The Issue The issue to be determined is whether Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from a prior consolidated action before ALJ F. Scott Boyd, DOAH Case Nos. 16-3298 and 16-3302, pursuant to section 185.05, Florida Statutes. Before the final hearing, the parties stipulated to an amount of reasonable prevailing party attorney’s fees and costs if the undersigned determines that Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from that prior action before ALJ Boyd.
Findings Of Fact The City of Coral Springs is a municipality in Broward County, Florida. It exercises broad power pursuant to article VIII, section 2 of the Florida Constitution, and the Municipal Home Rule Powers Act, chapter 166, Florida Statutes. The City Commission of the City of Coral Springs (“Commission”) may create other offices, boards, or commissions to administer the affairs of the city and may grant them powers and duties. The Commission has adopted the Coral Springs Police Officers’ Pension Plan (“the Plan”), which is amended from time to time by ordinance and is set forth in sections 13-5 through 13-17 of the Code of Ordinances of the City of Coral Springs. The Plan is administered by the City of Coral Springs Police Officers’ Pension Fund Board of Trustees (“Board”), the powers of which are set forth in sections 13-13 through 13-15 of the Code of Ordinances of the City of Coral Springs. The Plan is a local-law defined pension plan created pursuant to chapter 185. In February 2016, the Board adopted a policy to allow for the suspension of pension benefits of members who were charged with crimes specified at section 112.3173, Florida Statutes, and whose benefit payments had equaled or exceeded their contributions to the Plan. The Williamses are retired police officers whose pension benefits had fully vested at the time of the enactment of the aforementioned suspension policy. In February 2016, the Board sought to suspend Petitioners’ benefits under the newly-adopted policy because Petitioners had been charged with crimes specified in section 112.3173 and the benefit payments made to them had exceeded their contributions to the plan. Petitioners requested a formal hearing to challenge the authority of the Board to adopt the suspension policy. Petitioners’ benefits were never suspended at any time during the pendency of this suspension matter. The Board contracted with DOAH to conduct the formal hearing under the authority of section 120.65(6), Florida Statutes. DOAH assigned ALJ Boyd to the prior consolidated action, who issued pre-hearing instructions requiring a statement of all issues. The issue of attorney’s fees was not included by the parties. ALJ Boyd conducted the formal hearing on September 30, 2016, and October 10, 2016. On November 18, 2016, ALJ Boyd issued a Recommended Order finding that the Board did not have the authority to adopt the policy nor apply it to Petitioners. The Recommended Order made no mention of awarding attorney’s fees or costs. Nether Petitioners nor the Board filed exceptions to the Recommended Order. Petitioners raised the issue of fees in a letter to the Board dated December 2, 2016. Counsel for Petitioners appeared at a hearing held before the Board in December 2016 and sought fees as set forth in the December 2, 2016, letter. The Board adopted ALJ Boyd’s Recommended Order in toto on January 3, 2017. The Board also denied Petitioners’ request for a hearing regarding an award of attorney’s fees. On January 13, 2017, Petitioners sought an award of attorney’s fees by filing with DOAH a Verified Motion for Prevailing Party Attorney’s Fees and Costs. On March 1, 2017, ALJ Boyd entered an Order dismissing Petitioners’ motion for fees, stating he lacked jurisdiction to hear the issue of fees. That Order was not appealed. Prior to the final hearing in this matter, Petitioners successfully petitioned the Seventeenth Judicial Circuit Court to compel the Board to grant them a hearing on entitlement to the fees and to quash the Order denying fees for violation of due process. Petitioners then successfully defended an appeal of that Order by the Board to the Fourth District Court of Appeal and a motion for rehearing thereon. Petitioners are not seeking fees for these extraordinary writ actions as these efforts do not fall under chapters 185 or 120. The parties stipulated that “the Williamses prevailed in challenging the Board’s authority to create a policy suspending the benefits.” The Board never applied its proposed suspension policy to Petitioners. Petitioners continue to receive their benefits to this day. Criminal charges against Petitioners remained pending at the time of the hearing in this matter. Petitioners are only seeking entitlement here to an attorney’s fee and costs award for their successful challenge of the suspension policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioners’ request for prevailing party attorney’s fees and costs. DONE AND ENTERED this 19th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2021. Brandon J. Hechtman, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Boulevard, Suite 800 Coral Gables, Florida 33134 Pedro Herrera, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Bonni Spatara Jensen, Esquire Klausner, Kaufman, Jensen & Levinson 7080 Northwest 4th Street Plantation, Florida 33317 Kenneth R. Harrison, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Gina Orlando, Administrator City of Coral Springs Police Officers’ Pension Fund 9551 West Sample Road Coral Springs, Florida 33065
The Issue Whether Respondent’s pension should be forfeited based on his conviction for petit theft, a violation of the City of Tampa personnel manual.
Findings Of Fact Respondent was employed by the City as a Parks and Recreation Services Attendant II beginning in June 1999 through notification of his employment termination in 2012. At the time of his employment and on each three-year anniversary of the Union renegotiation of its contract with the City, Respondent was provided a copy of the City’s personnel manual. Specifically, Respondent was provided “Policy B28.2 Discipline Administration – Cause for Dismissal.” The manual states, in relevant part: Employees may be dismissed from employment for a variety of causes. The examples of misconduct and/or unsatisfactory performance enumerated in this policy for which dismissal is considered appropriate are not all inclusive. . . . The City of Tampa Civil Service Rules and Regulations authorize the City to dismiss employees due to incompetence, insubordination, neglect of duty, moral turpitude, and/or breach of peace (Article J. Section 4.a.). The types of conduct and/or performance which fall into these categories which may be considered cause for dismissal are listed below. As stated above, these lists are not all-inclusive. * * * c. Neglect of Duty * * * 9) Use of City equipment, including vehicles, for any unauthorized purpose. * * * d. Moral Turpitude * * * 2) Violation of City Code or other City policies relating to impartiality, use of public property, conflict of interest, disclosure and/or confidentiality. * * * 11) Theft or unauthorized removal or use of City property. The City has a program to recycle metal through a specific pre-selected vendor. All employees are advised of the process by which recycle materials are to be disposed. Should a City employee dispose of City property in a method not contracted for, that employee must secure a letter and additional documentation for the different method of disposal. In or about July 2012, Respondent and a coworker removed at minimum five metal trash cans from the NFL-YET Center, which is City property. Respondent and the coworker, while in their City uniforms, loaded the metal trash cans into a marked City truck. They proceeded to a non-authorized metal recycling center and attempted to sell the five metal trash cans. That metal recycling center declined to buy the trash cans as Respondent and his coworker did not have the appropriate letter or other documentation. Respondent and his coworker returned the metal trash cans to the NFL-YET Center. On July 11, 2012, Respondent and the coworker, while in civilian clothes, returned to the NFL-YET Center and loaded five metal trash cans belonging to the City into a private vehicle. They also had other metal in the vehicle. They proceeded to Trademark Metal Recycling (TMR). At TMR, Respondent and the coworker sold the five metal trash cans for $42.05. TMR staff reported the transaction to the Tampa Police Department (TPD) as the metal trash cans appeared to belong to the City. TPD conducted a criminal investigation. In July 2012, then TPD Detective Hinsz interviewed Respondent. Respondent admitted that he sold the five metal trash cans belonging to the City to TMR. Respondent further admitted to Detective Hinsz that he knew he was not allowed to sell city property. On July 12, 2012, Respondent was arrested and charged with petit theft and dealing in stolen property. On August 6, 2012, a Charge Sheet was filed in State of Florida v. Rodnick Vincent Boyd, Case No. 12-CM-13833, in the County Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, State of Florida, charging Respondent with one count of petit theft. In relevant part, the Charge Sheet: RODNICK VINCENT BOYD, on the 11th day of July, 2012, in the County of Hillsborough and State of Florida, did unlawfully obtain or use, or endeavor to obtain or use certain property of another, to-wit: trash cans, the property of CITY OF TAMPA, the value of said property being less than one hundred ($100.00) dollars in money current in the United States of America; and in so doing the defendant intended either to deprive the said CITY OF TAMPA of a right to the property or benefit there from, or to appropriate the property to his own use or to the use of any person not entitled thereto. On September 24, 2012, Petitioner entered a plea of nolo contendere to count one, petit theft. The Court withheld adjudication of guilt. The City’s retirement system is a public retirement system as defined by Florida law. See § 112.3173(5), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order determining that Respondent has forfeited his rights and benefits under the Retirement Fund. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2017.
