Findings Of Fact Petitioner is a resident of Florida and resides at 306 Sweetwater Cove Boulevard, North, Longwood, Florida 32779. Respondent, Department of Administration, Division of Retirement, is an agency of the State of Florida located at Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 32303. Intervenor is a resident of 5448 San Luis Drive, Orlando, Florida 32807. The agency action challenged by the Petition is the determination that the continuing monthly retirement benefit available under Option 4 of the Florida Highway Patrol Pension Plan, which provides for a continuing monthly benefit to the "spouse" of the retiree shall be paid to the person who was the spouse at the time of the retiree's retirement, not the individual who was the spouse of the retiree at the time of the retiree's death. Petitioner was not married to Florida Highway Patrol retiree Jack E. Walden on the date of his retirement, which was November 1, 1972, but was the legal spouse of Jack E. Walden at the time of his death on January 9, 1985. Florida Highway Patrol retiree Jack E. Walden was married to Barbara C. Walden on the date of his retirement; however, subsequently on January 22, 1976, Barbara Walden and Jack Walden were divorced. Thereafter, on February 6, 1976, Jack Walden married Marilyn S. Walden and she remained his spouse during the following nine years until his death. Petitioner has sought to be paid a "surviving spouse" or other benefit available from the Florida Highway Patrol pension plan, however, the Agency has determined that any benefit must be paid to the former spouse of Jack E. Walden, not Petitioner. Intervenor, Barbara C Yeater, was married to Jack E. Walden on January 19, 1949. She was his spouse during the entire time of his service with the Florida Highway Patrol, at the time of his retirement in 1972, and until dissolution of their marriage in 1976. In September, 1972, prior to his retirement, Jack E. Walden designated Barbara Walden as his beneficiary under the Highway Patrol Retirement System. (Exhibit 1)2 On June 27, 1975, Respondent received Exhibit 2,3 but did not respond to it. At the time Exhibit 2 was received by Respondent, it was the Division of Retirement policy that a retiree who had selected Option 4 under Chapter 321, F.S., could not change the previously selected recipient of survivor benefits subsequent to retirement and cashing of the first warrant. A copy of Exhibit 2 was not sent to Barbara Yeater. There was no further communication from Jack E. Walden to Respondent concerning changes in beneficiary or option selection after June 27, 1975. There was an exchange of correspondence between Respondent and Barbara Yeater (Exhibits 3, 4 and 5),4 but copies of that correspondence were not sent to Jack E. Walden. The Petition and final judgment of dissolution between Jack Walden and Barbara Yeater are Exhibits 7 and 8 in evidence. The subject retirement benefits were not disposed of in the final judgment of dissolution. The monthly benefit payable to Jack E. Walden's surviving spouse is $622.00 plus cost-of-living adjustments. Decedent retired with 21.60 years service, which produced an initial benefit of $475.91. Jack E. Walden believed, at the time of his death, that he had accomplished the change in beneficiary which he sought to carry out by filing Exhibit 2 with Respondent. This fact is based on the absence of any reply by Respondent rejecting the proposed change, by Decedent's failure to make other arrangements for Marilyn Walden, by not seeking to modify the alimony payments awarded to Intervenor, and by his statements to Petitioner and to his friend, George Watson, indicating his belief that the change had been effected, and, finally, by the fact that Respondent accepted and thereafter utilized the change of address contained in the change of beneficiary notice. Respondent relied on the Arnow case5 in its decision to award the continuing benefits to Intervenor on the death of Jack E. Walden (discussed below).
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order awarding continuing retirement benefits to Petitioner. DONE and ENTERED this 29th day of August, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985.
The Issue The retirement benefits to which Petitioner is entitled.
Findings Of Fact Jules Cofman was born September 20, 1911, and died September 23, 1990. Mr. Cofman was happily married to Petitioner, Beatrice Cofman, for 55 years, and they had two children. Prior to his death, Mr. Cofman was employed by the City of Margate, Florida, as an inspector and became entitled to retirement benefits from the Florida Retirement System. Mr. Cofman retired effective March 1, 1990, with 10.14 years of credible service in the Florida Retirement System. On June 20, 1989, Mr. Cofman was diagnosed as having cancer of the bladder. On June 30, 1989, Mr. Cofman underwent surgery, but the cancer continued to spread following the surgery. After his surgery in June 1990, Mr. Cofman was in constant pain and was on medication, including narcotic analgesics. Following his surgery, Mr. Cofman was treated at Bethesda Memorial Hospital between July 20, 1989, and September 14, 1990, on seven occasions as an inpatient and on twelve occasions as an outpatient. Between January 11, 1990, and July 23, 1990, Mr. Cofman was treated at Boca Medical Center on 16 separate occasions. The record does not reflect the nature of his treatments at Boca Medical Center or whether Mr. Cofman was treated as an inpatient or as an outpatient. No medical records were introduced into evidence. A letter from Dr. Mark Ziffer, the urologist who treated Mr. Cofman, was admitted into evidence as a joint exhibit, but there was no testimony from any of Mr. Cofman's treating physicians. There was no competent medical evidence introduced in this proceeding upon which it can be concluded that Mr. Cofman was incompetent when he selected his retirement option or when he cashed his retirement checks. On July 21, 1989, the Respondent mailed to Mr. Cofman an estimate that provided him with an explanation of his options under the Florida Retirement System and provided him with an estimate of the benefits under each option. On February 16, 1990, Mr. Cofman executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. On the reverse side of the form is an explanation of each option. By this form, Mr. Cofman selected retirement benefit Option 1, which is described as being a "member benefit only." The explanation of Option 1 on the reverse side of FR-11 is as follows: Option 1: A monthly benefit payable to you for your lifetime. Upon your death, the monthly benefit will cease and your beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. This option does not provide a continuing benefit to a beneficiary. If you wish to provide a beneficiary with a continuing monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial equivalency factors to the option 1 benefit. The FR-11 also contained the following statement in capital letters: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE NOR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN THE FIRST BENEFIT CHECK IS CASHED OR DEPOSITED! Between the date of his retirement and the date of his death, Mr. Cofman received seven retirement benefit checks from the Florida Retirement System and cashed those benefit checks. The Respondent was notified of the death of Mr. Cofman by a telephone call from Mrs. Cofman on September 24, 1990. On October 2, 1990, the Respondent notified Mrs. Cofman by letter that Mr. Cofman had ". . . elected to retire under Option 1 of the Florida Retirement System which provides the maximum monthly benefit for the lifetime of the member only." This was the first time that Mrs. Cofman was aware that Mr. Cofman had selected a retirement option that would not provide her benefits after his death. By letter to Respondent dated December 7, 1992, Ms. Cofman stated, in pertinent part, as follows: My husband, Jules Cofman (Social Security No. 028-01-6868) has worked as Lot Inspector at the Public Works Department of Margate, Florida for 13 years. In June of 1989 he was diagnosed with bladder cancer. Because of surgery, chemotherapy and radiation he found it necessary to retire. He received notice that he would receive his retirement check the end of April, 1990. In conversations I have had with him in regard to his retirement, he said "of course I would be his beneficiary". He did not discuss the Options with anyone. He received about four checks before he passed away on September 23, 1990. I was shocked to learn that because of his state of mind, he had inadvertently put down Option One instead of Option Two. He had been unable to accept the fact that he was so sick and could not discuss his possible death even with me. He never made any arrangements for my financial security. He had no insurance and no savings. We always planned on his retirement to augment our Social Security. I cannot believe that he would knowingly do this to me. We had been happily married for 55 years. If he had been in a rational state of mind, knowing that he had less than a year to live, he would have certainly chosen OPTION TWO. I would greatly appreciate it if you would review his case and determine whether it would be possible for me to receive his Retirement Benefit. Thank you for your consideration. By letter dated January 28, 1993, the Respondent denied Petitioner's request to change the option selected by Mr. Cofman. The letter asserted the position that the selection cannot be changed since the retirement checks were cashed and cited the following portion of Rule 60S-4.002(4)(b), Florida Administrative Code: After a retirement benefit payment has been cashed or deposited: * * * (b) The selection of an option may not be changed . . . Mrs. Cofman