The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Albert F. Cook, had a relationship with the Department of Corrections (DOC) at any time during the month of April, 1993, and if so, whether he was eligible to receive a retirement benefit for that month, as well.
Findings Of Fact The Petitioner was employed at times pertinent hereto by the Department of Corrections (DOC) at its Baker Correctional Institution facility. On February 19, 1993, he was notified of his transfer to the Florida State Prison, purportedly for disciplinary reasons. Upon learning of this eventuality, the Petitioner immediately went on sick leave. He maintains that it was duly- approved sick leave. No medical evidence to that effect was presented, but the Petitioner suggested that his illness might be of a psychiatric nature. He clearly was disgusted with the action taken by the DOC to transfer him. Subsequently thereto, he decided to apply for retirement, effective March 31, 1993. Shortly thereafter, he sought to have his retirement request rescinded or withdrawn; however, that request was denied. He was thereupon removed from the DOC payroll, effective March 31, 1993, essentially as a termination action. He received a retirement benefit check for the period of April 1-30, 1993 in the amount of $2,324.53 from the Division of Retirement. The Petitioner appealed the DOC employment action to the Public Employees Relations Commission and an administrative proceeding ensued. Ultimately, a settlement agreement was reached in that case which resulted in the Petitioner being allowed to resign, effective April 16, 1993, rather than suffer termination effective March 31, 1993. That agreement entered into by the parties in that case specifically stated that "the agency [DOC] will take whatever action is necessary to return the employee [Cook] to the payroll for the period between March 31, 1993 and April 16, 1993". The Division of Retirement was, of course, not a party to that agreement since it was not a party to the litigation involved. The agreement was incorporated into a Final Order issued by the Public Employees Relations Commission in Case No. CF-93-196, entered June 7, 1993. The Petitioner sent a letter to E.I. Perrin, the Superintendent of Florida State Prison, dated April 12, 1993, in which he stated "that if I am still on the payroll, I hereby resign my position with the Florida Department of Corrections effective April 16, 1993 . . .". According to attendance and leave reports signed by both the Petitioner and Marion Bronson, the Personnel Director of Florida State Prison, the Petitioner was on sick leave for the payroll period of March 26, 1993 through April 8, 1993. While the date of the Petitioner's signature on the relevant time sheet was April 8, 1993, the end of the pay period, the Petitioner testified that the time sheets had actually been submitted earlier. Attendance and leave reports for the following pay period indicated that the Petitioner continued on sick leave status through April 16, 1993. The time sheets for the latter period were not signed by the Petitioner but were signed by Marion Bronson. DOC ordered a manual payroll made up to record payment and to pay the Petitioner through April 16, 1993. He received a salary warrant for $1,234.43 for that period from April 1-16, 1993. That salary check and warrant reflects that retirement contributions were paid as to that April payroll period salary. Because he received additional retirement service credit and a new average final compensation as a result of being in a payroll status and being paid for the period of time in April 1993, the Petitioner's monthly retirement benefits actually now exceed what he would receive as retirement benefit payments had he not been compensated as an employee for his service through April 16, 1993. The Petitioner testified at hearing that he was terminated on March 31, 1993 and not re-hired. He further testified that he neither wanted nor expected payment from DOC for the period of March 31, 1993 through April 16, 1993 and that he "merely wanted to clear his name". Nevertheless, he entered into the settlement agreement which provided for him to be compensated and on payroll status through April 16, 1993, when he entered into the settlement with DOC in the proceeding before the Public Employees Relations Commission. He is presumed to have full knowledge of the content of that settlement agreement, and it reflects that he freely and voluntarily entered into it, as does his testimony. According to Mr. Bronson's testimony, during the relevant period from March 31, 1993 through April 16, 1993, the Petitioner was occupying an authorized and established employment position with DOC. His employment relationship continued with the Department, as a result of the settlement agreement, until April 16, 1993. Because Mr. Bronson and DOC are not parties to the present proceeding and have no financial interest in the outcome of this litigation, Mr. Bronson's testimony is deemed credible and is accepted insofar as it may differ from that of the Petitioner. The Respondent agency learned that a payroll had been prepared for the period of time in April of 1993 in question and that a salary warrant was issued on the basis of the settlement agreement extending the Petitioner's employment with DOC through April 16, 1993. The Division of Retirement thus temporarily reduced the Petitioner's retirement benefits to recover the amount of the resulting, unauthorized April retirement check. It was unauthorized because he