The Issue Whether Petitioner, Rebecca Hernandez ("Hernandez"), is entitled to the $22,943.81 her late mother, Darlene Rice ("Rice" or "Mother"), paid to buy into the Florida Retirement System Pension Plan ("Pension Plan"), as well as other monies transferred from Rice's Investment Plan account to the Pension Plan account, or is Hernandez only entitled to the $2,654.17 in employee contributions that Rice paid into the Pension Plan while an active member of that plan.
Findings Of Fact Based on the evidence presented and the record as a whole, the following facts were established: Darlene Rice was a Broward county teacher and member of FRS beginning September 1, 2011. Sometime in 2016, she became interested in transferring from the FRS Investment Plan to the FRS Pension Plan and actively began to investigate that option. Petitioner, Rebecca Hernandez, is the daughter of Rice and is entitled to Rice's benefits from FRS as determined by the Order of Summary Administration entered by the Circuit Court of Broward County, Florida, on October 2, 2018. Prior to transferring from the Investment Plan and as a part of her investigation, Rice contacted the FRS guidance line, on numerous occasions to seek guidance and inquire about the process to transfer into the Pension Plan. Resp. Ex. 20. The calls were recorded.3 More precisely, on March 7, 2017, Rice called the FRS guidance line to obtain information and ask questions regarding her contemplated transfer 3 The undersigned listened to all nine audio recordings. from the Investment Plan to the Pension Plan. On this call, the representative informed Rice that if she terminated FRS employment prior to having eight years of service, she "could not really recover anything." Resp. Ex. 20. During another call to the FRS guidance line, Rice was told that if she left the Pension Plan before vesting, monies she paid to "buy in" would be lost. Rice also acknowledged during one call that if something happened to her, she understood she would lose everything.4 Ultimately, after multiple telephone consultations and discussions with the FRS guidance line, Rice made the decision to transfer plans and buy into the Pension Plan. To do so, Rice was required to complete and submit a 2nd Election Retirement Plan Enrollment Form dated March 7, 2017. Resp. Exs. 2 and 16.5 On March 9, 2017, the Department sent a letter to Rice, confirming her 2nd Election into the Pension Plan. Resp. Ex. 16. The letter included the following: You have elected to move from the FRS Investment Plan and buy into the FRS Pension Plan. The effective date of this election is April 1, 2017. This is your final Plan Choice Election under the Florida Retirement System. You must remain in the FRS 4 The undersigned reasonably infers that this comment was based on what she had been told during previous phone calls to the FRS guidance line. The extensive information and consultation provided to Rice by the FRS guidance line was commendable, useful to her, and no doubt, very well intended. The representatives were patient and thorough with Rice. Regardless, their general admonitions and advice to Rice do not carry the force of law, nor do they necessarily dictate the outcome of this case. Rather, as will be explained, the correct decision in this case is derived by identifying and interpreting the applicable FRS laws and rules to the facts. 5 The top of the form notified her that "before using your 2nd Election, be sure you understand the impact of changing from one plan to another." By signing the form, at Option 2, Rice also acknowledged language that stated "I want to use my existing Investment Plan account balance and possibly other personal resources to 'buy' into the Pension Plan." Other disclosures were also made to her on page 3 of the form. Pension Plan until your retirement from FRS- covered employment. As a member who is switching from the FRS Pension Plan using the available balance in your FRS Investment Plan account. If your account is not sufficient to cover the cost of the buy-in, you will need to submit personal funds. * * * If you terminate employment prior to vesting in the Pension Plan benefit (less than 6 or 8 years) you are only entitled to receive: A refund of your contributions paid into the Pension Plan since April 1, 2017 (the effective date of your 2nd election). * * * If you feel that this retirement Plan election was made in error, you may be able to cancel it … Failure to notify us no later than 4:00 PM EST on the last business day of the month following your election month will void your right to cancel this election. Rice's election to transfer from the Investment Plan to the Pension Plan was slated to become effective on April 1, 2017. On April 18, 2017, Rice was informed by the Department that it received her notification of her second election and the accrued liability (costs) to transfer to the Pension Plan was $58,366.00; $35,422.19 was liquidated from her investment account and transferred to the FRS Trust Fund and $22,943.81 was the out of pocket cost to her to complete the transfer. Resp. Ex. 7. On June 6, 2017, the Department sent a letter to Rice confirming receipt of her personal payment of $22,943.81, which finalized her transfer to the Pension Plan effective April 1, 2017. Resp. Ex. 8. Less than a year later, on March 17, 2018, Rice passed away unexpectedly. Her death certificate listed a pulmonary embolism as the primary cause of death. Pet. Ex. 8.6 Rice did not have at least eight years of service credit in FRS at the time of her passing. After her mother's passing, Hernandez was contacted by the FRS guidance line to discuss the process and survivor benefits related to the Pension Plan.7 Naturally, Hernandez was shocked and dismayed when the representative informed her that she was only entitled to the total contributions her mother made while she was working and in the Pension Plan. He also regrettably informed Hernandez that she was not entitled to recover the buy-in costs paid by her mother, nor was she entitled to the balance she had in the Investment Plan when the transfer was made. During this telephone discussion, Hernandez lamented that she and her mother had made the decision together to transfer her from one plan to the other. On June 28, 2018, the Department sent a formal letter to Rice's daughter, Hernandez, acknowledging her mother's death and notifying her that since her mother did not have eight years of service, the benefit available to Hernandez was limited to a refund of retirement contributions in the amount of $2,654.17. Resp. Ex. 9. At Hernandez's request, the Department manually calculated the amount Rice paid into the FRS. When Rice transferred to the Pension Plan, the Department's system, which is called the Integrative Retirement Information System ("IRIS"), only showed the accumulation of the contributions that she paid into the Pension Plan after the transfer, since her contributions in the Investment Plan had already been liquidated for the transfer. Resp. Ex. 1. 6 The cause of her death is mentioned primarily to show that her death was unexpected. The undersigned infers from the evidence, particularly the CD recordings, that Rice had no forewarning or suspicions regarding her health when she made the transfer. 