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 (2009).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 employed with the City from August 1, 1994, through March 16, 2009, when the City terminated his employment. Respondent worked as an Automotive Equipment Operator II in the City’s parks and recreation department. Respondent worked a total of 15 years for the City. 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 a Notice of Disciplinary Action, dated March 16, 2009, the City terminated Respondent based on a complaint that he had stolen City property. Specifically, in February 2009, the City received information that Respondent was in possession of a City-owned lawn mower at his residence. After receiving the complaint, the City notified the Tampa Police Department (“TPD”). TPD searched Respondent’s home. TPD did not find a City lawn mower. However, during its search, TPD did discover a spool of weed eater line on Respondent’s porch that he admitted belonged to the City. During a subsequent interview with TPD, Respondent confessed to taking the spool from the City’s supplies without permission. Respondent also divulged that he did occasionally take a lawn mower owned by the City and use it on his property. Following the TPD interview, Respondent was arrested and charged with theft of the City property under section 812.014, Florida Statutes. Respondent, however, was never prosecuted for the crime. After completing a pre-trial intervention program, Respondent’s theft charge was dismissed. The City, however, terminated Respondent’s employment based, in part, on his admission to stealing the weed eater line. Kimberly 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 that he took City property, he was fired. At the final hearing, Petitioner admitted to “borrowing” the City lawn mower from time to time to use at his home. He expressed, however, that he always returned it to the City. Respondent claimed that he never considered permanently taking the lawn mower. Respondent did, however, confirm that he took the weed eater line from the City, without authority, for personal use and did not intend to return it. Respondent relayed that a spool of weed eater line costs approximately $80. Respondent voiced that he was an exemplary employee for the City during his 15 years of employment. Respondent represented that, prior to this incident, he had never received any disciplinary action from the City. Respondent’s testimony is supported by his annual performance evaluations which record that he dependably and diligently performed his responsibilities for the City parks and recreation department. Respondent’s performance was frequently marked as excellent or outstanding. 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 that Respondent must forfeit 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, Robert Ramshardt, 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 22nd day of February, 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 22nd day of February, 2017.
The Issue The issue is whether Petitioner has forfeited her rights and benefits under the Florida Retirement System (“FRS”) pursuant to section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. For over 21 years, Ms. Painter was the head softball coach for Gulf Coast, an FRS-participating employer. By virtue of her employment, Ms. Painter was enrolled in the FRS. On May 5, 2014, the Bay County Sheriff’s Office commenced an investigation into allegations that Ms. Painter had misappropriated cash that had been provided to her to pay for players’ meals during a softball tournament in Las Vegas and that Ms. Painter was collecting and keeping rent money from softball players who were on full room-and-board scholarships and had their rent paid by the college. In the summer of 2014, Ms. Painter was charged by information with one count of grand theft, a third-degree felony. Gulf Coast did not terminate Ms. Painter’s employment. Gulf Coast allowed Ms. Painter’s employment contract to expire on June 20, 2014. On January 9, 2015, the information was amended to include seven counts of grand theft, each constituting a third degree felony under section 812.014(1) and (2)(c), Florida Statutes (2014). Though some counts dealt with other allegations, for the purposes of this proceeding, the essential charges involved the meal money and the rental payments. Ms. Painter ultimately entered a plea of nolo contendere to one count of grand theft. During the hearing before the court, the state attorney specified that Ms. Painter was pleading to Count IV, which alleged theft of the meal money. The contemporaneous notes taken by the court clerk state that Ms. Painter was pleading to “Count 4.” The order of probation states that she pled to “Count 4.” However, the actual written “Plea, Waiver and Consent” signed by Ms. Painter and the attorneys shows the numeral “1” under the heading, “Count.” It is unclear from the document whether Ms. Painter was pleading nolo contendere to one count of grand theft, or to Count I of the information. Count I involved the allegation that Ms. Painter had improperly collected rent from one of the scholarship players, Megan Griffith. At the circuit court hearing, no mention was made of the specific factual allegations in the count to which Ms. Painter was pleading. The court made no findings of fact. Ms. Painter was not required to allocute to any facts.2/ Upon entry of the nolo contendere plea, the court