does not believe that her husband made a rational choice in selecting retirement Option 1. Mrs. Cofman believes that her husband would not accept the fact that he had cancer and that he was in a state of denial to the extent he refused to discuss his illness. The testimony of Mrs. Cofman and that of Mr. Gold established that Mr. Cofman's personality changed after he became ill. Prior to his illness, Mr. Cofman was a warm, extroverted person. After his illness, he became withdrawn, moody, depressed, and lifeless. The testimony of Mrs. Cofman and the testimony of Mr. Gold do not, however, establish that Mr. Cofman was incompetent at the time that he selected his retirement option or at the times he cashed his retirement checks. Mrs. Cofman attempted to talk to her husband about his condition and about family financial matters, but he would not talk to her. When Mr. Cofman executed his retirement option, the form did not require the consent or signature of the spouse. Since Mr. Cofman's death, the form has been changed to require that the spouse sign if the retiree selects Option 1. Mrs. Cofman testified that had she been informed as to Mr. Cofman's retirement options, she would have insisted that he select Option 2. Mr. Cofman executed FR-11 on February 16, 1990. The form appears to have been completed in type on February 15, 1990. The evidence in this matter does not establish that Mr. Cofman was incompetent to execute the FR-11 on February 15 or 16, 1990, or that there was any irregularity in the execution of this form or in its delivery to the personnel office of the City of Margate. Between March 1, 1990, and the date of his death, Mr. Cofman received and cashed seven retirement benefit checks. Mrs. Cofman testified that she would not have permitted those checks to have been cashed had she been informed as to Mr. Cofman's retirement options.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order which denies Petitioner's request to change the retirement option selected by Jules Cofman. DONE AND ENTERED this 29th day of December 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1507 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, and 3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4, 5, and 6 are adopted in part by the Recommended Order. The argument contained in those paragraphs are rejected as findings of fact as being argument and as being, in part, contrary to the findings made and the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 8 are subordinate to the findings made. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence or as being argument that is contrary to the findings made or to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 12, and 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. As reflected by Joint Exhibit 1, Mr. Cofman had additional hospital visits. The proposed findings of fact in paragraphs 8, 9, and 10 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 11 are adopted in material part by the Recommended Order or are subordinate to the findings made. COPIES FURNISHED: Stanley M. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stuart B. Klein , Esquire Klein & Klein, P.A. 1551 Forum Place, Suite 400B West Palm Beach, Florida 33445 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner was overpaid $961.87 in 1975 when he received a refund of his retirement contributions, and, if so, whether Petitioner is required to refund that amount to the Division of Retirement before receiving any retirement benefits.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a law enforcement officer employed by the Florida Highway Patrol (FHP). Petitioner was first hired by FHP in August 1968. He left FHP on October 15, 1975, to pursue a private venture. Petitioner rejoined FHP in July 1981, and he is currently a member of the troop that patrols the Florida Turnpike. Between September 1968 and December 1974, Petitioner made monthly contributions to the FHP pension fund which, at the time, was administered by FHP. In 1970, when the Florida Retirement System (FRS) was created, Respondent took over the administration of the FHP pension fund, and Petitioner elected to participate in the FRS. The FRS was, and still is, administered by Respondent pursuant to Chapter 121, Florida Statutes. Prior to January 1, 1975, the FHP pension fund and the FRS were "contributory," meaning that the employee was required to contribute a percentage of his or her salary to the fund, and contributions were also made by the employer. Starting on January 1, 1975, the FRS became "non-contributory," meaning that the employer made all of the contributions. Petitioner's contributions to his FHP pension fund account were recorded on a four-column ledger sheet which showed the old balance, date of contribution, amount of the contribution, and the total balance. The ledger sheet was not computerized. The entries were manually typed onto the ledger sheet. Petitioner's account showed a total balance of $4,656.71 on December 31, 1974, and because the FRS was "non- contributory" after that date, the account had the same balance on October 15, 1975, when Petitioner left FHP. The total balance shown for Petitioner's account was incorrect as a result of a calculation error made when Petitioner's December 1968 contribution was entered onto the ledger sheet. Prior to that contribution, the old balance reflected on the ledger sheet was $108.89. Petitioner's December 1968 contribution was $37.45, so the total balance should have been $146.34. However, a calculation error was made and the total balance entered on the ledger sheet was $1,108.21. The effect of this error was that the balance shown in Petitioner's account was $961.87 (i.e., $1,108.21 minus $146.34) more than Petitioner had actually contributed. The error was carried forward to the following month when $1,108.21 was entered as the old balance, and all subsequent entries to Petitioner's account reflected the error. As a result, Petitioner's actual contributions as of December 31, 1974 (and, hence October 15, 1975, when he left FHP) were $3,694.84, not $4,656.71. The error was not discovered in October 1975 when Petitioner left FHP and requested a refund of his contributions. Apparently, the account was not audited prior to payment of the refund to Petitioner. In October 1975, Petitioner signed a card requesting a refund of his contributions. The address listed on the card corresponded to Petitioner's address at that time. The pertinent information from the card (i.e., the payee and the amount) was provided to the Comptroller by Respondent when a warrant was requested. The Comptroller prepared a warrant in the requested amount and returned it to Respondent along with a computer- printed label that contained Petitioner's name and social security number, the refunded amount ($4,656.71), warrant number (173213), and the date of the warrant (November 4, 1975). The label was affixed to the refund request card, and the warrant was mailed to Petitioner. The Comptroller's records show that warrant number 173213 was paid on November 21, 1975. The records do not show the payee of the warrant. Nor do the records show whether the warrant was deposited into a bank account or cashed. The cancelled warrant no longer exists. Petitioner did not recall receiving a warrant in the amount of $4,656.71. Petitioner and his wife both testified that they recalled receiving only $2,500.00. Petitioner produced a deposit slip dated November 15, 1975, showing a $2,500.00 deposit as well as bank records which showed that deposit as the only large deposit into Petitioner's account between November 1975 and February 1976. The source of the $2,500.00 check is not shown on the deposit slip. The Comptroller's records show no FRS warrants in that amount during the period of November 15, 1975, through November 21, 1975, when such a warrant would likely have been paid. Moreover, Petitioner conceded that he may have had another bank account at the time, although he could not locate any records for such an account. Petitioner received a statement of account from Respondent in June 1974 showing the balance of his account to be $4,220.47 at that time. Despite having that information and despite his financial circumstances being "tight" at the time, Petitioner did not make any inquiry to Respondent as to why he received only $2,500.00. This suggests that the $2,500.00 check was not the FRS warrant. The overpayment was first discovered in 2000 when Respondent conducted an audit of Petitioner's FRS account as part of its preparation of the member annual statement required by Section 121.136, Florida Statutes. Petitioner was first informed of the error and the 1975 overpayment in August 2001 when he received an unsolicited telephone call from Brenda Shiver, an employee of the Respondent, regarding his retirement plans and the cost of "buying back" his prior service with the FHP between 1968 and 1975. Petitioner has no current plans to retire. Nor does Petitioner have a current desire to "buy back" his prior service which would cost over $21,000, not including the amount at issue in this proceeding. The cost of the prior service is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement issue a final order that increases the cost for Petitioner to "buy back" his prior service by $961.87 to reflect the 1975 refund overpayment, but eliminates the mandate that Petitioner pay that amount as a condition of receiving retirement benefits related to his current service. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2002. COPIES FURNISHED: Richard W. Holland 17964 Lookout Hill Road Winter Garden, Florida 34787 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account of her late husband for the period September 1999 through February 28, 2003.
