The Issue Whether Petitioner, Heike Stoll (f/k/a Heike Bybee), has standing to assert a claim or right to any portion of her former husband’s Florida Retirement System (“FRS”) benefits as an “innocent spouse” pursuant to Article II, Section 8(d) of the Florida Constitution, and section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Mr. Bybee is a member of the FRS Investment Plan by virtue of his former employment as a deputy with the Sarasota County Sheriff, an FRS participating employer. On October 6, 2017, in Sarasota County Circuit Court Case Number 2017CF001018, Mr. Bybee was found guilty by jury verdict of the following felonies under Florida law: Kidnap- Commit or Facilitate Commission of Felony; Crimes Against Person-Exploitation Elderly or Disabled Adult $20,000 to $100,000 dollars; Fraudulent Use of Personal Identifying Information (8 counts); and Computer Crime to Defraud or Obtain Property (3 Counts) (referred to collectively as the “felony convictions”). On October 6, 2017, judgment was entered against Mr. Bybee adjudicating him guilty of the felony convictions. The SBA notified Mr. Bybee that his felony convictions required forfeiture of his FRS benefits under section 112.3173(2)(e), Florida Statutes. Mr. Bybee did not file a petition for hearing to challenge the Notice of Forfeiture or otherwise assert that his felony convictions did not warrant forfeiture of his FRS benefits under the forfeiture statute. Mr. Bybee’s interest in his FRS benefits is subject to forfeiture due to his commission of the crimes, and his felony convictions. Ms. Stoll was married to Mr. Bybee on August 27, 1994. On or about May 9, 2017, Ms. Stoll filed her Petition for Dissolution of Marriage in Manatee County (Circuit Court Case Number 2017-DR-2067) asserting her interest in, inter alia, Mr. Bybee’s FRS benefits. On December 8, 2017, Ms. Stoll filed an “FRS Investment Plan Petition for Hearing” asserting her claim of entitlement to her spousal share of Mr. Bybee’s FRS benefits as an “innocent spouse.” On February 26, 2018, Mr. Bybee and Ms. Stoll executed a Marital Settlement Agreement. As to retirement accounts, Mr. Bybee and Ms. Stoll agreed to the following: Retirement Accounts/Pension. Wife shall receive as her sole property, and all equity and value therein, all retirement accounts and/or pensions in the Husband’s sole name, in the joint name of the parties, and/or in the Wife’s sole name, free and clear of any claims or interest which Husband may have thereto. Specifically, Husband has a pension and/or retirement account through the County of Sarasota Sheriff’s Department, State of Florida. Wife shall receive as her sole property, and all equity and value therein, in said pension and/or retirement account, free and clear of any claims or interest which Husband may have thereto. Further, Husband assigns, transfers, and relinquishes any legal or equitable claims, causes of action, or remedies of any nature against the pension and/or retirement account through the County of Sarasota Sheriff’s Department, State of Florida; and Husband shall fully cooperate with Wife in any and all respects as necessary for Wife to pursue any such legal or equitable claims, causes of action, or remedies related any manner said pension and/or retirement account. Ms. Stoll was not charged with or convicted of any crimes related to Mr. Bybee’s felony convictions. Ms. Stoll’s testimony was credible that she was unaware of Mr. Bybee’s crimes, and had not benefited from them in any fashion. On April 16, 2018, a Final Judgement of Dissolution of Marriage was entered in Manatee County Circuit Court Case Number 2017-DR-2067 that “approved, ratified and incorporated” the marital settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner is not entitled to her former husband’s retirement benefits, because he was a public employee convicted of specified offenses; and pursuant to section 112.3173, he forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account upon committing the crimes. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2018.
The Issue Whether Petitioner, who was convicted of three felony counts in federal court, must forfeit his rights and benefits under the Florida Retirement Systems (FRS), pursuant to Section 112.3173, Florida Statutes (2006).1 Whether Petitioner's conviction in U.S. District Court in the underlying criminal case is not final because a petition for writ of habeas corpus, based upon ineffective assistance of trial counsel, is pending in the U.S. District Court.