7 The date of this phone call is not in the record. Kathy Gould ("Gould"), the Department's Bureau Chief of Retirement Calculations, testified that the manual calculation revealed that a total of $16,042.58 was contributed by Rice since her participation began in the FRS. Based on the calculations and figures provided, her total contributions had two components: (1) $13,388.41 while Rice was in the Investment Plan and (2) $2,654.17 while Rice was in the Pension Plan. In addition to a return of these sums, Petitioner also seeks the return or refund of the "buy in" fee--$22,943.81--Rice paid to transfer to the Pension Plan. Testimony of Kathy Gould Gould's team handles the calculation of costs involved with transfers from the Investment Plan to the Pension Plan. She testified that there are two plans under the FRS, the Pension Plan and the Investment Plan. At all times related to Rice's tenure under the FRS, the funds for the FRS retirement plans came from employer and employee contributions. Employee contributions are currently three percent of salary. In the Pension Plan a member vests after eight years of service. If a member dies before the member vests, it was her position that the beneficiary would be eligible to receive the accumulated contributions. She referred to the applicable statute, section 121.091(7), Florida Statutes. Conversely, the State Board of Administration administers the Investment plan, and is separate from Respondent. A member vests after only one year in the Investment plan. Exhibit 1 was a screenshot of Rice's profile in the IRIS. This is a computer database that contains the Department's membership information. Rice's total employee balance as reflected in Respondent's Exhibit 1 was $2,654.17. This includes only Rice's payroll contributions while a member of the Pension Plan. Rice's "personal payment" to buy into the Pension Plan was $22,943.81. Gould explained that if a member of the Investment Plan left after only five months, the member would be entitled to receive the employee's contributions only. Tr. pp. 55-56. This would not include the employer's contributions. After one year, an employee is fully vested in the Investment Plan and would be entitled to all contributions made, both employee and employer, if employment was terminated while still in the Investment Plan. The payment that Rice made to buy into the Pension Plan was in the form of a personal check, not a deduction from her payroll. Respondent's Exhibit 21 is an email Gould prepared for the Department's legal counsel. Gould analyzed Rice's reported salaries while she was a member of the Investment Plan and multiplied them by three percent to provide the total amount that Rice had paid into both plans. This totaled $16,042.58. This was the amount from Rice's first payroll through her last payroll while in the FRS. The amount was the total of both the Investment Plan and the Pension Plan. Gould admitted that there are essentially two types of contributions into the FRS, employer contributions and employee contributions. She acknowledged that the $22,943.81 Rice paid to transfer to the Pension Plan was not an employer contribution. Rice was not in the Investment Plan when she died. When she died, Rice was participating in the Pension Plan. As a result, Gould admitted that the state would pay out any benefits utilizing the statutes relating to the Pension Plan. The calculation of the buy-in amount performed by the Department in Rice's case was done on the "calculator" provided by their actuary, Milliman. Testimony of Matthew Richard Larrabee Matthew Larrabee ("Larrabee") was called by the Department. He is a pension actuary with Milliman and specializes in governmental pension plans. He discussed the Department's use of a "calculator" that is designed by Milliman. It is provided and created to allow agency staff to determine actuarial pension calculations without relying upon a certified actuary. The actuarial accrued liability ("AAL") determined by the calculator, establishes the "buy-in" or purchase price for a member that chooses to transfer from the Investment Plan to the Pension Plan. The components of the buy-in cost to transfer from the Investment Plan into the Pension Plan consist primarily of the projected monthly annuity amount, the state multiplier percentage for the employee's position, the years of service, and the member's pay level. There is also an assumption of projected pay increases and the life expectancy of the member. Age is also a factor in the formula. The funds collected and related to the transfer into the Pension Plan are deposited into a commingled, legally restricted pension trust. Respondent's Exhibits 4, 5, and 6 were prepared by the Department's staff at different date intervals using the Milliman calculator. These exhibits represent output sheets produced by the calculator, which was developed by Milliman under Larrabee's supervision. The sheets are accurate. They show different actuarial accrued liability amounts based, in part, on age.8 The final calculation in Respondent's Exhibit 6 is for a transfer date of April 2017 for Rice. The calculated actuarial accrued liability was $58,366.00. Larrabee explained that this calculation is a sound estimation or valuation of the financial present value of the total future retirement benefits for a given member--in this case, Rice. 8 Different dates are notated on the calculator sheets based on differing dates being considered for the effective transfer date by Rice when the individual sheet was run. The actuarial accrued liability calculation and resulting "buy in" amount is premised on the fact that the actuaries do not take into account a potential refund feature, such as the return of funds sought by Hernandez.9 Larrabee went on to explain that if potential refunds, such as those requested by Hernandez, were accounted for in the actuarial calculations, the cost to "buy in" would only be "modestly higher." This is because the mortality rates for people like Rice in their 50's or 60's are "quite low." As a result, the added costs to cover such an infrequent contingency, if that were an option, "would be low." Allison Olson Allison Olson ("Olson") is the Director of Policy, Risk Management and Compliance for the State Board of Administration ("SBA"). Her duties include the review and determination of compliance with contracts and policies by outside vendors for the FRS Investment Plan. She also reviews complaints that are received from Investment Plan members. The Investment Plan is a defined contribution plan, similar to a traditional 401(k). The SBA is a separate agency from the Department. A member has an option of making an election, as part of their initial choice, to be a member of the Investment Plan. Vesting for the Investment Plan occurs after one year of service. Then the member owns the contributions in their account. Under the Investment Plan, each account is funded by employer contributions as well as a mandatory three percent monthly employee contribution. Members in the FRS with questions about their accounts may consult with representatives on a financial guidance line managed by the SBA vendor.10 9 No evidence was offered to explain why this type of feature was not built into the actuarial calculation, or why it was not offered as an option to potential transferees. 10 As previously noted, Rice took advantage of this service on numerous occasions. The Department offered into evidence Respondent's Exhibit 14, an FRS Investment Plan Summary Plan Description (sometimes referred to as an "SPD"). However, this SPD was not issued until July 2018. Because it was issued after Rice passed away and there was no proof she ever received it or a prior version, it was excluded as evidence and not considered based on the objection of Petitioner.11 Garry Green Gary Green ("Green") is the Chief of Research and Education for Respondent. He handles the administrative aspects of the actuarial contract and services provided by Milliman. The liquidation of an investment plan account is the sale of all assets that the member has in the account. It includes all money, both employer and employee contributions. After applying to transfer from one plan to another, an employee has 60 days to "roll in" her "buy in" money, or to cancel the transfer. The money a member pays to buy-in to the Pension Plan, is deposited into the pension trust fund with all the other assets of the trust fund. His view was that if the member is not vested in the Pension Plan, the contributions used to "buy in" are not refundable. Respondent's Exhibit 6 calculates the actuarial accrued liability of $58,366.00. It is a calculation of the total cost to buy in to the Pension Plan. He explained that it is not a statement of the liquidated