The Issue Whether Petitioner was overpaid $961.87 in 1975 when he received a refund of his retirement contributions, and, if so, whether Petitioner is required to refund that amount to the Division of Retirement before receiving any retirement benefits.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a law enforcement officer employed by the Florida Highway Patrol (FHP). Petitioner was first hired by FHP in August 1968. He left FHP on October 15, 1975, to pursue a private venture. Petitioner rejoined FHP in July 1981, and he is currently a member of the troop that patrols the Florida Turnpike. Between September 1968 and December 1974, Petitioner made monthly contributions to the FHP pension fund which, at the time, was administered by FHP. In 1970, when the Florida Retirement System (FRS) was created, Respondent took over the administration of the FHP pension fund, and Petitioner elected to participate in the FRS. The FRS was, and still is, administered by Respondent pursuant to Chapter 121, Florida Statutes. Prior to January 1, 1975, the FHP pension fund and the FRS were "contributory," meaning that the employee was required to contribute a percentage of his or her salary to the fund, and contributions were also made by the employer. Starting on January 1, 1975, the FRS became "non-contributory," meaning that the employer made all of the contributions. Petitioner's contributions to his FHP pension fund account were recorded on a four-column ledger sheet which showed the old balance, date of contribution, amount of the contribution, and the total balance. The ledger sheet was not computerized. The entries were manually typed onto the ledger sheet. Petitioner's account showed a total balance of $4,656.71 on December 31, 1974, and because the FRS was "non- contributory" after that date, the account had the same balance on October 15, 1975, when Petitioner left FHP. The total balance shown for Petitioner's account was incorrect as a result of a calculation error made when Petitioner's December 1968 contribution was entered onto the ledger sheet. Prior to that contribution, the old balance reflected on the ledger sheet was $108.89. Petitioner's December 1968 contribution was $37.45, so the total balance should have been $146.34. However, a calculation error was made and the total balance entered on the ledger sheet was $1,108.21. The effect of this error was that the balance shown in Petitioner's account was $961.87 (i.e., $1,108.21 minus $146.34) more than Petitioner had actually contributed. The error was carried forward to the following month when $1,108.21 was entered as the old balance, and all subsequent entries to Petitioner's account reflected the error. As a result, Petitioner's actual contributions as of December 31, 1974 (and, hence October 15, 1975, when he left FHP) were $3,694.84, not $4,656.71. The error was not discovered in October 1975 when Petitioner left FHP and requested a refund of his contributions. Apparently, the account was not audited prior to payment of the refund to Petitioner. In October 1975, Petitioner signed a card requesting a refund of his contributions. The address listed on the card corresponded to Petitioner's address at that time. The pertinent information from the card (i.e., the payee and the amount) was provided to the Comptroller by Respondent when a warrant was requested. The Comptroller prepared a warrant in the requested amount and returned it to Respondent along with a computer- printed label that contained Petitioner's name and social security number, the refunded amount ($4,656.71), warrant number (173213), and the date of the warrant (November 4, 1975). The label was affixed to the refund request card, and the warrant was mailed to Petitioner. The Comptroller's records show that warrant number 173213 was paid on November 21, 1975. The records do not show the payee of the warrant. Nor do the records show whether the warrant was deposited into a bank account or cashed. The cancelled warrant no longer exists. Petitioner did not recall receiving a warrant in the amount of $4,656.71. Petitioner and his wife both testified that they recalled receiving only $2,500.00. Petitioner produced a deposit slip dated November 15, 1975, showing a $2,500.00 deposit as well as bank records which showed that deposit as the only large deposit into Petitioner's account between November 1975 and February 1976. The source of the $2,500.00 check is not shown on the deposit slip. The Comptroller's records show no FRS warrants in that amount during the period of November 15, 1975, through November 21, 1975, when such a warrant would likely have been paid. Moreover, Petitioner conceded that he may have had another bank account at the time, although he could not locate any records for such an account. Petitioner received a statement of account from Respondent in June 1974 showing the balance of his account to be $4,220.47 at that time. Despite having that information and despite his financial circumstances being "tight" at the