remained employed for the period of time in April and was paid as though he were employed, as a result of the settlement agreement. Consequently, he was not entitled to retirement benefits for that period of time in April 1993 ending on April 16, 1993. Mr. Snuggs testified that every retirement applicant, such as the Petitioner, receives a form FRS-TAR, entitled "Retirement System Termination and Re-Employment". The Petitioner did not deny receiving that form (Respondent's Exhibit 4) which advises prospective retirees of their rights and obligations in terms of retirement and retirement benefits as it relates to re- employment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Retirement, temporarily reducing the Petitioner's retirement benefits, in the manner already proposed by that agency, until such time as his April 1993 retirement benefit, paid to him previously, has been reimbursed to the agency. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2292 Respondent's Proposed Findings of Fact 1-11. Accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Albert F. Cook Post Office Box 782 Sneads, Florida 32460 Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 A.J. McMullian, III, Director Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact The Petitioner, Robert Gilmour, was employed by the Dade County School Board until July 2, 1984, when he terminated his employment effective June 15, 1984. Mr. Gilmour terminated his employment by placing a telephone call to his supervisor. At the time of the telephone call, Mr. Gilmour was out of the Miami area on vacation. Mr. Gilmour did not return from vacation until August 8, 1984. On August 9, 1984, Mr. Gilmour went to the Office of Personnel Retirement Section, of the Dade County School Board, where he executed an application for early retirement. Mr. Gilmour's application for retirement was received by the Benefits Calculation Section of the Division of Retirement on August 15, 1984, in Tallahassee, Florida. The Division of Retirement assigned to Mr. Gilmour an effective date of retirement of September 1, 1984, the first day of the month following the date on which the Division of Retirement received his application for retirement. In May, 1984, Mr. Gilmour, placed a telephone call to Louise Syrcle, an employee of the School Board in the Office of Personnel, Retirement Section. Mr. Gilmour was considering retirement and wanted to discuss the matter with Ms. Syrcle. At the time of the telephone call, Ms. Syrcle was on her vacation and then was subsequently on sick leave because of a broken back. Ms. Syrcle was absent from employment from April 23, 1984 until June 25, 1984. In the course of the telephone call, Mr. Gilmour was told of Ms. Syrcle's broken back and was told that appointments were being made only for those teachers who had already decided to retire. Because he had not yet made that decision, he did not make an appointment. Further Mr. Gilmour did not seek to speak with any other personnel in that office. Art Miles Ms. Syrcle's supervisor, and other personnel were available in the Dade County School Board's Office of Personnel to respond to retirement requests and they did process numerous retirement requests during Ms. Syrcle's absence. At no time did Mr. Gilmour seek, read or receive a copy of the Summary Plan Description brochure which was admitted as Respondent's Exhibit C. Additionally, at no time did Mr. Gilmour make inquiry of anyone at the Division of Retirement regarding his retirement options. Instead, Mr. Gilmour relied on information gleaned from casual conversations with colleagues, which information was not correct. At all time relevant hereto, the Division of Retirement has maintained a staff of counselors who are available to consult with members and agencies on matters concerning retirement, including deadlines for filing applications. As a result of Mr. Gilmour's July 2, 1984, telephone call, in which he terminated his employment, the Dade County School Board sent a certification of service and earnings, Form FT4A, on July 2, 1984. This form was received by the Division of Retirement on July 9, 1984. While this form may have indicated that Mr. Gilmour had terminated his employment with the Dade County School Board, no information contained in that form indicated his intent to retire. When Mr. Gilmour went to the Office of Personnel, Retirement Section, of the Dade County School Board on August 9, 1984, he first learned that the rules of the Division of Retirement required that the application for retirement be filed within 30 days of the termination date in order for the retiree to receive retirement benefits retroactive to the date of termination. Because Mr. Gilmour failed to file his application for retirement until August 15, 1984, he did not receive retirement benefits for the months of July and August, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement enter a Final Order denying Robert Gilmour retirement benefits for the months of July and August, 1984, and establishing Mr. Gilmour's effective date of retirement to be September 1, 1984, the first day of the month following his application for retirement. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of May, 1985.
The Issue The issue in this case is whether Petitioner, a surviving beneficiary, is entitled to change the Florida Retirement System retirement benefits 1 All references to chapter 120 are to the 2019 version. payment option selected by her now-deceased spouse, a member of the Florida Retirement System.