assets from Rice's Investment Plan or any funds owed to Rice. 11 It should be noted that, aside from notices she received in the enrollment forms she signed or guidance from FRS guidance line representatives, there was no proof presented by Respondent that any of the mandatory educational components required by section 121.4501(10)(a)-(g), Florida Statutes, entitled "Education Components," were complied with, or offered to Rice. This is particularly significant in this case since material "must be prepared under the assumption that the employee is an unsophisticated investor." § 121.4501(10)(e), Fla. Stat. Additional Facts Established by Discovery Petitioner's Exhibits 9-1 and 9-2 establish that Rice contributed $16,042.58 in employee contributions into the FRS. $2,654.17 was into the Pension Plan and $13,338.41 was while Rice was a member of the Investment Plan. The Department admitted that Rice paid $22,943.81 of her personal funds on or before June 6, 2017, to transfer from the Investment Plan to the Pension Plan. Request for Admission No. 19. The Department admitted that Petitioner is entitled to receive $2,654.17, the amount of contributions after Rice was in the Pension Plan. Request for Admission No. 21. The Department admitted that it received the Order of Summary Administration and Death Certificate. Requests for Admission Nos. 25 and 26. The Department admitted that Rice contributed at least $13,388.41 into the Investment Plan. Request for Admission No. 29.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, pay to Rebecca Hernandez, Darlene Rice's daughter and beneficiary, the sums of $2,654.17, $13,388.41, and $22,943.81, totaling $38,986.39, plus the appropriate statutory rates of interest which have accrued from October 2, 2018, the date of the circuit court's Order of Summary Administration, to the date of payment. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2020. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) Larry Allan Karns, Esquire Spink, Shrouder & Karns, P.A. 9700 Griffin Road Cooper City, Florida 33328 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application). The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows: Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows: NATURE OF WORK: Skilled fire-fighting work in combating, extinguishing and preventing fires, and in the operation and maintenance of fire department equipment, apparatus and quarters. Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods. ILLUSTRATIVE EXAMPLES OF WORK PERFORMED: (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.) Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention. Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment. Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus. Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion. When assigned to the Rescue Division the Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation. When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties. Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS: (The knowledge, skills and abilities identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for individual positions in the employing departments.) Some knowledge of the street system and physical layout of the City of Miami. Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period. Ability to establish and maintain effective working relationships with other employees and the general public. Ability to understand and follow oral and written instructions. Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools. Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination. Coordination and dexterity. DESIRABLE BASIC TRAINING AND EXPERIENCE: Graduation from high school or State of Florida Equivalency Certificate OR Equivalent combination of training and experience. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows: After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level. Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states: "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A- 37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows: 'Bachelor's Degree' means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire related. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. In no event shall receipt of a transcript for an Associate Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation. The major study concentration area, at least 18 semester hours or 27 quarter hours, [must] be readily identifiable and applicable as fire related. Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS. History-New 01-03-90." 1/ At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code. Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain: A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; An explanation of what relief you are seeking and believe you are entitled to; Any other information which you contend is material. These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee. Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows: Firefighter Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas. Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important. Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn. Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible. Individuals should be able to accurately gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required. Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1, 1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows: James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree. Mr. Kemp will be eligible to receive up to $110.00 a month until such time as he may become ineligible in accordance with Rule 4A- 37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3). If any further information is needed, please do not hesitate to contact us. (A copy of this Official Acceptance Notification was sent to Petitioner.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking. DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 5th day of January, 2000.
The Issue The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
Findings Of Fact At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department. By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program. The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.) The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology. After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3) By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit." By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a "major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code: The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related. The letter advises Petitioner of his right to a hearing. Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety: After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted]. Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology. On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College. By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084. By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related. In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree. To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/ The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related. The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each). Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related. Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3). when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related. Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case. RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Attorney Lisa S. Santucci Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Peter T. Campbell, III 445 Clarewood Boulevard Titusville, FL 32796
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
The Issue Whether Petitioner is entitled to receive Florida Retirement System (FRS) benefits from her deceased spouse’s retirement account, pursuant to FRS Option 3 (lifetime monthly benefit to joint annuitant).
