The Issue Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account of her late husband for the period September 1999 through February 28, 2003.
Findings Of Fact Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of Commissioners and had approximately 25 years of creditable FRS service at the time of his death. Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made. Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner. According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death. After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567. However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband. Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death. On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows: We are sorry to learn of the death of Robert Roberts on August 20, 1999. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received. If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207. At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter. In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not. Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court. The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed. On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows: This is in reference to the retirement account of Robert R. Roberts. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate. If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999. To receive the Option 3 benefit, the following documents are needed: Copy of member’s death certificate. Proof of member’s date of birth. Proof of your date of birth. Completed application, Form FST-11B. Copy of your marriage certificate. The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter. No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division. The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits: If you will furnish this information within 30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999. Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information. Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts. Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation. Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records. Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003. Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given. Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing. The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected. A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate. On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document. Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits. On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts. On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following: As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $561.35 effective March 1, 2003. To receive the Option 3 benefit, we need the following: Completed application, Form FST-11b. (Emphasis supplied) A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003. Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin, Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date. Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred. Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999. DONE AND ENTERED this 27th day of April, 2004, 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 27th day of April, 2004. COPIES FURNISHED: James C. Campbell, Esquire James C. Campbell, P.A. 4 Eleventh Avenue, Suite 2 Shalimar, Florida 32579 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether the Petitioner is entitled to back- date her disability retirement date as requested.
Findings Of Fact At all times material to the findings of this case, the Petitioner, Annie L. Gibbs, was a member of the Florida Retirement System (FRS). In 1995 the Petitioner was injured and unable to work for a period of time. Although she did return to work for an unknown period, she was unable to continue. The Petitioner seeks retirement benefits from November of 1995, the date from which she initially filed an application for benefits. She has not received benefits for the years 1996 and 1997. The Department acknowledges that it received Petitioner's application for disability retirement on or about November 30, 1995. In response, the Respondent sent Petitioner requests for additional information in order for the application to be completed. The first of these requests was directed to Petitioner on December 8, 1995. The Petitioner never submitted responses to the requests for additional information. Physician reports were required in order to confirm the Petitioner's medical condition. The Petitioner did not submit the forms. On January 26, 1996, the Respondent submitted a follow-up letter again noting that the information was needed to complete the Petitioner's application for benefits. The Petitioner maintains that she provided the forms to her physician(s) and that she could not compel them to submit the forms. For whatever reason, the forms were not tendered to the Department. Without the forms the Respondent could not approve the Petitioner's request for benefits. The Department sent a third notice to the Petitioner requesting the information on April 26, 1996. Additional notices were sent to the Petitioner. All notices went to the Petitioner's address of record where she has continuously resided since the outset of this issue. The Department maintains copies of the certified mail receipts indicating the Petitioner signed for the notices requesting additional information. The Petitioner does not dispute that the Department sent the notices. Moreover, the Petitioner does not dispute that she received such notices although she may not remember them. The Petitioner maintains that her mental state during the period of time the notices were provided was such that she was not functioning properly to adequately protect her interests in this matter. Why family members or others were unable to address this matter is unknown. The Department is required by law to follow specific guidelines in the processing of claims for disability retirement. It has followed all such procedures in this cause. The Petitioner submitted a second application for disability retirement on September 30, 1998. Thereafter the Petitioner was approved for benefits and such payments began in October 1998. In conjunction with the second application, the Petitioner submitted all forms required by the Department to process and approve the request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the Petitioner's request to backdate the application for benefits. DONE AND ENTERED this 18th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 18th day of September, 2002. COPIES FURNISHED: Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-1560 Annie L. Gibbs 10351 Quito Street Cooper City, Florida 33026-4519 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Waltraud E. Paehler, was a classroom teacher in the Clay County public school system until 1993, and says she had a total of nineteen years of service. During that time period, she participated in the Florida Retirement System, which is administered by respondent, Division of Retirement (Division). In 1992, petitioner was suffering from a number of illnesses, including chronic kidney failure and congestive heart failure, which impaired her ability to continue working as a teacher. She also suffered from depression. These conditions continued into 1993. During this time period, she was hospitalized on at least two occasions. Because her work was very stressful, and tended to exacerbate her medical condition, petitioner accepted her physician's advice and decided to resign her teaching position effective April 14, 1993. On April 21, 1993, or a week later, she executed her application for retirement and opted to take early retirement effective May 1, 1993, when she was fifty-four years of age. Even though the local school board had periodically distributed information booklets to all teachers, including petitioner, concerning early, normal and disability types of retirement, and the various retirement options were discussed annually at each school's in-service training seminar, petitioner says she was still unaware of the disability retirement option. Thus, she elected to take early retirement on April 21, 1993. Because of her age, her retirement benefits were reduced by forty percent, or five percent for each year under the normal retirement age of sixty-two. Assuming she was qualified, had she elected to take disability retirement, there would have been no penalty because of her age. At or about the time petitioner decided to resign her teaching position, her daughter, who was assisting petitioner in her personal affairs, telephoned the local school board in an effort to ascertain potential retirement options for her mother. She spoke with an unknown individual in the school personnel office who the daughter says was not "very knowledgeable." The two discussed "in general what (her) mother could do" with respect to retirement, but the daughter says she received no specifics other than the fact that her mother would be "entitled to partial pay." She also requested that an application for service retirement form be mailed to her mother. The daughter then relayed this sketchy information to her mother. Because of financial constraints, and in order to receive her benefits immediately, petitioner decided to take early retirement rather than wait until normal retirement age. After selecting the option 1 benefit, which entitled her to benefits for her lifetime only, petitioner carried the form to her school's personnel office where she executed it on April 21, 1993, before the principal's secretary, a notary public. Although the secretary could not recall the specific event, she affirmed that she would not allow anyone to sign a document who did not appear to be competent. In selecting option 1, which gave the highest monthly benefits for early retirement, petitioner acknowledged she understood the ramifications of making that choice when she did so on April 21, 1993. Thus, on that date she possessed sufficient mental capacity to know that these benefits would last only during her lifetime, and her daughters would not receive any benefits after her death. At final hearing she confirmed that, prior to executing the form, she had reviewed the various options under early retirement and selected the first option since she "figure(d) (she had) done enough for them all (of her) life, they can take care of themselves." In June 1994, petitioner read an article in a teacher trade publication and learned that a number of states offered disability retirement as an option and did not penalize retirees for early retirement due to a disability. This article prompted petitioner the following month to write a letter to the Division. When petitioner made inquiry with the Division in July 1994 concerning a change from early (service) to disability retirement, she was told that under Rule 60S-4.002(4), Florida Administrative Code, she could not do so after cashing her first check. By then, petitioner had long since cashed the first retirement check mailed to her at the end of May 1993. That advice prompted her to eventually challenge the Division's rejection of her claim on the theory that she was "incapacitated" when she made her decision to take early retirement. In support of her contention that in 1993 she lacked the necessary mental capacity to make a reasoned decision concerning her retirement, petitioner presented the testimony of three health professionals from whom she was receiving care in 1993. Their deposition testimony is found in petitioner's exhibits 1-3 received in evidence. Dr. Hardin, a family physician, was petitioner's primary treating physician from February 1992 until April 1993. In the spring of 1993, he recalled petitioner as being "confused," "in an imbalanced state," suffering "mental duress," dependent on explicit instructions for appointments, and taking a variety of prescribed medications for tobacco cessation, chronic renal failure, congestive cardiac condition, high blood pressure, cardiomyopathy, tremors, anxiety and migraine headaches. Because of these conditions, Dr. Hardin found it difficult to believe that she could "handle" a more complicated matter such as choosing a retirement option. Dr. Hardin acknowledged, however, that during the spring of 1993, he had little chance "to follow her" since another physician, Dr. Stoneburner, was managing petitioner's most important illness, renal failure. Dr. Stoneburner, a nephrologist and internist who has treated petitioner for a kidney disease since 1985, felt that in the spring of 1993 she "was not in a very good position to make a competent decision based on her emotional state." Just prior to her retirement, he observed petitioner as having "significant depression" and "a lack of desire to work." She was also taking as many as six or seven medications at one time which could "possibly" cause "someone to be confused." Based on these circumstances, Dr. Stoneburner opined that petitioner was not competent to make a rational judgment. However, Dr. Stoneburner conceded that if petitioner had been given retirement options explained in layman's terms, and had someone to assist her in explaining the various options, she could have made an intelligent decision. Kristina Crenshaw, a licensed mental health counselor, met with petitioner on four occasions between February 18 and April 12, 1993. Ms. Crenshaw found petitioner to have "significant difficulty with depression," in an "agitated, very stressed, (and) overwhelmed" condition, and with a "strong sense of uncertainty about her future." While the witness believed that petitioner would have understood a pamphlet describing her retirement options, she would not have "necessarily understood all the implications to her own personal life." The witness agreed, however, that once petitioner made a decision to resign her job, she seemed more "upbeat" and "positive." Further, petitioner had told her by telephone on April 15, 1993, that she felt "much better" after retiring from her job. The counselor did not know if petitioner was mentally competent when she opted for early retirement a week later. Nothwithstanding the testimony of the health professionals, the findings in paragraph 7 are deemed to be more compelling on the critical issue of competency, and it is found that on April 21, 1993, petitioner understood the nature and consequences of her acts, and she was capable of binding herself by the retirement application. Therefore, her request to have rule 60S-4.002(4) waived, or to have her "contract" with the Division set aside, should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a Final Order determining that petitioner was mentally competent when she elected to take early retirement and that her request to have rule 60S-4.0002(4) waived so as to permit her to file a request for disability retirement be denied. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4841 Petitioner: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 12. 4-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-9. Partially accepted in finding of fact 4. 10-11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. 14-20. Partially accepted in finding of fact 12. 21-24. Partially accepted in finding of fact 11. 25-31. Partially accepted in finding of fact 13. 32-37. Partially accepted in finding of fact 6. 38-39. Partially accepted in finding of fact 5. 40. Covered in preliminary statement. 41-43. Rejected as being unnecessary. Respondent: Rejected since the evidence shows that petitioner was employed by the Clay County School Board and not the Duval County School Board. Also, the only evidence of record as to years of service is the testimony of petitioner that she had nineteen years of service. However, this fact is not necessary to resolve the dispute. Partially accepted in finding of fact 8. Partially accepted in findings of fact 8 and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 6-7. Partially accepted in finding of fact 12. 8-9. Partially accepted in finding of fact 11. 10-12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Rejected as being unnecessary. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for the resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Mark H. Levine, Esquire 245 East Virginia Street Tallahassee, Florida 32301-1263 Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner was eligible to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS) when he applied on October 4, 2002.
Findings Of Fact Petitioner is employed by the Department of Business and Professional Regulation as a law enforcement officer, and has been since October 17, 1977 (Testimony of Petitioner). Petitioner was considered "vested" in the special risk class of the FRS when he reached ten years of service in 1987 (Testimony of Ira Gaines). On January 15, 2001, Petitioner reached 55 years of age. On October 4, 2002, Respondent received Petitioner's application to participate in the DROP. The Department of Management Services, Division of Retirement (Division), denied Petitioner's application for DROP participation because more than 12 months had passed since he first became eligible, and his opportunity to enter the program had lapsed. Petitioner testified that he was confused by the language of the educational materials on the Division's web site and thought he could defer DROP participation until he reached 25 years of service. The Division's web site stated the following regarding DROP eligibility when Petitioner became eligible: Eligibility - You are eligible to participate in the DROP when you are a participant of the Pension Plan, are vested and have reached your normal retirement date. Your "normal retirement date" is the earliest date at which you are eligible for full, unreduced benefits based upon your age and service. In most cases, you reach your normal retirement date when you are vested and reach age 62, or when you complete 30 years of service, regardless of your age (age 55 or 25 years of service for special risk members). You may make your election to participate in DROP up to 6 months before the date you plan to begin participation, and you must elect DROP participation within 12 months after you first reach your normal retirement date . . . . (Emphasis added) Petitioner admitted he never sought advice either from his personnel office or from the Division. Petitioner filed a timely request for a review of the Division's denial of his DROP application and this hearing followed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request to participate in the DROP. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. 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 30th day of June, 2003.
The Issue The central issue is whether the Petitioner is entitled to modify her deceased husband's retirement benefit option.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact. Petitioner is the surviving spouse of Lamar W. Whaley, Jr., deceased. From 1972 to 1990, Mr. Whaley was employed by the Hillsborough County Board of County Commissioners (Board) and as such was a member of the Florida Retirement System. Mr. Whaley retired from his position as a minibus driver with the Board on June 29, 1990. In anticipation of his retirement, Mr. Whaley filed an FR-9 Form with the Division of Retirement (Division). The FR-9 Form, entitled "Request for Audit," was signed by Mr. Whaley and dated November 6, 1989. The FR-9 Form is used by members of the Florida Retirement System who want estimates of the monthly payments which they will receive after they retire. The FR-9 Form provided a space where Mr. Whaley could list the name and birthdate of a joint annuitant. On the FR-9 Form, Mr. Whaley named the Petitioner and the Petitioner's birthdate in these spaces. On the line immediately after the spaces provided for name and birthdate of the joint annuitant, the FR-9 expressly states that "This is not an official beneficiary designation." By listing a joint annuitant and that individual's birthday on the FR-9 Form, the Division is able to calculate the monthly benefits that would be payable to a member under each of the four retirement options available. In response to Mr. Whaley's audit request, the Division calculated the amount of the monthly payments he and/or his survivor would receive under the four retirement options available. On or about November 22, 1989, the Division sent Mr. Whaley information which reflected an estimate of the monthly benefits he and/or his survivor would receive under each of the four retirement options from which he was eligible to select. Included with the estimate of retirement benefits sent to Mr. Whaley, was a document entitled, "What Retirement Option Should I Choose?". This information sheet listed sent to Mr. Whaley listed and described the four different options. In 1990, members of the Retirement System contemplating retirement were provided a Division Form FR-11, Florida Retirement System Application for Service Retirement (Application). The application listed the four different options and provided a brief description of each. Next to Option 1 was the following: "Benefit for the Member Only." A further notation on the application read, "SEE THE REVERSE SIDE FOR AN EXPLANATION OF THESE OPTIONS." The Application adequately described the consequences of the election of each option. The explanation read as follows: Option 1: A monthly benefit payable to you for your lifetime. This option does not provide continuing benefit to a beneficiary. Upon your death, the monthly benefit will stop and you beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. If you wish to provide a beneficiary with a continued monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial factors to the option 1 benefit. Option 2: A reduced monthly benefit payable to you for your lifetime. If you die before receiving 120 monthly benefit payments, your designated beneficiary will receive a monthly benefit payment in the same amount as you were receiving until the total monthly benefit payments to both you and your beneficiary equal 120 monthly payments. No further benefits are then payable. Option 3: A reduced monthly benefit payable to you for your lifetime. Upon your death, your joint annuitant (spouse or financial dependent), if living, will receive a lifetime monthly benefit payment in the same amount as you were receiving. No further benefits are payable after both you and your joint annuitant are deceased. Option 4: An adjusted monthly benefit payable to you while both you and your joint annuitant (spouse or financial dependent) are living. Upon the death of either you or your joint annuitant, the monthly benefit payable to the survivor is reduced to two- thirds of the monthly benefit you were receiving when both were living. No further benefits are payable after both you and your joint annuitant are deceased. (Emphasis in original text.) On January 12, 1990, Mr. Whaley executed an Application. The Application listed the Petitioner as beneficiary and indicated that the retirement option selected was Option 1. In selecting Option 1, Mr. Whaley rejected all other options. The fact that Petitioner was listed on the application as a beneficiary is of no consequence given that Mr. Whaley chose Option 1. An explanation on the back of the retirement application expressly states, "This option does not provide continuing benefit to a beneficiary." Because Mr. Whaley chose Option 1, Petitioner, as his beneficiary, would have been entitled only to a refund of Mr. Whaley's contributions in the event that Mr. Whaley's contribution exceeded the amount of monthly benefits paid to him before prior to his death. Petitioner did not assert, nor did the evidence establish that the refund provision in Option 1 applies in the instant case. Petitioner stated that Mr. Whaley could read and was not mentally impaired at the time he completed the retirement application, yet Petitioner testified that the agency did not explain to Mr. Whaley the benefits of the plan which he selected. According to the testimony of Stanley Colvin, administrator and supervisor of the Division's Survivor Benefits Section, staff members are available to provide counseling to members who come in or call with questions relative to their retirement. There is no record that Mr. Whaley ever contacted the Division with questions regarding the various options. The pastor of the church which Petitioner is a member testified that Mr. Whaley may have needed help to understand the ramifications of legal documents. Mr. Whaley's daughter also testified that her father may not have understood the retirement option he chose. Both the pastor and Mr. Whaley's daughter testified further that in conversations with Mr. Whaley, he had indicated to them that he had taken care of the legal work necessary to ensure that his was family was taken care of in the event of his death. Notwithstanding the testimony of Petitioner and others, there is no evidence that at the time Mr. Whaley selected Option 1 he did not fully understand the nature and effect of his selection. Neither does the evidence support the claim that the selection of Option 1 by Mr. Whaley was inconsistent with his desire or intention at the time the choice was made. At the time of Mr. Whaley's retirement, he was in good health. Given this fact it is not unusual that he selected the option that would provide him with the maximum monthly benefit. Statements by Mr. Whaley that he had taken care of matters and that "things were in order" do not provide substantial evidence that the selection of Option 1 by Mr. Whaley was made only because he did not fully understand the consequences of his choice. The testimony revealed that upon Mr. Whaley's death, the Petitioner was the beneficiary of his life insurance policy and also the recipient of benefits under his social security. Under these circumstances, Mr. Whaley's selection of Option 1 was not necessarily inconsistent with his statement that things "were in order" or his listing Petitioner as beneficiary on the Application. On several documents provided to and/or completed by Mr. Whaley, it was clearly stated that once a member begins to receive his benefit, the option selection cannot be changed. The information sheet, "What Retirement Option Should You Choose?," mailed to Mr. Whaley on or about November 22, 1989, contained the following provision: Option Choice Cannot Be Changed Once you begin to receive your benefit your option selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before making your decision . . . . The Application submitted to the Division by Mr. Whaley on or about January 25, 1990, contained a statement that "[o]nce you retire, you cannot add additional service nor change options." Finally, the Acknowledgment of Retirement Application sent to Mr. Whaley by the Division on or about February 8, 1990, provided in relevant part the following: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT CHECK IS CASHED OR DEPOSITED! Mr. Whaley received his first retirement check on or about the last working day in July 1990. Petitioner testified that Mr. Whaley cashed this check in July or August of that same year. By cashing that check, Mr. Whaley was precluded from thereafter changing his retirement option. By selecting Option 1, Mr. Whaley received the maximum benefits payable to him during his lifetime. However, under the provisions of retirement Option 1, upon Mr. Whaley's death, his beneficiary, the Petitioner is not entitled to receive any benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order denying the request of Petitioner to modify the retirement benefits elected by Mr. Whaley, the deceased husband of Petitioner. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 1st day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0059 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1a-1c. Rejected as not being supported by competent and substantial evidence. Respondent's Proposed Findings of Fact. 1-6. Accepted and incorporated herein. 7-8. Accepted. 9-11. Accepted and incorporated herein. COPIES FURNISHED: Gladys Whaley 3807 East Norfolk Street Tampa, Florida 33604 Robert B.Button, Esquire Division of Retirement Legal Office 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, Esquire General Counsel Department of Management Services 4050 Esplanade Way, Suite 265 Tallahassee, Florida 32399-0950
The Issue The issue presented for decision in this matter is whether petitioner is entitled to disability retirement benefits pursuant to F.S. Section 121.091(4). 1/
Findings Of Fact Having heard the testimony presented and considered the exhibits received into evidence at hearing, it is found as follows: On April 30, 1973, petitioner was employed by Metropolitan Dade County as a fire lieutenant, when he injured his back while unloading fire hoses. 2/ He then took some vacation time and returned to work for about three months. He saw a medical doctor during this time for pain in his right hip and lower back. For a while, his back pains seemed to improve, but then got worse again. In August of 1973, petitioner again injured his back at work when responding to an emergency. Dr. Ray Lopez saw petitioner after this second injury and put him in the hospital. Apparently, petitioner did not return to work after August 30, 1973. On September 10 or 11, 1973, Dr. Hubert Aronson performed surgery on petitioner and removed a herniated disc. According to Dr. Aronson, on September 25, 1973, petitioner's legs were free of pain, but he was still having some back pains, as he was on October 16, 1973. His pain in his right leg had abated somewhat after the surgery. On October 24, 1973, petitioner suffered a gunshot wound to the abdomen. The bullet entered the spinal canal and cut some of the nerve roots inside the spinal canal. Immediately after the gunshot wound, petitioner had a partially paralyzed left leg. Abdominal surgery was performed in connection with the gunshot wound. In December of 1973, a third operation was performed on petitioner. This operation was also related to the damage done by the gunshot wound. After the gunshot wound, petitioner began to have pain recurring in the right leg. Since his left leg was paralyzed as a result of the gunshot wound, he was having to use his right extremity almost exclusively in his ambulation. His complaints from this point forward relate primarily to pain in his right leg, right hip, and lower back. As noted above, petitioner did not return to work after August 30, 1973. Petitioner is now receiving benefits under a long-term disability program by Metropolitan Dade County, which determined that petitioner was, for that purpose, totally and permanently disabled as a result of the work-related accidents and was not capable of being placed in any of its approximately 500 job classifications. It was petitioner's testimony that although the pain in his right leg and hip is somewhat relieved by medication, he is still uncomfortable even with the medication. He testified that he cannot sit or stand for any long period of time and only gets relief when he lies down. He stated that although he would like to work, he does not feel that he is able to do so because of his pain and the resulting medication. Petitioner is 39 years of age, has a high school education and has been employed as a plasterer, as well as a firefighter. It was Dr. Aronson's opinion that petitioner received a twenty-five percent permanent physical impairment as a result of the work-related injuries. As to the injuries resulting from the gunshot wound, Dr. Aronson estimated the permanent physical impairment to be forty or fifty percent. The combination of the work-related injuries and the gunshot wound would be less than seventy-five percent. In answer to questions regarding petitioner's ability to work, Dr. Aronson opined that petitioner would not be able to be an active firefighter and, as to other jobs, Aronson stated that only the petitioner could answer that question because he is the one who suffers the pain. Dr. Aronson did state that, while the gunshot wound produced the greater physical impairment, the work-related injuries produced the greater disability due to the pain involved. Dr. Ray Lopez felt that the gunshot would aggravate the prior work-related injuries. Had petitioner not been shot, he may have been able to return to work in some capacity with the fire department. Even after the gunshot wound, it was Dr. Lopez's opinion that while petitioner could not return to work as an officer in the fire department, he may "potentially, eventually be rehabilitated in some other type of endeavor".