Findings Of Fact Based on the joint exhibits and joint stipulation of facts submitted by the parties, the following findings of fact are made: The Division of Retirement (Respondent) is charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system, as defined by Florida law. As such, Respondent's proposed action regarding the forfeiture of Petitioner's rights and benefits under the FRS are subject to administrative review. Petitioner was formerly employed by the Charlotte County Sheriff's Department as a deputy sheriff. Petitioner retired from the aforesaid employment and began receiving FRS benefits in March of 2003. Petitioner is a special risk class member of the FRS. On May 28, 2003, Petitioner was charged by Incident in the U.S. District Court for the Middle District of Florida, Fort Myers Division, in case number 2:03-cr-00065, with (1) One Count of Deprivation of rights under color of law, in violation of 18 U.S.C. Section 242; (2) One Count of engaging in misleading conduct, in violation of 18 U.S.C. Section 1512(b)(3); and (3) One Count of making a false statement, in violation of 18 U.S.C. Section 1001. On September 18, 2003, a Superseding Indictment was entered charging the same offenses. Count One of the Superseding Indictment, dated September 18, 2003, provides: On or about May 21, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, while acting under color of the laws of the State of Florida, did willfully deprive C.G., a juvenile, resulting in bodily injury to C.G. and did thereby willfully deprive C.G. of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, which includes the right to be secure in his person and free from the intentional use of unreasonable force by one acting under color of law. All in violation of Title 18, United States Code, Section 242. 18 U.S.C. Section 242 provides, in relevant part: Whoever, under color of any law, . . . willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, that are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more that one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both. . . . Count Two of the Superseding Indictment provides: On or about May 22, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly engage in misleading conduct toward another person, with intent to hinder, delay or prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a Federal offense, namely, Deprivation of Rights Under Color of Law, as charged in Count One of this Indictment, by submitting to Sergeant Jerry White of the Charlotte County Sheriff's Department an incomplete and inaccurate statement regarding the arrest on or about May 21, 2002, of C.G., a juvenile. In violation of Title 18, United States Code, Section 1512(b)(3). 18 U.S.C. Section 1512(b)(3) provides, in relevant part: (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -- * * * (3) hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense . . .; Shall be fined under this title or imprisoned not more that ten years, or both. Count Three of the Superseding Indictment provides: On or about October 4, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly and willfully make a false and fictitious statement and representation of material fact in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency of the United States, in that the defendant stated and represented while being interviewed by agents of the Federal Bureau of Investigation, that on or about May 21, 2002, prior to pushing C.G., a juvenile, to the ground, the defendant threw his handgun into the window of his car, whereas the defendant then knew that on or about May 21, 2002, he did not throw his handgun into the window of his car prior to pushing C.G., a juvenile, to the ground. In violation of Title 18, United Stated Code, Section 1001. 18 U.S.C. Section 1001 provides, in relevant part: Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; Shall be fined under this title, imprisoned not more that 5 years . . . or both. The charges contained in the Superseding Indictment were committed prior to Petitioner's retirement under the FRS. On December 10, 2003, a jury returned a verdict of guilty of all three counts in the Superseding Indictment. On March 12, 2004, the Amended Judgment in a Criminal Case was entered on the aforesaid verdict, by the Honorable Anne C. Conway, United States District Judge. Therein, Petitioner was adjudicated guilty of all counts charged in the aforesaid superseding indictment. Petitioner was sentenced to a term of imprisonment in the custody of the United States Bureau of Prisons. Petitioner appealed his conviction and in an opinion issued on May 23, 2005, the U.S. Court of Appeals for the Eleventh Circuit, in case number 04-11545, affirmed the aforesaid judgment in part, vacated the same in part, and remanded the case to the District Court. See United States v. Henderson, 409 F.3d. 1293 (11th Cir. 2005), certiorari denied, 126 S.Ct. 1331 (2006). The Circuit Court issued its mandate on July 26, 2005. On May 3, 2006, a Judgment on Remand in a Criminal Case was entered by the District Court on the aforesaid verdict, wherein Petitioner was again adjudicated guilty of all counts charged in the aforesaid Superseding Indictment and was re- sentenced. An appeal was again taken and in an opinion issued on December 22, 2006, the U.S. Court of Appeals for the Eleventh Circuit, in case number 06-12816, affirmed the aforesaid judgment on remand. See United States v. Henderson, 211 Fed. Appx. 919, 2006 U.S. App. LEXIS 31565 (11th Cir. 2006). The Circuit Court issued its mandate on January 22, 2007. On July 24, 2006, Petitioner filed a Petition for Writ of Habeas Corpus and Motion to Vacate and Set Aside Sentence in the U.S. District Court for the Middle District of Florida, in case number 2:06-cv-00373. Said Petition and Motion are now pending before the U.S. District Court (M.D. Fla.). On March 19, 2007, Petitioner received the Notice of Action to Forfeit Retirement Benefits signed by Sarabeth Snuggs, State Retirement Director, by certified letter, dated March 15, 2007. The letter advised Petitioner of the proposed agency action to forfeit his FRS rights and benefits as a result of the above referenced conviction. Petitioner timely requested a formal hearing before an Administrative Law Judge to challenge the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order forfeiting Petitioner's rights and benefits under the FRS. DONE AND ENTERED this 10th day of September, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 September, 2007.
The Issue Whether Petitioner is entitled to receive Florida Retirement System (FRS) benefits from her deceased spouse’s retirement account, pursuant to FRS Option 3 (lifetime monthly benefit to joint annuitant).