Findings Of Fact Petitioner, Lettie Jones, is the wife of FRS member, James Jones, and a designated beneficiary of his FRS account. Respondent, Department of Management Services, Division of Retirement, is the state agency with the responsibility to administer the FRS. Background Findings Mr. Jones applied to the State of Florida for disability retirement on July 13, 1994. On his application, Mr. Jones noted that the “[m]uscles in [his] feet and legs [were] deteriorating.” In response to a question regarding any other physical impairments, Mr. Jones answered, “Losing strength in right hand.” The record does not reflect the effective date of Mr. Jones’ retirement. Mr. Jones suffered a stroke in April 1996. On January 27, 1997, Mr. Jones obtained from the state an “Estimate of Disability Retirement Benefits” listing the approximate monthly benefit payment amounts for all four FRS payment options. On that date, Mr. Jones also obtained Form 11o, the FRS retirement benefit election option form, and Form FST 12, the FRS beneficiary designation form. On March 18, 1997, Mr. Jones executed Form 11o, choosing Option 2 for payment of his monthly retirement benefits, and Form FST 12, designating Petitioner as primary beneficiary, and his daughter as contingent beneficiary, of his retirement account. Form 11o provides the following explanation of Option 2: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 payments. No further benefits are then payable. Form 11o requires the spouse’s signature acknowledging the member’s election of Option 2. The spousal acknowledgment section appears in a box on Form 11o following the description of Options 1 and 2. The first line inside the box reads, in all capital letters, “THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2.” On March 18, 1997, Petitioner signed the box on Form 11o acknowledging her husband’s election of Option 2. Mr. Jones received more than 120 monthly retirement benefit payments prior to his death in 2013. Petitioner’s Challenge Petitioner alleges that Mr. Jones lacked the capacity to make an informed election of benefit payments on March 18, 1997, because he had reduced cognitive function. Both Petitioner and her daughter testified that they accompanied Mr. Jones to the FRS office on March 18, 1997, but were not allowed to “go back” with him when he met with an FRS employee to select his retirement option and execute Form 11o.2/ Petitioner admitted that she did sign the box on Form 11o, which acknowledges spousal election of Option 2, but testified that the form was blank at the time her husband presented it to her for signature. Petitioner signed the spousal acknowledgment on Form 11o the same day her husband executed the form. Petitioner introduced no evidence, other than the testimony of her daughter, that Mr. Jones suffered from reduced cognitive function on March 18, 1997. The fact that Mr. Jones suffered a stroke in 1996 is insufficient evidence to prove that he lacked the mental capacity to make an informed retirement option selection on the date in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the relief requested in the Petition for Administrative Hearing. DONE AND ENTERED this 25th day of October, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2016.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Respondent, Mark Clinton Russell, is currently eligible for licensure and licensed in the State of Florida as an insurance agent and was so licensed at all times material to this proceeding. At all times material to this proceeding, Medical Underwriters of Sarasota, Inc. (Underwriters), was an incorporated insurance agency organized under the laws of the State of Florida, and Respondent was the vice-president. The Principal Financial Group (PFG) is the parent corporation of a number of insurance-related entities with whom Respondent had contractual relationships beginning in November 1985 and ending in May 1993. Principal, formerly known as Bankers Life Company, is an Iowa corporation licensed to sell group and individual life and health insurance products in Florida. Principal has two strategic business units -- Individual and Group -- each of which is administered and operated with separate goals, leadership, and procedures. The Individual business unit is responsible for the sale of insurance products to individuals, while the Group unit is responsible for the sale of insurance products to groups of people. Also affiliated with PFG is Principal Marketing Services, Inc. (Principal Marketing), and Princor Financial Services Corporation (Princor). Principal Marketing is a general agency for competing life and health companies which was formed to permit Principal agents to sell competitors' insurance products on those occasions when a Principal product was not available for a particular, prospective insurance client. Princor is a securities broker dealer and, through its agents, offers securities such as annuities and mutual funds for sale to the public. Respondent began his association with PFG in 1985 when he executed "UMEG Employers" and "GME 1495" contracts with Principal, which was then known as Bankers Life Company. These contracts, which were subsequently re-executed in 1987, permitted Respondent to sell group life and health insurance policies as an agent of Principal. Further, on those occasions when Respondent sold a Planned Employee Program group policy, he would receive a Planned Employee Program Group Commission Agreement for each sale. In January 1989, Respondent executed additional contracts with Principal: a Special Brokerage Agency Personal Production Contract, DD 714; Brokerage General Agency Agreement; and a Special Brokerage Agency Management Agreement. These contracts permitted Respondent to sell insurance products from Principal's Individual business unit, for which he would earn sales and renewal commissions. The contracts also permitted Respondent to recruit, appoint, and manage agents to sell Principal insurance products. As a consequence of his recruitment and management work, Respondent was entitled to certain management compensation and override commissions. The Special Brokerage Agency Personal Production Contract, DD 714, provides that Principal will not advance commissions on future premium deposits. However, as will be shown in later Findings of Fact, Principal did not always abide by this provision. Respondent was the insurance agent of record for Principal at Underwriters at all times material to this proceeding. Also in 1989, Respondent became a licensed securities broker and executed a Registered Representative's Agreement with Princor. Further, Respondent executed a Marketer Contract and a Management Contract for Manager with Principal Marketing. These contracts permitted Respondent to sell insurance products of other companies and to earn override commissions on the sales of insurance agents appointed and managed by him. During his association with the PFG companies, Respondent regularly received a number of commission statements that purported to account for commissions, overrides, compensation, credits, advances, and debits due from or to the companies. On the 8th and 20th of each month, the Principal Group business unit sent Respondent a Group and Pension Compensation Statement. On the 15th and 30th of each month, the Principal Individual business unit would send Respondent an Agent's Statement. Although all group policy information is input into the company's computer system by Group personnel only, some sales and renewals of group policies appear on the Agent's Statement and some appear on the Group Statement. Because group policy information appears on both statements without any apparent rhyme or reason, the Group Compensation and Agent's Statements are confusing and difficult to read. Respondent also received Commission Statements from Principal Marketing and Princor -- each of which were sent twice a month -- and a Management Compensation Statement, which was sent once a month. In addition, along with the statements that reflected his personal earnings, Respondent received commission statements twice a month for each of the approximately 45 Principal brokers appointed by him. Respondent was licensed with other life and health companies and received commission statements from them as well. Because of the volume of commission paperwork sent to him by Principal, and the time it would have taken to do so, neither Respondent nor anyone else in the office reviewed the statements for accuracy. Respondent trusted Principal to pay him properly and to accurately account for the monies due him. Respondent's commission statements and checks were sent to him by express, next day delivery. Respondent would have an idea about the size of the compensation check that he expected to receive from Principal and upon receipt of the check would confirm that it was "in the ballpark." Respondent's compensation statements and checks were received at work by the office administrator, who would confirm that the check received was approximately what Respondent expected, file the commission statements in three ring binders, and either deposit the commission check or give it to Respondent to deposit. So far as is relevant here, Principal's Individual business unit began with Diana McGovern, who was employed by Principal as a Commission Specialist in the Agency Services Department from January 1990 until June 1992. In her capacity as a Commission Specialist, McGovern dealt directly with Principal agents and brokers, including Respondent, in Florida and six other southern states. McGovern's duties and responsibilities required her to answer brokers' questions regarding compensation statements and issue special checks for advances that would be repaid out of present or future commissions. Immediately