The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of June, 2017.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner is an attorney licensed to practice law in Florida, and has engaged in the general practice of law in Perry, Florida, since his admission to the Bar in 1970. In January of 1975, petitioner was employed to act as the Board Attorney for the Board of County Commissioners of Lafayette County (the Board). Each January thereafter, the Board has reemployed petitioner as its Board attorney for the next calendar year, "providing his services remain satisfactory to the Board." Petitioner receives his annual salary, which is paid from the Board's regular salary account, on a monthly basis, as do regular County employees. He has received increases in his salary throughout his years of employment, and his raises have been in proportion to raises for other County employees. Petitioner is covered by the Board's unemployment and worker's compensation protection policies, as are other Board employees, and contributions to the Florida Retirement System (FRS) are made on his behalf by the Board. He does not receive annual leave, sick leave, or pay during vacation, holidays, or illnesses. He does not maintain time records in connection with his annual retainer or salary, but he is reimbursed for his travel expenses. In addition to his regular duties as described below, petitioner handles all litigation by or against the Board. For this service, which is outside the scope of his annual retainer, petitioner is compensated at an additional hourly fee. There is no written employment contract between the petitioner and the Board which specifies the legal services to be performed by the petitioner for the Board. Petitioner is expected to and does attend the Board's monthly meeting and is also available by telephone for consultation with the Clerk of the Circuit Court and the Board members regarding legal issues and opinions. He occasionally is requested to attend special meetings of the Board. The monthly meeting occurs on the first Monday of the month and generally lasts most of the day. Petitioner advises the Board on legal matters and prepares all resolutions, ordinances, and deeds for the Board. Petitioner's law office is located in Perry and the Board's headquarters are at the courthouse in Mayo, Florida. Petitioner has no office, no equipment, and no personnel at the Lafayette County Courthouse. While he does not hire, fire, or supervise any employees of the Board, he is permitted to and does utilize the Board's personnel, equipment, telephones, and facilities to assist him in performing legal services for the Board. He also utilizes the personnel, equipment, and facilities of his private law office in Perry to perform legal services for the Board and is not paid additional compensation for their use. Most legal papers and pleadings are prepared at his private law offices. Petitioner is not required to maintain any regular or specified office hours. Petitioner has been continuously enrolled in the FRS as an employee since 1975. No review of his actual employment status occurred until 1984. By a May 6, 1984 letter from the Division of Retirement, petitioner was advised that his enrollment was not proper and that he would be removed as a member as of July 1, 1979. At the hearing, the respondent Division modified its position and currently seeks petitioner's removal as a member of the FRS as of May 16, 1984.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner, as the Board Attorney for the Board of County Commissioners of Lafayette County, be deemed a professional person filling a temporary position, and therefore ineligible to participate in the Florida Retirement System subsequent to May 16, 1984. Respectfully submitted and entered this 6th day of March, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 6th day of March, 1985. COPIES FURNISHED: Edward B. Browning, Jr. Davis, Browning & Hardee P.O. Drawer 652 Madison, Fla. 32340 A.J. McMullian III Director Division of Retirement Cedars Executive Center Building C Tallahassee, Fla. 32303 Stanley M. Danek Assistant Division Attorney Cedars Executive Center 2639 North Monroe St. Suite 207 - Building C Tallahassee, Fla. 32303
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 1999 until 2017, Bautista was an employee of the Miami-Dade County Public Schools (“MDPS”). On August 24, 2017, Bautista resigned from his position as principal of the Miami Jackson Adult Education Center, an office he had held since 2011. Bautista departed shortly after being arrested on charges of organized fraud, official misconduct, and grand theft. In the criminal Information leading to Bautista’s arrest, the State Attorney of the Eleventh Judicial Circuit alleged, in summary, that Bautista had used his position as principal to misappropriate between $20,000.00 and $50,000.00 of MDPS’s funds for personal expenses, and had destroyed official payroll records to cover his tracks. On or about July 10, 2019, Bautista pleaded nolo contendere in the Eleventh Judicial Circuit Court to one count of official misconduct, a felony of the third degree pursuant to section 838.022, Florida Statutes, and to one count of grand theft under section 812.014, Florida Statutes, also a third- degree felony. The court withheld adjudication of guilt and placed Bautista on community control, to be followed by probation. In addition, Bautista was ordered to pay restitution to MDPS in the amount of $41,798.22. SBA is an agency of the state of Florida