Findings Of Fact Petitioner, Lettie Jones, is the wife of FRS member, James Jones, and a designated beneficiary of his FRS account. Respondent, Department of Management Services, Division of Retirement, is the state agency with the responsibility to administer the FRS. Background Findings Mr. Jones applied to the State of Florida for disability retirement on July 13, 1994. On his application, Mr. Jones noted that the “[m]uscles in [his] feet and legs [were] deteriorating.” In response to a question regarding any other physical impairments, Mr. Jones answered, “Losing strength in right hand.” The record does not reflect the effective date of Mr. Jones’ retirement. Mr. Jones suffered a stroke in April 1996. On January 27, 1997, Mr. Jones obtained from the state an “Estimate of Disability Retirement Benefits” listing the approximate monthly benefit payment amounts for all four FRS payment options. On that date, Mr. Jones also obtained Form 11o, the FRS retirement benefit election option form, and Form FST 12, the FRS beneficiary designation form. On March 18, 1997, Mr. Jones executed Form 11o, choosing Option 2 for payment of his monthly retirement benefits, and Form FST 12, designating Petitioner as primary beneficiary, and his daughter as contingent beneficiary, of his retirement account. Form 11o provides the following explanation of Option 2: 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 payments. No further benefits are then payable. Form 11o requires the spouse’s signature acknowledging the member’s election of Option 2. The spousal acknowledgment section appears in a box on Form 11o following the description of Options 1 and 2. The first line inside the box reads, in all capital letters, “THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2.” On March 18, 1997, Petitioner signed the box on Form 11o acknowledging her husband’s election of Option 2. Mr. Jones received more than 120 monthly retirement benefit payments prior to his death in 2013. Petitioner’s Challenge Petitioner alleges that Mr. Jones lacked the capacity to make an informed election of benefit payments on March 18, 1997, because he had reduced cognitive function. Both Petitioner and her daughter testified that they accompanied Mr. Jones to the FRS office on March 18, 1997, but were not allowed to “go back” with him when he met with an FRS employee to select his retirement option and execute Form 11o.2/ Petitioner admitted that she did sign the box on Form 11o, which acknowledges spousal election of Option 2, but testified that the form was blank at the time her husband presented it to her for signature. Petitioner signed the spousal acknowledgment on Form 11o the same day her husband executed the form. Petitioner introduced no evidence, other than the testimony of her daughter, that Mr. Jones suffered from reduced cognitive function on March 18, 1997. The fact that Mr. Jones suffered a stroke in 1996 is insufficient evidence to prove that he lacked the mental capacity to make an informed retirement option selection on the date in question.
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 denying the relief requested in the Petition for Administrative Hearing. DONE AND ENTERED this 25th day of October, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 25th day of October, 2016.
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
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 Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2016.
Findings Of Fact The findings of fact in the recommended order are supported by competent, substantial evidence. They are adopted with modification together with the following supplemental findings of fact and as such both constitute the complete set of findings of fact for purposes of this final order. Albury also engages in the private practice of law as a member of a law firm. He devotes a majority of his working hours in that practice and is prohibited from representing other school boards because of his work relationship with the Monroe County School Board (the School Board). Until 1980 or 1981, Albury utilized his private law office and his private secretary to perform his duties as school board attorney. There is no evidence that this was for the convenience of the School Board, and it was a known fact that he performed his work from his private law office. The new school board office was renovated in 1980 or 1981, but no office was set up for Albury until late 1983. At that time, one room was made available to both the school board members and to Albury as school board attorney who jointly shared the one room. Prior to late 1983, that room was used by a school board employee who retired in mid-1983. Albury spends very little time in this office since a majority of his duties are performed elsewhere. Until relatively recently, Albury's private secretary did most of his secretarial work in connection with his school board representation. She was a long time employee and very familiar with his working habits, etc. When he left his employment, his new secretary who was less familiar with his habits and school board matters did less work in this area. Consequently, Albury used any one of three school board secretaries for assistance. He does not supervise any of the three secretaries and must request permission from their supervisors before having them perform work for him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Hilary U. Albury eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 22nd day of May, 1984.
The Issue Whether Petitioner is entitled to a refund of retirement contributions for the period from February 1, 1960, through January 1975.
