most of his county related work, and though this contention was supported by the Clerk of Court, Mr. Scarborough, it is clear that in reality, Petitioner does not have an office furnished him by the county, and such work as he accomplished on the county's behalf is done primarily in the office of the official requesting it. It is also most likely that substantial correspondence and other clerical work is accomplished for the county by the petitioner in his private office and is accomplished by his own law firm employees. The county supplies him with some books and manuals including copies of various ordinances, codes, and attorney general opinions. The outside work which he does for the county, including, for example, such things as plat examinations, is billed to the county at a rate of $75.00 per hour. The amount he receives, however, never exceeds the amount received by the county for this service. In 1975, prior to his becoming county attorney, he discussed the potential for assuming this position with his predecessor and law partner, Mr. Airth. One of the major factors convincing him to accept the position of county attorney was the prospective retirement benefits he could expect after fulfilling a number of years in this job. Petitioner was hired by the County Commission on an oral contract basis and has never had a written contract with the county. At the first commissioner's meeting of each year, the Board considers Petitioner's continued relationship with the county and confirms it. It could, at any time, decline to extend the relationship, though it has not yet done so. This arrangement differs from that of a normal consultant in that the relationship with a relationship is terminated automatically when the specific job for which the individual is hired has been completed. Petitioner's relationship has been continuous since 1975 and at the present time there appears to be no indication that it will be terminated in the foreseeable future. His compensation is reported to the Internal Revenue Service on a form W-2. That which was submitted for the year 1983 reflects that social security taxes were withheld but no federal income tax. Petitioner explains this on the basis that he claims four dependents and that, therefore, no tax should have been withheld. This explanation is questionable at best. Petitioner takes exception to several of the answers by Mr. Scarborough on the questionnaire submitted to the Division of Retirement. For example, at question 4b, Petitioner contends that he does in fact attend regularly scheduled meetings of the Board of County Commissioners and other agencies and is, therefore, required to follow daily routines. He contends that he is given the specific work which has to be done and the time in which it is to be accomplished and is, therefore, instructed as to how the work is `to be done by his employer. He contends that this same relationship makes him no different than any other county agency or section director who have authority to accomplish their work with some latitude and discretion. Petitioner also contends that he was hired for one year, not an indefinite period, though he has continued to work since 1975 and anticipates no change in his relationship in the future. He contends that the requirement to attend meetings on definite dates at certain times, which takes up to 60 to 80 percent of his time on the job, constitutes the fixed hours and certain times mentioned in the questionnaire. Further, he indicates that with regard to the determination of the hours when the work should be performed, this decision is made not by the employee as indicated on the questionnaire, but by his employer, the county. Petitioner also contends that such help as he utilizes in performing county business is received from public employees, not from his own law firm employees, and that most of his work is done in the courthouse. While Petitioner does not earn annual leave, sick pay, bonuses, or other benefits, he has been enrolled in the retirement system, was eligible to purchase county insurance, and was carried as any other employee on the county's workers' compensation policy. He is authorized to miss one commission meeting per year for vacation and others during the year as excused for illness. Taken in its totality, it becomes obvious that Petitioner's relationship with Suwannee County, Florida is little different from that of any other attorney-client relationship of long standing. It is clear that Petitioner's relationship with the county, though it may have been intended since May, 1984 to fall within the guidelines set forth by Use Division of Retirement, did not do so from 1975 to the latter date. It is clear that the Petitioner's primary employment was that of a private practitioner. One of his clients, and perhaps his largest client in terms of population, is Suwannee County, but the relationship is that of attorney-client, not that of employer- employee. While Petitioner no doubt is the Suwannee County Attorney, he performs that function as a private practitioner and not as a member of the county work force even though his salary is paid from the general salary and wages account.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Petitioner, C. DEAN LEWIS, be disenrolled from the Florida Retirement System effective May 14, 1984. RECOMMENDED this 1st day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985. COPIES FURNISHED: William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303 C. Dean Lewis, Esquire c/o Airth, Sellers, Lewis & Decker Post Office Drawer 8 Live Oak, Florida 32060 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
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