Findings Of Fact Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of Commissioners and had approximately 25 years of creditable FRS service at the time of his death. Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made. Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner. According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death. After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567. However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband. Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death. On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows: We are sorry to learn of the death of Robert Roberts on August 20, 1999. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received. If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207. At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter. In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not. Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court. The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed. On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows: This is in reference to the retirement account of Robert R. Roberts. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate. If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999. To receive the Option 3 benefit, the following documents are needed: Copy of member’s death certificate. Proof of member’s date of birth. Proof of your date of birth. Completed application, Form FST-11B. Copy of your marriage certificate. The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter. No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division. The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits: If you will furnish this information within 30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999. Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information. Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts. Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation. Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records. Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003. Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given. Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing. The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected. A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate. On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document. Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits. On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts. On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following: As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $561.35 effective March 1, 2003. To receive the Option 3 benefit, we need the following: Completed application, Form FST-11b. (Emphasis supplied) A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003. Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin, Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date. Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred. Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999. DONE AND ENTERED this 27th day of April, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2004. COPIES FURNISHED: James C. Campbell, Esquire James C. Campbell, P.A. 4 Eleventh Avenue, Suite 2 Shalimar, Florida 32579 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's deceased wife, Dorothy Bazzel, made a valid selection of retirement "option 1" instead of "option 2"; whether that apparent selection was a mistake and, consequently, whether the Petitioner should be allowed to receive retirement survivors benefits in accordance with "option 2", as provided for under section 121.091(6), Florida Statutes.
Findings Of Fact The Petitioner, Joe Bazzel, is a resident of Blountstown, Florida, and is retired. His wife, now deceased, was Dorothy Bazzel. She was a longtime teacher in the Bay County school system, with more than 46 years continuous creditable service in the Florida Retirement System and as a teacher. She retired on July 1, 1988. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutes, embodied in Chapter 121, and related rules, by which operation of the Florida Retirement System, including determinations of entitlement to and payment of benefits, is accomplished. Mrs. Bazzel underwent surgery for breast cancer on January 11, 1987. She had been diagnosed by Dr. Dixon McCloy, of Panama City, with breast cancer sometime in January of that year. Her progress after surgery was satisfactory, and she kept all appointments, had required x-rays, examinations and mammograms thereafter, by which her physicians monitored her progress. She had expressed to several persons of her acquaintance a desire to retire by the end of the 1987-1988 school year. In order to prepare for that event, she contacted her brother-in-law, Ray Bazzel, who testified in this case, and asked him to contact the Division of Retirement in Tallahassee, Florida, to obtain an estimate of her expected retirement benefits. He made that request to Ms. Loreen Vause, an employee of the Division, on July 16, 1987, by telephone. The Division of Retirement has an ongoing program which automatically generates an estimate of benefits for members who have certain amounts of creditable service and are of a certain age. When Mr. Bazzel made his request for an estimate of benefits for Mrs. Bazzel, the Division was already in the process of preparing a benefit estimate for her through its routine program. That estimate was forwarded to Mrs. Bazzel on July 22, 1987, and it stated as follows: This is a routine audit of your account. Noting the many years of service you have, we are furnishing you an estimate of your benefits as if you terminate your employment on June 30, 1988, and retire effective July 1, 1988. This is furnished for informational purposes only. By means of that estimate, Mrs. Bazzel was informed as to the benefit amounts which she would receive under all four retirement options. See Respondent's exhibit 8 in evidence. Ray Bazzel would visit Mrs. Bazzel on occasion during his visits to Panama City. She was described by him in his testimony to be a very private person not given to talking much about her illness or the operation. She did discuss the possibility of her retirement on one occasion with him, sometime during the summer of 1987. They discussed all four retirement options, and he explained the options in detail to her. He advised her that she would have to make a decision as to which option she would take, but he was never advised by Mrs. Bazzel nor anyone else as to which option she had actually selected until after her death. He did not know that she had made application for retirement on January 14, 1988. Harold Bazzel is a nephew of the Petitioner. He testified that he did not know that Mrs. Bazzel had made an application for retirement and did not know what option she selected until after her death. Richard Locker was the personnel officer with the school board where she was employed and knew Mrs. Bazzel personally and professionally. He was the principal for six years at Cove Elementary School where both his wife, Nan Locker, and Mrs. Bazzel taught. Mr. Locker had a policy of discussing retirement issues with Florida Retirement Service members on his staff and advising them of correct procedures to follow, as to the paperwork involved, and as to the full retirement options which they could select. He advised all members who were employed at his school to call the Division of Retirement in Tallahassee for more information. He never advised anyone of which option they should take because each case is an individual case, and he did not feel comfortable advising an employee or friend which option to take and then later have that person accuse him of advising the wrong option. Mr. Locker saw Mrs. Bazzel after her surgery and stated that after the surgery, she appeared to be in good health. He saw her in May of 1988 and stated that she was very optimistic and appeared capable of teaching the next year. She did not seem moody or depressed in any way to him. He believed that she exhibited an attitude that her treatment had been a success and that her health had been restored. He discussed with her the possibility of her retiring at the end of the 1987-88 school year, and he believed that she would retire at that time. In two telephone calls, he and Mrs. Bazzel discussed the four different retirement options. She appeared to know what he was talking about and to understand those options. He felt that she understood that option 1 would pay the highest benefit amount to her of the four options. He, however, did not really know what option she had chosen until after the Petitioner, her husband, informed him after Mrs. Bazzel's death. Based upon the testimony of Ray and Harold Bazzel and that of Richard Locker, concerning their contact and discussions with and advice to Mrs. Bazzel, it is found that Mrs. Bazzel was aware of the four options and the differences between them. She was aware that option 1 provided the highest benefit to the retiring member for the lifetime of that member and that it would cease at the death of the member with no further benefits being payable to any person. On January 14, 1988, the Petitioner, Joe Bazzel, drove his wife to the offices of the school board, where she completed the forms necessary for her retirement. She talked with Vicky Poole, the records clerk, who helped teachers and administrators complete necessary retirement forms as part of her job duties. Ms. Poole had worked at the school board offices for approximately seven years and had an established procedure