Findings Of Fact Until January 1975, the Florida Retirement System and its predecessor, the State and County Officers and Employees Retirement System (SCOERS), were contributory retirement plans, in which state employees contributed a portion of their wages toward their retirement benefits. In January 1975, FRS became a non-contributory retirement plan, in which the employer paid all contributions to the plan. On February 1, 1960, Petitioner, who was then known as Rebecca Jamis or James Lee, began her state employment at Florida State Hospital (FSH), located in Chattahoochee, Florida. During her employment, Petitioner was enrolled in the state’s retirement plan and contributed $2,188.01 to that plan. In 1980, Petitioner was convicted of a felony offense and was sentenced to prison. She began serving her sentence in state prison in June 1980. Due to her imprisonment, Petitioner’s employment at FSH terminated on July 29, 1980. At some unknown date, Respondent received form FRS-M81 requesting a refund of Petitioner's contributions to the state’s retirement plan. Pursuant to the state's document retention policy, the original form was destroyed many years ago with a microfilmed copy of the front of the form retained by DMS. The microfilmed copy of this form does not reflect the date the form was signed. Additionally, except for the agency number and various signatures, information contained in the refund request form was typed in. The date of termination of Petitioner’s employment was also typed on the form, indicating the form was completed after Petitioner was imprisoned. More importantly, the form was purportedly signed by Petitioner with the name she used at the time. However, the address on the request was not Petitioner’s residence but was the 1980 address of Florida State Hospital Credit Union. At the time, Petitioner had a loan at the credit union, although she denies having an account there. Petitioner also did not hear any more from the Credit Union about her loan and does not know what happened to it. The regularly kept records of the Division indicate that on November 4, 1980, pursuant to this request for refund, Respondent issued Warrant No. 264829 in the amount due Petitioner for a refund of her retirement contributions. The warrant was issued to Petitioner and mailed as instructed to the address of the credit union. Again due to the passage of time, a copy of this warrant is no longer available. Moreover, the credit union records are not available. However, Charlene Fansler performed a search of un- cashed state warrants for Warrant No. 264829. The warrant was not on the list of warrants that remained outstanding. Further, the warrant had not escheated to the State as abandoned property. As such, the evidence demonstrated that the warrant was paid by the State. In 1990, at the age of 60 and several years after her release from prison, Petitioner requested a refund of her retirement contributions. On May 24, 1990, Respondent denied Petitioner’s request based on the 1980 refund of those contributions. At the time, Respondent did not advise Petitioner of her chapter 120 hearing rights; and therefore, did not provide Petitioner with a clear point of entry for an administrative hearing. However, Petitioner was clearly aware that DMS claimed that she had been issued a refund of her contributions and was, therefore, not entitled to a further refund. Petitioner took no action in 1990 even though she did not personally receive the 1980 refund because and claimed to not have signed the refund request form. In 2012, 32 years after the 1980 warrant was issued and 22 years after the 1990 denial of her request for refund, Petitioner, at the age of 82, again requested a refund of her retirement contributions based on her claim that she did not sign the 1980 refund request form and the fact that she did not personally receive the refund warrant. Respondent submitted the microfilmed copy of the signed refund request form and known handwriting exemplars of Petitioner's signature to the Florida Department of Law Enforcement (FDLE) laboratory for analysis. Kesha White, a handwriting analyst with FDLE, analyzed the documents and concluded that they were more likely than not signed by the same person. Her finding was not conclusive due to the limits of analyzing signed documents preserved on microfilm. Indeed, the signatures on the refund form and the known handwriting samples of Petitioner's signature are very similar and appear to be by the same person. In this case, the better evidence demonstrates that Petitioner signed the 1980 refund request form and, due to the passage of time, has simply forgotten that she did so. By signing that form, Petitioner instructed Respondent to issue and mail the warrant to the address for the credit union listed on the form. Respondent complied with that request. Given these facts, Petitioner is not entitled to another refund of her retirement contributions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order finding that Petitioner was issued a refund of retirement contributions for the period from February 1960, through January 1975, and dismissing Petitioner's request for hearing. DONE AND ENTERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 21st day of May, 2013. COPIES FURNISHED: Rebecca Thomas 1929 Hamilton Street Quincy, Florida 32351 Thomas E. Wright, Esquire Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 Dan Drake, Director Division of Retirement Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
The Issue Whether the Petitioner should be permitted to return his retirement contributions and be reinstated in the Florida Retirement System so that he can apply for disability benefits from the Florida Retirement System.