Findings Of Fact Respondent, Division of Retirement, is the agency responsible for administering the Florida Retirement System (FRS), a statewide consolidated system encompassing over 500,000 active employees and over 100,000 retired employees, representing all levels of government: state agencies, counties, school boards, cities, special districts, the community colleges and the nine universities -- nearly 800 different public employers. Brevard Community College (BCC) is the previous employer of the three petitioners and is a participating employer in the FRS. BCC is located in Cocoa, Florida, with satellite campuses throughout Brevard County. Petitioners William Nunn, PhD Prior to his retirement on November 30, 1988, Dr. William Nunn worked for BCC for approximately 17 years in various capacities, including Director of Evening Studies, Chair of the Division of Social Sciences, Provost and Dean of the Titusville campus and Dean of Vocational/Instructional Planning in the central administrative offices. It was this latter position he held at the time of retirement. As Dean of Vocational/Instructional Planning, Dr. Nunn was responsible for college-wide coordination of BCC's vocational programs, developing new programs, providing reports on vocational education, developing the master course plans and the college catalog, and serving as head of the college's collective bargaining unit. Dr. Nunn received a salary of approximately $52,000.00 a year and all the fringe benefits of regular employment: vacation and sick leave, insurance benefits, worker's compensation coverage, and contributions to social security and the FRS. He reported directly to the Vice President and President of the college, and his performance evaluations were completed by the President. With the advice of his accountant, Dr. Nunn informed his employer in July or August 1988, that he would retire in November. The advance notification was a requirement for an early retirement program which provided a major incentive for retirement in the form of a cash bonus of 25% of salary. Upon his retirement, Dr. Nunn's duties were primarily split among existing staff persons and a new hire. Certain duties were not specifically assigned, and sometime in December, the BCC's President contacted Dr. Nunn and asked if he would be willing to provide work in those areas so that they would not fall through the crack while people were being trained to take them over. The arrangement to which Dr. Nunn agreed was that he would be allowed to work on his own, without specific hours, for a 6-month period, for $10,000.00. For cash-flow purposes, he asked for payment in monthly increments, with a maximum of 390 hours total, a limit he felt would assure that he would not violate the law allowing for a maximum of 780 hours of employment by retired adjunct instructors. A one-page form contract between the District Board of Trustees of Brevard Community College and William Nunn, dated January 3, 1989, provides that he perform the following services: Work to insure that the college is in compliance with the criteria of the Southern Association of Colleges and Schools. Classify for funding, reporting and data processing purposes all courses and programs of study. (Common Course Numbering and Community College Management Information System) Maintain master course plan files. Coordinate catalog additions, changes and deletions. (Pet. Exh. #2) For background information on the person performing the service, the contract provides: Dr. Nunn is a knowledgeable college administrator with over twenty years experience at the community college and university level. He has performed all of the functions for which he is being employed. (Pet. Exh. #2) A subsequent identical contract was entered between the parties for the period June 14, 1989 through December 21, 1989. Dr. Nunn continued to provide services through December 1990 under a series of contracts. Dr. Nunn worked at the college, for a while in his prior office, then in a different office. He also did some work at home. He used independent judgement based on his past experience and education. Because of his skill and because of the uniformity of the course system, Dr. Nunn could have performed most of the same services for any community college. No one else at BCC had the ability to perform the duties and eventually he trained someone to assume them. He kept his own hours and received no fringe benefits. For a period of approximately four months he was given the services of a graduate assistant who had been assigned to his office prior to retirement. He shared her services with other staff until she left when the term ended in April. He used college office supplies and the college computer. Dr. Nunn had been a member of the management team prior to retirement, and in that capacity attended various meetings and social functions. He no longer did this. As a volunteer, and not related to the services he performed under his contract, he travelled twice to statewide meetings on behalf of the college. He was reimbursed for his travel expenses. Dr. Nunn reported his earnings under the contract to the IRS as self- employment income. He did not obtain a business license and neither advertised nor did consulting work for other entities. The contract form utilized by the college for Dr. Nunn's services has no provision for termination. Both Dr. Nunn and the college administrators understood it could be terminated by mutual agreement. When he needed to consult with the college, Dr. Nunn reported directly to the President. Dr. Nunn received $35,715.99 in retirement benefits from FRS from January through November 1989. The Division has demanded repayment of that sum. John Mangus Prior to his employment with BCC in 1970, John Mangus had twenty-six years experience in machine work in private industry, including work for the Baltimore and Ohio Railroad, Hercules Power Company and the Chrysler Corporation. In 1970, he was hired by BCC to teach machine tool technology. After ten years he became Division Chairman of the Industrial Division, and in 1988, he was appointed Assistant Director of the Palm Bay Vocational Center, also part of BCC. As Division Chair, Mr. Mangus was responsible for vocational shops at the various campuses in Brevard County. He administered the Division, performed faculty evaluations, recruited students, planned curriculum and met with counterparts from other colleges. He also coordinated a move of two vocational shops when the BCC facility at Patrick Air Force Base was closed. As Assistant Director for Palm Bay Vo Tech, he assisted the Director in purchasing equipment and meeting with industry representatives; he determined curriculum and continued to do some paperwork for the Vocational Division. He received a biweekly salary and received all fringe benefits of a regular BCC employee. After a heart attack and a cancer operation, Mr. Mangus retired from BCC on January 31, 1989. By retiring just prior to his 63rd birthday he was able to take advantage of the early retirement incentive. In late December or early January, around the time of Mr. Mangus' retirement, the Vocational Division was undergoing some changes. Teachers were retiring and programs were being reorganized. The administration decided to merge programs and move four different vocational shops. Since John Mangus had extensive experience in moving equipment, he was asked to return to BCC after retirement to handle the moves for the vocational shops. A contract, the same form utilized for Dr. Nunn, was executed