Findings Of Fact Respondent, Department of Management Services, Division of Retirement, is the state agency charged under chapter 121, Florida Statutes (2002),2 with administering the Florida Retirement System ("FRS"). Petitioner is the spouse of James L. Williams, now deceased, who was employed by the School District of Palm Beach ("District) for 38 years, and was a member of the FRS. Williams retired from his employment with the District on August 23, 2002. At that time, he executed the Florida Retirement System Application for Service Retirement Form, Form FR-11. On Form FR-11, he designated Petitioner as his primary beneficiary and Jones as his contingent beneficiary. Williams signed this form, and his signature was notarized. Also on August 23, 2002, Williams executed the Florida Retirement System Option Selection for FRS Members Form, Form FRS-11o. On that form, he selected FRS retirement benefits payment Option 2, and designated that choice by writing an "X" on the line next to Option 2. Option 2 was described on Form FRS-11o as: A reduced monthly payment for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. 2 All references to chapter 121 are to the 2002 version of the Florida Statutes, which was in effect at the time that the retirement benefits application and option selection forms that have given rise to this proceeding were executed. Form FRS-11o contained a section, immediately below the description of Option 2, that was required to be completed by the spouse of a married FRS member who had selected Option 1 or Option 2. On August 23, 2002, Petitioner completed, signed, and dated that section, confirming that she was the legal spouse of Williams and acknowledging that she was informed that Williams had selected either Option 1 or Option 2. The purpose of that section on Form FRS-11o is to inform the spouse of the FRS member that, by the member's selection of either Option 1 or Option 2, the surviving spouse is not entitled to receive a continuing benefit for the rest of his or her life. The last sentence on Form FRS-11o, immediately above the space for the FRS member's signature, states in pertinent part: "[m]y retirement becomes final when any payment is cashed . . . [or] deposited." DeVonnia Jones was present with Williams at the time he was given Form FR-11 and Form FRS-11o to execute. Jones testified that when Williams arrived at the District office on August 23, 2002, Form FR-11 and Form FRS-11o already had been filled out by District staff, and were presented to him by his supervisor, who informed him that he needed to retire or he would be terminated. According to Jones, Williams did not wish to retire at that time. Jones asked District staff how much more Williams' monthly benefits would be if he did not retire for another year or two, and was told that Williams' benefits would be between $25 and $30 more per month. According to Jones, "my dad basically shed a couple tears. He was not comfortable, but he went ahead and signed it because I told him to, because they made it seem like he wasn't going to be eligible to get what he was supposed to get." Williams signed and dated Form FRS-11o on August 23, 2002, and his signature was notarized. On August 28, 2002, Respondent sent Williams a document titled "Acknowledgement of Service Retirement Application." This document stated, among other things, that Williams had selected FRS Option 2, and that his retirement was effective September 2002. At the bottom of this document was a standalone paragraph, in bold face type, that read: "ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED!" Also on August 28, 2002, Respondent sent Williams a document titled "Florida Division of Retirement Estimate of Retirement Benefit (Estimate only, subject to final verification of all factors)." This document provided information regarding the amount of the monthly benefits Williams would receive for the four options offered under the FRS. A statement in bold face type at the bottom of the document read: "Comments: You have chosen Option 2. Your option selection cannot be changed after you cash or deposit any benefit payment." Had Williams wished to change his retirement benefits payment option, he could have done so up to the time he cashed or deposited a retirement benefits payment. Williams began receiving his monthly FRS retirement benefits payments from Respondent on October 4, 2002. He cashed or deposited the first FRS benefits warrant (Warrant #0618275) that he received. Thereafter, Williams received monthly FRS retirement benefits payments until his death on April 26, 2010. Williams received a total of 92 monthly benefits payments before his death. All of the FRS retirement benefits payment warrants issued to Williams were deposited or cashed. On May 17, 2010, Respondent contacted Petitioner to inform her that she needed to complete a Florida Retirement System Pension Plan Application for Beneficiary of Monthly Retirement Benefits Form, Form FST- 11b, in order for her to receive monthly FRS retirement benefits payments as Williams' beneficiary. In the contact letter, Respondent informed Petitioner that "you will receive the same gross monthly benefits to which the member was entitled through August 31, 2012." Petitioner completed Form FST-11b on June 25, 2010, and began receiving FRS monthly benefits payments on June 30, 2010. Petitioner received a total of 28 FRS retirement monthly benefits payments. The last warrant issued to Petitioner (Warrant #0375196) was issued on August 31, 2012. All of the warrants issued to Petitioner were cashed or deposited. In sum, Williams and Petitioner collectively received a total of 120 FRS retirement monthly benefits payments, pursuant to Option 2. All of the warrants issued to Williams, and then to Petitioner, as his beneficiary, were deposited or cashed. Petitioner testified that beginning in 2003, she made numerous attempts, over a period of years, to