for informing prospective retirees of all information needed to process retirement applications. As part of her instructions to them, she would ask each potential retiree to inform her of the option they wanted to select, who their beneficiary would be and where the checks were to be sent. She would inform them when they would start receiving checks, would discuss with them their sick leave balance "payoff", and what steps they needed to take to obtain social security benefits. This discussion with prospective retirees would take up to one-half hour if the retirement form had not been partially completed before the retiree came into the office, or about 15 minutes if the form had already been partially completed. If Mrs. Bazzel already understood the retirement options and had formed an opinion of what she wanted to do concerning retirement and the selection of an option, and if the form had already been partially completed, then the entire process on January 14, 1988 could have occurred in a few minutes. It was Ms. Poole's practice to sit next to the prospective retiree, obtain the necessary information, and type it on the retirement form at that time. She would then advise the member of the various options by referring to the back of the retirement form (Respondent's exhibit 12 in evidence) or to a pamphlet explaining the options issued by the Division of Retirement. Both of those documents contain a narrative description of the retirement options. Ms. Poole did not choose a retirement option or advise a prospective retiree of which option to choose. The retiree must choose his or her own option. Ms. Poole would never advise a person concerning which option to take and had been advised by the Division of Retirement never to give such advice on option selection. If Ms. Poole perceived that a prospective retiree was indecisive about option selection or did not appear to understand the options or the consequences of such election, she would advise that person to speak with someone else who was knowledgeable about the retirement system and about the retiree's financial situation, such as a friend or relative. If a prospective retiree was still indecisive or unsure of the meaning of options or which option to select, Ms. Poole would hold the form and not complete it without being sure in her own mind that the retiree understood the option and knew what it meant. In her standard procedure, she would go over each item on the form at least two and up to four times with a retiree. If they were very certain of the option they wanted to select, she would then finish the form and have the person sign it and give it to Ms. Bolinger to notarize. Ms. Poole realized that the choice of an option was an important decision and conducted her interview with the retiree accordingly. She testified in this regard as follows: If they said well I'm looking at 2 and 3, that's waivering. If they said I want option 1, I typed 1 in and I would say it several times as I typed it in. I mean I was very well aware that this selection was for the rest of their life and could affect someone else. I was very well aware of that. So, I would repeat it several times and when I was complete, when the form was complete, I'd give it back and go over it again, again reemphasizing the option. If they did waiver, I would briefly go over the options and there was time, I always mention, you know, there's time to do this, to choose your option, perhaps you want to talk to someone. I could not advise them. That's what I did. Ms. Poole remembered that Mrs. Bazzel came into the office but did not remember if the retirement forms had already been completed or partially completed prior to the visit. She testified that there was no doubt in her mind that Mrs. Bazzel chose option 1 and no doubt that she knew what option 1 meant. Ms. Bolinger began to work with the school board dealing with retirement applications in 1984. She is now the records clerk who handles retirement matters for teachers and school administrators. This is the same job that Ms. Poole performed in January of 1988. Ms. Bolinger notarized the retirement form of Mrs. Bazzel. Ms. Bolinger learned her job from Ms. Poole and testified that the retirement form was always completed in the office before a retirement clerk and was never sent to anyone. She stated that the clerk would ask the member if they understood each of the options, and the clerk would be sure that the member did understand them. It was the practice to ask such a retiring person if he or she was familiar with the options. If the retiree seemed the least bit confused, Ms. Bolinger testified that the clerk would discuss each option all over again with the prospective retiree, give him the form with the options listed on the back, and they would then discuss each one and make sure that the prospective retiree understood each option before continuing the process of executing the requisite forms. Thus, Ms. Poole and Ms. Bolinger or any school board clerk follows a routine practice of examining and discussing in detail each retirement option with a prospective retiree and makes sure that person understands the wording of the four options and what the four options mean before making a selection, answering any questions the prospective retiree might have and advising them to seek counsel from a qualified person if the prospective retiree remains unsure of which option to elect. After the forms are completed, the clerks, including Ms. Bolinger and Ms. Poole, when she was performing that function, examine the forms with the retiring member to make sure that all information is correct. "We wait until they check the whole thing and this is exactly what they want, and I watch them sign it." The signature is the last item which is placed on the retirement form. If the retiring member appears unsure about the options, Ms. Poole and Ms. Bolinger will ask them to go home and think about it and think it all through before they decide. Like Ms. Poole, Ms. Bolinger leaves the option selection up to the retiring member and does not attempt to advise persons about which option to select, merely giving them the information concerning the effect of selecting a particular option. In her capacity as a notary, Ms. Bolinger stated that if a person did not look like they knew what they were doing in executing the form, she would not notarize the form. If they did not appear to understand that they were applying for retirement, or which facet of it they were applying for, she would, likewise, not notarize the form. She would not notarize a signature after the fact of the signature being placed on the form. Ms. Bolinger was shown a copy of Petitioner's exhibit 7, in evidence, which is a copy of the retirement form that did not have her notary signature. She observed that her notary stamp was on that copy but that her name had merely been signed in the wrong place, possibly because she was new to those duties concerning retirement clerk matters. She testified, however, that her signature was correctly placed on the form, she believes, that same day. See pages 17 and 37 of Petitioner's exhibit 7, in evidence. On January 14, 1988, Mrs. Bazzel completed two forms: FR-11, "Application for Service Retirement", and FR-9, "Request for Audit", (see Respondent's exhibits 9 and 10, in evidence). Both of those forms contain Mrs. Bazzel's signature and are dated with the same date, January 14, 1988. The FR- 11 form had that date written on it in three places. The two forms were then filed with the Division of Retirement. They were acknowledged by the Division as being received on the next day, January 15, 1988, according to the form FST- 40C, "Acknowledgment of Retirement Application", which has January 15, 1988 as the received date. See Respondent's exhibit 11 and the testimony of Stanley Colvin, in evidence. The Petitioner testified that he believes the retirement application forms referenced above were suspect as to accuracy because, according to his testimony, he took his wife to the school board offices on a Friday to sign the forms after the end of the teaching day on either January 8th or January 15th, and states that generally he remembers that it was a Friday because that was the day they had the habit of leaving the Panama City area to visit relatives for the weekend. However, the forms are dated January 14, 1988 in several places. The forms in evidence and the testimony of Ms. Colvin establish that the application documents were received on January 15th in the offices of the Respondent agency. Thus, they could not have been signed on Friday, January 15th. If they had been signed on Friday, January 8th, the record leaves no explanation as to why all of the forms were dated January 14th. The Hearing Officer can only logically find that, indeed, the forms were signed by Mrs. Bazzel on January 14, 1988 and received in the offices of the Division in Tallahassee, Florida, on January 15, 1988. The date of January 20, 1988, appearing on the documents, was established to be the date they were received in the bureau within the department which actually performs benefit calculations, not the date it was first received by the department. The evidence establishes that Mrs. Bazzel selected option 1, the retirement option which provides no survivor's benefits. None of the exhibits in evidence can support a finding that she chose or intended to choose option 2, which provides survivor's benefits. The application for service retirement shows an election for option 1 and the acknowledgment of receipt of that retirement application, FST-40C, shows that option 1 was