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is my recommendation that petitioner's request for disability retirement benefits be denied. Respectfully submitted and entered this 30th day of October, 1975, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675
The Issue The primary issue in this case is whether Petitioner is entitled to receive an early retirement benefit pursuant to Sections 121.091(3)(b) and 121.091(7)(b), Florida Statutes, based on an effective retirement date of February 1, 1996.
Findings Of Fact Historical Facts When he passed away on January 26, 1996, at the age of 56, Roy Hoffman, Jr., was a fully vested participant in the Florida Retirement System ("FRS"), having worked as a professor at Florida Atlantic University for nearly 27 years. Professor Hoffman's named beneficiary and joint annuitant was his wife, Petitioner Jeanne Hoffman ("Hoffman"). As such, Hoffman became entitled, upon her husband's death, to receive a lifetime retirement benefit from the FRS. By letter dated March 8, 1996, Respondent Department of Management Services, Division of Retirement ("Division"), which administers the FRS, first notified Hoffman of her eligibility to receive a benefit. The letter provided in pertinent part as follows: As the designated beneficiary and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. The Option 3 monthly benefit is payable for your lifetime and is estimated to be $1,812.58 effective February 1, 1996. To receive this benefit, you need to [submit an application and provide certain information.] If we may be of further assistance, please call us at (904)488-5207. After receiving this letter, Hoffman was uncertain about whether she should accept the benefit immediately or, alternatively, postpone the benefit commencement date until nearer her own retirement, so she called the Division for assistance. Following a telephone conversation with an FRS counselor, Hoffman was left with the impression that she would be better off waiting until she reached the age of 59.5 years to begin receiving the monthly benefit, for the benefit, she believed, would then be higher.1 The Division sent a second letter to Hoffman, which was dated April 26, 1996, and provided: Please refer to our letter dated March 8, 1996. Before we can finalize [your] account, we need [to receive] the following [items and information from you.] Hoffman did not respond to this letter. Four months later, the Division sent a third letter to Hoffman regarding her benefit eligibility. Dated August 28, 1996, this letter provided in relevant part as follows: We have not received a response from our letters dated March 8, 1996 and April 26, 1996. If we have not heard from you within thirty days of the date of this letter, the file will be placed on inactive status. It will then be your responsibility to contact us to apply for a monthly benefit. The benefit will be effective the first of the month following contact from you. By this "warning letter," the Division intended to communicate its decision that, unless Hoffman submitted an application for benefits on or before September 27, 1996, she would forfeit the right to receive an "early retirement-death benefit"2 based on an effective date of retirement ("EDR") closely tied to her husband's date of death and be deemed to have elected a "deferred monthly benefit"3 based on a post-mortem EDR tied to the Division's receipt of her application for benefits. (EDR is a critical date because that is when the benefit accrues. See § 121.021(41), Fla. Stat.4) The parties dispute whether, in fact, the warning letter reasonably notified Hoffman of the Division's decision; the issue will be taken up below. Hoffman did not take the warning letter to mean what the Division had intended to convey. Thus she had no idea that she was in jeopardy of forfeiting the right to an early retirement-death benefit. Further, she did not deliberately elect to forego receipt of an early retirement-death benefit in favor of a deferred monthly benefit. Rather, being unfamiliar with the details regarding benefits payable under the FRS, Hoffman believed that, without any present action on her part, the benefit to which she was entitled had begun upon her husband's death to accrue for her use and benefit and would continue to accumulate until she was ready to begin receiving the benefit in monthly installments. Consequently, Hoffman made no reply to the warning letter, and at some point after September 27, 1996, the Division placed her file on inactive status. For the next eight-and-a-half years, nothing relevant to this case occurred. Then, in January 2005, Hoffman met with a financial planner for advice concerning her retirement. She was 57 at the time and told the planner about the benefit she expected to receive in a couple of years as her late husband's joint annuitant. The financial planner recommended that she contact the Division straightaway. On January 31, 2005, Hoffman called the Division and was informed that, having failed to apply for an early retirement-death benefit by September 27, 1996, in accordance with the warning letter dated August 28, 1996, she had forfeited nine years' worth of retirement income, and that her only remaining option was to request a deferred monthly benefit based on an EDR of February 1, 2005, at the earliest. The Division followed this telephone conversation with a letter dated February 16, 2005, which made clear that the only benefit for which Hoffman could apply would commence no earlier than February 1, 2005. Being given no choice, Hoffman applied as instructed, with the result that the FRS began paying Hoffman approximately $2,011 per month, which it was continuing to do as of the final hearing. Thereafter, by letter dated March 1, 2005, Hoffman petitioned the Division to pay her a retirement benefit "retroactive" to February 1, 1996, the date which, had she applied for an early retirement-death benefit on or before September 27, 1996, would have been her husband's EDR, without controversy.5 The Division denied Hoffman's request, by letter dated March 15, 2005. Relying on Section 121.091, Florida Statutes, and Florida Administrative Code Rule 60S-4.0035, which will be examined below, the Division determined that it could not "pay benefits retroactive to 1996 because [Hoffman had] not compl[ied] with the Rule requiring that the application be filed timely." Hoffman requested a hearing on this determination, giving rise to DOAH Case No. 05-3200. Hoffman also petitioned the Division, pursuant to Section 120.542, Florida Statutes, to waive——or grant her a variance from——the provisions of Florida Administrative Code Rule 60S-4.0035(3)(c) upon which the Division intended to rely in rejecting her claim for an early retirement-death benefit. The Division denied Hoffman's petition for waiver or variance in an order dated August 15, 2005. Thereafter, Hoffman timely requested a hearing on the matter, which led to the commencement of DOAH Case No. 05-3679. Factual Analysis The parties sharply disagree about whether the Division reasonably notified Hoffman of the important decision (see paragraph 6, supra) that it made in late August 1996 respecting her eligibility to receive a benefit, which decision the Division intended to communicate to Hoffman via the warning letter. To recapitulate, the warning letter told Hoffman that if she failed to contact the Division by September 27, 1996, then (1) her file would become "inactive"; (2) it would be her responsibility to initiate further contact with the Division; and (3) her "benefit" would be "effective" starting the month after she contacted the Division. Yet, in fact, the Division had decided that if Hoffman did not contact the Division by September 27, 1996, then (1) she would forfeit the right to receive an early retirement-death benefit based on an EDR closely proximate to her husband's date of death; (2) the Division would treat her inaction as an affirmative election to receive a deferred monthly benefit; and (3) her benefit would be based on an EDR related to the Division's receipt of her application for benefits. It is striking, in reading the warning letter from the standpoint of a reasonable recipient, that no mention was made therein of the different types of benefits available to a surviving spouse, no explanation regarding the distinction between an early retirement-death benefit and a deferred monthly benefit was given, and no information concerning a beneficiary's right to elect the latter as an alternative to the former——much less why one might do so——was imparted. (The same can also be said of the two letters that preceded the warning letter.) It is striking, too, that neither the warning letter nor the two earlier ones mentioned EDR or its significance. Instead, the warning letter spoke of an effective date of "benefit," which, at least without more information than was contained in the letter, could be understood to refer to the date on which the benefit payments would commence as opposed to when benefits would start to accrue. The undersigned finds, therefore, that, as a matter of fact, the warning letter itself did not reasonably communicate that Hoffman was at risk of forfeiting the early retirement- death benefit and being deemed to have elected a deferred monthly benefit based on a future EDR to be determined. Put another way, although the warning letter clearly established a deadline (September 27, 1996) for making contact with the Division, its description of the consequences of letting the deadline pass without contacting the Division did not fairly match the consequences the Division actually had decided would follow such inaction. Of course, as the Division points out, the warning letter was not the only source of information about retirement benefits available to Hoffman. There were, in addition, the governing statutes and rules. Hoffman did not actually avail herself of these references, but, as the Division argues, she is presumed to know the contents of the applicable laws.6 Perhaps, armed with such knowledge, she would have——and hence should have——understood what the Division was trying to tell her in the warning letter. If Hoffman had consulted the relevant statutes, she would have learned that she was entitled to receive an early retirement benefit pursuant to Section 121.091(3), Florida Statutes, which provides as follows: EARLY RETIREMENT BENEFIT.