Findings Of Fact Petitioner is a thirty-four year old man, having left high school in the eleventh grade in order to get married, but later took the GED test to qualify as a high school graduate. Some years later he was informed by an Ophthalmologist that he had fallen into the bracket of being legally blind, a status which categorizes a person who has ten percent (10%) or less vision. Petitioner can and does read. He worked for a bakery which entailed work with machinery and required extensive reading, but was advised by the ophthalmologist to find a job where he would not be required to work with machinery and which did not require extensive reading. Petitioner began participating in the State and County Officers and Employees Retirement System on July 1, 1969, when he became a partner in a blind vending stand. He elected to become a member of the Florida Retirement System on December 1, 1970. Petitioner attended two (2) agency meetings at which retirement was discussed. He stated that he had changed from the State and County Officers and Employees Retirement System (Chapter 122, Florida Statutes) to the Florida Retirement System (Chapter 121, Florida Statutes), and was prompted to make the change because a senior partner in the business who had been there for many years said that it was a good idea for him and for the younger partner to sign into the new system. He stated that there probably was a discussion relative to the merits of the new retirement system but that he did not remember anything about it. He did, however, sign the card to change retirement systems. On June 1, 1971, Petitioner suffered some type of injury to his back which was subsequently diagnosed as a sprain. Petitioner received medical treatment and returned to work where he continued to work for the Bureau of Blind Services for approximately three years, resigning November 11, 1974. On March 5, 1975, Petitioner obtained a lump sum as a settlement for this disputed claim under the Florida Workmen's Compensation Act. Petitioner went on leave February 5, 1974, after supplying his supervisor, Mr. Eurgil G. Crawford, Administrative Vending Stand Section, Bureau of Blind Services, with a letter from the physician stating that Petitioner had a "nervous condition." In a letter of October 10, 1974, Mr. Crawford advised Petitioner to either return to work or to contact them if it was not possible. He also stated that the Petitioner would have sixty (60) days in which he might come back to work if he so desired, but that after that time his position would have to be filled permanently by another employee. Petitioner had had some employment problems with the other two (2) members of the three (3) man working team. The problems involved the work at the stand, cleanliness and the lifting necessary to operate the stand. He stated that he and the other two (2) members just could not get together as far as working as a team was concerned. After termination of employment, which was voluntary on the part of Petitioner, Petitioner contacted the supervisor, Mr. Crawford, and asked whether he was entitled to benefits he had contributed and was told that he was. Thereupon, Mr. Crawford sent him the necessary forms to apply for a refund. A refund was made after Petitioner had signed the proper forms and returned them to Mr. Crawford. Two (2) state warrants were issued to Petitioner, one on December 19, 1974, and a subsequent one to close out his account. Petitioner did not work after leaving the Blind Services and has not attempted to find work but receives disability benefits from Social Security based on a 15 percent permanent partial disability rating. He stated that "I have come up with a couple of not so advantageous jobs, you know, its a possibility of getting hurt and one thing and another, I haven't done anything." Subsequently, Petitioner requested information from the Respondent and, after receiving literature from them in 1976, tendered a sum of money equal to the refund he had received so he could apply for disability retirement benefits. The tender of the repayment of his contributions was denied. Petitioner applied for this administrative hearing. Petitioner contends: That he was unaware of a choice to apply for a disability rating when he signed the waiver to obtain a refund. That the supervisor owed Petitioner a special duty to inform him of the possibility of applying for disability benefits before requesting a return of his contributions. Respondent contends: That Petitioner was present at meetings at which the retirement system was discussed; he had information that caused him to transfer to the Florida Retirement System; that he knew of eligibility requirements under the Florida Retirement System and that requirements for eligibility were written in a booklet he had obtained from an employee of the retirement system and that he testified he knew of the five year eligibility requirement. That Petitioner voluntarily signed the waiver, that he had due notice and that the tender of the refund was properly denied.
Recommendation Deny the Petition. DONE and ORDERED this 18th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Townsend, Esquire Albritton, Sessums & Di Dio 100 Madison Avenue, Suite 301 Tampa, Florida 33602 Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center Tallahassee, Florida