selected, as well as the letter that informed Mrs. Bazzel that she was being added to the retirement payroll in the category of option 1 benefits. On August 1, 1988, the day after the first retirement warrant would have been received by Mrs. Bazzel, Ray Bazzel called the offices of the Division of Retirement to state that Mrs. Bazzel had checked the wrong number of income tax exemptions and wanted to change them. In order to know how many exemptions she had, he would have had to see the stub from that first retirement warrant. The stub would have depicted the gross amount of the benefit, which was the same amount as that provided for option 1, and not the gross amount attributable to option 2. See FST-40C form, in evidence as Respondent's exhibit 8. Additionally, in a conversation with one of her closest friends, Nan Locker, Mrs. Bazzel led Ms. Locker and friends at school to believe that her surgery had alleviated her medical problem with cancer and that she was in good health. During a conversation they had approximately nine months before Mrs. Bazzel's death, Mrs. Bazzel, in talking about retirement with Ms. Locker, who was also contemplating retirement, made a comment as follows: "Well, I've got my retirement and Joe's got his." This comment was made sometime in the fall of 1989 before Mrs. Bazzel's death in July of 1990. Although the Petitioner introduced exhibits 1, 2 and 4 in an attempt to show that his wife meant to select option 2 and that some mistake was made by the school board or the Division in preparing and submitting the documentation setting up Mrs. Bazzel's retirement benefit situation; in reality, those exhibits merely show that Mrs. Bazzel possibly did some calculations as to the difference in monthly amounts between option 1 and option 2. The exhibits can only show that she may have been aware of the difference in monthly benefit amounts between the two options, but they do not show that she intended to select option 2. Indeed, the evidence and testimony, considered in its totality, shows that her selection of option 1 was a voluntary, knowing selection. The evidence also shows that Mrs. Bazzel was mentally and medically competent to make that selection, freely and voluntarily. Her visits with Dr. McCloy, her treating physician, in the first half of 1988, to monitor her health situation after the cancer surgery, were normal and showed nothing unusual as far as any recurrence of cancer was concerned. Her chest x-rays were negative for recurrent cancer. On June 3, 1988, she was diagnosed as having a small duodenal ulcer, but no indication of recurrent cancer was present. Dr. McCloy treated her for the ulcer with medication; and by August 10, 1988, her symptoms attributable thereto had largely been alleviated. Her visits to Dr. McCloy were routine for the remainder of 1988 and 1989, with normal results. It was not until March of 1990 that she was diagnosed with a spot on the left rib, which proved to be recurrent cancer, probably attributable to the original breast cancer. She deceased as a result of this condition on July 9, 1990. Dr. McCloy testified that he never advised Mrs. Bazzel that her cancer was terminal because he believed that it had been successfully treated after the surgery and for a long period of time thereafter he had no evidence of its recurrence. Therefore, he had not advised her that she was terminally ill during the period of time she was making the retirement decisions, applying for and receiving her first retirement check during essentially the first half of 1988. Dr. McCloy's testimony further establishes, without doubt, that Mrs. Bazzel was alert, possessed her full intelligence and faculties, and understood the significance of his medical instructions, and understood his advice as to her health status. Accordingly, it has been established that Mrs. Bazzel did not have a recurrence of cancer until it was diagnosed in March of 1990, long after she had made the relevant retirement decisions pertinent hereto, and that she knew and was fully aware of her medical condition during the process of applying for her retirement benefits. She, therefore, understood the steps she took for retirement application and benefit receipt purposes, and was not medically or mentally impaired to make those decisions. It was established that she began her teaching career as a member of the Teacher Retirement System, pursuant to Chapter 238, Florida Statutes. She subsequently transferred into the Florida Retirement System under Chapter 121, Florida Statutes, during an open enrollment period. While a member of the Teacher Retirement System, she paid $12,870.33 in total contributions, plus interest, which accumulated on those contributions in the amount of $8,561.97, for a total on deposit in her account of $21,432.30. During the period of her retirement before her death, Mrs. Bazzel received total benefits in the amount of $49,551.95. She, therefore, received $28,119.65 more in benefits than she had paid into the Teacher Retirement System in contributions, plus accumulated interest. It was proven that the distance to the residence or places of business of the deponents, whose depositions were admitted into evidence, comports with the standard of Rule 1.330, Florida Rules of Civil Procedure. Since the locations of the deponents as potential witnesses accorded with the 100 mile standard, their depositions were admitted in lieu of live testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Joe Bazzel, is not entitled to have the retirement option selected by Dorothy Bazzel changed from option 1 to option 2. DONE AND ENTERED this 15th day of September, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5774 Petitioner's Proposed Findings of Fact 1-5. Rejected as not being in accord with the preponderant weight of the evidence. 6. Accepted but not itself materially dispositive. 7-11. Rejected as not being in accord with the preponderant weight of the evidence. Respondent's Proposed Findings of Fact 1-25. Accepted. 26-30. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Mr. Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Joe Bazzel P.O. Box 46 Blountstown, FL 32424 Stanley M. Danek, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street, Bldg. C Tallahassee, FL 32399-1560
The Issue The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.
Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was as follows: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: 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 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.
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 granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2006.
The Issue The issue in this case is whether Petitioner, a surviving beneficiary, is entitled to change the Florida Retirement System retirement benefits 1 All references to chapter 120 are to the 2019 version. payment option selected by her now-deceased spouse, a member of the Florida Retirement System.
Findings Of Fact Respondent, Department of Management Services, Division of Retirement, is the state agency charged under chapter 121, Florida Statutes (2002),2 with administering the Florida Retirement System ("FRS"). Petitioner is the spouse of James L. Williams, now deceased, who was employed by the School District of Palm Beach ("District) for 38 years, and was a member of the FRS. Williams retired from his employment with the District on August 23, 2002. At that time, he executed the Florida Retirement System Application for Service Retirement Form, Form FR-11. On Form FR-11, he designated Petitioner as his primary beneficiary and Jones as his contingent beneficiary. Williams signed this form, and his signature was notarized. Also on August 23, 2002, Williams executed the Florida Retirement System Option Selection for FRS Members Form, Form FRS-11o. On that form, he selected FRS retirement benefits payment Option 2, and designated that choice by writing an "X" on the line next to Option 2. Option 2 was described on Form FRS-11o as: A reduced monthly payment 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 monthly payments. No further benefits are then payable. 