withheld adjudication. Ms. Painter was given two years’ probation and ordered to make restitution of $4,400, perform 100 hours of community service, and was directed to have no contact with Gulf Coast or her former players. The undersigned finds that the understanding of all parties, including the court, was that Ms. Painter was pleading nolo contendere to Count IV of the information. The amount of restitution ordered is roughly consistent with the amount of meal money that was at issue in Count IV. The numeral “1” on the plea document is either a misprint or was intended to convey that Ms. Painter was pleading to a single count of grand theft. At the final hearing, Ms. Painter testified that she was given $4,752 in cash to pay for meals during the Las Vegas trip, which began on January 31, 2014, and ended on February 4, 2014. Ms. Painter testified that if the girls were splitting up to eat at different restaurants, she would dole out cash to each group. If everyone was eating at the same restaurant, all the girls would place their orders, and Ms. Painter would pay the entire tab. Ms. Painter testified that this had been her practice on team trips for some time. She stated that she used to give each girl her portion of the total meal money at the start of a trip. However, some girls would inevitably spend all of their money before the end of the trip and Ms. Painter would have to pay for their meals out of her own pocket. By doling out the money one meal at a time, Ms. Painter ensured that it would last the entire five days. Ms. Painter denied keeping any of the meal money for herself. She admitted that she did not keep receipts from each meal she purchased, but testified that meal receipts were not required on multiple day trips, such as the Las Vegas tournament. Nothing she did on this trip was different than her usual practice. At the end of the trip, she returned $132 in unspent meal money to the athletic department. Ms. Painter testified that her nolo contendere plea was made for financial and emotional reasons. The case had dragged on for 17 months. The ordeal was humiliating and exhausting. She stated that accepting the plea deal was the hardest decision she had ever made, but that she did not in fact take any of the meal money from her softball players. The Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. The undersigned did not admit the deposition of Gulf Coast Athletic Director Gregg Wolfe because it was a discovery deposition taken in Ms. Painter’s criminal case. The undersigned did admit the Bay County Sheriff’s Office case file on Ms. Painter’s criminal case, which included witness interviews and Ms. Painter’s bank statements. However, the case file was admitted on the understanding that it was a hearsay document that could only be used to supplement or explain other evidence. In the absence of competent non-hearsay evidence, or any showing by the Department that elements of the case file would be admissible over objection in a civil trial, the case file was of no utility. The Department’s only witness aside from Ms. Painter was its employee Allison Olson, the benefits administrator in the Bureau of Retirement Calculations. Ms. Olson’s knowledge of the case was gleaned purely through her review of the paper record, including the case file and the transcripts of depositions taken in the criminal proceeding. She had no first- hand knowledge of any of the events in question. Ms. Painter offered the deposition testimony of Joanne Booker, a member of Ms. Painter’s softball team at the time of the Las Vegas trip and currently an assistant basketball coach for Gulf Coast. In most essentials, Ms. Booker corroborated Ms. Painter’s testimony. Ms. Booker did not recall many particulars as to how the meals were purchased, but testified that at each meal the players were either given cash by Ms. Painter or had their meals paid for by Ms. Painter. Ms. Booker recalled no problems as to meals and recalled no one complaining about food on the Las Vegas trip. Even if it were found that Ms. Painter’s plea was actually entered as to Count I, the findings would be much the same. Ms. Painter testified that the “rent” she was accused of collecting and pocketing from the scholarship players was actually a voluntary contribution toward the rent of the non- scholarship players, to enable the entire team to live together in the same apartment complex. Ms. Painter testified that any money she collected was turned over to the lessor of the apartments. Again, the Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. Ms. Painter’s testimony was at least credible enough to be accepted in the absence of any competent non-hearsay evidence to the contrary.
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 restoring to Susan Painter her rights and benefits under the Florida Retirement System and providing for payment to her of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 September, 2018.
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 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 The issues in this case are whether Petitioner was properly enrolled in the Florida Retirement System (FRS) Hybrid Option Plan (Hybrid Option) in 2002, and whether he should be retroactively re-enrolled in the Florida 1 All statutory references are to the 2019 version of the Florida Statutes, except where indicated otherwise. Retirement System Pension Plan (Pension Plan) without having to pay a “buy-in” amount.