contact the District and Respondent regarding changing the FRS retirement benefits payment option that Williams had selected on August 23, 2002. During this time, Williams and Petitioner continued to cash or deposit the benefits payment warrants they received from Respondent. In this proceeding, Petitioner does not claim that Williams accidentally selected Option 2, or that he intended to select another option, when he signed Form FRS-11o on August 23, 2002. Rather, she asserts that at the time Williams retired, he suffered from confusion and memory loss such that he did not understand the option he chose—effectively, that he lacked the mental capacity to have chosen Option 2 as his retirement benefits payment option. Alternatively, Petitioner contends that because Williams was forced to retire under threat of termination from his employment, he was under duress when he chose Option 2 on Form FRS-11o. On these grounds, Petitioner asserts that she should be permitted to change Williams' choice of retirement benefits payment option.3 3 Here, Petitioner, has requested that she be allowed to "change" Williams' choice of Option 2 on the FRS retirement option selection forms. She did not identify, or present evidence, Petitioner's impassioned testimony at the final hearing shows that she fervently believes her husband was wrongly treated by the District when it required him to retire in 2002, against his desire to continue to work.4 However, as was explained to Petitioner at the final hearing, the purpose of this proceeding was not to determine whether the District wrongly forced Williams out of his employment; rather, it is to determine whether there is any factual or legal basis for changing the retirement benefits option that Williams selected when he executed Form FRS-11o nearly 18 years ago. The evidence does not support Petitioner's argument that Williams lacked the mental capacity to adequately understand the option that he chose on Form FRS-11o. Although Petitioner testified that Williams had been treated by a neurologist, no direct medical evidence was presented establishing that Williams was mentally incapacitated at the time he executed Form FRS-11o. Additionally, at the time Williams signed the form, he was accompanied by his daughter, who, after speaking to District staff regarding his options, advised him to sign the form. Petitioner herself also was present at the District office and signed Form FRS-11o, expressly acknowledging that she understood Williams had chosen Option 2. Thus, to the extent that Williams may not, on his own, have fully appreciated his choice of options on Form FRS-11o—and there is no competent direct evidence showing that to be the case—both his daughter and wife were present with him when he executed Form FRS-11o, his daughter told him to sign the form, and his wife expressly acknowledged that she understood his choice of Option 2. These circumstances do not support a finding that Williams lacked the mental capacity to understand, or did not adequately regarding which specific option she would choose, if permitted to change Williams' selected FRS benefits option. 4 The evidence indicates that the District required Williams to retire because he began having difficulty with his job as a mail carrier. According to Petitioner, Williams had an accident in a District vehicle and did not report the accident to the District, and that when he was transferred to the mail room, he had difficulty remembering to do certain required tasks. understand, the consequence of choosing Option 2 when he executed Form FRS-11o. The evidence also does not support a finding that Williams' choice of Option 2 should be changed, due to duress. There is no direct evidence establishing that Williams was under duress when he chose Option 2. Although Jones testified, credibly, that her father was upset about being forced to retire when he wanted to continue working, her testimony that he was under duress was based on her subjective conclusion. Furthermore, even if Williams was emotionally distressed when he signed the FRS benefits options forms, there is no evidence showing that as result of such distress, he chose Option 2 instead of a different option. It also is noted that Form FR-11 and Form FRS-11o both expressly informed Williams that once his retirement became final—which would occur when any benefit payment was cashed or deposited—his retirement benefits option selection would become final and could not be changed. Further, Williams received two more pieces of correspondence from Respondent—both containing statements in bold face type—expressly informing him that once any FRS retirement benefits payments were cashed or deposited, his retirement benefits option choice could not be changed. As noted above, Williams could have changed his FRS benefits option at any time before he cashed or deposited a benefits payment; however, he did not do so. Thus, pursuant to the express terms of Form FR-11 and Form FRS-11o, when Williams cashed or deposited the first benefits payment, his selection of Option 2 became final and could not be changed. In sum, the evidence does not establish any factual basis for permitting Petitioner to change Williams' selection of Option 2 as his FRS retirement benefits payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner's request to change the FRS retirement benefits payment option selected by her husband, an FRS member, when he retired. DONE AND ENTERED this 4th day of March, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2020. COPIES FURNISHED: Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Deloris Williams 1219 West Ninth Street Riviera Beach, Florida 33404 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Mangement Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Mangement Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner is eligible for retirement pursuant to Section 112.05, Florida Statutes.