2 All references to chapter 121 are to the 2002 version of the Florida Statutes, which was in effect at the time that the retirement benefits application and option selection forms that have given rise to this proceeding were executed. Form FRS-11o contained a section, immediately below the description of Option 2, that was required to be completed by the spouse of a married FRS member who had selected Option 1 or Option 2. On August 23, 2002, Petitioner completed, signed, and dated that section, confirming that she was the legal spouse of Williams and acknowledging that she was informed that Williams had selected either Option 1 or Option 2. The purpose of that section on Form FRS-11o is to inform the spouse of the FRS member that, by the member's selection of either Option 1 or Option 2, the surviving spouse is not entitled to receive a continuing benefit for the rest of his or her life. The last sentence on Form FRS-11o, immediately above the space for the FRS member's signature, states in pertinent part: "[m]y retirement becomes final when any payment is cashed . . . [or] deposited." DeVonnia Jones was present with Williams at the time he was given Form FR-11 and Form FRS-11o to execute. Jones testified that when Williams arrived at the District office on August 23, 2002, Form FR-11 and Form FRS-11o already had been filled out by District staff, and were presented to him by his supervisor, who informed him that he needed to retire or he would be terminated. According to Jones, Williams did not wish to retire at that time. Jones asked District staff how much more Williams' monthly benefits would be if he did not retire for another year or two, and was told that Williams' benefits would be between $25 and $30 more per month. According to Jones, "my dad basically shed a couple tears. He was not comfortable, but he went ahead and signed it because I told him to, because they made it seem like he wasn't going to be eligible to get what he was supposed to get." Williams signed and dated Form FRS-11o on August 23, 2002, and his signature was notarized. On August 28, 2002, Respondent sent Williams a document titled "Acknowledgement of Service Retirement Application." This document stated, among other things, that Williams had selected FRS Option 2, and that his retirement was effective September 2002. At the bottom of this document was a standalone paragraph, in bold face type, that read: "ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED!" Also on August 28, 2002, Respondent sent Williams a document titled "Florida Division of Retirement Estimate of Retirement Benefit (Estimate only, subject to final verification of all factors)." This document provided information regarding the amount of the monthly benefits Williams would receive for the four options offered under the FRS. A statement in bold face type at the bottom of the document read: "Comments: You have chosen Option 2. Your option selection cannot be changed after you cash or deposit any benefit payment." Had Williams wished to change his retirement benefits payment option, he could have done so up to the time he cashed or deposited a retirement benefits payment. Williams began receiving his monthly FRS retirement benefits payments from Respondent on October 4, 2002. He cashed or deposited the first FRS benefits warrant (Warrant #0618275) that he received. Thereafter, Williams received monthly FRS retirement benefits payments until his death on April 26, 2010. Williams received a total of 92 monthly benefits payments before his death. All of the FRS retirement benefits payment warrants issued to Williams were deposited or cashed. On May 17, 2010, Respondent contacted Petitioner to inform her that she needed to complete a Florida Retirement System Pension Plan Application for Beneficiary of Monthly Retirement Benefits Form, Form FST- 11b, in order for her to receive monthly FRS retirement benefits payments as Williams' beneficiary. In the contact letter, Respondent informed Petitioner that "you will receive the same gross monthly benefits to which the member was entitled through August 31, 2012." Petitioner completed Form FST-11b on June 25, 2010, and began receiving FRS monthly benefits payments on June 30, 2010. Petitioner received a total of 28 FRS retirement monthly benefits payments. The last warrant issued to Petitioner (Warrant #0375196) was issued on August 31, 2012. All of the warrants issued to Petitioner were cashed or deposited. In sum, Williams and Petitioner collectively received a total of 120 FRS retirement monthly benefits payments, pursuant to Option 2. All of the warrants issued to Williams, and then to Petitioner, as his beneficiary, were deposited or cashed. Petitioner testified that beginning in 2003, she made numerous attempts, over a period of years, to contact the District and Respondent regarding changing the FRS retirement benefits payment option that Williams had selected on August 23, 2002. During this time, Williams and Petitioner continued to cash or deposit the benefits payment warrants they received from Respondent. In this proceeding, Petitioner does not claim that Williams accidentally selected Option 2, or that he intended to select another option, when he signed Form FRS-11o on August 23, 2002. Rather, she asserts that at the time Williams retired, he suffered from confusion and memory loss such that he did not understand the option he chose—effectively, that he lacked the mental capacity to have chosen Option 2 as his retirement benefits payment option. Alternatively, Petitioner contends that because Williams was forced to retire under threat of termination from his employment, he was under duress when he chose Option 2 on Form FRS-11o. On these grounds, Petitioner asserts that she should be permitted to change Williams' choice of retirement benefits payment option.3 3 Here, Petitioner, has requested that she be allowed to "change" Williams' choice of Option 2 on the FRS retirement option selection forms. She did not identify, or present evidence, Petitioner's impassioned testimony at the final hearing shows that she fervently believes her husband was wrongly treated by the District when it required him to retire in 2002, against his desire to continue to work.4 However, as was explained to Petitioner at the final hearing, the purpose of this proceeding was not to determine whether the District wrongly forced Williams out of his employment; rather, it is to determine whether there is any factual or legal basis for changing the retirement benefits option that Williams selected when he executed Form FRS-11o nearly 18 years ago. The evidence does not support Petitioner's argument that Williams lacked the mental capacity to adequately understand the option that he chose on Form FRS-11o. Although Petitioner testified that Williams had been treated by a neurologist, no direct medical evidence was presented establishing that Williams was mentally incapacitated at the time he executed Form FRS-11o. Additionally, at the time Williams signed the form, he was accompanied by his daughter, who, after speaking to District staff regarding his options, advised him to sign the form. Petitioner herself also was present at the District office and signed Form FRS-11o, expressly acknowledging that she understood Williams had chosen Option 2. Thus, to the extent that Williams may not, on his own, have fully appreciated his choice of options on Form FRS-11o—and there is no competent direct evidence showing that to be the case—both his daughter and wife were present with him when he executed Form FRS-11o, his daughter told him to sign the form, and his wife expressly acknowledged that she understood his choice of Option 2. These circumstances do not support a finding that Williams lacked the mental capacity to understand, or did not adequately regarding which specific option she would choose, if permitted to change Williams' selected FRS benefits option. 4 The evidence indicates that the District required Williams to retire because he began having difficulty with his job as a mail carrier. According to Petitioner, Williams had an accident in a District vehicle and did not report the accident to the District, and that when he was transferred to the mail room, he had difficulty remembering to do certain required tasks. understand, the consequence of choosing Option 2 when he executed Form FRS-11o. The evidence also does not support a finding that Williams' choice of Option 2 should be changed, due to duress. There is no direct evidence establishing that Williams was under duress when he chose Option 2. Although Jones testified, credibly, that her father was upset about being forced to retire when he wanted to continue working, her testimony that he was under duress was based on her subjective conclusion. Furthermore, even if Williams was emotionally distressed when he signed the FRS benefits options forms, there is no evidence showing that as result of such distress, he chose Option 2 instead of a different option. It also is noted that Form FR-11 and Form FRS-11o both expressly informed Williams that once his retirement became final—which would occur when any benefit payment was cashed or deposited—his retirement benefits option selection would become final and could not be changed. Further, Williams received two more pieces of correspondence from Respondent—both containing statements in bold face type—expressly informing him that once any FRS retirement benefits payments were cashed or deposited, his retirement benefits option choice could not be changed. As noted above, Williams could have changed his FRS benefits option at any time before he cashed or deposited a benefits payment; however, he did not do so. Thus, pursuant to the express terms of Form FR-11 and Form FRS-11o, when Williams cashed or deposited the first benefits payment, his selection of Option 2 became final and could not be changed. In sum, the evidence does not establish any factual basis for permitting Petitioner to change Williams' selection of Option 2 as his FRS retirement benefits payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner's request to change the FRS retirement benefits payment option selected by her husband, an FRS member, when he retired. DONE AND ENTERED this 4th day of March, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 4th day of March, 2020. COPIES FURNISHED: Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Deloris Williams 1219 West Ninth Street Riviera Beach, Florida 33404 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Mangement Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Mangement Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner, John Hasko ("Petitioner"), is entitled, pursuant to the City of Dania Beach Code of Ordinances ("Code") section 18-49(4), to be paid retirement pension benefits under the City of Dania Beach Police and Firefighters Retirement System's ("Respondent" or "System") "100 Percent Joint and Last Survivor Annuity" ("Last Survivor Annuity") or the "Modified Cash Refund Annuity" ("Life Annuity").