Findings Of Fact Mr. Marinak began employment with the Marion County Public School System, an FRS-participating employer, in 1989. At that time, the Pension Plan was the only retirement program available for eligible employees, and, thus, Petitioner was enrolled in the Pension Plan. The Pension Plan is administered by the Florida Division of Retirement (Division of Retirement), which is housed within the Department of Management Services. The Pension Plan is a defined benefit plan; the benefit is formula-based. The formula used for calculating a pension plan benefit is based on total years of service at the time of retirement, membership class, and average final compensation. Mr. Marinak has been continuously employed by an FRS-participating employer from 1989 to present. In 2002, the FRS Investment Plan (Investment Plan) became available to employees participating in FRS. The Investment Plan is administered by Respondent. The Investment Plan is a defined contribution plan; the benefit is based on gains and losses due to market performance. Mr. Marinak was provided a choice window of September 1, 2002, through November 30, 2002, to remain in the Pension Plan or switch to the Investment Plan. The parties stipulate that the Plan Choice Administrator at the time, now doing business as Voya, has records indicating Mr. Marinak elected the Hybrid Option by means of a telephone call on November 27, 2002. Voya no longer has a recording of the call. SBA does not have a recording of the telephone call either. The Hybrid Option is as its name indicates—it is a hybrid of the Pension Plan and the Investment Plan. When the Investment Plan was introduced in 2002, Pension Plan participants, with at least five years of service, could elect to enroll in the Investment Plan with a zero balance. With the election of the Hybrid Option, retirement funds from all years of service prior to the election remain in the Pension Plan; everything from the election forward is administered under the Investment Plan. Hybrid Option participants will receive the resulting defined benefit from the Pension Plan (earned prior to the election) upon retirement, plus the benefits from the investments in the Investment Plan after the election. The Pension Plan portion of the Hybrid Option remains with, and continues to be administered by, the Division of Retirement. The Investment Plan portion is administered by Respondent. Mr. Marinak disputes electing to enter the Hybrid Option. He credibly testified that he did not desire to transfer to the Investment Plan and has no recollection of authorizing such a transfer. Beginning at least as early as 2005, Respondent sent or otherwise made available to Mr. Marinak quarterly “FRS Investment Plan” statements. Mr. Marinak testified that he received these statements, but did not know what they meant. The earliest FRS Investment Plan statement documented by Respondent as having been sent to Mr. Marinak covered the period of January 1, 2005, to March 31, 2005. Mr. Marinak did not inquire about the statement or file a complaint with Respondent after receiving this statement. Beginning at least as early as 2008, the Department of Management Services sent or otherwise made available to Mr. Marinak annual “FRS Pension Plan – Hybrid Option” statements. These statements were sent to Mr. Marinak’s address of record at the time the statements were mailed. Mr. Marinak testified that the addresses where the statements were sent were, indeed, his addresses. Since the transfer in 2002, Mr. Marinak has updated his beneficiary designations for both the Pension Plan and Investment Plan portions of his Hybrid Option. In November 2008, Mr. Marinak communicated by e-mail with personnel at the Division of Retirement about the status of the Pension Plan and the years of service used to calculate his benefits. In December 2008, in response to his inquiry, the Division of Retirement prepared and provided to Mr. Marinak an Estimate of Retirement Benefit. The “Comments” section of the Estimate of Retirement Benefit stated as follows: This estimate is based on retirement at 30 years of service. It represents your 13.40 years of service in the Florida Retirement Pension Plan (8/1989 through 11/2002). You will have to terminate all employment with FRS employer to receive this benefit. You have an additional 6.00 years in the Hybrid Investment Plan through 11/2008; the years in the Hybrid Option are not used in calculating your monthly retirement benefit from the pension plan, which is why they are not reflected in your Member Annual Statement. Mr. Marinak did not inquire about the comment or file a complaint after receiving the Estimate of Retirement Benefit.2 Mr. Marinak testified that he saw the comment, but not being an expert in retirement financing, he did not comprehend what it meant. Mr. Marinak did not present documentary evidence or an audio recording demonstrating that he did not elect to transfer from the Pension Plan to the Hybrid Option. In early 2019, Mr. Marinak, nearing retirement, reviewed his retirement account and recognized that he was enrolled in the Hybrid Option. He contacted the Division of Retirement for guidance on how to switch back into the Pension Plan. The Division of Retirement informed Mr. Marinak that he may utilize a one-time “second election” to move back into the Pension Plan, but must pay a sum of approximately $160,000 as a “buy-in” amount to do so. This sum is derived from an actuarial calculation conducted by the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 27th day of July, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 27th day of July, 2020. COPIES FURNISHED: Ruth E. Vafek, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 (eServed) Herbert M. Hill Law Office of Herbert M. Hill, P.A. Post Office Box 2431 Orlando, Florida 32802 (eServed) Robert John Marinak 16531 Swan View Circle Odessa, Florida 33556 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue Whether the Petitioner, Kellie Brown, on behalf of her minor son, Brandon Brown, is entitled to payment of the Health Insurance Subsidy on the retirement account of Corporal Arthur "Donnie" Brown, deceased, for the period of February 1, 1994, through and including September 1996.