whose jurisdiction includes the administration of the Florida Retirement System Investment Plan (the “Plan”). By letter dated August 14, 2019, SBA notified Bautista that his rights and benefits under the Plan are forfeit as a result of his pleas of no contest to the aforementioned criminal charges, which had arisen from acts allegedly committed by Bautista as an MDPS employee. SBA offered Bautista an opportunity to request a formal administrative proceeding to contest the determination, and Bautista timely requested a hearing. As grounds for opposing the forfeiture, Bautista claims that his former employer, MDPS, failed to provide him due process of law during the run-up to his forced resignation. He complains, as well, that “procedural irregularities” in the criminal prosecution likewise deprived him of due process. Next, Bautista notes that he never admitted guilt and insists that he is, in fact, innocent of the charges to which he pleaded no contest. Finally, Bautista argues that he was not “convicted” for purposes of forfeiture of retirement benefits, because the court withheld adjudication of guilt on the criminal charges against him. To be sure, if Bautista was not afforded due process or was otherwise victimized by prosecutorial abuse or inadequate legal representation, as he alleges, then Bautista might have suffered an injury for which the law affords redress. But this proceeding is not the vehicle, and DOAH is not the forum, for hearing such disputes. It does not minimize the seriousness of Bautista’s allegations to recognize that, even if true, none of them changes the undisputed facts that he pleaded nolo contendere to the crimes of official misconduct and grand theft, each of which is a “specified offense” under section 112.3173(2)(e), Florida Statutes. Conviction of a specified offense results in the forfeiture of retirement benefits pursuant to the plain language of section 112.3173(3).1 Thus, the MDPS investigation and any “irregularities” in the criminal prosecution are irrelevant to the issues at hand, and the undersigned declines to make findings of fact concerning Bautista’s allegations in this regard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order determining that Joey Bautista forfeited all his rights and benefits under the Plan, except for the return of any accumulated contributions, when he pleaded nolo contendere to “specified offenses” committed prior to his retirement from public service. DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 7th day of December, 2020. COPIES FURNISHED: Soeurette Michel, Esquire The Michel Law Firm, LLC Post Office Box 245131 Pembroke Pines, Florida 33024 (eServed) Rex D. Ware, Esquire Moffa, Sutton & Donnini, P.A. 3500 Financial Plaza, Suite 330 Tallahassee, Florida 32312 (eServed) Jonathon W. Taylor, Esquire Moffa, Sutton & Donnini, P.A. Trade Center South, Suite 930 100 West Cypress Creek Road Fort Lauderdale, Florida 33309 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue Whether Petitioner is entitled to an award of attorney’s fees pursuant to Section 57.105(5), Florida Statutes, and, if so, what amount?
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 57.105(5), Fla. Stat.; and Order and Mandate in Case No. 1D04-4167, First District Court of Appeal. Section 57.105(5), Florida Statutes, reads as follows: (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. Subsection (5) of Section 57.105, Florida Statutes, directs the undersigned to the preceding subsections which set forth standards to be applied in the analysis of entitlement to attorney’s fees. Subsection (1) provides that reasonable attorney’s fees shall be awarded to the prevailing party to be paid by the losing party where the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the administrative tribunal or at any time before the administrative hearing, “[w]as not supported by the material facts necessary to establish the claim or defense or [w]ould not be supported by the application of then-existing law to those material facts.” The standards set forth in Subsection (1) and incorporated by reference in Subsection (5) were the result of an amendment to Section 57.105, Florida Statutes, in 1999. s. 4, Ch. 99-225, Laws of Florida. Prior to that amendment, the statute provided for the award of attorney’s fees when “there was a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party.” These new standards became applicable to administrative hearings in 2003 by s. 9, Ch. 2003-94, Laws of Florida, with an effective date of June 4, 2003. Petitioner filed his Petition for Administrative Hearing in September 2003. Accordingly, the newer standards of Section 57.105, Florida Statutes, apply to this case. In the case of Wendy’s v. Vandergriff, 865 So. 2d 520, (Fla. 1st DCA 2003), the court discussed the legislative changes to Section 57.105: [T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99- 225, s. 4, Laws of Florida. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. (Citations omitted) However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. (Citations omitted) In determining whether a party is entitled to statutory attorney's fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. (Citation omitted) In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.