time, Petitioner did not make any inquiry to Respondent as to why he received only $2,500.00. This suggests that the $2,500.00 check was not the FRS warrant. The overpayment was first discovered in 2000 when Respondent conducted an audit of Petitioner's FRS account as part of its preparation of the member annual statement required by Section 121.136, Florida Statutes. Petitioner was first informed of the error and the 1975 overpayment in August 2001 when he received an unsolicited telephone call from Brenda Shiver, an employee of the Respondent, regarding his retirement plans and the cost of "buying back" his prior service with the FHP between 1968 and 1975. Petitioner has no current plans to retire. Nor does Petitioner have a current desire to "buy back" his prior service which would cost over $21,000, not including the amount at issue in this proceeding. The cost of the prior service is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement issue a final order that increases the cost for Petitioner to "buy back" his prior service by $961.87 to reflect the 1975 refund overpayment, but eliminates the mandate that Petitioner pay that amount as a condition of receiving retirement benefits related to his current service. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 24th day of June, 2002. COPIES FURNISHED: Richard W. Holland 17964 Lookout Hill Road Winter Garden, Florida 34787 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether deceased retiree's prior selection of Option One retirement benefit pay-out and his receipt and negotiation of retirement several checks should now be set aside, due to his wife's alleged forgery of her signature on the Spousal Acknowledgement (Form FR-11).
Findings Of Fact 1. Irvin M. Carpenter was born November 16, 1934, and died of cancer on November 18, 1997. Mr. Carpenter was employed by the Hillsborough County Aviation Authority as a police officer on September 10, 1984, and attained the rank of police sergeant at the time of his retirement. Mr. Carpenter was a member of the Florida Retirement System. 2. On January 20, 1991, Irvin M. Carpenter and Susan Ann Prescott were married. Susan Ann Carpenter is now, and has been at all time pertinent to these proceeding, employed by the Hillsborough County Aviation Authority as a police officer. Susan Carpenter is a member of the Florida Retirement System. 3. In October of 1996, Irvin Carpenter and Susan Carpenter separated and continued to live separately. Dissolution of marriage proceedings were initiated but was not finalized at the time of Irvin Carpenter's death in November 1997. At all times pertinent to these proceedings, Irvin Carpenter and Susan Ann Carpenter were husband and wife. 4. On July 8, 1997, Irvin Carpenter executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. One full page of the form provides an explanation of each option. By use of this form, Irvin Carpenter selected Option One retirement benefit payout plan. The explanation of Option One on Form FR-11 is as follows: Option 1: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. 5. The FR-11 also contained the following information in bold lettering: THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2 MARRIED YES[ ] NO [ ] IF YES, YOUR SPOUSE MUST SIGN BELOW: SPOUSAL ACKNOWLEDGEMENT : I, (Signature) Susan A. Carpenter,’ being the spouse of the above named member, acknowledges that the member has elected either Option 1 or 2. (Signature Irvin Carpenter 11-27-96 Signature of Spouse Date If your spouse does not sign, you must attach a signed statement explaining why your spouse did not acknowledge your selection. 6. The "yes" or "no" blocks requesting marriage status were blank on the FR-11 submitted by the retiree to the Agency. The Spousal Acknowledgement block contained the signature of "Susan Ann Carpenter." Susan Carpenter alleged this signature to be a forgery. 7. The form FPR-11 also contained the following statement in capital letters: I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES. I ALSO UNDERSTAND THAT I CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, OR CHANGE MY TYPE OF RETIREMENT (REGULAR, DISABILITY AND EARLY) ONCE MY RETIREMENT BECOMES FINAL. MY RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED. 8. Between the date of his retirement and the date of his death, Irvin Carpenter received, cashed, or deposited a minimum of three retirement checks from the Florida Retirement System, pursuant to his selection of Option One benefit payout plan. 9. After the death of Mr. Carpenter, the Agency, by letter dated November 24, 1997, addressed to: FAMILY OF IRVIN M. CARPENTER, 3602 W. Tampa Circle, Tampa, Florida 33629, informed the family of the retirement benefit due beneficiaries for November and the income tax deduction therefrom. 