Findings Of Fact Kellie M. Brown (Petitioner) is the natural mother and guardian of Brandon D. Brown, a minor child, whose deceased father was Donnie Brown. At the relevant times, Donnie Brown was employed by the Orange County Sheriff's Office (Sheriff's Office) as a deputy with the rank of Corporal, and was a compulsory member of the Florida Retirement System (FRS). On or about January 16, 1994, Cpl. Brown disappeared from public view and did not report for duty with the Sheriff's office. His last day of work was listed as January 15, 1994. He was subsequently terminated from his position for failure to report for duty. His body was later found on March 15, 1994, and after examination by the county medical examiner, it was determined that his date of death was January 15, 1994. Based on this determination, survivorship benefits became available to Brandon Brown as if his father had died while still employed with the sheriff's office. The Petitioner is the former spouse of the deceased. After the discovery of the body, the Sheriff's office offered to assist Petitioner in the completion and transmission of the necessary paperwork to obtain available benefits. The Sheriff's Office enrolled Brandon under its health insurance plan for one year at no cost to the Petitioner. In March 1994, Petitioner visited the personnel office of the Sheriff's Office. She was given many forms and applications to sign in order to obtain benefits for her son. Petitioner testified that one of the forms in the packet of material was the Health Insurance Subsidy (HIS) application form of the Respondent. She claimed it was given to her in a manila folder by Barbara Hill, a personnel specialist with the Sheriff's Office. Petitioner later had another conversation with Ms. Hill in which the Petitioner wanted to know where the completed form was and insisted that the HIS form was in the material given to her by Ms. Hill. Petitioner then stated that Ms. Hill called the offices of the Respondent in Tallahassee and was told that her son was not eligible for the HIS payment. Thereafter, Petitioner stated that she did not pursue the issue. On behalf of her minor son, the Petitioner applied for and began receiving a FRS retirement benefit on the account of Cpl. Brown, effective July 1994 and retroactive to February 1994. After Brandon's name was added to the retired payroll, in July 1994, Petitioner was notified by mail from the Respondent that Brandon was also eligible for payment of a HIS, which is a benefit separate from the retirement benefit that is paid to retirees and their beneficiaries to help offset the cost of health insurance. Petitioner did not return the HIS application form. Notification of new retirees after their name has been added to the retired payroll about their eligibility for the HIS is the normal and customary practice of Respondent. The HIS application form of Respondent is not given to the employing agency. Therefore, the Sheriff's office would not have a copy of the form to give to Petitioner. Instead, the HIS form is sent by the Respondent directly to the retired member or the beneficiary after the actual retirement. The form is sent out at the same time or shortly after the notice to the retiree that he or she has been placed on the retired payroll. Brandon Brown was added to the retired payroll in July 1994, retroactive to February 1994, and the notification letter form was sent to Petitioner in July 1994. The HIS form would have been sent at that time or shortly thereafter. In early 1997, Barbara Hill reviewed the roll of retirees because of a reengineering program instituted by the Sheriff's office. She found three widows who were not being paid the HIS benefits by Respondent, including Petitioner. She contacted all three women at the request of the Sheriff's office. Respondent sent information about the program to the women. As the result of conversations between Petitioner and Barbara Hill of the Sheriff's office, Petitioner was sent an HIS application form by Respondent, which she completed and returned to the Division on April 23, 1997. Brandon was added to the HIS payroll retroactive to October 1996. The amount of the benefit is $51.99 per month. The Sheriff's office has a health insurance subsidy program for its retired members that is similar to the FRS HIS program and is the same dollar amount as the HIS benefit paid by FRS. However, it is paid only to members and not to beneficiaries so that a beneficiary like Brandon would receive the FRS HIS payment but would not receive the Sheriff's Office HIS payment. The Respondent makes regular efforts to notify retirees of the various benefits offered to them under FRS. As it applies to this case, the Respondent issues a pamphlet entitled "After You Retire" on a periodic and ongoing basis. The then current edition was issued in October 1993, and provided on page 7, information about the HIS. The pamphlet stated as follows: The health insurance subsidy (HIS) is a monthly supplemental payment that you may be eligible to receive if you have health insurance coverage. This monthly payment, which you must apply for, is figured by multiplying your total years of creditable service at retirement (up to a maximum of 30 years) by $3. The minimum monthly subsidy is $30 and the maximum is $90. After your name is added to the retired payroll, an application for the health insurance subsidy, Form HIS-1, will