(Citation omitted) An award of fees is not always appropriate under section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. (Citation omitted) Wendy's v. Vandergriff, 865 So. 2d 520, 523. The court in Wendy’s recognized that the new standard is difficult to define and must be applied on a case-by-case basis: While the revised statute incorporates the ‘not supported by the material facts or would not be supported by application of then-existing law to those material facts’ standard instead of the ‘frivolous’ standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis. Wendy’s v. Vandergriff, 865 So. 2d 520, 524 citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003). More recently, the First District Court of Appeal further described the legislative change: The 1999 version lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105, Florida Statutes . . . Significantly, the 1999 version of 57.105 ‘applies to any claim or defense, and does not require that the entire action be frivolous.’ Albritton v. Ferrera, 913 So. 2d 5, 6 (Fla. 1st DCA 2005), quoting Mullins v. Kennelly, supra. The Florida Supreme Court has noted that the 1999 amendments to Section 57.105, Florida Statutes, “greatly expand the statute’s potential use.” Boca Burger, Inc. v. Richard Forum, 912 So. 2d 561, 570, (Fla. 2005). The phrase “supported by the material facts” found in Section 57.105(1)(a), Florida Statutes, was defined by the court in Albritton to mean that the “party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton, 913 So. 2d 5, at 7, n.1. Therefore, the first question is whether FAMU or its attorneys knew or should have known that its defense of Dr. Jain’s claim was not supported by the material facts necessary to establish the defense when the case was initially filed or at any time before trial. That is, did FAMU possess admissible evidence sufficient to establish its defense. The parties filed a Pretrial Stipulation the day before the hearing. The Pretrial Stipulation characterized FAMU’s position as follows: It is the position of the University that Dr. Babu Jain retired at the close of business on May 30, 2003, pursuant to the provision of the DROP retirement program. Dr. Jain did not have the right, nor the authority, to unilaterally rescind his resignation and retirement date. In a letter dated May 5, 2003, the Division of Retirement informed Dr. Jain that it was providing him with the “DROP VOID” form that had to be signed by himself and the University, for his participation in DROP to be rescinded. No University official signed that form nor agreed to rescind his retirement. On May 30, 2003, Dr. Babu Jain knew that his retirement through DROP had not been voided and that he had in-fact retired. The University included the position that Dr. Jain occupied in its vacancy announcement in the ‘Chronicle of Higher Education.’ The University, through Dr. Larry Robinson notified Dr. Jain that his retirement rescission was not accepted. Dr. Jain did not work past May 30, 2003. Finally, there was never a ‘meeting of the minds’, nor any other agreement between the University and Dr. Jain to void his retirement commitment. It [is] the University’s position that Dr. Babu Jain retired from Florida Agricultural and Mechanical University effective at the close of business on May 30, 2003. Pretrial Stipulation at 14-15. (emphasis in original) The material facts known by FAMU necessary to establish its defense against Petitioner's claim at the time the case was filed included: Petitioner’s initial Notice of Election to Participate in DROP and Resignation of Employment in which Dr. Jain resigned effective the date he terminated from DROP (designated as May 30, 2003); Dr. Robinson’s letter dated May 27, 2003, which asserted that the University was not in agreement with Dr. Jain's decision and that the decision to terminate from DROP is a mutual one; Dr. Robinson's letter of May 30, 2003, which informed Dr. Jain that the two summer semester employment contracts were issued to him in error and informing Dr. Jain that he would be paid through May 30, 2003, his designated DROP date; the refusal of anyone from FAMU to sign the DROP-VOID form provided to Dr. Jain by the Division of Retirement; the reassignment of another instructor to take over Dr. Jain’s classes the first Monday following the designated DROP termination date; and the Refund of Overpayment of Salary Form and resulting salary deduction from Dr. Jain’s sick leave payout. It is difficult to determine what, if any, additional facts FAMU learned through discovery. That is, whether deposition testimony of FAMU officials enlightened FAMU or its attorneys as to material facts not known at the time the case was filed by Dr. Jain, is not readily apparent. However, a review of the pre-trial depositions reveals material facts which supported FAMU’s defense that the summer contracts were issued in error and that there was no meeting of the minds between the parties regarding voiding Dr. Jain’s DROP participation. In particular, Dr. Robinson, Provost and Vice- President for Academic Affairs, testified in deposition that when he signed Dr. Jain’s summer employment contracts on May 20, 2003, he had no knowledge of Dr. Jain’s participation in the DROP program; that he first became aware that Dr. Jain was in DROP with a DROP termination date of May 30, 2003, upon receiving a May 21, 2003, memorandum from Nellie Woodruff, Director of the FAMU Personnel Office; and that Dean Larry Rivers did not have the authority to issue work assignments for any of his faculty beyond their DROP dates. Additionally, Dr. Henry Williams, Assistant Dean for Science and Technology, testified in deposition that when he signed the Recommendation for Summer Employment on May 5, 2003, which recommended