The Issue The issues in these cases relate to the criteria required of municipal pension plans to qualify for state premium tax monies . Chapters 175 and 185, Florida Statutes, provide for pension plans for firefighters and police officers, and authorize two types of pension plans. "Chapter plans" are created by state law, and "local law plans" are created either by special act of the Legislature or by municipal ordinance. In a series of cases, various municipalities and the LEAGUE OF CITIES have challenged the DIVISION OF RETIREMENT's application of statutory criteria to local law plans. On April 11, 1996, a Final Order was entered in Case No. 95-5089RU finding that the DIVISION's policies in this regard violated Section 120.535, Florida Statutes. The Final Order in case No. 96-5089RU is on appeal to the First District Court of Appeal. On August 6, 1996, a Final Order was entered in consolidated Cases Nos. 96-2724RX, 96-2725RX, 96-2871RU, and 96-2874RU, finding that the DIVISION's policies violated Section 120.56, Florida Statutes. Specifically, the issues in these cases now under consideration, are 1) whether the CITY OF ST. PETERSBURG is entitled to premium tax monies for the 1994 and 1995 calendar years; 2) whether the DIVISION OF RETIREMENT has met the requirements of Section 120.57(1)(b)15, Florida Statutes, and demonstrated that the application of the statutory criteria to local law plans is within the scope of delegated legislative authority; 3) whether the DIVISION's promulgation of proposed rules on July 12, 1996, justifies the DIVISION's withholding of the CITY OF ST. PETERSBURG's premium tax monies for calendar years 1994 and 1995; and, 4) whether the DIVISION has acted in bad faith, thereby entitling the CITY OF ST. PETERSBURG to an award of attorneys fees and costs in this case. The gist of the CITY OF ST. PETERSBURG's Petitions is that the DIVISION is attempting by non-rule policy to impose the same requirements relating to terms, conditions, and benefits on local law plans that the DIVISION requires of chapter plans. Specifically, the alleged non-rule policies of the DIVISION of which the CITY complains are: 1) the definition of "credited service"; 2) the definition of "average final compensation"; 3) the disallowance of a Social Security offset; 4) the interpretation of "disability retirement"; 5) the requirement that all of the CITY's pension plans be in compliance in order to receive state funds; 6) the release of funds to other municipalities not found in compliance; 7) the failure to enforce Rule 60Z-1.004, Florida Administrative Code, which defines "credited service;" and, 8) the application to other municipalities of a declaratory statement issued to the City of Boca Raton. As indicated above, and set forth more fully below, the requirements imposed by the DIVISION OF RETIREMENT for local law plans to receive premium tax monies have been the subject of extensive litigation. In rejecting a challenge to the constitutionality of Chapters 175 and 185, Florida Statutes, the court in City of Orlando v. State Department of Insurance, 528 So.2d 468 (Fla. 1st DCA 1988) stated: Chapters 175 and 185 create a purely voluntary program whereby municipalities may receive state- collected taxes, imposed on property and casualty insurance premiums, with which to fund retirement programs for local police and fire fighters. In exchange for receipt of these funds, the legislature has established certain criteria under which the funds must be operated and managed. Id. at 469. The dispute in these cases again focuses on determining what criteria the legislature has established for the operation and management of such local pension plans in order to establish whether a local plan complies with the statute for purposes of receiving premium tax monies. Petitioner, CITY OF ST. PETERSBURG, and Intervenor, CITIES, take the position that Respondent, DIVISION OF RETIREMENT, has made non-rule policy statements (which are now promulgated as proposed rules), and required compliance therewith, which go beyond the criteria established by the legislature for participation in the program. Petitioner contends that such statements are "rules" under Section 120.52(16), Florida Statutes, that these "rules" violate Section 120.56, Florida Statutes, as invalid exercises of delegated legislative authority, and that the DIVISION is prohibited from applying these policies as justification for withholding premium tax monies. Respondent, DIVISION OF RETIREMENT, takes the position that the policy statements have now been promulgated as proposed rules, that the DIVISION has complied with Section 120.535(5), Florida Statutes, and is authorized to apply the policies of the proposed rules to withhold premium tax monies. The DIVISION further contends that the policy statements (now proposed rules) merely apply the provisions of Chapters 175 and 185, Florida Statutes, as intended by the legislature, and therefore the DIVISION has demonstrated pursuant to Section 120.57(1)(b)15, Florida Statutes, that the policy statements are within delegated legislative authority.
Findings Of Fact To the extent relevant, the Findings of Fact in the Final Order in case No. 95-5089RU are adopted and incorporated by reference. Parties Petitioner, the CITY OF ST. PETERSBURG (CITY), is a municipality of the State of Florida which participates in the voluntary program to receive state- collected taxes imposed on property and casualty insurance (premium tax monies) with which to fund retirement programs for its municipal fire fighters and police under Chapters 175 and 185, Florida Statutes, respectively. Intervenors, CITY OF LARGO, CITY OF PALATKA and the TOWN OF LANTANA, also are State of Florida municipalities participating in such local plans for fire fighters and police. LARGO, PALATKA and LANTANA have had their premium tax monies withheld by the DIVISION for the 1995 calendar year. Intervenor, FLORIDA LEAGUE OF CITIES, represents municipalities voluntarily participating in distribution of Chapter 175 and 185 premium tax monies to fund retirement plans for firefighters and police officers. Respondent, DIVISION OF RETIREMENT (DIVISION), is the agency of the State of Florida charged with the statutory duty to administer the voluntary program by which municipalities receive state-collected taxes imposed on property and casualty insurance (premium tax monies) with which to fund local plans under Chapters 175 and 185, Florida Statutes. Prior to 1993, the Florida Department of Insurance was the responsible state agency to administer Chapters 175 and 185, Florida Statutes. Intervenors, MICHAEL MOORE and RICHARD FEINBERG are municipal fire fighters with the CITY and have standing to intervene in this proceeding. Intervenor, RUSSELL