effective March 1, 1989 between John Mangus and BCC, providing for his services from the period March 1, 1989 through December 31, 1989, at the rate of $536.00 a month, for a total of $5,360.00. The duties specified on the contract were: Assist the Provost in the operation of the Industrial Division, assist in the development of the curriculum for Building Maintenance program, supervise moving of equipment and tooling for several programs, and to include other duties assigned by the Cocoa Campus Provost. (Pet. Ex. #12) emphasis added Justification for the service was provided in the contract as follows: Will assist the Provost in the operation of the Industrial Division, will assist in orienting the new Chairman, and will be involved in planning, implementing and supervising program moves and curriculum changes, will work a total of 268 hours. (Pet. Ex. #12) John Mangus' primary responsibility under the contract was the move, a function which required a special expertise. The mechanical lifting and transport of heavy equipment is complicated, and Mangus had acquired this skill at the railroad and at Chrysler Corporation when he moved a shop from Melbourne to Cape Canaveral in 1969. He planned the BCC moves in his own home and arranged the schedules. Basis for the 268 hour limit was his estimate of the time it would take at what he considered a fair hourly rate. He insisted on monthly increments so that his railroad retirement benefits would not be affected. He also insisted that he not be required to attend meetings and that he be allowed to work on his own. He was assisted in the move by several college instructors, but he had no supervisory responsibility for them. All equipment was provided by the college. In addition to the moving, John Mangus prepared budgets and planned the curriculum. He worked at home mostly on the budgets, just as he had done when he was employed as Division Director. John Mangus received only the $536.00 per month from BCC, no fringe benefits, and ended up working more than the maximum hours for no additional compensation. He paid his own insurance and reported his income to the IRS as self employment. During the same time that he was handling the BCC moves, he was also moving, revising the curriculum and setting up shops for Lake City Community college on a contract at $200.00 a day. He did not advertise his services and did not incorporate as a business. His engagement at Lake City was by virtue of his reputation in the field. The Division of Retirement has demanded that John Mangus repay the $11,050.76 he received from the FRS from March through December 1989. William L. Benfield William Benfield was hired by BCC in 1969 as a maintenance employee, became supervisor of maintenance, and remained in that position until approximately 1984, when he took over the college hardware and locksmith shop. His primary responsibility during the last five years prior to retirement was as locksmith. He worked under a supervisor who gave him his duties each morning when he reported to work at the Cocoa maintenance department. He worked eight hour days, with an hour for lunch and two 15 minute breaks. He was required to turn in time sheets. He received $21,000.00 annual salary, plus benefits such as paid leave, insurance and retirement contributions. As locksmith, Mr. Benfield worked at all the BCC campuses, as directed. He was required to utilize the tools furnished by the employer and used the employer's vehicle. In June or July 1988, Mr. Benfield notified the college that he would take an early retirement. He planned on retiring at age sixty-two in February 1989, but was eligible for the financial incentive for early retirement. His retirement occurred effective November 30, 1988. Around the latter part of December, William Benfield was contacted by Harold Creel, BCC's Vice President for Maintenance, with regard to performing short-term contract work. They met, and Mr. Creel explained that the college wanted Benfield to work on the new keying system for the college. This was a computerized code system that required re-pinning each lock in the campus buildings. The work also involved keeping records in a code that would allow a key to be made. Mr. Benfield agreed to the work so long as it did not exceed 20 hours a week, as he did not want to jeopardize his social security income. A contract was executed on the same form as used for Petitioners Nunn and Mangus, for the period January 3, 1989 through June 30, 1989. The services are described as follows: Locksmith - repair door locks, make keys, repair doors, rekey building, etc. [sic] (Pet. Ex. #17) Consideration was set at $11.50 per hour for 20 hours a week. A second contract was entered for the period July 3, 1989 through December 31, 1989 for $11.50 per hour and 12 hours a week. (Pet. Exh. #18) William Benfield was familiar with these short-term contracts since carpenters, plumbers or electricians had been retained in this manner in his maintenance department. Benfield's work under the contracts was on his own time. He was not required to work a minimum number of hours or to check in at a given hour. He picked up work orders, as before, but used his discretion as to priorities. He used his own vehicle to travel to the various campuses and used his own tools, a substantial investment of several thousand dollars. He did not advertise as a business and did no work for anyone else, as he did not want to affect his social security benefits. He did not have a business license. He received no fringe benefits and reported his income under the contracts to the IRS as self-employment. He received no performance evaluations. William Benfield earned approximately $8,000.00 under the two contracts with BCC; he also received $7,345.97 in retirement benefits from FRS during the same period in 1989. The Division of Retirement is demanding repayment of those benefits. General Findings and Summary The law with regard to reemployment of FRS retirees has been in a state of flux for over 10 years. At one time, reemployment was prohibited altogether. Then the law was changed to permit reemployment when the agency certified that no one else was available to fill the job. Reemployment was limited to 500 hours in a calendar year; the limit was expanded to 600 hours, and later to 780 hours or $4,000.00. In 1985, the legislature created a 12-month waiting period, during which retirement benefits had to be suspended if the retiree returned to work under an FRS-covered employer. After 12 months, the retiree could return and draw both salary and retirement benefits. Immediately, school boards prevailed with an