10. By letter to the Agency dated July 13, 2000, Susan Carpenter stated: My Husband, Irvin M. Carpenter, DOB 11/16/34, SSN 263-42-0146, retired from the Tampa International Airport Police Department on 07/31/1997. At the time of his retirement, we were separated but still Married. He passed away less than three months later in November 1997. I inquired as to any benefits and informed by the Hillsborough County Aviation Authority, the parent organization of the Tampa International Airport Police Department, that he had changed his beneficiary to his daughter, Anita Carpenter. Just recently, I became aware of the Florida Retirement System provisions concerning retirement options. I ama police officer with the Tampa International Airport Police Department and these matters were covered in a pre-retirement briefing conducted by Human Resources. It is my understanding that if you are married and select option 1 or 2, the spouse must acknowledge that selection in writing. Since I had not signed any such acknowledgement, it occurred to me that my deceased husband's remaining options both provide for the joint annuitant. I posed this question to the HCAA Human Resources and was informed that my deceased husband did not retire. The Department announced his retirement, his name was added to the plaque listing retired officers and Department personnel files indicate a retirement date of 07/31/1999. I questioned my police captain and Chief of Police and both of them were emphatic that my husband retired on 07/31/1999. With my superiors providing information contrary to Human Resources, I have some doubt as to the status of my deceased husband with regards to the Florida Retirement System. Please confirm the status of Irvin M. Carpenter. Did he retire from FRS? If not, what was his status at the time he passed away? I am sure you understand the significance of my determining the correct status. Thank you for any assistance you can provide. 11. The Agency denied Susan Carpenter's request to void Irvin Carpenter's selection of Option One retirement pay-out. The Agency's letter of November 15, 2000, asserted the position that the selection cannot be changed since the retirement checks were cashed or deposited and cited the following portions of Section 121.091(6) (a), Florida Statutes: "The spouse of any member who elects to receive the benefit provided under subparagraph 1. or subparagraph 2. shall be notified of and shall acknowledge any such election." The law does not require the spouse to agree with the members' retirement option selection. The Form FR-11, Application for Service Retirement, submitted by Irvin Carpenter included Susan Carpenter's signature acknowledging that she was aware of the Option 1 selection. We receive numerous applications monthly and we do not investigate to determine if each signature is authentic. Although Mrs. Carpenter contends that her signature was forged, once a member cashes or deposits a check the option selection cannot be changed. The statutes do not require the spouse to agree with the members option selection, only to be made aware. Your request to void the Option 1 selection is denied. 12. Susan Carpenter denies having signed the Form FR-11, Application for Service Retirement submitted by Irvin Carpenter. Susan Carpenter alleges that the signature, "Susan Ann Carpenter," appearing on the Form FR-11 is a forgery. 13. During the final hearing and in the presence of the undersigned, Susan Carpenter signed "Susan A. Carpenter" three times, Petitioner's Exhibit F. At the request of the undersigned Susan Carpenter signed "Susan Ann Carpenter" once. A review of the four signature samples provided by Susan Carpenter, the sample signature, "Susan Ann Carpenter," proved to the satisfaction of the undersigned evidence of the genuineness of the written signature in dispute. Accordingly, and as a finding of fact, the Form FR-11 signature "Susan Ann Carpenter" is not a forgery. 14. Susan Carpenter's assertion that the Agency is under legal obligation to contact each spouse or otherwise verify the signature of each spouse on the Form FR-11ls received in the Agency's normal course of business is without foundation in law and in fact. 15. Only the circuit court has jurisdiction and authority in dissolution of marriage cases to enter final orders determining property rights of marital assets. Petitioner proffered no such order as evidence. Accordingly, all testimony and evidence based on alleged spousal rights and entitlements pursuant to Chapter 61, Florida Statutes, are not considered
Conclusions For Petitioner: Scott W. Fitzpatrick, Esquire Southeast Building, Suite 1500 St. Petersburg, Florida 33703 For Respondent: Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building Cc 2639 North Monroe Street Tallahassee, Florida 32399-1560
Recommendation Based on the foregoing Findings of Fact an Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Susan Carpenter's request to change the retirement option 13 selected by Mr. Irvin Carpenter, including benefits due, and denying all such other relief. lo& DONE AND ENTERED this = day of July, 2001, in Tallahassee, Leon County, Florida. 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 J2% day of July, 2001.