--Upon retirement on his or her early retirement date, the member shall receive an immediate monthly benefit that shall begin to accrue on the first day of the month of the retirement date and be payable on the last day of that month and each month thereafter during his or her lifetime. Such benefit shall be calculated as follows: * * * (b) If the employment of a member is terminated by reason of death subsequent to the completion of 20 years of creditable service, the monthly benefit payable to the member's beneficiary shall be calculated in accordance with subsection (1), but shall be based on average monthly compensation and creditable service as of the date of death. The benefit so computed shall be reduced by five-twelfths of 1 percent for each complete month by which death precedes the normal retirement date specified above or the date on which the member would have attained 30 years of creditable service had he or she survived and continued his or her employment, whichever provides a higher benefit. There is no dispute that Hoffman was entitled to an early retirement benefit under Section 121.091(3)(b) when her husband's employment was terminated by reason of death after completing nearly 27 years of creditable service. The parties agree as well that, by the clear and unambiguous terms of the statute, the benefit would have been reduced by five percent per year for each of the approximately three years by which Professor Hoffman's death preceded the date on which he would have attained 30 years of creditable service. See also Fla. Admin. Code R. 60S-4.005(2)(c)(describing benefits payable upon early retirement brought about by death). If Hoffman had read Section 121.091(7)(b), Florida Statutes, she would have learned the following: If the employment of an active member who may or may not have applied for retirement is terminated by reason of his or her death subsequent to becoming vested and prior to his or her effective date of retirement, if established, it shall be assumed that the member retired as of the date of death in accordance with subsection (1) if eligible for normal retirement benefits, subsection (2) if eligible for benefits payable for dual normal retirement, or subsection (3) if eligible for early retirement benefits. Benefits payable to the designated beneficiary shall be as follows: 1. For a beneficiary who qualifies as a joint annuitant, the optional form of payment provided in accordance with [option 3] shall be paid for the joint annuitant's lifetime. Clearly, under the plain language of Section 121.091(7)(b), Hoffman was entitled to receive death benefits in the form of an early retirement benefit, for which latter her husband was eligible at the time of his death. As just mentioned, however, Professor Hoffman satisfied the conditions set forth in Section 121.091(3)(b) for an early retirement benefit, payable to his beneficiary, without reference to Section 121.091(7)(b). Moreover, because Professor Hoffman was, at the time of his death, closer to attaining 30 years' service than reaching age 62, Hoffman's early retirement benefit would be highest if calculated under Section 121.091(3)(b). Nevertheless, as Section 121.091(7)(b) is not inconsistent with Section 121.091(3)(b), there is no reason to treat them as mutually exclusive. Thus, bowing to the interrelatedness of these statutes——Section 121.091(3)(b)(early retirement benefits upon termination of employment by death) and Section 121.091(7)(b)(death benefits)——the undersigned has chosen to use the term "early retirement-death benefit" to refer to that benefit, available thereunder, which is based on an EDR in close proximity to the member's death. As an alternative to the early retirement-death benefit, Section 121.091(7) makes available to beneficiaries such as Hoffman another option, namely the "deferred monthly benefit." Had Hoffman studied the statute, she would have discovered that [t]he designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to becoming vested, but prior to actual retirement, may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his or her death and the age the member would have attained on the commencement date of the deferred benefit elected by the beneficiary, paid in accordance with option 3 of paragraph (6)(a). § 121.091(7)(h); see also Fla. Admin. Code. R. 60S-4.008(2)(b). The deferred monthly benefit allows a surviving spouse to postpone the deceased member's EDR, thereby reducing or eliminating the early retirement penalty of five percent per annum for each year the EDR precedes the member's normal retirement date.7 Postponing the EDR would make sense, most obviously, when, because of the number of years between the member's date of death and his or her normal retirement date, the survivor's early retirement-death benefit would be substantially consumed by the penalty. Because Professor Hoffman met the criteria for an early retirement benefit under Section 121.091(3)(b), however, his wife's benefit was subject to a relatively light penalty. Thus, it is unlikely that Hoffman intentionally would have made an election under Section 121.091(7)(h) for a deferred monthly benefit, had she been aware of the statute. The Division has promulgated a rule that specifies how the EDR will be determined in certain circumstances. Rule 60S- 4.0035(3)(c) was available to inform Hoffman as follows: For a member who dies prior to an effective retirement date established pursuant to paragraph (a) or (b), the effective retirement date shall be the first day of the month following the month in which the member died, provided the joint annuitant makes timely application for benefits; or, for a deferred monthly benefit, the first day of the month following the month in which the Division receives the joint annuitant's application for benefits, or the first day of a later month specified by the joint annuitant. Significantly, the Division has not established by rule a method of determining whether an application is "timely" for purposes of Rule 60S-4.0035(3)(c). Rather, it determines timeliness on a case-by-case basis. Had Hoffman been aware of Rule 60S-4.0035(3)(c), she might have surmised, upon reading the warning letter, that the Division had decided that her application for benefits would be "timely," for purposes of the Rule, only if received on or before September 27, 1996. She might also have reasoned that if her application were untimely, then the applicable EDR might not be February 1, 1996 (i.e. the first day of the month following the month in which her husband had died). At that point, she might have concluded that unless her application were received by September 27, 1996, she would forfeit the early retirement- death benefit, as the Division would deem her delay an election to receive a deferred monthly benefit. Maybe Hoffman would have connected all these dots. The undersigned finds, however, as a matter of fact, that a reasonable person could not have figured out what the Division had decided and what it intended to do, even if armed with the statutes and rules, because ascertaining the true nature of the Division's determination entails more analytical, indeed legal, reasoning than an ordinary layperson should be expected to employ. In fact, it is determined, the warning letter was inadequate to put even a well-informed person, cognizant of the applicable laws, on notice of the Division's decision regarding Hoffman's potential forfeiture of the early-retirement death benefit and "deemed election" of the deferred monthly benefit. While the warning letter was deficient in that it failed reasonably to tell Hoffman what the Division actually had determined with regard to her substantial interests, it was defective in yet another consequential way: the warning letter failed to notify Hoffman of her right to request a hearing to determine the substantial interests affected by the Division's establishment of an application deadline and the consequences of noncompliance therewith. The warning letter, in other words, did not afford Hoffman a clear point of entry into an adversarial proceeding, where the Division would be required to substantiate its determination with competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order determining that Hoffman shall receive an early retirement-death benefit based on an EDR of February 1, 1996, and establishing the form in which Hoffman shall be paid the benefits that have accrued, but not been paid, from the EDR to the present, as well as the benefit going forward.10 In the event that one or more factual disputes arise over the amount of the unpaid accrued benefits or the method of paying them, the amount or form of the benefit going forward, or some combination of these, then Hoffman should be afforded the right to request a hearing to determine the disputed issue(s).11 DONE AND ENTERED this 17th day of January, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2006.
The Issue Whether Petitioner, Marilyn Nelson, the surviving spouse of Melton Nelson, is entitled to in-the-line-of-duty death benefits.