amendment to allow teachers to return for a maximum of 780 hours in the first calendar year after retirement. The community colleges and nine state universities also obtained similar amendments for rehiring instructional staff. The Division of Retirement has conscientiously provided written guidance to its member employers in the form of rules, guidelines, handbooks, and memoranda. It also provides instructional leaflets to employees and retirees. As Associate Vice-President of Human Resources at BCC, Robert Lawton oversees the entire personnel operation for the college. He is familiar with the requirements of the law and rules of the Division of Retirement and reviewed the contracts for the petitioners' services. These contract forms are different from those used for adjunct faculty who are paid through a regular payroll account. Short term contractors are paid from a separate account. The contracts were drafted by the department heads seeking the petitioners' services. Robert Lawton recommended approval to the President after assuring himself that the contracts were appropriate. He had instructed a staffperson to call the Division of Retirement in his presence to get some guidance. There is no evidence that someone from the agency actually approved the circumstances. Rather, it is apparent that the guidance received through the phone call, in which the college may not have been identified, was of a general nature as to what the agency looks at in determining an independent contractor status. The college commonly uses the short-term contract form for consultant and mechanical services. While it routinely advertises to fill employment vacancies, it ordinarily obtains contractual services from individuals it knows can provide those services. The Division of Retirement became aware of Petitioners' contracts through a routine independent audit. The agency carefully scrutinizes these type of service provider relationships as it has the responsibility to maintain the actuarial soundness of the retirement fund for thousands of employees and retirees. That actuarial soundness relies on a proper balance of contributions to benefits. That balance is jeopardized if employers are able to avoid required contributions by obtaining services of employees through a contract. The opportunity to circumvent the law is particularly seductive where, as here, the employer needs the services of a recently retired employee. Scepticism by the agency in such instances is appropriate. Dr. Nunn's many successful years as a valuable member of the college's management team were served, by his choice and the college's, in the status of an employee. He retired, and was immediately retained to perform some of the same functions as before -- sensitive and significant functions that were integral to the successful administration of the institution--functions related to its accreditation and funding. Language in his contract such as "work to insure", "maintain", and "coordinate" connote an ongoing relationship, rather than discrete definable contract products. Indeed, his relationship with the college was ongoing, for two years beyond his official retirement date. The term, "coordinate", implies that he was not to work alone, but was rather meant to direct the work of others. Some actual evidence of that is found in the fact that a student assistant was provided, albeit briefly. As a highly qualified professional, Dr. Nunn could have performed the same or similar tasks for other institutions. He did not, and if he had, the circumstances would have to dictate whether he was a consultant to, or employee of, those other institutions. Dr. Nunn was not an adjunct professor nor member of the instructional staff, and was not entitled to the 780 hour exception to the 12 month reemployment prohibition. The 390 hour limit in his contract, however, reveals that his compensation, $10,000.00, was approximately the same rate of pay he received prior to retirement when he worked full time. The facts addressed at hearing regarding the relationship of Dr. Nunn to BCC, when considered as a whole, weigh more heavily in favor of finding an employee/employer relationship than that of consultant/client. The same conclusion is reached as to Petitioner, John Mangus. If his only contractual service had been the shop moves, his consultant or independent contractor status would have been more evident. As he eloquently described at the hearing, the transportation of heavy machinery is a unique skill, the exercise of which demands noninterference by others. However, the terms of his contract, and the actual services he performed also related to budget and curriculum, functions he performed as an employee and functions integral to the mission of his employer. The terms of his contract thoroughly belie his claims of independence. He was to "assist", to "supervise", to "be involved in planning, implementing, and supervising...". Perhaps most fatal is the language, "...and to include other duties assigned by Cocoa Campus Provost". Except for the move, the contractual duties were entirely open-ended and subject to the interpretation or direction of others. That he was also retained at the same time by another community college might imply that he was properly a consultant/specialist in moving industrial workshops, but this fact alone does not outweigh the more substantial evidence that at BCC he was still performing as an employee, much the same as he had performed prior to his official retirement. The evidence weighs differently as to William Benfield. His services as a locksmith were a specialized mechanical skill of a type commonly provided through a contract. His services were not integral to the nature of the institution and did not necessitate his working with, for, or over other staff. The substance of his contractual tasks is found on the face of the contract form, and his prior performance of the same or similar tasks as an employee does not indicate those tasks must always be provided by an employee. The terms and conditions of his relationship with the college were radically altered after his retirement. The college chose, in the words of Robert Lawton, to "privatize" certain mechanical functions previously provided in-house, and the locksmith function was one of them. William Benfield became an independent contractor to BCC after his retirement.