Dr. Jain for teaching summer courses beginning May 12, 2003, he was unaware that there was a 30-day window during which a DROP participant could not be employed. Obviously, when the undersigned weighed all of the evidence, including evidence presented at hearing which is not part of this analysis, it was determined that the preponderance of the evidence was in favor of Dr. Jain’s position. However, that is not the standard to be applied here. The undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU possessed admissible evidence sufficient to establish the fact that it did not give written agreement to his decision to abandon DROP and resume employment if accepted by the finder of fact. While the finder of fact ultimately did not agree with FAMU, FAMU possessed the material facts necessary to establish the defense, i.e., admissible evidence sufficient to establish the fact if accepted by the trier of fact, when the case was filed and prior to the final hearing. The second question is whether FAMU’s defense would not be supported by the application of then existing law to those material facts, when the case was initially filed or at any time before the final hearing. In the Pretrial Stipulation, the parties referenced Sections 121.091(13) and 121.021(39), Florida Statutes, as provisions of law relevant to the determination of the issues in the case.2/ These statutory provisions were also referenced by the undersigned in the Recommended Order as “two competing statutory provisions.” Recommended Order at 15. Subsection 121.091(13), Florida Statutes, establishing the DROP program, was created by s. 8, Ch. 97-180, Laws of Florida, with an effective date of January 1, 1999.3/ Section 121.091(13), Florida Statutes (2003), read as follows: DEFERRED RETIREMENT OPTION PROGRAM.--In general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation in the DROP does not guarantee employment for the specified period of DROP. Participation in the DROP by an eligible member beyond the initial 60-month period as authorized in this subsection shall be on an annual contractual basis for all participants. Section 121.021(39)(b), Florida Statutes (2003), read as follows: 'Termination' for a member electing to participate under the Deferred Retirement Option Program occurs when the Deferred Retirement Option Program participant ceases all employment relationships with employers under this system in accordance with s. 121.091(13), but in the event the Deferred Retirement Option Program participant should be employed by any such employer within the next calendar month, termination will be deemed not to have occurred, except as provided in s. 121.091(13)(b)4.c. A leave of absence shall constitute a continuation of the employment relationship. Unlike the situation in Albritton, supra, the DROP program was relatively new and the statutes creating the same were not well established provisions of law. Dr. Jain was in the first “class” of DROP for FAMU. FAMU and its lawyers did not have the benefit of established case law that discussed DROP and its provisions when this case was filed or at any time before the hearing. While general contract law also came into play, it had to be considered in the context of the DROP program, which had no precedent of case law. FAMU argues in its Response to the Motion for Attorney's Fees that it interpreted the provision in Section 121.091(13), Florida Statutes, that requires written approval of the employer to be either the DROP VOID form provided by the Division of Retirement or a written document, executed by the designated University official, specifically approving Petitioner's decision. "The University did not believe the employment contracts that were issued to Petitioner in error, would constitute written approval." FAMU's Response at 5. This argument is consistent with the position FAMU took in the Pretrial Statement quoted above, that there was never a meeting of the minds "or any other agreement" that Dr. Jain's retirement rescission was accepted. A critical conclusion in the Recommended Order is found in paragraph 38: "Moreover, while the FAMU administration did not sign the DROP-VOID form, the contracts issued to Dr. Jain constitute written approval of Dr. Jain's employer regarding modification of his termination date." FAMU also took the position in the Pretrial Stipulation that Dr. Jain did not work past May 30, 2003, based upon the material facts recited above. Under that reading of the facts, Dr. Jain did not work during the next calendar month after DROP, and, therefore terminated employment consistent with the definition of "termination" in Section 121.021(39)(b), Florida Statutes. Again, while the undersigned did not agree with FAMU's application of the material facts to the then-existing law, FAMU's interpretation was not completely without merit. See Mullins v. Kennerly, 847 So. 2d 1151, 1155. (Case completely without merit in law and cannot be supported by reasonable argument for extension, modification or reversal of existing law is a guideline for determining if an action is frivolous.) Accordingly, the undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU did not know and could not be expected to know that its defense would not be supported by the application of then-existing law to the material facts necessary to establish the defense. Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is ORDERED: Petitioner’s Motion for Attorney’s Fees is denied. DONE AND ORDERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2006.