The Issue The issue in the case is whether supplemental payments made to the Petitioner by Brevard Community College constitute creditable compensation for purposes of determining retirement benefits under the Florida Retirement System.
Findings Of Fact From 1970 until his retirement in June 1998, Brevard Community College employed Stephen J. Megregian at an executive level. The State of Florida, Division of Retirement, manages and oversees operation of the Florida Retirement System (FRS) in which Brevard Community College (BCC) participates. In June 1990, the college adopted an Employee Benefit Plan for BCC Executive Employees. The provisions of the plan covered Mr. Megregian, an executive employee. In fact, Mr. Megregian drafted the plan, which was adopted by the college's Board of Trustees. The executive benefit plan included a severance pay benefit for plan participants. The severance benefit was calculated according to a formula using the employee's daily base pay as multiplied by the sum of "benefit days." Benefit days were earned according to employment longevity. A "severance day" calculation determined the amount of severance pay a departing employee would receive. Apparently, at some point in 1994, participants in the FRS learned that the Division of Retirement would exclude some types of compensation, including severance pay, from the "creditable compensation" used to determine retirement benefits. In June 1995, the college amended the plan to provide a severance pay "opt-out" provision to plan participants. The provision entitled plan participants who were within five years of eligibility for FRS retirement benefits to "opt-out" of the severance package and instead immediately begin to receive supplemental payments. Mr. Megregian drafted the "opt-out" provision, which was adopted by the college board. The decision to "opt-out" was irrevocable. A plan participant could not change his or her mind and take the severance package once the "opt-out" decision was made. The supplemental payments were calculated based upon the "severance days" that the employee would have otherwise earned during the year. The payments were made along with the employee's salary payment. The "opt-out" plan did not require a participant to retire after the fifth year of receiving the supplemental payment. The Petitioner asserts that the creation of the "opt- out" provision was in accordance with information provided by the Division of Retirement. There is no evidence that the Division of Retirement provided any information suggesting that the "opt-out" provision would result in an increase in creditable compensation for purposes of determining FRS benefits, or that the "opt-out" provision was an acceptable method of avoiding the severance pay exclusion. There is no evidence that, prior to March of 1998, the college specifically sought any direction or advice from the Division of Retirement as to the supplemental payments made to employees under the "opt-out" provision. The evidence as to why the college did not simply increase base salaries for employees to whom supplemental payments were being made is unclear. There was testimony that the plan was designed to avoid unidentified tax consequences. There was also testimony that the supplemental plan was designed to avoid increasing some employees base salaries beyond the percentage increases awarded to other employees. There was apparently some concern as to the impact the supplemental payments would have on other college employees who were not receiving the additional funds. There is no evidence that the Petitioner performed any additional duties on the college's behalf in exchange for the supplemental payments. The Petitioner was eligible to participate in the "opt- out" plan beginning in the college's 1995-1996 fiscal year, and he elected to do so. As a result of his election, supplemental payments were made in amounts as follows: Fiscal Year 1995-1996, $7,938.46. Fiscal Year 1996-1997, $8,147.13. Fiscal Year 1997-1998, $8,395.40. On March 21, 1998, Brevard Community College requested clarification from the Division of Retirement as to how the supplemental payments would affect a plan participant's benefit. On April 30, 1998, the Division of Retirement notified the college that the supplemental payments would not be included within the calculation of creditable compensation. The Petitioner retired from his employment at Brevard Community College on June 30, 1998. The Petitioner is presently entitled to retirement benefits under the FRS. The Division calculates FRS retirement benefits based on "creditable compensation" paid to an employee during the five years in which an employee's compensation is highest. Some or all of the three years during which the Petitioner received supplemental payments are included in the calculation of his creditable compensation. The evidence fails to establish that the supplemental payments made to the Petitioner should be included within the creditable compensation upon which FRS benefits are calculated. Under the statutes and rules governing FRS benefit determinations, the supplemental payments made to the Petitioner are "bonuses" and are excluded from the "creditable compensation" calculation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the State of Florida, Division of Retirement, enter a final order finding that supplemental payments made to Stephen J. Megregian are bonus payments and are excluded from calculation of creditable compensation for FRS benefit purposes. DONE AND ENTERED this 2nd day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of December, 1999. COPIES FURNISHED: David A. Pearson, Esquire Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A. Post Office Box 2346 Orlando, Florida 32802-2346 Robert B. Button, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The general issue to be resolved in this proceeding concerns whether the Petitioner is entitled to modify her deceased husband's retirement benefit option by changing from "Option 1" to "Option 3". Embodied within that issue is the question of whether the Petitioner's deceased husband was competent to effect a change in his retirement option from service retirement "Option 3" to disability retirement "Option 1."