M. RIZZO, is a municipal police officer with the CITY and has standing to intervene in this proceeding. History Chapters 175 and 185, Florida Statutes, relating to pension plans for fire fighters and police, authorize two types of retirement or pension plans. One type is called "chapter plans" and the other is known as "local law plans." Chapter plans are created under state law, and the provisions of Chapters 175 and 185, Florida Statutes, control the plans' terms, conditions and benefits. Local law plans are purely voluntary and are created either by special act of the Legislature or by municipal ordinance. The special act or municipal ordinance contain the provisions relating to the terms, conditions, and benefits of the local law retirement plan. Both chapter plans and local law plans receive funds from the state-collected premium tax on property and casualty insurance. The CITY has operated local law retirement plans for fire fighters and police since 1951. The CITY's police and fire fighter plans were first chartered by special act of the Legislature. The fire fighter charter plan has been closed to new members since approximately 1970. The CITY in 1970 established a supplemental retirement plan for fire fighters which was enacted by CITY ordinance. The CITY's police and fire fighter pension plans are subject to union negotiation, and cannot be unilaterally amended. City of Tallahassee v. Public Employee Relations Commission, 393 So.2d 1147 (Fla. 1st DCA 1981). In this respect, the CITY may not have the authority to make unilateral changes to its local law plans in order to comply with directives of the DIVISION. The CITY has voluntarily participated on a continuing basis in the program created under Chapters 175 and 185, Florida Statutes, whereby the CITY has received state-collected taxes imposed on property and casualty insurance premiums with which to fund its local plans for fire fighters and police. The CITY has received such funds until calendar year 1994. In 1986 the Legislature significantly amended Chapters 175 and 185, Florida Statutes. See Chapters 86-41 and 86-42, Laws of Florida. Chapter 86-41 pertained to municipal fire fighters; Chapter 86-42 pertained to municipal police officers. As indicated above, the constitutionality of these statutes was upheld in City of Orlando v. State Department of Insurance, supra. In section 1. of each act, the Legislature added substantially the same legislative intent language: Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide a uniform retirement system for the benefit of fire fighters as hereinafter defined, and intends, in implementing the provisions of s. 14, Art. X of the State Constitution as they relate to municipal fire fighters' pension trust fund systems and plans, that such retirement systems or plans to be managed, administered, operated, and funded in such manner as to maximize the protection of the fire fighters' pension trust funds. This chapter hereby establishes minimum standards for the operation and funding of municipal fire fighters' pension trust fund systems and plans. After the enactment of Chapters 86-41 and 86-42, Laws of Florida, the Department of Insurance undertook rulemaking to implement the provisions of the acts. The CITY and the LEAGUE challenged the proposed rules under Section 120.54, Florida Statutes. The Department's proposed rules were upheld by a DOAH Hearing Officer. On appeal, the First District Court of Appeal reversed the order of the Hearing Officer, and held that the majority of the department's proposed rules were invalid because statutory provisions governing chapter pension plans, which were not made expressly applicable by the Legislature to local fire fighter and police plans, did not preempt municipal power with respect to pension plans. Florida League of Cities, Inc. v. Department of Insurance, 540 So.2d 850 (Fla. 1st DCA 1989) review denied 545 So.2d 1367 (Fla. 1989), [hereinafter referred to as the "Rules Case"]. In 1988 the CITY and the Department of Insurance engaged in litigation regarding the compliance of the CITY's local law plans with the Department's construction of the statute. This litigation was ultimately settled by the Department's agreement not to withhold the CITY's premium tax funds. During 1990 and 1991, the Department of Insurance also engaged in litigation with numerous other municipalities regarding compliance of local law plans with the provisions of Chapters 175 and 185, Florida Statutes. The Department settled these cases and continued to distribute premium tax funds to these local law plans with the understanding that the disputed issues would be better resolved through rulemaking. The Department of Insurance conducted staff workshops to discuss rulemaking; however, the Department did not thereafter initiate formal rulemaking under Chapter 120, Florida Statutes, with regard to promulgation by rule of compliance requirements for local law plans under Chapters 175 and 185, Florida Statutes. In 1993, the Legislature transferred statutory responsibility for the administration of Chapters 175 and 185, Florida Statutes, from the Department of Insurance to the DIVISION. The legislative transfer effected a transfer of all programs as well as personnel. Since the legislative transfer in 1993, the DIVISION has made a continuous and good faith effort to present these issues to the Legislature for resolution. In this continuing effort to address these issue legislatively, during the 1996 Session, HB 1951 and SB 2484 were introduced. These bills specifically provided legislative clarification of the issues presented in these cases. Prior to the 1996 Session, the CITY filed its Petition in case No. 95- 5089RU. On April 11, 1996, the Final Order was entered in case. No. 95-5089RU holding that the DIVISION's non-rule policies violated Section 120.535, Florida Statutes. On May 10, 1996, the CITY filed its Notice of Appeal which is pending in the First District Court of Appeal, Case No. 96-1817. The DIVISION has made a continuing good faith