The Issue Whether or not the Respondent, State of Florida, Department of Administration, Division of Retirement, was in error in refusing to allow the Petitioner, John S. Forster, Jr., a/k/a John S. Forster to repay his contributions to the Florida Retirement Systems after he had requested and been granted a refund of his contributions made to the Florida Retirement Systems.
Findings Of Fact John S. Forster, Jr. applied for a job with the University of North Florida, Jacksonville, Florida. That application was under the name John S. Forster. He was given employment by the University and commenced the job. His position was as Store Keeper II. That job involved the receiving and distribution of incoming materials which the University was purchasing. Sometime in the middle to late part of February, 1976 the Petitioner suffered an injury in his employment and was required to be away from his work. During the course of the treatment of the Petitioner and subsequent contact by the employer, it was discovered that the Petitioner had on several occasions given false answers on his employment applications and medical questionnaires. Specifically, in answering questions propounded to him about former serious illness or operations, he had answered in the negative when in fact he had had a back condition which required surgery. This finding is borne out by the Respondent's Exhibits 2, 3 and 4, admitted into evidence, which are employment questionnaires and medical questionnaires completed by the petitioner. After the discovery of the false answers and subsequent to the Petitioner having been away from his employment for an extended period of time, a decision was made to terminate the Petitioner from his employment with the University of North Florida. Upon receiving the notice of termination the Petitioner had no further contact with the University of North Florida and did not attend any form of exit interview, as is the policy of the University. However, prior to his employment, the University had given an orientation session in which he was made familiar with the right that he had under the Florida Retirement Systems, to include the distribution of certain brochures of information. It is not clear how the Petitioner obtained the form, but he did obtain a form which is a form utilized for requesting refund of contributions to the Florida Retirement Systems. This form may be found as Respondent's Exhibit 1, admitted into evidence. The form was completed in its entirety by the Petitioner, with the exception of the portions which are to be completed by the last Florida employer. The portions to be completed by the Florida employer were not completed. effectively what the form did was to instruct the, Petitioner that his application for refund would waive, for him, his heirs and assignees all rights, title and interest in the Florida Retirement Systems. This waiver constitutes a waiver in law on the question of any rights the Petitioner, his heirs and assignees would have under the Florida Retirement Systems. The waiver becomes significant because the Petitioner went to a social security office and discovered that he would possibly be entitled to certain benefits due to the injury he suffered on the job with the University of North Florida, and those benefits would accrue to the Petitioner as a member of the Florida Retirement Systems. Notwithstanding that possible right to recovery, the Petitioner may not recover any compensation from the Florida Retirement Systems, due to his voluntary withdrawal from the Florida Retirement Systems by his refund request dated May 7, 1976. This withdrawal was made without coercion and without the knowledge of the University of North Florida and without the responsibility on the Dart of the University of North Florida or the Florida Division of Retirement to give any instructions on the implications of such a refund being granted. The Petitioner now has received his contributions from the Florida Retirement Systems and is not entitled to further relief as petitioned for.