Recommendation Based on the foregoing, it is hereby, recommended that a Final Order be entered requiring repayment of retirement benefits received by Petitioners, Nunn and Mangus, during the time they were employed by Brevard Community College in the first 12 months of their retirement. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 15th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-8015, 90-8016, and 90-8017 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraphs #3. and #5. Adopted in substance in paragraph #5. Adopted in paragraph #7. Adopted in substance in paragraph #8. Rejected as contrary to the weight of evidence or immaterial. Adopted in substance in paragraph #9. Adopted in substance in paragraphs #8. and #9. Adopted in part in paragraph #9, otherwise rejected as unnecessary. Adopted in substance in paragraph #9. Adopted in substance in paragraph #10. Adopted in substance in paragraph #11. Adopted in substance in paragraph #10. Adopted in substance in paragraph #9. Adopted in substance in paragraph #12. Adopted in substance in paragraph #13. Adopted in substance in paragraph #16. Adopted in substance in paragraphs #14. and #15. Rejected as unnecessary. Adopted in paragraph #17. Adopted in paragraphs #17. and #19. Adopted in paragraph #21. Adopted in paragraph #20. Adopted in paragraph #21. Adopted in paragraph #19. Adopted in substance in paragraph #19. Rejected as unnecessary. Adopted in paragraph #21. Adopted in paragraph #22. Rejected as immaterial in light of other evidence that the relationship was not independent. Adopted in substance in paragraph #21. Adopted in paragraph #19. 32.-33. Adopted in paragraph #24. Rejected as unnecessary. Adopted in paragraph #27. Adopted in paragraphs #28. and #29. Rejected as unnecessary. Adopted in paragraph #28. Adopted in paragraph #30. Rejected as unnecessary. 41.-43. Adopted in paragraph #30. Adopted in paragraph #31. Adopted in paragraph #34. Rejected as immaterial. Adopted in substance in paragraph #34. Adopted in substance in paragraph #35. Rejected as unnecessary. Adopted in part in paragraph #35; otherwise rejected as contrary to the evidence. Adopted in part in paragraph #34; otherwise immaterial in light of the evidence that as to Nunn and Mangus, the relationship was not independent. 52.-53. Rejected as immaterial. 54.-56. Rejected as repetitive and unnecessary. Rejected as contrary to the weight of evidence. Adopted in paragraph #36. Rejected as repetitive or immaterial. 60.-77. Rejected as immaterial, unnecessary or unsupported by the weight of evidence. Respondent's Proposed Findings of Fact Adopted in substance in paragraph #13. Rejected as unnecessary. Adopted in substance in paragraph #8. Adopted in substance in paragraph #22. Rejected as unnecessary. Adopted in substance in paragraph #18. Adopted in substance in paragraph #31. Rejected as unnecessary. Adopted in substance in paragraph #28. Adopted in paragraph #1. Rejected as unnecessary. Adopted in paragraph #1. 13.-14. Adopted in paragraph #32. 15. Adopted in substance in paragraph #37. 16.-19. Adopted in substance in paragraph #33. Rejected as unnecessary. Adopted in paragraph #37. 22.-23. Rejected as unnecessary. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #9. Adopted in paragraph #6. Adopted in paragraph #7. Adopted in paragraph #8. Adopted in paragraph #8. Rejected as contrary to the weight of evidence (as to attendance at meetings). Adopted in paragraph #5. Adopted in paragraph #12. Adopted in paragraph #8. Adopted in paragraph #11. Rejected as unnecessary. Adopted in paragraph #11. Rejected as unsupported by the evidence. Rejected as unnecessary. Adopted in paragraph #10. Adopted in substance in paragraph #8. Adopted in paragraph #8. 43.-44. Adopted in paragraph #9. 45.-46. Adopted in paragraph #14. 47.-48. Adopted in paragraph #15. Adopted in paragraph #16. Adopted in paragraph #17. Adopted in paragraph #18. Adopted in paragraph #15. Adopted in paragraph #20. Adopted in paragraph #19. Adopted in paragraph #20. Adopted by implication in paragraph #35. Adopted in paragraph #17. Adopted in substance in paragraph #21. Rejected as unnecessary. Adopted in paragraphs #23. and #26. Adopted in paragraphs #23. and #24. Adopted in paragraph #26. Adopted in paragraph #28. Adopted in part in paragraph #28; otherwise rejected as unnecessary. 65.-67. Adopted in paragraph #30. 68.-69. Rejected as immaterial. COPIES FURNISHED: Larry D. Scott, Esquire Asst. Division Attorney Dept. of Administration Div. of Retirement-Legal Ofc. Cedars Executive Ctr., Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560 Peter L. Sampo, Esquire HOGG, ALLEN, NORTON & BLUE, P.A. 121 Majorca Ave., 3rd floor Coral Gables, FL 33134 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue Whether Petitioner must forfeit and repay distributions he received from the Deferred Retirement Option Program and subsequent monthly retirement benefits received as a consequence of his election to the position of County Commissioner of Jefferson County within six months of terminating state employment.
Findings Of Fact The Division of Retirement (Division) is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Petitioner, John Nelson, was employed by the Department of Financial Services (DFS) from October 1977 through July 31, 2010. For the last five years of his employment with DFS, Petitioner participated in the Deferred Retirement Option Program (DROP). Prior to ending his DROP participation, Petitioner completed a DROP Termination Notification Form (DP-TERM Rev. 06/06) on April 23, 2010, confirming he would terminate employment on July 31, 2010. The DROP Termination Notification was also signed by a representative from FRS confirming Petitioner's employment termination date and reads in pertinent part: I understand that I cannot work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity including part-time, temporary, other personal services (OPS) or non-Division approved contractual services during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to me enrollment date in the DROP. The above-referenced version of the DP-TERM (Revised 6/06) has been incorporated by reference into Florida Administrative Code Rule 60S-9.001(ee). Due to significant statutory changes made by the Legislature, the Division sent to Petitioner a second DROP Termination Notification, (Form DP-TERM revised 04/10) which he signed on June 9, 2010. The wording in the revised form reflected statutory changes which would take effect July 1, 2010. The revised form states in pertinent part: If your DROP termination date is on or after July 1, 2010: Your termination requirement means you cannot remain employed or become re-employed with any Florida Retirement System (FRS) covered employer during the FIRST SIX calendar months following your DROP termination date. This includes but is not limited to: Part-time work, temporary