superior to McGovern was Bruce Woods, who served as the Supervisor of Agency Services. Woods reported to Tom Herman, a junior officer of Principal who served as the officer in charge of Agency Services. Herman reported to Principal's Brokerage Vice-President, which is sometimes referred to as a Regional Vice-President or RVP. Since 1989, Respondent has had a number of RVPs. Initially, when Respondent first contracted with the Principal Individual group unit, Bill Gordon was his RVP. Gordon was succeeded by Gayle Thompson, who was followed by Russ Miller, who was Respondent's RVP from March 1991 through December 1992. At that time, Bill Moren assumed the position as Brokerage Vice-President of Principal. On the Group side of Principal, the organization began with Kathy Bianchi, who served as Principal's Compensation Technician. In that role, Bianchi dealt with Principal brokers, including Respondent, who were also Old Northwestern or Roger's Benefit Group agents. Among other duties, Bianchi was responsible for sending certain agents' commission statements and compensation checks by express delivery. In January 1991, Jan Henderson assumed Bianchi's position as Compensation Technician and began dealing with Respondent. Henderson's supervisor, or Team Leader, was Kelli Ellis. Ellis reported to the assistant manager, Deb Henman, who in turn reported to the manager, Betty Jo Dickson (who had previously served as the assistant manager before being promoted to Manager of the department). Respondent also had dealings with Principal's Management Compensation Department -- most notably with Russ Griffin, an officer of Principal, and his executive secretary, Juanita Schuster. In 1989, Respondent began to request and receive checks from Principal before they were due and payable in the normal course of Principal's issuance of commission statements and compensation. The term "advance" was frequently used by Principal officers and employees to describe sending monies to Respondent both with and without a positive commission balance. The words "advance," "early check," or "special check" were used interchangeably by Dickson and others. Respondent did receive -- with the express and repeated approval of officers at Principal -- advances of monies when he had no "positive balance" in his commission account and these advances were repaid from commissions he was to earn in the future. In April 1989 -- over three years before receiving the funds here at issue -- Respondent called Bianchi and told her that he was in a jam and needed some money. He asked that Principal send him by overnight delivery an advance of $2000. Bianchi said "Okay" and told Respondent that if there was a problem, she would call him back and, if not, that he could expect the check "in the next couple of days". The advance arrived by overnight express. During 1989, Respondent requested and received from Bianchi four additional advances against commissions. In January 1990, Respondent requested and received yet another advance from Bianchi. Although unknown at the time by Respondent, the 1989 and January 1990 payments from Bianchi were expressly approved by Betty Jo Dickson, then serving as Bianchi's supervisor and Assistant Manager. At some point, however, Dickson believed that Respondent's requests for advances were becoming abusive. As a consequence, Dickson placed a computer message in the Principal computer system which appeared whenever a Compensation Technician accessed Respondent's compensation account. The message read: "If Mark Russell should ever call for an advance let Betty Jo [Dickson] or Deb Henman know." After the message regarding Respondent was placed into the computer, Dickson spoke directly to Respondent -- who had called asking for another advance. Dickson advised Respondent that she felt he had abused the system and that there would be no further early checks. Respondent tried to persuade Dickson to approve the requested advance but was unsuccessful. Despite her threatened prohibition, Dickson thereafter approved -- about a year later -- a request by Respondent for an advance. In all, Dickson expressly approved a number of advances to Respondent and, despite the supposedly required positive balance to do so, her approvals came without any inquiry as to Respondent's then-current balance with Principal. In any event, by November 1991, Dickson's Principal Group unit had advanced over $20,444 to Respondent. In 1989, Respondent also spoke with and requested advances from Diana McGovern. McGovern was Bianchi's counterpart in Principal's Individual business unit. As a commission specialist, McGovern sent special checks -- which she defined as money sent in advance against future commissions or renewals -- to Principal brokers on a daily basis. McGovern had earlier been advised by her trainer, Rhonda Nelson, and by Tom Herman, the Principal officer responsible for her department, that there were no guidelines for issuing a special check and that she should simply use her best judgment in deciding whether to issue a special check. McGovern soon began dealing with Respondent, who she knew had a substantial block of group business with a good persistency. When McGovern first started working with Respondent she would not advance money unless there was a positive balance in Respondent's commission account; however, as she had been instructed, McGovern soon felt she could trust Respondent and would advance monies to him without the necessity of a positive amount on his statement. Soon, McGovern was sending Respondent advances at least once a month, sometimes twice. On occasion, McGovern did not feel that she could advance money to Respondent and, despite Respondent's persistence in requesting an advance, McGovern refused to do so. Several times when met with a "no" from McGovern, Respondent went over her head and spoke with Bruce Woods who, on occasion, would overrule McGovern's decision and authorize an advance. On two or three occasions, after Woods failed to approve Respondent's request for an advance, Respondent went to Wood's supervisor, Tom Herman, an officer of Principal, who would authorized the advance. Unlike Principal's Group business unit, there was never any message on the computer screens of the Individual business unit notifying McGovern or anyone else that approval was required before advancing any money to Respondent. McGovern only needed to obtain approval to issue a special check if the amount requested exceeded $10,000. By early 1992, McGovern's department had advanced by special check over $127,860 to Russell. Prior to May 1992, Respondent received numerous advances authorized by and provided to him by officers of Principal. Two advances -- totalling $5,164 -- were requested from and approved by Bill Gordon in July 1990, who was then serving as the President of Principal Marketing. Additional advances were requested from and approved by Russ Griffin, an officer of Principal in the Management Compensation division of Principal's Individual business unit. Griffin's department was responsible for generating and sending to Respondent his monthly Management Compensation Statement. Between June and November 1990, Griffin advanced $133,453 to Respondent. In addition, Griffin's executive secretary, Juanita Shuster, sent Respondent two advances totaling $30,500. In all, Griffin's Management Compensation Department advanced Respondent $163,953 prior to May 1992. Part of this amount included a single advance -- with the knowledge and apparent approval of Gayle Thompson (Respondent's RVP) and Griffin-- of $93,000 to allow Respondent to close on a house he purchased. This advance, as well as others from Principal's Management Compensation department, were made despite the fact that Respondent did not then have a positive balance with the company and could not repay the advance for some time. Thompson had earlier advanced $15,000 to Respondent in July 1990. In all, by April 21, 1992, Respondent had requested, received, and repaid in excess of $330,000 of monies advanced by Principal. There was no evidence that Respondent had been advised by any of Principal's employees or officers that these requests were inappropriate or questionable in any respect or that his privilege to request advances had been terminated . Sometime around April 1991, Respondent's RVP, Russ Miller, visited Respondent in Sarasota to discuss Principal's desire that Respondent expand his business. It was Respondent's understanding from Miller that Principal wanted to build a brokerage business and that his business needed to expand or Principal would sever its relationship with him. As a consequence, Respondent began to expand his business by renting a substantially larger office, hiring additional agents and office staff and purchasing office equipment. Miller returned to Sarasota a year later, in April 1992. While in Sarasota, Miller reviewed Respondent's business plan, which Respondent had forwarded to Miller prior to his arrival. The business plan specified Respondent's anticipated need for advances and that any future renewal commissions would be used as the source of repayment for those advances. Respondent advised Miller that in order to continue the expansion, the Respondent would need advances from Principal. It was Respondent's understanding from Miller that since he had obtained advances in the past, that future advances should not create a problem. As a consequence, when Respondent required an advance immediately after Miller's April 1992 visit, he called Henderson -- the commission technician in charge of Respondent's group renewals and compensation. In May 1992, Respondent began requesting and receiving advances from Henderson, who had replaced Bianchi as Respondent's compensation technician in Principal's Group Business