Findings Of Fact Petitioner is a public health nurse supervisor who has been employed by the Hardee County Health Department since October 1, 1947. On October 22, 1971, while on annual leave in Texas, Petitioner telephoned her supervisor requesting that she be placed on leave of absence without pay until December 1, 1971. She requested this type of leave because she was experiencing difficulties with her back and did not desire to request sick leave since she was out of state. Her annual leave was almost exhausted at that time. Her supervisor authorized the requested leave and she was informed that she must keep up her health insurance premium payments while on leave of absence. She did so. The period of leave without pay extended from October 22 to December 3, 1971. (Testimony of Petitioner, Trussell, Petitioner's Exhibits 1-2) At the time the leave without pay was authorized, the personnel records clerk of the Hardee County Health Department requested and received information from the personnel department of the then State Board of Health of Jacksonville, Florida, that a leave without pay would not jeopardize Petitioner's retirement status. Similar information had been provided Petitioner and the clerk during a visit to that agency in 1970. (Testimony of Petitioner, Trussell) When Petitioner returned to duty from her leave without pay in December, 1971, the only personnel action taken by her employer was to prepare a personnel action form showing such return. At the time the leave without pay was taken by Petitioner, she had over 400 hours of accrued sick leave to her credit. (Testimony of Trussell, Petitioner's Composite Exhibit 2) During her employment, Petitioner was a member of the State and County Officers and Employees Retirement System (Chapter 122, F.S.) and paid contributions toward retirement under that system. As of January, 1978, she had contributed $11,195.37 into the retirement fund. She also was under the noncontributory plan for state employees (Section 112.05, F.S.) and was provided an estimated computation of retirement benefits under both retirement systems by the Department of Health and Rehabilitative Services on May 14, 1971. (Petitioner's Composite Exhibit 2) On March 22, 1977, Petitioner filed application for service retirement under the provisions of Chapter 122, Florida Statutes, with a designated retirement date of January 5, 1978. By letter of April 21, 1977, Respondent advised that applications were not accepted earlier than sixty to ninety days prior to the date of retirement. Petitioner resubmitted the application in September, 1977. By letter of October 7, 1977, Respondent advised the Petitioner that inasmuch as she had been granted a leave of absence without pay in November, 1971, a break in service occurred and therefore she was a compulsory member of the Florida Retirement System upon returning to employment in December of 1971, pursuant to Rule 22B-1.04(4), (sic) F.A.C. In this letter, she was also advised that Social Security contributions were payable on her account from December, 1971, but since her previous retirement contributions offset this indebtedness to some extent, she would owe for Social Security coverage retroactive to the calendar year, 1973. Thereafter, by an invoice dated January 30, 1978, the Division of Health, Department of Health and Rehabilitative Services, was billed a total of $6,523.74 for Petitioner's Social Security contributions, of which half or $3,261.87 was owed by the employee. (Petitioner's Composite Exhibit 2, Respondent's Composite Exhibit 1) In a letter dated November 9, 1977, the State Retirement Director advised Petitioner that she became a mandatory member of the Florida Retirement System in December, 1971, because she was off the payroll for a month and thereby had a break in service. He further advised that this fact alone did not interfere with her eligibility to be considered for retirement under Section 112.05, but since she had been off the state payroll for more than a month, she was not eligible to retire under that provision. Another letter of the State Retirement Director, dated February 23, 1978, stated that he had reconsidered his position, but adhered to the decision that Petitioner was a compulsory member of the Florida Retirement System pursuant to Rule 22B-1.04(1)4 and did not qualify for retirement under Section 112.05. Petitioner was advised of her right to a hearing in the matter and she thereafter requested the same on March 3, 1978, wherein she requests a determination of her eligibility to retire under Section 112.05.
Recommendation That Petitioner's request for retirement under the provisions of Section 112.05, Florida Statutes, be approved. DONE and ENTERED this 17th day of August, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony N. Deluccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 2258 Fort Myers, Florida 33902 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Building 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes. Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.