work, other personal services (OPS), substitute teaching or non-Division approved contractual services. During the 7th-12th calendar months following your DROP termination date, you may return to work for a participating FRS employer but must suspend your retirement benefit for any of these months your[sic] are employed. There are no reemployment exceptions during the reemployment limitation period. After the 12th calendar month following your DROP termination date, there are no employment restrictions. If you fail to meet the termination requirements noted above, you will void (cancel) your retirement and DROP participation, you must repay all retirement benefits received including your DROP accumulation, and you must apply to establish a future retirement date. If you void your retirement your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new termination date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP. (emphasis added). The revised form DP-TERM (Revised 04/10) has not yet been adopted as a rule. At the time of hearing, rulemaking had been initiated. Petitioner terminated his employment with DFS on the agreed termination date of July 31, 2010, and was no longer an employee of DFS after that date. Sometime between July 31, 2010, and November 2010, Petitioner was paid his accumulated DROP monies in the amount of $181,635.09, in the form of a direct rollover into an eligible retirement account. Petitioner was also paid monthly retirement benefits for the months of August through November 2010, in the total amount of $11,286.76. The Division deactivated Petitioner's monthly retirement benefits in December 2011. The total amount of retirement benefits paid to Petitioner after terminating employment with DFS is $191,921.85, which the Division seeks to recover. In April of 2010, at the urging of community members, Petitioner registered to run for public office in Jefferson County, Florida. He won the election and was sworn into office as a Jefferson County Commissioner on November 16, 2010. Tyler McNeill is the Chief Deputy Clerk and Human Resources Officer for Jefferson County. Following Petitioner's election as a County Commissioner, Mr. McNeill began to process a small packet of employment-related documents which he provides to elected officials. Mr. McNeill went to Petitioner's home on a Sunday evening to get the necessary papers signed. Prior to this meeting, Petitioner was unaware that Jefferson County participates in the FRS. Petitioner described his reaction to learning this as "shocking." When Mr. McNeill and Petitioner got to the FRS form, Petitioner did not want to sign it and informed Mr. McNeill of that. Mr. McNeill described Petitioner as appearing physically ill, shocked, and "so upset" upon learning that the County was an FRS participating employer. On November 22, 2010, Petitioner and Mr. McNeill called Ira Gaines, FRS Benefits Administrator, using a speakerphone. At the time they placed this call, Petitioner had not yet signed the employment documents supplied to him by Mr. McNeill, and Petitioner informed Mr. Gaines of this. During this conversation, Petitioner expressed his willingness to resign from office and refuse to accept payment from the County for his newly elected position. According to Mr. McNeill, Petitioner was not yet eligible to receive compensation from the County because the employment papers had not yet been processed. Mr. McNeill testified that he would have been able to discard the documents. During this telephone conversation, Mr. Gaines advised that Petitioner was legally a person employed by the County by virtue of his being sworn into office on November 16, 2010. Mr. Gaines equated bring sworn into office as being an employee. At hearing, Mr. Gaines reiterated his position: that he did not know any way Petitioner could not be enrolled in FRS when occupying an elected position. As a result of this telephone conversation with Mr. Gaines and in reliance on Mr. Gaines' advice, Mr. McNeill processed Petitioner's employment papers including the FRS reenrollment form. Mr. Gaines then began receiving salary payments for being a county commissioner. On December 6, 2010, Mr. Gaines sent a letter to Petitioner stating that his election to the position of County Commissioner had voided his DROP participation, and consequently, Petitioner would have to repay $181,635.09 for the DROP payment, and $11,286.76 in monthly retirement benefits. The letter further informed that Petitioner will continue to earn credit as an elected official in the Elected Officer's Class of FRS membership and that Petitioner's retirement account would be adjusted to reflect service from August 2005 through July 2010 (his DROP period) which he estimated would increase Petitioner's retirement benefits by $1,200 per month. In response to the December 6, 2010 letter, Petitioner appealed the voiding of his DROP participation. By letter dated February 1, 2011, the Division denied the request. The February 1, 2011 letter also informed Petitioner of his right to request a hearing, which gave rise to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Retirement enter a final order rescinding the February 1, 2011, notification letter requiring reimbursement of Petitioner's DROP distribution and reimbursement of Petitioner's monthly retirement benefits from August 2010 through December 2010 when those benefits were discontinued; reinstating those monthly benefits beginning six months following the completion of Petitioner's DROP period, and nullifying Petitioner's reenrollment in the Elected Officers' Class of FRS membership. DONE AND ENTERED this 8th day of March, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 8th day of March, 2012.
The Issue Whether Petitioner is entitled to participation in the State University Optional Retirement Program for the period August 1997 through December 1998.