Findings Of Fact Petitioner, Marilyn Nelson, is the surviving spouse of Melton Nelson, who died on May 7, 1998. Petitioner and Melton Nelson had been married since June 15, 1997. At the time of his death, Mr. Nelson was employed by Nassau County as the Assistant Road and Bridge Superintendent. He had been so employed for about 3 years. Donald B. Twiggs, M.D., was Mr. Nelson's treating physician. Dr. Twiggs, completed Mr. Nelson's Death Certificate, which states that Mr. Nelson died from cardiopulmonary arrest and coronary artery disease. There was no autopsy to determine the cause of death. During the course of his employment, Mr. Nelson was absent due to colds and other minor illnesses. His absences were not excessive and he had not complained either to his supervisor or to the personnel office of stress on the job. Further, Mr. Nelson did not advise his employer that his job was affecting his health or request accommodations based upon his physical condition. Marilyn Nelson was not aware that Mr. Nelson had heart problems. Mr. Nelson was being treated by Dr. Twiggs for adult onset diabetes, hypertension, and anxiety. As Assistant Road and Bridge Superintendent, Mr. Nelson's job was demanding and he often was on call due to road and bridge repairs. He supervised and assigned crews, but was not required customarily to do physically demanding work. Mr. Nelson was a "laid-back" supervisor who did not confront or correct his staff. He had the backing of management to discipline his subordinates. The employer was satisfied with Mr. Nelson's work performance. There were no confrontations or arguments between Mr. Nelson and his supervisor, and he was never "dressed-down" or threatened with loss of his job. Mr. Nelson reported to work about 7:00 a.m. on May 7, 1998. After a brief conversation with fellow workers and some of his subordinates, he walked back to his truck and collapsed. William Johnson, one of his subordinates, observed that Mr. Nelson "did not look good" and was "kinda red in the face." However, there had been no altercation, argument or confrontation, and Mr. Nelson did not appear upset. The Respondent denied Marilyn Nelson's application for in-line-of-duty (ILOD) death benefits, advising that, although Mr. Nelson suffered a heart attack while on the job, which resulted in his death, the heart attack was not caused by any job-related accident or injury. Marilyn Nelson's claim for death benefits was also denied by Workers' Compensation, which found that the injury was personal in nature and not job related. Marilyn Nelson presented no expert medical testimony to support her claim that Mr. Nelson's death arose out of the performance of his job duties.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement holding that Petitioner's application for ILOD death benefits from the account of her late husband, Melton Nelson be denied. DONE AND ENTERED this 7th day of August, 2000, in Tallahassee, Leon County, Florida. 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 7th day of August, 2000. COPIES FURNISHED: Emily Moore, Esquire Division of Retirement Cedar Executive Center, Building D 2639 North Monroe Street Tallahassee, Florida 32399-1560 Gary Baker, Esquire Post Office Box 1177 Callahan, Florida 32011 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Respondent, Division of Retirement, is the agency responsible for administering the Florida Retirement System (FRS), a statewide consolidated system encompassing over 500,000 active employees and over 100,000 retired employees, representing all levels of government: state agencies, counties, school boards, cities, special districts, the community colleges and the nine universities -- nearly 800 different public employers. Brevard Community College (BCC) is the previous employer of the three petitioners and is a participating employer in the FRS. BCC is located in Cocoa, Florida, with satellite campuses throughout Brevard County. Petitioners William Nunn, PhD Prior to his retirement on November 30, 1988, Dr. William Nunn worked for BCC for approximately 17 years in various capacities, including Director of Evening Studies, Chair of the Division of Social Sciences, Provost and Dean of the Titusville campus and Dean of Vocational/Instructional Planning in the central administrative offices. It was this latter position he held at the time of retirement. As Dean of Vocational/Instructional Planning, Dr. Nunn was responsible for college-wide coordination of BCC's vocational programs, developing new programs, providing reports on vocational education, developing the master course plans and the college catalog, and serving as head of the college's collective bargaining unit. Dr. Nunn received a salary of approximately $52,000.00 a year and all the fringe benefits of regular employment: vacation and sick leave, insurance benefits, worker's compensation coverage, and contributions to social security and the FRS. He reported directly to the Vice President and President of the college, and his performance evaluations were completed by the President. With the advice of his accountant, Dr. Nunn informed his employer in July or August 1988, that he would retire in November. The advance notification was a requirement for an early retirement program which provided a major incentive for retirement in the form of a cash bonus of 25% of salary. Upon his retirement, Dr. Nunn's duties were primarily split among existing staff persons and a new hire. Certain duties were not specifically assigned, and sometime in December, the BCC's President contacted Dr. Nunn and asked if he would be willing to provide work in those areas so that they would not fall through the crack while people were being trained to take them over. The arrangement to which Dr. Nunn agreed was that he would be allowed to work on his own, without specific hours, for a 6-month period, for $10,000.00. For cash-flow purposes, he asked for payment in monthly increments, with a maximum of 390 hours total, a limit he felt would assure that he would not violate the law allowing for a maximum of 780 hours of employment by retired adjunct instructors. A one-page form contract between the District Board of Trustees of Brevard Community College and William Nunn, dated January 3, 1989, provides that he perform the following services: Work to insure that the college is in compliance with the criteria of the Southern Association of Colleges and Schools. Classify for funding, reporting and data processing purposes all courses and programs of study. (Common Course Numbering and Community College Management Information System) Maintain master course plan files. Coordinate catalog additions, changes and deletions. (Pet. Exh. #2) For background information on the person performing the service, the contract provides: Dr. Nunn is a knowledgeable college administrator with over twenty years experience at the community college and university level. He has performed all of the functions for which he is being employed. (Pet. Exh. #2) A subsequent identical contract was entered between the parties for the period June 14, 1989 through December 21, 1989. Dr. Nunn continued to provide services through December 1990 under a series of contracts. Dr. Nunn worked at the college, for a while in his prior office, then in a different office. He also did some work at home. He used independent judgement based on his past experience and education. Because of his skill and because of the uniformity of the course system, Dr. Nunn could have performed most of the same services for any community college. No one else at BCC had the ability to perform the duties and eventually he trained someone to assume them. He kept his own hours and received no fringe benefits. For a period of approximately four months he was given the services of a graduate assistant who had been assigned to his office prior to retirement. He shared her services with other staff until she left when the term ended in April. He used college office supplies and the college computer. Dr. Nunn had been a member of the management team prior to retirement, and in that capacity attended various meetings and social functions. He no longer did this. As a volunteer, and not related to the services he performed under his contract, he travelled twice to statewide meetings on behalf of the college. He was reimbursed for his travel expenses. Dr. Nunn reported his earnings under the contract to the IRS as self- employment income. He did not obtain a business license and neither advertised nor did consulting work for other entities. The contract form utilized by the college for Dr. Nunn's services has no provision for termination. Both Dr. Nunn and the college administrators understood it could be terminated by mutual agreement. When he needed to consult with the college, Dr. Nunn reported directly to the President. Dr. Nunn received $35,715.99 in retirement benefits from FRS from January through November 1989. The Division has demanded repayment of that sum. John Mangus Prior to his employment with BCC in 1970, John Mangus had twenty-six years experience in machine work in private industry, including work for the Baltimore and Ohio Railroad, Hercules Power Company and the Chrysler Corporation. In 1970, he was hired by BCC to teach machine tool technology. After ten years he became Division Chairman of the Industrial Division, and in 1988, he was appointed Assistant Director of the Palm Bay Vocational Center, also part of BCC. As Division Chair, Mr. Mangus was responsible for vocational shops at the various campuses in Brevard County. He administered the Division, performed faculty evaluations, recruited students, planned curriculum and met with counterparts from other