Findings Of Fact The decedent, Elijah B. Hutchinson, was a teacher of math and science for the Calhoun County school district for some 31 years. In the early 1980's, his health had deteriorated significantly due primarily to diabetes mellitus, which caused a number of associated complications necessitating several hospitalizations during the early 1980's. In consideration of his deteriorating health, the decedent elected to retire in the spring of 1983. He filed an application dated May 27, 1983, seeking regular retirement benefits from the Florida Retirement System. See Exhibit 1 in evidence. In response to his application, the decedent received information from the Division advising him of his retirement benefits under the different retirement options he was entitled to select. On or about June 24, 1983, the decedent elected retirement Option 3. Option 3 retirement benefits include the retiree's entitlement to a reduced monthly retirement benefit during his lifetime with the same monthly retirement benefit being paid, after his death, to his "joint annuitant", in this case, his surviving spouse, the Petitioner. Thereafter, and before he received any benefit check from his initially-selected Option 3 retirement, the decedent appeared at the Division's offices and requested to change his type of retirement or option. On August 12, 1983, therefore, the decedent requested to change his type of retirement benefit from regular retirement to disability retirement. On that date, he requested to change his option selection from Option 3 to Option 1. See Exhibit 4 in evidence. An explanation of the benefits to be provided and the differences in the two options as to his benefits was given to the decedent by an employee of the Division. See Exhibit 4 in evidence. The decedent thereupon changed his option selection from Option 3 to Option 1. In 1983, a retirement system member receiving retirement benefits as the result of a disability could only receive benefits in accordance with either Option 1 or Option 2, if he chose to elect disability retirement. On September 16, 1983, the decedent was mailed a letter from the Division advising him that his application for disability retirement benefits had been approved by the State Retirement Director and acknowledging that he had elected Option 1 for disability retirement. Thereafter, the decedent received and cashed a number of State warrants representing payment of those retirement benefits under Option 1. See Exhibit 10 in evidence. The decedent died on March 8, 1991. The Petitioner had been unaware that he had changed from Option 3 benefits to Option 1 benefits, as delineated above. Upon learning of this, after the decedent's death, the Petitioner, on April 30, 1991, requested the Division to modify the benefits option selected by the decedent to Option 3 benefits. Her basis for requesting this change was that the decedent had not been mentally or physically competent to make an informed selection at the time he changed his Option 3 retirement benefits election to Option 1 and that, therefore, she should be allowed to modify and reinstitute his retirement election to Option 3 benefits, which would provide her the death benefits permitted under the Option 3 election. This request was denied by the Division by its "final agency action letter" dated May 21, 1991, by which the Division advised the Petitioner that based upon its records, the decedent, who had requested Option 1 retirement benefits, was added to the retirement payroll in that category for September, 1983 and that he had received benefit payments and negotiated the checks, so that, under the provisions of Rule 22B-4.002(3), Florida Administrative Code, the selection of the option could no longer be altered. The Petitioner's testimony and that of Phillip H. Hutchinson indicates that sometime in 1983, the decedent suffered a cerebral-vascular incident or "stroke". This testimony is borne out by the medical records in evidence as Petitioner's Exhibit 1, which, however, does not indicate when the stroke occurred. The Petitioner and her son maintain in their testimony that the stroke resulted in a deterioration in the decedent's mental faculties such that he could no longer manage his business affairs, pay bills, and handle financial matters in general. They maintain that this was evidenced also by a marked personality change whereby the decedent became extravagant with money, as evidenced by impulsively ordering and purchasing items which he observed advertised on television, sending money to television evangelists, and otherwise being free with donations. This was entirely different from his character and personality before he suffered