Findings Of Fact Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2) Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties) Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)
Recommendation That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Theron J. Owen 818 San Juan Boulevard Orlando, Florida 32807 L. Keith Pafford, Esquire Division Attorney Division of Retirement Department of Administration Cedars Executive Center2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302
The Issue The issues are whether Respondent Francis Thompson's interests in the pension plan are forfeited under the law, whether he should be required to repay all monies received less accumulated contributions, and whether Respondent Patricia R. Thompson's interest in the plan is forfeited upon the forfeiture of the rights of her former husband.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The City of Daytona Beach (City) is a municipal corporation created as a political subdivision of the State of Florida. Petitioner, Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund (Board), was established by Special Act of the Legislature in 1959, as amended in 1965. The Board is responsible for administering the City's police and fire department retirement plan (plan) and paying benefits to eligible participants subject, however, to the requirements of Chapter 112, Part VII, Florida Statutes. Respondent, Francis Thompson, is a plan participant, having retired as a police officer with the City of Daytona Beach Police Department on September 24, 1994. His dates of service are from July 31, 1972, to July 30, 1977, and from June 19, 1983, to September 24, 1994. Under the terms of the plan, upon retirement, Francis Thompson was entitled to $1439.84 per month in retirement benefits. Sometime prior to his retirement, however, his marriage to Patricia R. Thompson was dissolved. As a part of the settlement between the parties, Francis Thompson agreed to transfer a portion of his benefits (48.75% had he retired on January 31, 1992), but not to exceed a total liability of $31,000.000, plus twelve percent simple interest on the unpaid balance computed from January 31, 1992. This agreement is embodied in a Domestic Relations Order entered on March 30, 1993, by the Circuit Court, in and for Volusia County, Florida. Although the City was never given notice of this proceeding nor an opportunity to participate, the order reflects that a copy of the same was served upon the plan administrator. Notwithstanding the above action, Section 10 of Sub-Part D of the City Code provides that "the right of a person to a pension . . . shall be unassignable." In other words, Francis Thompson was prohibited from assigning his plan benefits to another person. Faced with a court order which directed the City to pay a portion of the benefits to a third party, the plan administrator consulted with the City's legal counsel, who advised the adminstrator to "follow the intent" of the court's order and begin paying a portion of the benefits to the former wife. It is noted, however, that Patricia R. Thompson did not receive an interest in the plan by the court's order; rather, she obtained entitlement to a portion of the benefits of a plan member. Between September 1995 and the end of November 1997, Patricia R. Thompson has received $24,199.32 in benefits. As of the same date, Francis Thompson received a total of $55,333.18 in benefits. Based upon a belief that Francis Thompson had been convicted of a specified offense related to conduct prior to his retirement, on August 5, 1997, the Board initiated this proceeding for the purpose of terminating all of his rights and benefits under the plan and requiring him to return $42,655.20, plus all distributions, if any, made subsequent to June 1997. Because Patricia R. Thompson is now receiving a portion of her former husband's benefits, she was also named as a party. Between 1987 and 1994, Francis Thompson was evidence custodian and in charge of the evidence and property room for the City of Daytona Beach Police Department. In that position of special trust, he was responsible for keeping all weapons, drugs, moneys, and other property seized or held by the Police Department. The position of evidence custodian was a position that required the City to trust that the custodian would properly perform his responsibilities and duties. It is undisputed that during his tenure as evidence custodian, Francis Thompson removed multiple firearms from the evidence and property room and shipped them to another person in the State of Pennsylvania for personal use. The Police Department could not find any evidence that the firearms had been properly logged or recorded for removal in accordance with proper protocol. By engaging in this conduct, Respondent violated the City's trust. On June 27, 1996, Francis Thompson was convicted of multiple felony violations of the United States Code in the United States District Court, Eastern District of Pennsylvania, in Case No. 2:95CR00232-1. One of these offenses was "shipping stolen firearms in interstate commerce." Because the offense involved the commission of a theft by a public employee from his employer, it constituted a "specified offense" as defined by Sections 112.3173(2)(e)2. and 6., Florida Statutes (1997). The conviction for a specified offense calls for forfeiture of all retirement benefits under Section 112.3173(2)(e)2., Florida Statutes (1997). Finally, it is noted that the illicit activity occurred while Respondent was employed as evidence custodian with the City's Police Department. Throughout his term of employment with the City, Francis Thompson made accumulated contributions to the plan totaling $29,173.21. As of November 30, 1997, the plan administrator had distributed plan benefits in the amount of $79,532.50, or $50,359.29 more than contributions. At hearing, Respondent's present wife, Patricia B. Thompson, testified on his behalf. Her testimony was limited to a request that, due to financial and health problems incurred by her incarcerated husband, the undersigned appoint counsel on his behalf. That request was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund enter a final order determining that Francis Thompson's interest in the plan, including past payments made and future benefits payable by the plan, less accumulated contributions shall be forfeited by the Board pursuant to law; that all persons deriving an interest through his interest in the plan, including his present and former wife shall forfeit all future payments from the plan upon the issuance of a final order; and that Francis Thompson shall pay back to the Board all payments in excess of his accumulated contributions in such manner as the Board may determine. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Margaret T. Roberts, Esquire Post Office Box 832 New Smyrna Beach, Florida 32170-0832 David D. Fuller, Esquire 220 South Ridgewood Avenue Suite 210 Daytona Beach, Florida 32114 Francis Thompson Registry Number 17952-018 Eglin Air Force Base Prison Camp Post Office Box 600 Eglin Air Force Base, Florida 32542 James C. Maniak Plan Administrator City of Daytona Beach Post Office Box 2451 Daytona Beach, Florida 32115-2451
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 The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.
Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was as follows: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 10th day of July, 2006.
The Issue The sole issue in this cause is whether or not the payments received from Gadsden County by Petitioner, as set forth on pages 4 through 8 of her Amended Petition, for services rendered as Official Court Reporter pursuant to Chapter 29, Florida Statutes, constitute "compensation" within the meaning of that term in Chapter 121, Florida Statutes.