colleges. He also coordinated a move of two vocational shops when the BCC facility at Patrick Air Force Base was closed. As Assistant Director for Palm Bay Vo Tech, he assisted the Director in purchasing equipment and meeting with industry representatives; he determined curriculum and continued to do some paperwork for the Vocational Division. He received a biweekly salary and received all fringe benefits of a regular BCC employee. After a heart attack and a cancer operation, Mr. Mangus retired from BCC on January 31, 1989. By retiring just prior to his 63rd birthday he was able to take advantage of the early retirement incentive. In late December or early January, around the time of Mr. Mangus' retirement, the Vocational Division was undergoing some changes. Teachers were retiring and programs were being reorganized. The administration decided to merge programs and move four different vocational shops. Since John Mangus had extensive experience in moving equipment, he was asked to return to BCC after retirement to handle the moves for the vocational shops. A contract, the same form utilized for Dr. Nunn, was executed effective March 1, 1989 between John Mangus and BCC, providing for his services from the period March 1, 1989 through December 31, 1989, at the rate of $536.00 a month, for a total of $5,360.00. The duties specified on the contract were: Assist the Provost in the operation of the Industrial Division, assist in the development of the curriculum for Building Maintenance program, supervise moving of equipment and tooling for several programs, and to include other duties assigned by the Cocoa Campus Provost. (Pet. Ex. #12) emphasis added Justification for the service was provided in the contract as follows: Will assist the Provost in the operation of the Industrial Division, will assist in orienting the new Chairman, and will be involved in planning, implementing and supervising program moves and curriculum changes, will work a total of 268 hours. (Pet. Ex. #12) John Mangus' primary responsibility under the contract was the move, a function which required a special expertise. The mechanical lifting and transport of heavy equipment is complicated, and Mangus had acquired this skill at the railroad and at Chrysler Corporation when he moved a shop from Melbourne to Cape Canaveral in 1969. He planned the BCC moves in his own home and arranged the schedules. Basis for the 268 hour limit was his estimate of the time it would take at what he considered a fair hourly rate. He insisted on monthly increments so that his railroad retirement benefits would not be affected. He also insisted that he not be required to attend meetings and that he be allowed to work on his own. He was assisted in the move by several college instructors, but he had no supervisory responsibility for them. All equipment was provided by the college. In addition to the moving, John Mangus prepared budgets and planned the curriculum. He worked at home mostly on the budgets, just as he had done when he was employed as Division Director. John Mangus received only the $536.00 per month from BCC, no fringe benefits, and ended up working more than the maximum hours for no additional compensation. He paid his own insurance and reported his income to the IRS as self employment. During the same time that he was handling the BCC moves, he was also moving, revising the curriculum and setting up shops for Lake City Community college on a contract at $200.00 a day. He did not advertise his services and did not incorporate as a business. His engagement at Lake City was by virtue of his reputation in the field. The Division of Retirement has demanded that John Mangus repay the $11,050.76 he received from the FRS from March through December 1989. William L. Benfield William Benfield was hired by BCC in 1969 as a maintenance employee, became supervisor of maintenance, and remained in that position until approximately 1984, when he took over the college hardware and locksmith shop. His primary responsibility during the last five years prior to retirement was as locksmith. He worked under a supervisor who gave him his duties each morning when he reported to work at the Cocoa maintenance department. He worked eight hour days, with an hour for lunch and two 15 minute breaks. He was required to turn in time sheets. He received $21,000.00 annual salary, plus benefits such as paid leave, insurance and retirement contributions. As locksmith, Mr. Benfield worked at all the BCC campuses, as directed. He was required to utilize the tools furnished by the employer and used the employer's vehicle. In June or July 1988, Mr. Benfield notified the college that he would take an early retirement. He planned on retiring at age sixty-two in February 1989, but was eligible for the financial incentive for early retirement. His retirement occurred effective November 30, 1988. Around the latter part of December, William Benfield was contacted by Harold Creel, BCC's Vice President for Maintenance, with regard to performing short-term contract work. They met, and Mr. Creel explained that the college wanted Benfield to work on the new keying system for the college. This was a computerized code system that required re-pinning each lock in the campus buildings. The work also involved keeping records in a code that would allow a key to be made. Mr. Benfield agreed to the work so long as it did not exceed 20 hours a week, as he did not want to jeopardize his social security income. A contract was executed on the same form as used for Petitioners Nunn and Mangus, for the period January 3, 1989 through June 30, 1989. The services are described as follows: Locksmith - repair door locks, make keys, repair doors, rekey building, etc. [sic] (Pet. Ex. #17) Consideration was set at $11.50 per hour for 20 hours a week. A second contract was entered for the period July 3, 1989 through December 31, 1989 for $11.50 per hour and 12 hours a week. (Pet. Exh. #18) William Benfield was familiar with these short-term contracts since carpenters, plumbers or electricians had been retained in this manner in his maintenance department. Benfield's work under the contracts was on his own time. He was not required to work a minimum number of hours or to check in at a given hour. He picked up work orders, as before, but used his discretion as to priorities. He used his own vehicle to travel to the various campuses and used his own tools, a substantial investment of several thousand dollars. He did not advertise as a business and did no work for anyone else, as he did not want to affect his social security benefits. He did not have a business license. He received no fringe benefits and reported his income under the contracts to the IRS as self-employment. He received no performance evaluations. William Benfield earned approximately $8,000.00 under the two contracts with BCC; he also received $7,345.97 in retirement benefits from FRS during the same period in 1989. The Division of Retirement is demanding repayment of those benefits. General Findings and Summary The law with regard to reemployment of FRS retirees has been in a state of flux for over 10 years. At one time, reemployment was prohibited altogether. Then the law was changed to permit reemployment when the agency certified that no one else was available to fill the job. Reemployment was limited to 500 hours in a calendar year; the limit was expanded to 600 hours, and later to 780 hours or $4,000.00. In 1985, the legislature created a 12-month waiting period, during which retirement benefits had to be suspended if the retiree returned to work under an FRS-covered employer. After 12 months, the retiree could return and draw both salary and retirement benefits. Immediately, school boards prevailed with an amendment to allow teachers to return for a maximum of 780 hours in the first calendar year after retirement. The community colleges and nine state universities also obtained similar amendments for rehiring instructional staff. The Division of Retirement has conscientiously provided written guidance to its member employers in the form of rules, guidelines, handbooks, and memoranda. It also provides instructional leaflets to employees and retirees. As Associate Vice-President of Human Resources at BCC, Robert Lawton oversees the entire personnel operation for the college. He is familiar with the requirements of the law and rules of the Division of Retirement and reviewed the contracts for the petitioners' services. These contract forms are different from those used for adjunct faculty who are paid through a regular payroll account. Short term contractors are paid from a separate account. The contracts were drafted by the department heads seeking the petitioners' services. Robert Lawton recommended approval to the President after assuring himself that the contracts were appropriate. He had instructed a staffperson to call the Division of Retirement in his presence to get some guidance. There is no evidence that someone from the agency actually approved the circumstances. Rather, it is apparent that the guidance received through the phone call, in which the college may not have been identified, was of a general nature as to what the agency looks at in determining an independent contractor status. The college commonly uses the short-term contract form for consultant and mechanical services. While it routinely advertises to fill employment vacancies, it ordinarily obtains contractual services from individuals it knows can provide those services. The Division of Retirement became aware of Petitioners' contracts through a routine independent audit. The agency carefully scrutinizes these type of service provider relationships as it has the