Findings Of Fact The Parties Petitioner is a retired police officer who was employed by the City of Dania Beach Police Department ("Police Department") and who has qualified for, and is receiving, retirement pension benefits under the System. Pursuant to chapter 18, article IV of the Code, Respondent is the retirement pension system provided for the benefit of firefighters and police officers, including Petitioner, who are or previously were employed by the City of Dania Beach. Evidence Adduced at Final Hearing Background Petitioner was hired by the Police Department on December 18, 1980, and, upon being employed, began accruing credit toward a pension under the System. Petitioner was employed by the Police Department for 20 years. On October 1, 1988, the City of Dania Beach Police Department merged with the Broward County Sheriff's Office ("BCSO"). At that time, Petitioner was given the option whether to remain in the System or to retrieve his contributions and become enrolled in the Florida Retirement System ("FRS"), which was and is the retirement program in which BSCO employees are eligible to enroll. At that time, Petitioner elected to remain enrolled in the System rather than enrolling in the FRS. On August 28, 2000, Petitioner executed a retirement benefits election form to select the type of pension under which he would receive pension benefits from the System starting on January 1, 2001. Petitioner retired from the Police Department effective December 31, 2000. In April 2001, Petitioner began receiving monthly pension payments under the System, and also received back payments for January through March 2001. Immediately upon retiring from the Police Department, Petitioner began working with the BCSO. At that time, he enrolled in the FRS and began accruing credit under a life annuity plan provided through the FRS. Petitioner was employed by the BCSO for slightly over 14 years. As the result of a series of work-related injuries, attendant surgeries, and permanent restrictions on his activities, Petitioner retired from the BCSO on April 14, 2014. In the 2006-to-2007 timeframe, Petitioner was diagnosed with a cardiac condition that ultimately necessitated placement of a stent in 2012. Petitioner remains under the regular care of a cardiologist and is on medication to treat his cardiac condition. He credibly testified that since 2012, his condition has remained stable. In June 2014, Petitioner applied for pension benefits under the FRS. Petitioner testified, credibly, that he had four options from which to choose,1/ and that he selected the Ten Year Certain option. Under this plan, Petitioner receives monthly payments for the rest of his life. If Petitioner were to predecease his beneficiary——in this case, his wife——before the 120-month period ends, she would continue to receive payments through the end of the 120-month period; however, if Petitioner were to predecease his wife after the end of the 120-month period, she would not receive any further payments. Petitioner testified that, based on his belief that he had enrolled in the Last Survivor Annuity under the System, he selected the FRS Ten- Year Certain Option so that if he predeceased his wife, she would receive benefits payments from two sources for the remainder of her life——the Last Survivor Annuity and Social Security. Petitioner receives benefit payments through the FRS to date. Petitioner has received monthly retirement benefit payments through the System since April 2001, including back payments for January through March 2001. He continues to receive monthly retirement benefit payments from the System to date. Evidence Regarding Petitioner's Election of Benefits Under the System The City of Dania Beach Police and Firefighters Retirement System Summary Plan Description ("SPD") summarizes the System's available pension plan options. The section titled "Forms of Benefits Payment," on page 16 of the SPD, states under the "Normal Form of Benefit Payment" subsection: "[u]nless you elect otherwise before your retirement, your pension is payable as a Single Life Annuity with a guaranteed refund of your contributions. This is a series of monthly payments for your life." This provision effectively makes the "Normal Form" the "default" form of benefits payments if the employee does not elect another form of benefit payments before retiring. The "Election of Optional Forms of Benefit Payments" subsection of the SPD states: "You have the right at any time before your retirement date to elect not to have your retirement benefit paid in the Normal Form." This subsection identifies other forms of benefit payments available that the employee may choose as an alternative to the Normal Form. These forms are the Joint and Last Survivor Annuity, the Ten Year Certain and Life Thereafter Annuity, and another optional form actuarially equivalent to the Normal Form. Petitioner decided to retire from City of Dania Beach Police Department at the end of 2000. On August 28, 2000, he met with Sonia Brown, then the plan administrator for the System, to fill out an application for retirement benefits. He completed a form titled "City of Dania Beach Police and Firefighters' Retirement System Application for Benefits" ("Application Form"). Section 1 of the Application Form, titled "For Retirement or DROP Benefits," contained a section to identify the beneficiary for the Joint and Survivor and Ten Year Certain options. Petitioner completed this portion of the form, naming his wife as his beneficiary and providing pertinent information about her. He also completed section 4 of the form, designating his wife as his beneficiary for all purposes under the System. He signed and dated the Application Form. Petitioner testified that he met with Brown again in early December 2000, to finalize his election of his benefits that he would be paid under the System. According to Petitioner, at that time, he told Brown that he chose the Last Survivor Annuity option. He testified that Brown gave him paperwork to fill out, that he completed the paperwork, and that she told him that he would receive benefit payments of between $2,400 and $2,500 per month based on his chosen option. Petitioner testified that Brown did not give him the "City of Dania Beach Police and Firefighters Retirement System Notification of Benefits Payable as a Result of Retirement" form ("Notification of Benefits Form") to complete at the December 2000 meeting. Petitioner testified that he did not specifically remember what documents he completed that day, and that he did not receive a copy of those documents. Respondent's file regarding Petitioner's benefits election does not contain either the original or a copy of the documents that Petitioner claims he signed in December 2000. In short, there is no physical evidence substantiating the existence of these documents. Petitioner testified that based on the December 2000 meeting with Brown, he believed he had selected the Last Survivor Annuity and that the payments under that option would start in January 2001. After Petitioner retired from the Police Department, he did not receive his benefit payments under the System for January, February, and March 2001. He testified that he assumed that this delay was due to the time involved in processing the paperwork he claims to have completed in December 2000. On January 23, 2001, Brown sent correspondence to the System's actuarial services firm requesting that Petitioner's early retirement benefit be calculated according to the various benefits options available to police plan participants who are eligible for early retirement with 20 years of service. Petitioner is shown as having been copied on this letter, and he acknowledges having received the letter. By letter dated February 19, 2001, Respondent sent Petitioner "several forms to be completed by you and returned to this office for further processing of your early retirement benefit." The letter identified these forms as the Notification of Benefits Form, a W-4P form for specifying the amount to be withheld from the benefit payments for federal income tax, and a form to authorize direct deposit of the benefit payments into Petitioner's bank account. Petitioner claims that he did not receive this letter. Petitioner testified that in March 2001, Brown contacted him to complete a "verification of beneficiary form." On March 8, 2001, Petitioner went to Brown's office, where she presented him with what he characterized as a "verification of beneficiary form." According to Petitioner, Brown "asked him to make sure my beneficiary information was correct" and to sign and date the form where she had placed check marks. The "verification of beneficiary form" Petitioner signed actually consists of the second page of the Notification of Benefits Form. The second page of the Notification of Benefits Form that Petitioner executed contains a table that identifies Petitioner's wife (whose name is redacted) as his beneficiary. Portions of the table consist of spaces in which to state information regarding the amount of the nontaxable portion of monthly benefits for the various annuity options, which are identified by number and listed on the first page of the form. There are no amounts listed in those spaces on the form that Petitioner signed; those spaces have been left blank. A paragraph below the table states: "[t]he Survivor Annuity