the stroke, whereby he was known to be miserly with the family funds and very careful about not spending money unnecessarily. As a result of his stroke, he was no longer able to handle his business affairs; and his spouse, the Petitioner, had to assume the duties of paying family bills and otherwise handling financial and business matters for the family. When the decedent first decided to retire, he had explained to the Petitioner that he would select a retirement option which would give her something after he "passed"; and he showed her the retirement system booklet of allowable retirement options in discussing the matter with her. He never mentioned to her that he decided to or did change his option to Option 1 disability retirement. Although the Petitioner may have established that due to the stroke he suffered, the decedent may have, indeed, had difficulty attending to financial matters and overseeing and managing the family finances, the Petitioner failed to establish that at the time he made the election to select Option 1 retirement benefit, he did not possess the mental capacity to make a knowing and intelligent selection of that option and to waive his previously-selected Option 3 benefits. The evidence shows that he appeared at the Division's offices and, after an explanation of the option he chose to select, he freely and voluntarily selected that option and signed the pertinent documents attesting to it. It has simply not been demonstrated by substantial evidence that at the time the decedent made the second retirement option election, he did not understand the nature and consequences of that election, especially since it was not established by the Petitioner when he actually suffered the stroke, other than that it occurred sometime in 1983. As found above, the decedent made the election to chose Option 1 retirement benefits in August, 1983. Consequently, due to insufficient evidence, it cannot be found that the Petitioner's decedent was incompetent to knowingly and intelligently elect to receive Option 1 retirement benefits at the time he made the election.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Division denying the request of the Petitioner to modify the retirement benefits elected by the decedent from Option 1 retirement benefits entitlement to Option 3 retirement benefits entitlement. DONE AND ENTERED this 24th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrativ 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 24 day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3870 Petitioner's Proposed Findings of Fact: Accepted. Accepted, except that the evidence does not support that the stroke actually occurred in mid 1983. 3-4. Accepted. Rejected, as not being demonstrated by the preponderant evidence of record. Accepted. Respondent's Proposed Findings of Fact: 1-14. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Phillip H. Hutchinson 4115 Tanglewood S., Apt. 570 Palm Beach Gardens, FL 33410 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, FL 32399-1560
The Issue Whether the Petitioner may withdraw from participation in the Deferred Retirement Option Plan (DROP)?
Findings Of Fact The Petitioner, Henry Gohlke, is a member of the Florida Retirement System (FRS), which is governed by Chapter 121, Florida Statutes (2003). The Petitioner is employed by the Department of Agriculture and Consumer Services. The Petitioner divorced his former spouse, Joanne Marie Gohlke, on October 29, 1997, and a Qualified Domestic Relations Order (QDRO) was entered which provided that Joanne Marie Gohlke was the alternate payee of the Petitioner's retirement benefits. See Exhibit J-10. Under the terms of the QDRO, when the Petitioner retired, his future retirement benefits would be incorporated into alimony payable to Joanne Marie Gohlke, beginning with the first monthly retirement benefit payment made to the Petitioner. The payment was fixed based upon the value of the Petitioner's pension at the time, and Joanne Marie Gohlke would receive $552.05 per month. DROP is a program which permits an employee, who has qualified for retirement, to retire; draw his retirement benefit based upon the retirement option he selected; and have the money paid into a non-taxed, interest-drawing account for up to five years while the employee continues to work. At the end of the five years or such other shorter time the employee elects, the employee may cease working and receive all or a part of the money in a lump payment paying the income taxes due on the amount, or roll the money over into an Individual Retirement Account (IRA) or similar program without paying income taxes until the money is withdrawn from that account. The