Unit. Thereafter, Respondent requested and received, between May 1992 and May 1993, $329,043.09 of additional monies from Principal - - forwarded by Henderson. It is these funds and how they were requested and obtained by Respondent which are at issue in this proceeding. There is no dispute that Respondent requested the money from Henderson, that Henderson forwarded the money to the Respondent and that the Respondent received the money. Respondent did not offer or promise Henderson anything in return for her sending him the money, and Henderson did not receive any money or benefit whatsoever from anyone for diverting Principal's funds to Respondent. Likewise, Respondent did not threaten, coerce or improperly encourage Henderson to send him money. Respondent's requests of Henderson to send him funds were never made with the intention that Henderson wrongfully divert funds from Principal. Likewise, Respondent did not know, and there was no reason for Respondent to have known, that Henderson was wrongfully diverting Principal's funds. Respondent did not tell Henderson or suggest to Henderson how she was to accomplish the transfer of the money to Respondent. Although Henderson's computer instructed her to advise Betty Jo (Dickson) or Deb Henman should Respondent call for an advance, Henderson did not seek permission before advancing Respondent money. Henderson had no knowledge that Respondent had in the past received advances on future commissions without a positive balance in commissions at the time he received the advance. Likewise, Henderson was not aware that these advances had been approved by a person or persons in the Principal organization with authority to approve such advances. It is clear that Henderson misunderstood Respondent's request of her to advance him money, and as a result she devised a method of adding money to Respondent's commission statement and forcing the computer to pay Respondent unearned money. Henderson's sole, expressed reason for diverting funds from Principal was to "help" Respondent and she was willing to devise and go to the lengths that she did because she felt that she "was in a dead end job" that "wasn't going anywhere" and about which she "didn't care". Since Respondent had received advances on unearned commissions in the past that were approved by someone in authority at Principal, there was no reason for Respondent to suspect that the money received through Henderson was being improperly diverted to him. Likewise, since Respondent did not thoroughly check his commission statements, there was no reason for him to have noticed how Henderson accomplished the diversion of Principal's funds to him. Respondent had sufficient reasons to assume that advances sent to him by Henderson had been approved by Principal. In the latter part of May 1993, Henderson's diversion of funds was discovered when she inadvertently input a code to the system that brought Respondent's commission statement to the attention of Henderson's team leader, who noticed that payments were being credited to terminated accounts. Henderson was identified as the source of the payments because of her computer sign-on code, which she made no effort to conceal when diverting funds to Respondent. After an investigation by Averell Karstens, Principal's Chief Fraud Investigator, Henderson was confronted and terminated from her employment. When confronted, Henderson admitted improperly sending money to Respondent Shortly thereafter, Principal called the FBI and the United States Attorney's Office regarding the conduct of Henderson and what they suspected to be the conduct of Russell. Henderson pled guilty to multiple counts of mail and wire fraud and testified before a federal grand jury regarding her conduct at Principal. Subsequent to learning of Henderson's improper diversion of Principal's money, Respondent's commissions statements and financial dealings with Principal were gone over with by Principal to determine what monies had been improperly obtained by Respondent. The results of this intensive and extensive investigation confirmed that Principal's complaint concerning monies allegedly provided improperly to Respondent are limited to the payments made to Respondent by Henderson between May 1992 and May 1993, totalling $329,043.09. Subsequently, Respondent's agency agreements with Principal were terminated. A complaint alleging theft and other fraudulent acts was filed by Principal with the U. S. Attorney's office. Respondent's clients were taken from him and all rights of future commissions were terminated by Principal. Despite a detailed investigation by the FBI and the U. S. Attorney's office and, a federal grand jury investigation, Respondent has never been charged or convicted of any illegal activity relating in any way to Henderson's diversion of funds from Principal. In an attempt to recover what Principal considers unauthorized payments to Respondent, Principal has filed a civil lawsuit in the Circuit Court of Sarasota County, Florida. Respondent has filed a civil lawsuit against Principal, Princor and Principal Marketing in the Iowa District Court For Polk County alleging breach of contract, defamation, interference with prospective business advantage and intentional infliction of emotional distress. The Respondent is seeking a monetary award in this case. At the time of hearing in the instant case, both of the civil cases were still pending. Although Respondent admits that the $329,043.09 is unearned, he has not repaid Principal this sum because he is awaiting the outcome of the two aforementioned civil actions. However, Respondent also admits that he no longer has the funds and would have to borrow the money should he be required to repay Principal. There is insufficient evidence to show that Respondent knowingly requested Henderson to wrongfully divert to him payments totaling $329,043.09 belonging to PFG. Furthermore, there is insufficient evidence to show that Respondent received and retained the diverted funds knowing that he had no right to the monies.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a Final Order which dismisses the amended complaint against Russell. DONE AND ORDERED this 2nd day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE, 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-810 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(6,7,8); 4(8); 5(9); 6(19); 21(51,52,53); 23(55); 24(42); 25(60); 26(57); 27(42,43); and 35(60). Proposed findings of fact 8 through 20, 29, 31, 32, 33 and 36 are rejected as not being supported by evidence in the record, notwithstanding Henderson testimony. However, there may be portions of each proposed finding of fact that are adopted as modified in Findings of Fact 41 through 49, otherwise they are rejected as not being supported by evidence in the record. Proposed findings of fact 7, 22, 28 and 34 are neither material nor relevant to this proceeding. The first sentence of proposed finding fact 30 is rejected as not being supported by evidence in the record. The second sentence is adopted in Finding of Fact 8. Respondent's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 70 are adopted in substance as modified in Findings of Fact 3 through 61. Otherwise, they are rejected as not being supported by evidence in the record or recitation of testimony or unnecessary. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Alan F. Wagner, ESquire Wagner, Vaughan & McLaughlin, P.A. 601 Bayshore Boulevard Suite 910 Tampa, Florida 33606 Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue in this matter is whether Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2015).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for employees of the City of Tampa (the “City”). Respondent was most recently employed by the City beginning on October 31, 2005. Respondent worked as a Fleet Mechanic Supervisor I for the City’s Logistics and Asset Management/Fleet Management department. The City terminated Respondent on January 21, 2015, based on theft of City property. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund. After six years of employment, Respondent vested in the pension plan. According to the Notice of Disciplinary Action, dated January 21, 2015, the City terminated Respondent based on his admission to stealing certain property belonging to the City. On January 5, 2015, Respondent was interviewed by the Tampa Police Department (“TPD”) as part of an investigation into stolen property. During this interview, Respondent confessed to stealing a set of tires owned by the City and installing them on his personal vehicle. After the City learned of Respondent’s admission to the theft of City property, the City terminated Respondent’s employment. Kimberley Marple, an Employee Relations Specialist Supervisor for the City, testified on behalf of the City and explained that the City maintains a zero tolerance policy for removal of or taking City property for personal use. Consequently, when the City learned of Respondent’s admission to TPD, he was fired. Based on the evidence and testimony presented at the final hearing, the preponderance of the evidence establishes that the City terminated Respondent’s employment by reason of his admission to theft of City property. Therefore, the Fund met its burden of proving a legal basis under section 112.3173 for Respondent’s forfeiture of all rights and benefits to the Fund’s pension plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order finding that Respondent, Mario Perez, was a public employee who, by reason of his admitted commission of a “specified offense” under section 112.3173(2)(e), forfeited all rights and benefits in the pension plan administered by the Fund. DONE AND ENTERED this 23rd day of August, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2017.