Recommendation It is recommended that the Petitioner, John S. Forster, Jr. also known as John S. Forster, be denied any right to repay his contributions into the Florida Retirement Systems as a means to receiving compensation on the injury received while employed by the University of North Florida. DONE AND ENTERED this 17th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John S. Forster, Jr. 11615 Jonathan Road Jacksonville, Florida 32225 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-C - Box 81 Tallahassee, Florida 32303
The Issue The issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985.
Findings Of Fact On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact. The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence. The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3. The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence. The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause. The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the 780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June 30, 1985. The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66. DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1990.
The Issue Whether Petitioner is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 2001
The Issue The issues in this proceeding are whether the Petitioner abandoned an employment position with the Florida Parole and Probation Commission, and whether she was properly separated from employment with the Commission based upon abandonment. Petitioner contends that her failure to report for work with the Commission did not constitute an abandonment because the Commission's offer of employment was presented in such a manner as to make it impossible for the Petitioner to appear for work. The Commission contends that the Petitioner failed to report for work with the Commission for three consecutive workdays, that her failure to report was not authorized, and that she therefore abandoned her position with the Commission.
Findings Of Fact Prior to 1980, Petitioner had been employed with the Florida Parole and Probation Commission at its Pensacola office as a Parole Agent. Her employment was terminated, and she pursued a proceeding before the Florida Career Service Commission. The Career Service Commission ordered that the Parole and Probation Commission reinstate her to her former position and that she receive back pay and benefits. The Petitioner had moved to Tallahassee, and the Commission sought to accommodate her by offering her a position in Tallahassee. There were no immediate vacancies. The Petitioner was offered a position as Administrative Assistant to the Chairperson of the Commission. The position was at a lower pay grade than Petitioner had been in, and she declined the position. The Commission considered itself to be under an obligation to place Petitioner in a position similar to the one she had held previously. The 1980 session of the Florida Legislature authorized ten new positions to the Commission. Although the effective date of the authorization was July 1, 1980, the positions were only funded to commence in October, 1980, and to run through the remainder of the fiscal year. The Commission concluded that an emergency existed for filling two of the authorized positions. The Commission decided to take steps to fill a "Parole Examiner I" position and, a "Revocation Specialist" position immediately, rather than to wait until October In order to accommodate the immediate filling of those positions, the filling of other newly authorized positions would be delayed until subsequent to October. The Commission advertised for the Parole Examiner I and Revocation Specialist, positions by Job Opportunity Announcements dated July 7, 1980. The application deadline was July 18, 1980. These were the first professional level vacancies that the Commission had had in its staff other than the Administrative Assistant position since the time that the Career Service Commission ordered that Petitioner be reinstated. Commission personnel commenced to interview qualified applicants after July 18. At some point, consideration was given to offering one or both of the positions to the Petitioner. Commission personnel contacted Petitioner on July 28, 1980, and offered her the Parole Examiner I position. Petitioner was also advised that she could be considered for the Revocation Specialist position, which was at a higher pay grade than the position that Petitioner previously held. A letter confirming this was sent by the Commission to the Petitioner. The letter was dated July 28, 1980. By letter dated August 1, Petitioner stated that she would like to be considered for the Revocation Specialist position. On Wednesday, August 6, 1980, the Commission's Personnel Manager advised Petitioner that she was being offered the Revocation Specialist position and that she would be expected to report to her supervisor the following Monday, August 11, 1980, at 8:00 A.M. A letter confirming the offer and the conditions, dated August 6, 1980, was delivered to Petitioner by hand delivery on August 7. These letters formally confirmed conversations that had taken place among Petitioner and various employees of the Commission. On August 8, 1980, the Petitioner contacted the Commission's Personnel Manager and expressed a desire to take annual leave so that she could report to work in the new position subsequent to August 11. The Personnel Manager informed Petitioner that she would need to make her leave request directly to Harry P. Dodd, the Commission's Revocation Administrator, who would be Petitioner's supervisor. The Petitioner was able to contact Mr. Dodd in Starke, Florida, where he was performing Commission duties. She initially indicated that she would like to take two weeks' annual leave commencing on August 11. During the conversation, she scaled this request down to three days. Mr. Dodd