Petitioner testified that he queried Eddie Tanner, who at that time was a paralegal working with the Division of Retirement, about the effect of the QDRO on his DROP deposits. There is conflicting testimony about what the Petitioner was told; however, Tanner testified concerning his customary advice to persons subject to QDROs. The Petitioner was advised to seek clarification from the domestic relations court to be certain. The Petitioner elected to participate in the DROP program in March of 2003. He may continue to participate in DROP until March 28, 2008. See Exhibit J-7. When he began to receive retirement benefits, a letter was sent to him on June 25, 1998, advising him that Joanne Marie Gohlke would qualify for a $552.05 per month share of the Petitioner's accrued DROP benefit as provided in the QDRO. The letter also advised that, upon the Petitioner's ceasing to work, the moneys due Joanne Marie Gohlke would be paid to her together with the accrued interest. This letter was sent to the Petitioner's old address, and he did not receive the letter. Eventually, the Petitioner learned that his DROP payments would be subject to the allocation of $552.05 each month to his ex-wife pursuant to the QDRO. This money would be payable to his ex-wife at the same time the Petitioner accessed his DROP money. The Petitioner questioned this payment to his ex-wife. The status of DROP benefits has been litigated, and the courts have determined that DROP benefits are retirement benefits and subject to QDROs. See Ganzel v. Ganzel, 770 So. 2d 304, 306 (Fla 4th DCA 2000). Based upon this precedent, the Respondent denied the Petitioner's request not to pay the proceeds from DROP to Joanne Marie Gohlke. Upon learning that his ex-wife would receive a portion of his DROP account, the Petitioner sought to withdraw from his participation in the DROP. Although an employee may elect to continue to work at the end of five years with the permission and written concurrence of his employer, he or she would automatically lose his or her DROP moneys by continuing to work past the five-year mark.1/ There is no administrative mechanism for withdrawing from DROP which would be analogous to "un-retiring." The Respondent properly denied the Petitioner's request to withdraw from DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition be dismissed. DONE AND ENTERED this 27th day of January, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 27th day of January, 2004.
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Petitioners, as named beneficiaries of William Wenz, deceased, are entitled to a refund of the Teachers Retirement System account balance of Mr. Wenz, or whether the widow, Joanne Metzler Wenz, is entitled to receive a monthly retirement.
Findings Of Fact William Wenz was an active member of the Teachers Retirement System (TRS) when he passed away on March 27, 2002, having become a member in 1964 when he was employed as a teacher. William Wenz had approximately 35 years of creditable service in the TRS at the time of his death. Throughout his more than 30 years as a teacher, William Wenz made contributions to the TRS. When William Wenz died, his TRS account consisted of $166,285.44 in contributions and interest. William Wenz and Joanne Metzler were married on August 14, 1998. On November 9, 1998, William Wenz filed a personal history and beneficiary designation with the Division of Retirement. On that form, William Wenz designated Joanne Metzler Wenz as primary beneficiary and their children as contingent beneficiaries. On May 4, 2000, William Wenz filed a new beneficiary designation with the Division of Retirement and named his brother, Henry Wenz; his daughter, Wendy Gasior; and his son, William Kurt Wenz, as his beneficiaries. Henry Wenz and Wendy Gasior are Petitioners in this proceeding. Petitioners contend that by virtue of his executing the May 4, 2000, beneficiary form described above, William Wenz clearly intended that his retirement benefits or TRS accumulated contributions would go to his children and brother and not to his wife. In March of 2002, Joanne Metzler Wenz filed for a divorce from William Wenz. Shortly thereafter, on March 27, 2002, William Wenz died. At the time of his death, the divorce action was still pending and had not been finalized. After the death of William Wenz, Petitioner Wendy Gasior sought a refund of William Wenz's TRS accumulated contributions. The Division denied this request by letter dated June 26, 2002. In the denial letter, the Division of Retirement stated that, "under TRS law, the right of a spouse to the lifetime Option 3 benefit supercedes the beneficiary's right to a refund of contributions."