Findings Of Fact On April 27 and May 1, 1992, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their Proposed Recommended Orders including proposed Findings of Fact. In the Appendix to Recommended Order, the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's and Respondent's proposed Findings of Fact Nos. 1, 2, 3, 4, 5, 6, and 7, are hereby accepted and adopted in that they track the stipulated facts contained in the PREHEARING STIPULATION dated and filed March 30, 1992. The Petitioner's proposed Findings of Fact Nos. 8, 9, 10, and 11, are hereby rejected in that they are conclusions of law and were not contained within the stipulated facts contained within the PREHEARING STIPULATION, and are, therefore, not based upon competent substantial evidence. The actual employment position held by the Petitioner as an employee of the judicial branch of the State of Florida is clearly identified on Florida Retirement System Form FR-11, which was executed by the Petitioner on January 24, 1990, and certified by the Chief Judge of the Second Judicial Circuit (Exhibit 6 attached to the PREHEARING STIPULATION), whereon the "Title of Position held" is stated to have been "Official Court Reporter, Second Judicial Circuit of Florida assigned to Gadsden County." The supplemental salary that was paid to the Petitioner by the County required paper work identifying her as a county employee for payroll purposes only; but, as a matter of law, she held her State position as an official court reporter solely at the pleasure of the Judges of the Second Judicial Circuit pursuant to Section 29.01, Florida Statutes. In the Conclusions of Law in this Final Order, this issue shall be fully analyzed. RULINGS ON HEARING OFFICER'S RECOMMENDED CONCLUSIONS OF LAW Recommended Conclusion of Law No. 1 is hereby accepted as a proper statement of applicable law. Recommended Conclusion of Law No. 2 is hereby accepted as a correct statement of applicable law. Recommended Conclusion of Law No. 3 is hereby rejected in that it erroneously concludes that the Petitioner's salary and fees were authorized and set by statute, when, they had to have been authorized and set pursuant to Rule 2.070, Florida Rules of Judicial Administration. The conclusion of the Hearing Officer is incorrect because under Rule 2.070, Florida Rules of Judicial Administration, the compensation of, and the fees in question to be charged by, court reporters are authorized and set by such judicial rule. Rule 2.070, Florida Rules of Judicial Administration, adopted generally by reference the annual salary for court reporters set forth in Section 29.04, Florida Statutes, for a 60-hour work month. That judicial rule then goes on to provide for overtime at the rate of $10.00 per hour. That Rule 2.070, Florida Rules of Judicial Administration, also provides that the fees in question (for transcripts and depositions) to be charged by court reporters should be set in each circuit by administrative order, and, in the absence of such order, as provided by law. Such court reporters' fees, therefore, are set pursuant to said judicial Rule 2.070, which authorizes the charging of such fees in accordance with a circuit administrative order, and, in its absence, as provided by law. The setting of such fees and the authorization to charge same arise from said judicial Rule 2.070, and not from Chapter 29, Florida Statutes. The fee schedule set forth in Chapter 29, Florida Statutes, derives its legal efficacy not from its legislative enactment alone, but from its judicial approval in said Rule 2.070 in the event that a local circuit administrative order setting such fees has not been entered. In such instance, the fees are not set by statute, but by judicial approval of a statutory fee schedule. The judicial branch has set such fees, not the legislative. Thus, any such fees were not set by statute. The citations by the Hearing Officer in recommended Conclusion of Law No. 4 of Rules 22B-1.004(4)(b)1., and 22B-6.001(49), Florida Administrative Code, are rejected as being inapplicable to the proceeding at bar inasmuch as the Petitioner as an Official Court Reporter appointed pursuant to Section 29.01, Florida Statutes, was an employee of the State of Florida and was not an employee of Gadsden County. Under said Section 29.01 all official court reporters are appointed by and serve at the pleasure of the Chief Judge and a majority of the Judges of the Court in which the reporter is serving. Provision is made in Section 29.04, Florida Statutes, for the respective counties to provide funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings, but any such monies paid to such official court reporters would be paid to state employees. The judicial branch of government in Florida is a State court system. Official Court Reporters are hired and retained by the State Judges in a Circuit, and their employment is not determined or continued to any extent whatsoever by any Board of County Commissioners. Under Section 29.04(3), Florida Statutes, provision is made for the counties to supplement the funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings. The counties are a source of funding, and are not employers of the Official Court Reporters. In the case of Matter of Compensation of Hunter, 635 P.2d 1371 (Or. App. 1981), the Court of Appeals of Oregon held that where court reporters are appointed and hold their offices at the pleasure of the Judges, and are officers of the Court subject to the direction and control of the Judges, those court reporters are employees of the State of Oregon and not of the counties. At page 1373 of 635 P.2d the Court held: "The right to control is also