The Issue The central issues in this case are (1) whether Petitioner is eligible for membership in and retirement benefits from the Teachers' Retirement System; and (2) whether Petitioner is entitled to receive as a refund contributions paid by his employing agency and, if so, how much and at what interest rate.
Findings Of Fact Petitioner, currently sixty-six years old, was employed as a professor of economics and finance at the University of South Florida (USF), Tampa, Florida, from September 1965 through August 31, 1981, when he terminated employment. As a member of the teaching faculty, Petitioner automatically became a compulsory member of the Teachers' Retirement System (TRS) and remained a member throughout his tenure at USE. When Petitioner originally enrolled in the TRS in September 1965, he signed an enrollment form entitled "Teachers' Retirement System of Florida, Enrollment Blank New Teachers." The form provided general information concerning the TRS, and included information about contributions, service credit, and service retirement benefits under the TRS. The enrollment form provided in part the following: I understand that the full amount of deductions from my compensation for annuity purposes with compound interest will be returned to me if I leave the service without a retirement benefit or will be paid to my beneficiary if I die in active service. At all times relevant hereto, the TRS required that members make contributions of six-quarter percent of their total salaries to their retirement accounts. Of this amount, six percent went into the TRS member's retirement account and the quarter percent was allocated to the Survivors' Benefits Fund. In addition to the contributions made by TRS members, employers were required to contribute matching funds to the TRS Retirement Fund. While employed at USF, the prescribed six quarter percent of Petitioner's salary was deducted, with six percent appropriately posted to his TRS retirement account. During the time Petitioner was employed at USF, the employer contribution paid by USF to match Petitioner's contribution was $23,846.06. Had Petitioner remained a member of TRS, he would have been eligible to begin receiving benefits in February 1993. While employed at USF, Petitioner was given the option to transfer from the TRS to the newly created Florida Retirement System on five different occasions: December 1970; June 1971; July 1972; January 1975; and January 1979. Through information disseminated by Respondent, TRS members were notified that by transferring to the "new" Florida Retirement System, they would become mandatory members of the federal Social Security System. Petitioner chose to remain in TRS rather than transfer to the Florida Retirement System, thereby foregoing membership in the federal Social Security System. In August 1981, prior to his normal age of retirement, Petitioner terminated his employment with USF and requested that Respondent refund Petitioner's retirement contributions. In making the request, Petitioner completed and signed a form entitled, "Request for Refund," FRS M81. Completion of this form is a requisite for receiving retirement refunds and applies to members of any of the Florida retirement systems. The Request for Refund states: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. On the reverse side of the Request for Refund card, is the following: Under the provision of the Florida Statutes, a member MUST terminate employment before he can obtain a refund. * * * The refund process may be started upon receipt of this application. It may be necessary to issue a second refund after all payrolls on which a member's name appears are received and audited by the Retirement System Office. A member who has ten or more years of creditable service has a vested interest in retirement and may leave his contributions on deposit indefinitely and qualify for deferred retirement. Pursuant to Petitioner's request, the Division refunded $22,153.10 to Petitioner in October 1981. The refund, which was provided in three warrants, included all employee contributions and earned interest posted to Petitioner's retirement account as of the date of the refund. Petitioner's refund was provided in three separate warrants because the system in place, in 1981, was incapable of generating a single check for an amount in excess of $9,999.99. In late 1995 or early 1996, Petitioner called the Division of Retirement to inquire about his benefits under the TRS. Petitioner made after this call after he reviewed his Social Security wage earning history and learned that no contributions had been posted to his Social Security account during the sixteen years he had been employed at USF. Upon reviewing the Petitioner's request, Respondent discovered that $1,692.96 remained in Petitioner's TRS account. Of the amount remaining in Petitioner's account, $292.63 represented Petitioner's employee contributions, and $1,400.33 was earned interest. Respondent's failure to refund Petitioner's $292.63 and the interest earned thereon as soon as these moneys were posted to Petitioner's account was the result of an unintentional accounting error. Under the procedures used by the Division at that time, Petitioner's most recent employee contributions were not posted to his account until November or December 1981. The interest earned on Petitioner's employee contributions were not posted to Petitioner's account until the end of the 1981/1982 fiscal year. This matter is addressed in the Request for Refund which notified members that "it may be necessary to issue a second refund" after all payrolls on which the member's name appears have been posted. After discovering this inadvertent accounting error, Respondent initially agreed to refund Petitioner the outstanding $1,692.96. Subsequently, the Division of Retirement agreed to pay Petitioner $1,692.96 plus six a-half percent interest from October 1981, for a total amount of $4,088.31. The six and a- half percent interest rate is the current rate established by Respondent. Pursuant to Petitioner's request, Respondent has not yet refunded Petitioner's outstanding employee contributions and interest, pending the culmination of this proceeding. At the time Petitioner completed and signed the Request for Refund, it was his intention to obtain all of his contributions and interest. It was not until Petitioner's inquiry in 1995 or 1996 that he became aware that a small amount of his employee contributions and interest thereon had not been refunded. Petitioner believes that because Respondent did not refund all moneys due him, some $1,692.96, he retained membership in the TRS and is now able to retire from that system with a partial benefit. Alternatively, Petitioner asserts that he is entitled to receive as a refund, all contributions paid into his retirement fund, including the contributions paid by USF. According to Petitioner, his understanding and belief in this regard is based on an explanation provided to him by Dr. John Milliken, the Dean of the College of Business at USF. Petitioner's understanding in this regard was not correct. At some point prior to Petitioner's terminating his employment at USF, he reviewed a Summary Plan Description (SPD) which was issued by the Division of Retirement in 1980. One section of the SPD, Refund of Contributions, provides in relevant part: If a member terminates employment he may elect to receive a refund of all the contributions he has made to the retirement system, except those made to the Survivors' Benefit Trust Fund. Furthermore, the first paragraph of the Summary Plan Description states: This brochure contains basic information on the Teachers' Retirement System, established by Ch. 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers' Retirement System and should not be used in place of the law on questions of interpretation and appli-cation. Any question which are not answered by this brochure may be addressed to the Div. of Retirement, . . . . Based on Petitioner's reading of the provision of the SPD quoted in paragraph 20 above, it was his "judgment" and "impression" that any refund prior to retirement, would include both employee and employer contributions and the interest on these contributions. At no time did Petitioner verify his interpretation with the Division of Retirement or the USE Personnel Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order finding that Petitioner, John C. Deiter, is (1) ineligible for retirement benefits under the Teachers' Retirement System and (2) is not entitled to receive employer contributions and interest thereon. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELDK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Murray B. Silverstein, Esquire POWELL, CARNEY, HAYES and SILVERSTEIN, P.A. Barnett Tower One Progress Plaza, Suite 1210 St. Petersburg, Florida 33701 Stanley M. Danek, Senior Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399