effort to present these issues to the Legislature for resolution. As indicated above, HB 1951 and SB 2484, specifically addressing and clarifying the issues raised in these proceedings, were introduced during the 1996 Session. On April 30, 1996, HB 1951 was passed by the Florida House of Representatives; however, HB 1951 along with SB 2484 died in the Florida Senate on May 4, 1996. The 1996 Florida Legislature failed to enact any legislation addressing or otherwise clarifying the issues raised in these proceedings. On May 31, 1996, the DIVISION noticed a rules workshop addressing these issues in the Florida Administrative Weekly. On June 12, 1996, the DIVISION disseminated proposed rules. On June 21, 1996, the DIVISION conducted the rules workshop. On July 12, 1996, the DIVISION published proposed rules and amendments, 60Z-1.004, 60Z-1.006, 60Z-1.026, 60Z-1.027, 60Z-1.028, 60Z-2.017, 60Z-2.018, and 60Z-2.019, which address the issues raised in these proceedings. On July 30, 1996, the CITY and the LEAGUE OF CITIES, pursuant to Section 120.54 Florida Statutes, filed Petitions challenging the DIVISION's proposed rules. The Section 120.54 petitions, cases Nos.96-3560RP and 96-3561RP, are scheduled for hearing August 29, 1996. On August 6, 1996, the Final Order was entered in consolidated Cases Nos. 96-2724RX, 96-2725RX, 96-2871RU, and 96-2874RU holding that the DIVISION's policies violated Section 120.56, Florida Statutes. Stipulated Facts The following facts verbatim were set forth by the parties in the Prehearing Stipulation: The DIVISION admits to the authenticity of all documents contained within its files, including, but not limited to, interoffice memoranda, correspondence to and from the DIVISION and/or the Department of Insurance which are contained in the files of the Division, and any correspondence copied to the DIVISION and/or the Department of Insurance which are contained in the files of the DIVISION. The DIVISION takes the position that Sections 175.032 and 185.02, Florida Statutes, (Definitions), apply to local law plans. (The) Position of (the agency in) Declaratory Statement DMS-DR-94-18 was issued to the City of Boca Raton pursuant to Section 120.565, Florida Statutes. It is the position of the DIVISION that a plan containing a mandatory retirement age violates the Older Worker Benefits Protection Act; and that pension plans which violate this federal law are not eligible for distribution of premium tax funds under Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that fire fighters disabled from duties of a fireman as defined in Section 175.032, Florida Statutes, are eligible for disability benefits. The CITY admits that the Social Security offset contained in its supplemental fire pension plans could possibly reduce a fire fighter's pension below two (2) percent for each year of credited service; however, the CITY specifically has no knowledge that this has or will occur. The CITY admits that Sergeant Rizzo has accrued in excess of thirty- two (32) years of service. The CITY admits that the police pension plan contains a maximum pension plan benefit of sixty (60) percent of the highest pay step of the lowest rank held during the previous three (3) years, which benefit Sgt. Rizzo became eligible for after twenty-five (25) years of active service. The CITY admits after thirty (30) years of service Sgt. Rizzo will retire with a pension benefit equal to less than two (2) percent for each year of active service. The CITY admits that Sgt. Rizzo was permitted to cease all employee contributions to his pension plan after twenty-five (25) years of service. The 1994 premium taxes are withheld from the CITY by the DIVISION. Prior to 1994 the DIVISION, or its predecessor agency, the Department of Insurance, have never withheld Chapter 175 or 185 insurance tax premium moneys from the CITY. The DIVISION has not initiated the rulemaking process with regard to definition of the term "average final compensation" in Section 175.351, Florida Statutes, and there are currently no existing promulgated rules that apply to local law plan definitions for "average final compensation" for the DIVISION. The DIVISION has not initiated the rulemaking process with regard to definition of the term "average final compensation" in Section 185.35, Florida Statutes, and there are currently no existing promulgated rules that apply to local law plan definitions for "average final compensation" for the DIVISION. It is the position of the DIVISION that Rule 60Z-1.004, Florida Administrative Code, defining "credited service" contradicts Chapter 185, Florida Statutes, and is not enforced. It is the position of the DIVISION that all municipal pension plans submitted for review must comply with the non-rule policy at issue in the present case in order to receive Chapter moneys pursuant to Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that the pension plans of the City of St. Petersburg do not fulfill the requirements of Section 175.351, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the pension plans of the City of St. Petersburg do not fulfill the requirements of Section 185.35, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the term "credited years of service" as used in Sections 175.351(4) and 185.35(1)(d), Florida Statutes, is to be defined in accordance with the term "aggregate number of years of service" and "aggregate number of years of service with the municipality" under Sections 175.032(1)(a) and 185(1)(b), Florida Statutes, respectively. It is the position of the DIVISION that it has the authority under Chapters 175 and 185, Florida Statutes, and Chapter 60Z, Florida Administrative Code, to withhold Chapter 175 and 185 premium tax money to plans not in compliance with Sections 175.351 and 185.35. It is the position of the DIVISION that it has the authority to release payment of Chapter 175 and 185 premium tax moneys to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes, provided the municipality is making good faith efforts to bring the violations into compliance.