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 (1) Petitioners are ineligible for a refund of accumulated contributions on the account of William Wenz; and (2) Intervenor Joanne Metzler Wenz is eligible for a monthly retirement benefit. DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 7th day of August, 2003. COPIES FURNISHED: Derek F. Johnson, Esquire 1970 Michigan Avenue, Building D Cocoa, Florida 32922 Henry A. Wenz 658 Whitemarsh Avenue Deltona, Florida 32725 Allan P. Whitehead, Esquire Frese, Nash & Hansen, P.A. 930 South Harbor City Boulevard Suite 505 Melbourne, Florida 32901 Thomas E. Wright, Esquire Division of Retirement Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Prior to convening the hearing, a short prehearing conference was held in which it wad developed that the Division of Retirement controverted Jones' eligibility for in-line-of-duty disability retirement on the basis that Jones' disability did not arise totally from his injury suffered while a member of FRS.
Findings Of Fact Dr. Baker was called by the Petitioner and testified that his associate, Dr. Willis, had initially treated Mr. Jones in 1969 for an injury to his back. Dr. Baker testified from Dr. Willis' medical records, Dr. Willis having died since the date of Jones' treatment. Dr. Willis had treated Jones for low back sprain. Jones recovered and returned to work after the 1969 injury. On August 11, 1970, Jones again sought treatment from Doctors Baker and Willis for pain in the lower back. At this time, the trouble was again diagnosed as low back sprain (lumbar sacral sprain). Jones was treated and returned to work. On August 25, 1970, Jones was seen as a result of an ankle injury suffered in a tractor accident which did not affect his back. In February 1973, Jones injured his back stepping out of a truck. This was diagnosed as a sprain of the lower back with possible disc disease. Jones was eventually hospitalized by Dr. Baker, and Jones recovered slowly from acute muscle spasm. He returned to work in May 1973 and was told to wear a brace. However, Jones continued to have problems with his back up until June 1973 when the spasm ceased. He then reported no more difficulty until May 1974, when he injured his back lifting a can of fuel. After being injured on May 3, 1974, Jones was treated by Dr. Baker for acute muscle spasm, acute lower back sprain which affected the sciatic nerve. Dr. Baker prescribed bed rest, a bed board, and muscle relaxants. On May 10, 1974, Dr. Baker hospitalized Jones and a myelogram was done which did not reveal any rupture of the disc. Various treatments were tried and after July 23, 1974, a discogram was done which revealed the degeneration of three disc in the lower back. The condition placed pressure on the nerve roots and spinal cord. Dr. Baker said that the periods of recuperation in 1969 and 1970 were within normal limits and expressed his opinion that Jones recovered from these injuries. Dr. Baker expressed his medical opinion that the accidents that Jones suffered in 1973 and 1974 had disabled Jones by placing pressure on the affected disc which had been weakened by disease and a curvature of Jones' spine. Because of Jones' recovery from the 1969 and 1970 injuries to his back, Dr. Baker was of the opinion that these incidents had not contributed to Jones' ultimate disability. The Division of Retirement has not controverted the disability status of the Petitioner, Jones, as evidenced by its approval of regular disability benefits. As stated above, the matter in controversy was whether Jones' disability arose totally from accidents suffered while Jones was a member of FRS. The uncontroverted testimony of the medical expert, Dr. Baker, was that Jones' disability arose solely from injuries to his back occurring in 1973 and 1974, after Jones had become an FRS member. To the extent Jones' back may have been diseased in 1969, 1970 or other times prior to his entry into FRS, the record is clear that he worked and contributed to the retirement system regularly from December 1, 1970, until February 1973. Therefore, he was not "disabled," having performed his job duties for over three years. It was only after being injured in 1973, after which he had an extended recuperative period, and again in May 1974, that Jones was unable to return to his duties because of his disabilities.
Recommendation Based upon the foregoing, Jones' disability was suffered in line of duty and after he was covered by FRS; therefore, Jones is entitled to and it is recommended that he receive in-line-of-duty disability benefits. DONE AND ENTERED this 13th day of November 1975. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Matthews, Esquire Suite 210, 101 Wymore Road Altamonte Springs, Florida L. Keith Pafford, Esquire Division Attorney Division or Retirement 530 Carlton Building Tallahassee, Florida