was unclear as to the extent of his authority to grant or deny the leave request. He contacted the Commission's Personnel Manager and legal counsel and was advised that the decision of whether to grant or deny the leave request should be made by Mr. Dodd as a management decision. Mr. Dodd concluded that the leave request should be denied, and he contacted the Petitioner by telephone and advised her of that. Petitioner did not at that time advise Mr. Dodd that she would not report for work on August 11. By letter dated August 8, 1980, Petitioner advised the Chairperson of the Commission that she would not be able to report on August 11. She did not state her intentions to report at any future date. Petitioner did not report for work on August 11, 12, or 13, 1980. By letter dated August 13, the Commission advised Petitioner that it regarded her failure to report on August 11 as a refusal of the position. Thereafter, by letter dated October 15, 1980, the Commission advised Petitioner that if she were considered an employee rather than a prospective employee in view of the Career Service Commission's reinstatement order, that she had been absent without authorized leave for three days, and deemed to have abandoned her position. She was advised of her right to seek review of that decision through a petition to the Department of Administration. Petitioner filed such a petition, and this proceeding ensued. During July and August, 1980, the petitioner was employed on a part- time basis with the Federal Public Defender's Office in Tallahassee. Petitioner did not take any steps to advise anyone at her office as to the possibility of her accepting a position with the Parole and Probation Commission. While Petitioner testified that it would have been appropriate for her to give at least two weeks' notice before leaving the Federal Public Defender's Office, it does not appear from the evidence that her failure to give such notice would have unduly burdened her employer. Furthermore, if Petitioner had immediately advised her employer when she became aware that she may obtain full-time employment with the Commission, adequate notice could have been given. Petitioner and her husband had planned a vacation for August 11 and 12, 1980. While reporting to work on August 11 would have frustrated those plans, it does not appear that Petitioner would have incurred any significant expense or unhappiness from frustration of the vacation plans other than disappointment. It would have been difficult for the Petitioner to make arrangements for day care for her children in order to report for full-time employment with the Commission on August 11. It does not appear that those difficulties were insurmountable, however, and Petitioner could, albeit with difficulty, have made such arrangements. It was not impossible for the Petitioner to report for work with the Commission on August 11, 1980. The Commission's Revocations Section was severely understaffed during the summer of 1980. Legislation had been enacted which dramatically increased the number of parole revocations, and the Commission's staff had not been increased to handle the increase. During July and August, the Revocations Section had a severe backlog. It is for this reason that the Commission decided to take immediate steps to fill a newly authorized Revocation Specialist position. In addition to the increased workload and backlog, the Revocations Section had some peculiar personnel difficulties which increased the need to immediately fill the newly authorized position. One of the Revocation Specialists was seriously ill and frequently absent. Another was scheduled for military leave, which was not discretionary. Mr. Dodd had made plans to be on annual leave which could not be changed because he was using the leave to close a real estate transaction. In view of these difficulties, Mr. Dodd's refusal to grant the Petitioner's annual leave request was justified. It does not appear that the refusal of the leave request was made on any basis other than a sound management decision. After the Petitioner failed to report for work by August 13, the Commission took immediate steps to fill the Revocation Specialist position. While there were unexplained delays in accomplishing that, the position was filled effective August 26, 1980. There is no evidence from which it could be concluded that the Commission's offer of the Revocation Specialist position to the Petitioner was other than a bona fide offer. There is no evidence from which it could be concluded that any of the persons involved in offering the position to Petitioner felt any ill will toward her. The denial of the Petitioner's request that she not be required to report on August 11, as she had been directed, was based on a sound management decision. There is no evidence from which it could be concluded that the denial was generated by any ill feeling toward Petitioner or any desire that she not take the position. Taking the position on such short notice undoubtedly would have caused the Petitioner some inconvenience in leaving the position that she had held with the Federal Public Defender's Office and arranging child care. The frustration of vacation plans would have been disappointing. These factors do not, however, justify the Petitioner's failure to report as directed, nor could it be concluded that it was impossible for the Petitioner to report as directed. In view of the fact that the petitioner was offered the Revocation Specialist position in order that the Commission could comply with its responsibility to reinstate the Petitioner and the fact that the Petitioner was receiving back pay from the Commission, the Petitioner should be viewed as having been employed by the Commission. Her failure to report for work for three consecutive days as she had been directed to do constitutes an abandonment of her position with the Commission.