Findings Of Fact Petitioner Jeffrey Bradshaw (Bradshaw) was employed by UWF as a Research Assistant from August 8, 1997, until December 1998. This position was eligible to participate in the ORP for the State University System as described in Section 112.35, Florida Statutes (1997). On August 18, 1997, Bradshaw signed a Form ORP-16, indicating his election to be a member of the ORP and indicating that he had signed the necessary contract with TIAA-CREF, an approved annuity provider. Bradshaw returned this form to UWF. Below Bradshaw's signature is a portion of the Form ORP-16 which is entitled, "To be completed by employer." Within that portion of the form, a signature appears in the signature line designated "Signature of University" beneath the following certification: "I certify that since their employment with the university, this employee has signed a contract(s) with the ORP carrier(s) as shown and is filling an eligible position." Following this certification and above the signature of the university representative appears the following in handwriting, "verbal by employee." This portion of the form indicates that it was signed by a representative of UWF on October 6, 1997. The fully executed form ORP-16 was forwarded to Respondent on or about October 6, 1997. Bradshaw recalls that he sent a copy of the executed contract directly to TIAA-CREF. UWF paid the employer's statutory portion of Bradshaw's salary to Respondent to participate in the ORP for the entire period from August 8, 1997 to December 31, 1998, for a total of $11,494.88. Respondent forwarded that money to TIAA-CREF. On June 2, 1998, Respondent sent a letter to Bradshaw in care of UWF which read in pertinent part as follows: Effective July 1, 1997, Section 121.35, F.S. was amended and now requires ORP participants that fail to select a provider company and execute an annuity contract within 90 days of eligibility, must be enrolled in the Florida Retirement System (FRS). Even though you selected a provider company within 90 days of becoming eligible for ORP, you have not completed the other required step in the process. According to the company, you do not have a contract with them. The Division will be forced to transfer your contributions from the company account to the FRS Trust Fund unless you act immediately. You will then be credited with the appropriate service credit under the FRS and your employer will be requested to begin reporting you under the FRS. In order that you may continue in the ORP, you must complete the establishment of your ORP Account. We therefore request that you provide the critical information requested by the company to establish a contract using their application form (enclosed). If you have any questions about this process, please call the special toll free number for the Service Plus Office, 800 842-7715. This should be done as soon as possible, but no later than 15 days from the date of this letter. Please send a copy of this letter along with your form. Otherwise, to revert your retirement membership to the regular class of the Florida Retirement System, please complete the enclosed Form FRS-M10, Personal History Record and return it to your employer within the next 15 days. Should you have any questions concerning enrollment in the FRS, please call our Enrollment Section at SUNCOM 278-8837 or (850) 488-8837. Please send a copy of this letter along with the form. (emphasis in original) Faye Borders is a Senior Personnel Representative with UWF. According to her files, UWF contacted Bradshaw by telephone when UWF received the June 2, 1998, letter and Bradshaw indicated that he sent the application directly to TIAA-CREF. It is not clear from the record the scope of the telephone conversation between the UWF representative and Bradshaw. The evidence of record does not establish that Bradshaw was sufficiently informed of the content of the June 2, 1998, letter, or of its consequences. Bradshaw does not recall that the telephone conversation took place. He believed he had done everything he needed to do and did not became aware that there was a question about his earlier membership in the ORP until he signed a new contract in October of 2000. What is clear is that Bradshaw did not receive a copy of the letter and never received any written correspondence from anyone inquiring as to his status in the ORP. As far as Bradshaw was concerned, he completed all forms necessary at the appropriate times. Bradshaw left employment with UWF in December 1998 and moved out of state. He returned to employment at UWF in 2000 and signed a new ORP-16 and a new contract with TIAA-CREF in October 2000, and is currently actively enrolled in the ORP with TIAA-CREF as his annuity provider. He became aware that there was an issue about his former membership in the ORP in a telephone call he placed to TIAA-CREF and when he received a letter informing him that the money from the time period of his earlier employment had been returned to UWF. At this point, he sought advice from UWF's office of human relations. Bradshaw and UWF sent letters to Respondent to clarify this issue. A letter dated November 17, 2000, from Faye Borders to Respondent reads in pertinent part as follows: Dear Hobe, Please see (attached) Mr. Jeffrey Bradshaw's letter regarding his status in the Optional Retirement Program during his prior employment with the University of West Florida. I am also attaching information from our files pertaining to Mr. Bradshaw's efforts to enroll in the Optional Retirement Program. Mr. Bradshaw is certain he sent the application directly to TIAA-CREF and has repeated that on several occasions. He has moved several times since his prior employment, thus the address we provided to TIAA-CREF on our attached copy of the fax sent to them may not have been current. TIAA-CREF's letter to Mr. Bradshaw states that the University of West Florida requested the institutional premiums be removed from the contract and placed in their Repurchase account at TIAA-CREF. I am unclear on this and as far as I know the University does not handle such transactions. Anything you can do to assist Mr. Bradshaw with his request will be greatly appreciated. Respondent responded directly to Bradshaw, again in care of UWF, with a letter dated March 30, 2001. The letter was written by David Ragsdale, Benefits Administrator, and reads in pertinent part as follows: Dear Mr. Bradshaw: This is in reference to your October 20, 2000 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires SUSORP participants that fail to select a provider company within 90 days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete and submit the ballot, Form ORP-16, within the ninety days window of eligibility in compliance with the law. As such, you will be a compulsory member of the FRS. Mr. Ragsdale acknowledges that the March 30, 2001, letter to Bradshaw was in error in that the Division had received the ORP-16 signed by Bradshaw in 1997. Mr. Ragsdale also explained that letters to Bradshaw were addressed to UWF because in 1997, and until sometime in 2001, Respondent did not maintain personal addresses for participants, but relied on the employing agencies to maintain addresses for their employees. On April 26, 2001, Sherell Hendrickson, Director of Human Resources at UWF, sent a letter addressed to Mr. Ragsdale which stated as follows: Dear Mr. Ragsdale: This is