responsibility to maintain the actuarial soundness of the retirement fund for thousands of employees and retirees. That actuarial soundness relies on a proper balance of contributions to benefits. That balance is jeopardized if employers are able to avoid required contributions by obtaining services of employees through a contract. The opportunity to circumvent the law is particularly seductive where, as here, the employer needs the services of a recently retired employee. Scepticism by the agency in such instances is appropriate. Dr. Nunn's many successful years as a valuable member of the college's management team were served, by his choice and the college's, in the status of an employee. He retired, and was immediately retained to perform some of the same functions as before -- sensitive and significant functions that were integral to the successful administration of the institution--functions related to its accreditation and funding. Language in his contract such as "work to insure", "maintain", and "coordinate" connote an ongoing relationship, rather than discrete definable contract products. Indeed, his relationship with the college was ongoing, for two years beyond his official retirement date. The term, "coordinate", implies that he was not to work alone, but was rather meant to direct the work of others. Some actual evidence of that is found in the fact that a student assistant was provided, albeit briefly. As a highly qualified professional, Dr. Nunn could have performed the same or similar tasks for other institutions. He did not, and if he had, the circumstances would have to dictate whether he was a consultant to, or employee of, those other institutions. Dr. Nunn was not an adjunct professor nor member of the instructional staff, and was not entitled to the 780 hour exception to the 12 month reemployment prohibition. The 390 hour limit in his contract, however, reveals that his compensation, $10,000.00, was approximately the same rate of pay he received prior to retirement when he worked full time. The facts addressed at hearing regarding the relationship of Dr. Nunn to BCC, when considered as a whole, weigh more heavily in favor of finding an employee/employer relationship than that of consultant/client. The same conclusion is reached as to Petitioner, John Mangus. If his only contractual service had been the shop moves, his consultant or independent contractor status would have been more evident. As he eloquently described at the hearing, the transportation of heavy machinery is a unique skill, the exercise of which demands noninterference by others. However, the terms of his contract, and the actual services he performed also related to budget and curriculum, functions he performed as an employee and functions integral to the mission of his employer. The terms of his contract thoroughly belie his claims of independence. He was to "assist", to "supervise", to "be involved in planning, implementing, and supervising...". Perhaps most fatal is the language, "...and to include other duties assigned by Cocoa Campus Provost". Except for the move, the contractual duties were entirely open-ended and subject to the interpretation or direction of others. That he was also retained at the same time by another community college might imply that he was properly a consultant/specialist in moving industrial workshops, but this fact alone does not outweigh the more substantial evidence that at BCC he was still performing as an employee, much the same as he had performed prior to his official retirement. The evidence weighs differently as to William Benfield. His services as a locksmith were a specialized mechanical skill of a type commonly provided through a contract. His services were not integral to the nature of the institution and did not necessitate his working with, for, or over other staff. The substance of his contractual tasks is found on the face of the contract form, and his prior performance of the same or similar tasks as an employee does not indicate those tasks must always be provided by an employee. The terms and conditions of his relationship with the college were radically altered after his retirement. The college chose, in the words of Robert Lawton, to "privatize" certain mechanical functions previously provided in-house, and the locksmith function was one of them. William Benfield became an independent contractor to BCC after his retirement.
Recommendation Based on the foregoing, it is hereby, recommended that a Final Order be entered requiring repayment of retirement benefits received by Petitioners, Nunn and Mangus, during the time they were employed by Brevard Community College in the first 12 months of their retirement. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-8015, 90-8016, and 90-8017 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraphs #3. and #5. Adopted in substance in paragraph #5. Adopted in paragraph #7. Adopted in substance in paragraph #8. Rejected as contrary to the weight of evidence or immaterial. Adopted in substance in paragraph #9. Adopted in substance in paragraphs #8. and #9. Adopted in part in paragraph #9, otherwise rejected as unnecessary. Adopted in substance in paragraph #9. Adopted in substance in paragraph #10. Adopted in substance in paragraph #11. Adopted in substance in paragraph #10. Adopted in substance in paragraph #9. Adopted in substance in paragraph #12. Adopted in substance in paragraph #13. Adopted in substance in paragraph #16. Adopted in substance in paragraphs #14. and #15. Rejected as unnecessary. Adopted in paragraph #17. Adopted in paragraphs #17. and #19. Adopted in paragraph #21. Adopted in paragraph #20. Adopted in paragraph #21. Adopted in paragraph #19. Adopted in substance in paragraph #19. Rejected as unnecessary. Adopted in paragraph #21. Adopted in paragraph #22. Rejected as immaterial in light of other evidence that the relationship was not independent. Adopted in substance in paragraph #21. Adopted in paragraph #19. 32.-33. Adopted in paragraph #24. Rejected as unnecessary. Adopted in paragraph #27. Adopted in paragraphs #28. and #29. Rejected as unnecessary. Adopted in paragraph #28. Adopted in paragraph #30. Rejected as unnecessary. 41.-43. Adopted in paragraph #30. Adopted in paragraph #31. Adopted in paragraph #34. Rejected as immaterial. Adopted in substance in paragraph #34. Adopted in substance in paragraph #35. Rejected as unnecessary. Adopted in part in paragraph #35; otherwise rejected as contrary to the evidence. Adopted in part in paragraph #34; otherwise immaterial in light of the evidence that as to Nunn and Mangus, the relationship was not independent. 52.-53. Rejected as immaterial. 54.-56. Rejected as repetitive and unnecessary. Rejected as contrary to the weight of evidence. Adopted in paragraph #36. Rejected as repetitive or immaterial. 60.-77. Rejected as immaterial, unnecessary or unsupported by the weight of evidence. Respondent's Proposed Findings of Fact Adopted in substance in paragraph #13. Rejected as unnecessary. Adopted in substance in paragraph #8. Adopted in substance in paragraph #22. Rejected as unnecessary. Adopted in substance in paragraph #18. Adopted in substance in paragraph #31. Rejected as unnecessary. Adopted in substance in paragraph #28. Adopted in paragraph #1. Rejected as unnecessary. Adopted in paragraph #1. 13.-14. Adopted in paragraph #32. 15. Adopted in substance in paragraph #37. 16.-19. Adopted in substance in paragraph #33. Rejected as unnecessary. Adopted in paragraph #37. 22.-23. Rejected as unnecessary. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #9. Adopted in paragraph #6. Adopted in paragraph #7. Adopted in paragraph #8. Adopted in paragraph #8. Rejected as contrary to the weight of evidence (as to attendance at meetings). Adopted in paragraph #5. Adopted in paragraph #12. Adopted in paragraph #8. Adopted in paragraph #11. Rejected as unnecessary. Adopted in paragraph #11. Rejected as unsupported by the evidence. Rejected as unnecessary. Adopted in paragraph #10. Adopted in substance in paragraph #8. Adopted in paragraph #8. 43.-44. Adopted in paragraph #9. 45.-46. Adopted in paragraph #14. 47.-48. Adopted in paragraph #15. Adopted in paragraph #16. Adopted in paragraph #17. Adopted in paragraph #18. Adopted in paragraph #15. Adopted in paragraph #20. Adopted in paragraph #19. Adopted in paragraph #20. Adopted by implication in paragraph #35. Adopted in paragraph #17. Adopted in substance in paragraph #21. Rejected as unnecessary. Adopted in paragraphs #23. and #26. Adopted in paragraphs #23. and #24. Adopted in paragraph #26. Adopted in paragraph #28. Adopted in part in paragraph #28; otherwise rejected as unnecessary. 65.-67. Adopted in paragraph #30. 68.-69. Rejected as immaterial. COPIES FURNISHED: Larry D. Scott, Esquire Asst. Division Attorney Dept. of Administration Div. of Retirement-Legal Ofc. Cedars Executive Ctr., Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560 Peter L. Sampo, Esquire HOGG, ALLEN, NORTON & BLUE, P.A. 121 Majorca Ave., 3rd floor Coral Gables, FL 33134 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue Whether Josephine K. Saunders, the designated beneficiary, is entitled to the benefits payable on the teacher's retirement account of William E. Saunders, deceased, or whether she contractually waived her right to such benefits.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter a final order denying the relief requested by petitioner and distributing the Teachers' Retirement System benefits of William E. Saunders to Josephine K. Saunders, the designated beneficiary. DONE AND RECOMMENDED this 15th day of December, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 15th day of December, 1981.