be mailed to you. The completed application must be returned to the Division of Retirement within six (6) months of the date your retirement benefits commenced if you wish to receive the subsidy retroactive to your retirement date. If you fail to return the form within six (6) months, retroactive subsidy payments will be limited to a maximum of six (6) months. It is your responsibility to obtain certification of health insurance coverage and apply for the health insurance subsidy. (emphasis in quoted material) The Respondent also issued a "Retiree Newsletter" in December 1994, and informed all retirees about updates to the HIS program. On page 3, the Newsletter stated: The Health Insurance Subsidy (HIS) is an extra payment that is added to your monthly retirement benefit to help you pay the cost of health insurance. To be eligible for receive the HIS payment, retirees must have health insurance, Medicare or Champus. The subsidy payment which you must apply for, is $3 per month for each year of creditable service you had earned at retirement. The minimum monthly subsidy is $30 and the maximum is $90. If you believe you are eligible for the subsidy but are not currently receiving it, you should call or write the Disbursement Section and request Form HIS-1, Health Insurance Subsidy Certification. If you apply for the HIS after you retire, you will receive retroactive HIS payments limited to a maximum of six months, or the number of months you have been retired, if less than six months. (emphasis in quoted material) Petitioner was mistaken in her belief that the application form for FRS HIS benefits was provided to her by the Sheriff's Office in March 1994.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Kellie Brown, is not entitled to the payment of the Health Insurance Subsidy for her minor son on the retirement account of Corporal Arthur "Donnie" Brown, deceased, for the period of February 1, 1994, through and including September 1996. RECOMMENDED this 17th day of November, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of November, 1997. COPIES FURNISHED: Kellie M. Brown, pro se 12868 Downstream Circle Orlando, Florida 32828 Stanley M. Danek, Senior Attorney Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399 Thomas J. Pilacek, Esquire Thomas J. Pilacek & Associates 601 South Lake Destiny Road Maitland, Florida 32751 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact The facts here involved are largely undisputed. Callie Grier was employed by the Polk County Hospital as a nurses aide from 1966 until July of 1972. She did not have 10 years employment for retirement purposes at the time of her death in 1976, hence her retirement had not vested. In 1966, and again in 1969, Callie Grier designated her husband, Timothy Grier, as beneficiary of her retirement benefits. At the beginning of her employment Callie Grier was covered under the City and County employees retirement system. In 1970 retirement provisions were modified to establish a Florida Retirement System to cover all city, county and state employees. Those employees covered under a previous retirement system were given the option of transferring to the new system or staying with their existing retirement system. In 1970 Mrs. Grier elected to transfer to the Florida Retirement System (Exhibit 7). On 18 September 1970 Callie Grier obtained a final judgment of divorce from Timothy Grier, Jr., which judgment provided for the payment of child support. (Exhibit 1) On 23 March 1971 an Order of Contempt was issued adjudging Timothy Grier, Jr. in contempt of court and sentencing him to IS days in jail for failure to pay child support. (Exhibit 2) . On 1 November 1971 Timothy Grier was adjudged to be in contempt of court and sentenced to jail for 90 days for being in arrears on child support payments (Exhibit 3) . Also on 1 November 1971 an order relinquishing jurisdiction over Timothy Grier to the Criminal Court was issued (Exhibit 4). On or about this time Timothy Grier departed Bartow and his present whereabouts is unknown to Petitioner. Callie Grier married Aaron Spencer after her divorce from Grier and was so married at the time of her death. Petitioner has custody of the minor child of Callie Grier and has had custody since the death of Callie Grier. On 10 February 1971 Callie Grier executed a change of beneficiary form for her insurance with The Travelers Insurance Company designating Willie Mae Barnes as beneficiary (Exhibit 6) At this time Callie Grier was suffering from a kidney disorder which later required the use of dialysis. Following a kidney transplant in 1976 Callie Grier died in a Gainesville hospital. In 1970 many of the employees in Polk County were not aware of all of their retirement benefits and little effort was expended by local employers to insure the employees had all information. The State Division of Retirement has held numerous seminars and workshops throughout Florida, including Polk County, for both supervisors and employees from time to time since the Division of Retirement was formed. In addition, at least annually brochures were prepared in sufficient numbers to provide one for each employee and sent to the various employers. These brochures explained the various retirement benefits to which employees are entitled. In these brochures. as well as he seminars and workshops, the requirement of having currently designated beneficiaries was stressed.