in reference to your March 30, 2001 letter denying Jeffrey Bradshaw's enrollment in the ORP in 1997. A copy of your letter is attached. This denial is based on Mr. Bradshaw's failure to complete and submit the ballot, Form ORP-16, within the ninety-day window of eligibility in compliance with the law. Mr. Bradshaw did complete and return his Form ORP-16. He was hired on August 8, 1997; the form ORP-16 was sent to the Division of Retirement on October 6, 1997, less than 60 days after his initial employment with UWF. On this form, he designated TIAA-CREF as his retirement annuity company and certified that he had signed a Florida ORP contract. Mr. Bradshaw sent his enrollment forms directly to TIAA- CREF. HR Benefits Clerk, Valerie Comparetta, notes that he sent the annuity contract to TIAA-CREF on the form ORP-16. Unfortunately, TIAA-CREF alleges that they did not receive his contract application and that after attempting to get in touch with him, they contacted UWF's Human Resources Department. He gave TIAA-CREF an address that may not have been current to contact Mr. Bradshaw. However, Mr. Bradshaw confirmed with us that he had completed and mailed the contract to TIAA-CREF. The University's institutional premiums of $11,496.88 were sent to TIAA-CREF during 1997-98. Mr. Bradshaw moved and did not hear anything else from either us or TIAA- CREF. He returned to employment at UWF on May 6, 2000. When he called TIAA-CREF, he was surprised to find out that his initial paperwork had never been located by TIAA- CREF and that UWF had requested that the institutional premiums "be removed from the contract and placed in their Repurchase account at TIAA-CREF." To my knowledge, and that of the Benefits Section in HR, no one in this office asked for this to be handled. We do not handle such transactions. I am requesting that you reconsider this issue. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, did not receive the notices sent to him by TIAA- CREF, and has stated on more than one occasion that he sent in his enrollment application to TIAA-CREF. The institutional funds were held by TIAA-CREF for two years. We believe that the institutional funds of $11,496.88 should be sent back to TIAA-CREF and into Mr. Bradshaw's ORP account. According to Ms. Hendrickson, her office has had problems in the past with TIAA-CREF losing documents or correspondence. Unlike other annuity providers, TIAA-CREF does not have a local representative at UWF. UWF deals directly with the TIAA-CREF office in Atlanta. Also according to Ms. Hendrickson, UWF's file indicates two instances when Bradshaw informed UWF that he provided a contract directly to TIAA-CREF. These are further explained in a June 13, 2001, memorandum from Hendrickson to Respondent which also references that UWF confirmed with TIAA- CREF in 1999 that the company had a completed application: Thank you for any additional consideration you might give to my April 26, 2001 letter to Mr. David W. Ragsdale concerning the ORP account of Mr. Jeffrey Bradshaw. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, and did not receive the notices sent to him by TIAA- CREF. He has stated to the University of West Florida Office of Human Resources personnel on two (2) separate occasions that he sent in his enrollment application to TIAA-CREF. Our first contact with him about the TIAA-CREF application was in October 6, 1997. When we contacted him about the TIAA- CREF application, he stated that he had signed and sent in his TIAA-CREF application to the company. This is noted on our ORP-16 enrollment form for him. On our second contact with him on June 23, 1998, our notes reveal that he verified to our office that he had sent in his forms directly to TIAA- CREFF[sic]. In January 1999, we have a note in our files that we again confirmed with TIAA-CREF that he completed his TIAA-CREF application and sent it directly to the company. We also have a completed ORP-16 Form from him dated August 18, 1997 after his initial employment on August 8, 1997. Copies of these documents may be provided, if necessary. They were included in my April 26, 2001 letter. Based on the above information, we have every reason to believe that Mr. Jeffrey Bradshaw completed his TIAA-CREF application and mailed it to TIAA-CREF. Respondent responded to Ms. Hendrickson's April 26, 2001, letter on September 4, 2001, in a letter addressed to Bradshaw in care of UWF. This letter gave a different reason for rejecting Bradshaw's membership in the ORP for the period of his earlier employment: Dean Mr. Bradshaw: This is reference to your June 13, 2001 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety-day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires ORP participants that fail to select a provider company within ninety days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete an annuity contract with a provider company within the ninety-day window of eligibility. Therefore, you are not eligible for the SUSORP and you will be a compulsory member of the FRS. Should you have any questions, or need additional information, please contact David Ragsdale or Hobart Lawrance at SUNCOM 278- 8837 or (850) 488-8837. According to Mr. Ragsdale, Respondent does not get a copy of the contracts entered into between individuals and annuity providers. Respondent made the payments to TIAA-CREF on behalf of Bradshaw based on the ORP-16 that indicated on its face that a contract existed. No one involved in this proceeding appears to have a copy of the contract signed by Bradshaw in 1997. At that time, it was not unusual for UWF or Respondent to not have a copy of contracts between individual employees and annuity providers. On or about June 24, 1999, TIAA-CREF credited the $11,494.88 to a repurchase fund maintained on behalf of Respondent. Respondent transferred these contributions to the Florida Retirement Trust Fund. As a consequence, Bradshaw has received service credit for the number of months of his earlier employment period with UWF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letter of September 4, 2001, and sending Petitioner Bradshaw's contribution of $11,494.88 to TIAA-CREF, requesting that it be deposited into Bradshaw's ORP account or, in the alternative, refunding the $11,494.88 directly to Bradshaw. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 28th day of June, 2002. COPIES FURNISHED: Julie L. Sheppard, Esquire Patricia D. Lott, Esquire University of West Florida 11000 University Parkway Building 10 Pensacola, Florida 32514-5750 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 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. /