important from a policy standpoint. The judges of the State of Oregon benefit directly from the services of the court reporters. They not only perform reporting duties in court, but are also the judges' official secretaries. See ORS 8.330. The State benefits most directly from court reporters' services, and it should be responsible for providing their workers' compensation insurance." Recommended Conclusion of Law of No. 5 is hereby rejected as a conclusion of law in that is a recitation of the relative positions of the parties and is not of any recommended holding or ruling by the Hearing Officer. Upon the reasoning and authorities set forth in Paragraph No. (3), above, recommended Conclusion of Law No. 6 is hereby rejected in that the fees in question were not authorized or set by legislative statute but were, in fact, authorized and set pursuant to judicial Rule 2.070, Florida Rules of Judicial Administration. The first three sentences of recommended Conclusion of Law No. 7 are hereby rejected in that they misconstrue the first sentence of Section 121.021(22), Florida Statutes, that states: "`Compensation', means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form." [Emphasis supplied] A form 1099 is not a form on which an employer reports salary paid from a salary fund to an employee, but, rather is a form utilized to report payments of income to an independent contractor. The "similar form" in that statute refers to an employer's wage and tax statement, which may be a form W-2, which is not the equivalent to a form 1099. As hereinafter discussed in Conclusions of Law Nos. (11), (12), and (13) of this Final Order, Official Court Reporters are "professional persons" within the meaning of that term in Section 121.021(22), Florida Statutes. The recommended Conclusion of Law of the Hearing Officer that the transcribing of criminal proceedings do not constitute "special or particular services" does not comport with either judicial Rule 2.070, Florida Rules of Judicial Administration, or a 1957 Opinion of the Attorney General of Florida. Under said judicial Rule 2.070 the basic salary for a court reporter is set in subsection (g) together with provision for the payment of overtime for hours in excess of 60 worked per month. In subsection (e) of Rule 2.070, provision is made for fees for what would constitute special or particular services by a court reporter, and the fees that may be charged for same. In a 1957 Opinion of the Attorney General of Florida (1957 0p. Att'y. Gen. Fla. 057- 109 (April 26, 1957)), the Attorney General of Florida analyzed Section 122.02, Florida Statutes, the predecessor to Section 121.021(22), Florida Statutes, as to what constituted compensation under the State and County Officers and Employees Retirement System (SCOERS). The opinion of the Attorney General was that hourly wages plus overtime would be included within the monthly compensation. But, at the end of that opinion the Attorney General concluded: "We conclude that in the case mentioned in the question the employing authority has prescribed the formula for fixing the monthly compensation or salary. It may vary depending upon the hours employed in discharging the routine work of the employment but the formula is fixed and applicable mathematically. This is not a situation where fees are paid for special or particular services. It is a regular retainer made depending upon the actual hours engaged in performing the month by month routine duties as School Board Attorney. It has no reference to fees for handing special items such as bond validation or other litigation." Under Rule 2.070, Florida Rules of Judicial Administration, official court reporters are paid their basic salary and overtime for their court appearances in reporting the proceedings. But, if they are to furnish transcripts of proceedings or depositions, which work would be done after their regular working hours, then the fees for such special or particular services are to be set by local circuit administrative order, or in the absence of same, as provided by law. These special or particular services that the court reporters are performing for such additional fees are not performed during their regular working hours, which by said Rule 2.070, is limited to 60 hours per month. And the last sentence of Recommended Conclusion of Law No. 7 that the Petitioner was a county employee is hereby rejected upon the grounds and reasoning set forth in Paragraph No. (4) above. The Hearing Officer's Recommended Conclusion of Law No. 8 (misnumbered as "7") is hereby rejected upon the grounds and for the reasons set forth in Paragraph Nos. (3) through (7) set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order approving petitioner's request for additional retirement benefits by including in the calculation of average final compensation those fees received by petitioner between January 1973 and February 1990 as set forth on pages 4 through 8 of her amended petition. RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3168 Petitioner: Accepted in finding of fact 1. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4. 7. Accepted in finding of fact 5. 8-11. Accepted in finding of fact 3. Respondent: Accepted in finding of fact 1. Covered in preliminary statement and in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4. 7. Accepted in finding of fact 5. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1500 Edgar Lee Elzie, Esquire P. O. Box 82 Tallahassee, FL 32302 Burton M. Michaels, Esquire Cedars Executive Center, Building C 2630 North Monroe Street Tallahassee, FL 32399-1560
The Issue Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