The Issue Whether the Respondent, Christina M. Restauri, committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed community association managers pursuant to Florida law. At all times material to the allegations of this case, the Respondent was licensed as a community association manager, license number CAM 0019553. In May 1998, the Respondent became the community association manager for the Association. As such, the Respondent had duties and responsibilities in connection with the day-to-day management of the Association's business. In exchange for the performance of her manager duties, the Association paid the Respondent a salary, provided her with a condominium unit for her residence, paid her utilities, and covered her local telephone service. The Respondent's managerial duties included all office management for the Association, including the collection of fees owed to the Association, the payment of monies owed to vendors by the Association, and the accounting associated with payroll for salaries owed to employees of the Association. The Respondent and the Association entered into a written management agreement that outlined the terms of her employment. The agreement (Petitioner's Exhibit 1) did not require the Association to pay for the Respondent's family health insurance. Additionally, the agreement did not provide for paid sick leave in excess of four days per year. In connection with her responsibilities for payroll, the Respondent controlled the amount of checks made payable to herself for salary owed during the course of her employment. This authority also allowed her to control the amount of monies withheld from her salary to cover her family medical insurance and for the monies payable for federal withholding taxes and social security. On at least two occasions, the Respondent altered her withholding such that no monies were withheld for federal taxes. The Respondent failed or refused to produce a W-4 form that would have supported the change in withholding. Moreover, the Respondent did not produce a W-2 form that would have supported, after-the-fact, that the withholding forms had been modified to support the altered withholding amount. The Respondent failed or refused to produce documentation to establish that she repaid the Association for family medical benefits she received. Initially, the amount to cover the family health benefit was reportedly withheld from the Respondent's paycheck. The adequacy of the withheld amount came into question. Under the terms of her employment, the Respondent was to remit the monthly family health premium to the Association. She did not do so. In fact, copies of checks that were purportedly offered in support of her claim that she had made the payments were never deposited into the Association's account. When the Respondent was challenged as to the amounts owed for health premiums and the matter was to be further investigated, she tendered her resignation. She never produced any of the financial records requested to document any of the matters contested in this proceeding. In addition to the foregoing payroll discrepancies, the Respondent caused herself to be overpaid $125.00 for sick leave. On or about October 12, 2000, the Respondent took $700.00 from the Association's petty cash and loaned it to Sandy Schwenn. Ms. Schwenn was employed by the Association as a secretary and had agreed to repay the funds. The loan was never repaid. The Respondent was not authorized to loan monies from the Association's petty cash fund and admitted the error during a board of directors' meeting on November 15, 2000. Whether the Respondent made good on her promise to repay the loan herself is unknown. Clearly, at hearing the Respondent did not make such representation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order against the Respondent that imposes an administrative fine in the amount of $2500.00, and revokes her license as a community association manager. DONE AND ENTERED this 13th day of November 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003. COPIES FURNISHED: Julie Malone, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christina Marie Restauri 4640 Northwest 30th Street Coconut Creek, Florida 33063 Jennifer Westermann Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202