benefit amounts shown above are based on the beneficiary named above and are payable only to this beneficiary. Should you wish to change your beneficiary before your payments begin, new amounts have to be calculated."2/ Near the bottom of the form is the sentence "I accept the terms above, including my choice of annuity form, and confirm the information shown above to be correct."3/ Immediately below the above-referenced sentence is a "Participant's Signature" line. Petitioner signed the form on this line and dated it "3/08/01." Petitioner testified that at the time he signed this form, the spaces for the signature by the Board of Trustees representative and the date of signature were blank. The form subsequently was executed by the Board of Trustees, through Eugene H. Jewell, on March 13, 2001. Petitioner testified that in November 2015, he became aware, through checking his various beneficiary designations as the result of a bank error,4/ that the System was paying his retirement benefits pursuant to the Life Annuity rather than the Last Survivor Annuity. Petitioner testified that on November 6, 2015, he went to the System office to verify that his wife was correctly designated as his retirement pension beneficiary. He met with Cathy David,5/ the current system plan administrator, to review the documents in his retirement pension file. Petitioner testified that, he saw, for the first time, the first page of the Notification of Benefits Form contained in his file. This page had a check mark next to the "Modified Cash Refund"——i.e., the Life Annuity——option. He testified that he did not make the check mark next to the "Modified Cash Refund" option on the form. Petitioner obtained documents contained in the Salem Trust ("Salem")6/ file regarding his retirement pension. Among these documents was a letter dated March 13, 2001, from Brown to Livia Nixon, with Petitioner shown as copied, transmitting the completed forms to enable Salem to process Petitioner's retirement pension, and requesting that Salem expeditiously issue retroactive checks to Petitioner for January through March 2001. Petitioner testified that he had not previously received a copy of the March 13, 2001, letter or the attached forms, and that he did not see them until he obtained the documents in the Salem file. Petitioner also testified that he did not receive a December 6, 2001, letter from Respondent notifying him that the System's auditors, S. Davis & Associates, P.A. ("SDA"), were conducting an annual audit of Respondent's financial statements.7/ This letter contained information regarding Petitioner's pension ——including information expressly identifying the type of benefit Petitioner was receiving as the "Life Annuity." The letter requested that Petitioner review the information contained in the letter and correct any errors by providing the correct information to SDA. Petitioner testified that he first saw this letter during his November 6, 2015, review of the documents in the System's file, so he did not respond to SDA in 2001. In sum, Petitioner claims that at a December 2000 meeting with Brown, he selected the Last Survivor Annuity as the form in which he would be paid retirement pension benefits under the System. He claims that he did not select the Life Annuity, and that he did not make the check mark by the "Modified Cash Refund" option on the first page of the Notification of Benefits form that was contained in the System file. In sum, Petitioner also claims that he did not receive or otherwise was not provided the following documents: (1) the unidentified "paperwork" that he claims he completed at a meeting with Brown in December 2000, at which he selected the Last Survivor Annuity; (2) the letter dated February 19, 2001, from Brown to Petitioner, transmitting forms——including the entire Notification of Benefits Form——that Petitioner needed to complete to enable processing of his early retirement benefit; (3) the first page of the Notification of Benefits Form on March 8, 2001, when he completed the second page of that form confirming his wife as his beneficiary; (4) the March 13, 2001, letter from Brown to Livia Nixon of Salem, transmitting Petitioner's retirement pension forms completed on March 8, 2001, to Salem for processing; and (5) the December 6, 2001, letter to Petitioner from Respondent's outside auditor, SDA, requesting him to verify the accuracy of the information regarding his pension and to correct any errors in that information. Petitioner acknowledges that he did receive a letter from Cathy David dated July 1, 2012, regarding a change in Florida law that could affect retirees. That letter expressly stated "[y]ou chose the life annuity when you retired on January 1, 2001." Petitioner claims that he did not read this letter in its entirety, so he did not see the statement in the letter regarding having chosen the life annuity. Findings of Ultimate Fact Upon careful consideration of the evidence in the record, it is determined that Petitioner did not show, by a preponderance of the evidence, that he selected the Last Survivor Annuity, rather than the Life Annuity, so that, pursuant to section 18-49(4) of the Code, he should be reclassified as being enrolled in the Last Survivor Annuity. First, the undersigned finds implausible Petitioner's testimony that he signed unspecified "paperwork" selecting the Last Survivor Annuity——clearly, a very important decision on his part——but that he does not "remember specifically" what that paperwork was and that he did not receive a copy of that paperwork. Compounding that implausibility is that neither the original nor any copies of that "paperwork" were found in Respondent's file or in Salem's file. Simply stated, there is no physical evidence establishing the existence of this "paperwork" ——which Petitioner claims is the instrument through which he elected the Last Survivor Annuity.8/ Second, the first page of the Notification of Benefits Form that was contained in Respondent's file on Petitioner's retirement pension shows the "Modified Cash Annuity" option—— i.e., the Life Option——as having been selected by the placement of a check mark next to that option. It is undisputed that Petitioner executed the second page of the form. This complete Notification of Benefits Form contained in Respondent's file constitutes the complete, most credible evidence in the record that Petitioner selected the Life Annuity when he executed the form on March 8, 2001. To this point, Petitioner offered no credible evidence to support his assertion that someone——unknown to him and having unknown motives——must have placed the first page of the Notification of Benefits Form, having the check mark next to the "Modified Cash Refund" option, in Respondent's file without his knowledge. The undersigned does not find credible or persuasive Petitioner's testimony that he was not given the first page of the Notification of Benefits Form on March 8, 2001,9/ and that based on the language in the paragraph below the table, quoted in paragraph 29 above, he reasonably believed that the second page of that form constituted a "verification of beneficiary" that simply confirmed his beneficiary for his previous selection of the "survivor annuity." However, in order for the clause "the Survivor Annuity benefit amounts shown above" in that paragraph to make sense, it must be read in conjunction with the table above the paragraph. As discussed above, in the table on page 2 of the Notification of Benefits Form that was executed by Petitioner, no amounts of nontaxable portion of monthly benefit for any of the survivor annuity options have been filled in, even though the paragraph below the table expressly refers to the "Survivor Annuity benefit amounts shown above." The absence in the table of any "Survivor Annuity benefit amounts shown above" is inconsistent with Petitioner having chosen a survivor annuity option. Thus, the paragraph below the table can only be reasonably read to mean that to the extent the employee has selected one of the different survivor annuity options on the first page of the form, the survivor annuity benefits amounts shown in the table apply to the particular beneficiary identified in the table. Accordingly, if no survivor annuity benefit amounts are "shown above"——i.e., set forth in the table ——that would indicate, and only be consistent with, the selection of a retirement option other than a survivor annuity. The undersigned also does not find plausible Petitioner's testimony that he did not receive or otherwise was not given copies of five crucial retirement-related documents—— four of which clearly informed him that he was enrolled in the life annuity——so that he was not timely informed of the need to correct a mistake in his retirement pension enrollment. That these documents were transmitted by different senders—— Respondent, Salem, and SDA——compounds that implausibility.10/ For these reasons, it is determined that Petitioner has not sustained his burden in this proceeding to show, by a preponderance of the evidence, that he has been erroneously classified as being enrolled in the Life Annuity, and that, pursuant to section 18-49(4) of the Code, he should be reclassified as being enrolled in the Last Survivor Annuity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for reclassification of pension enrollment from Life Annuity to Last Survivor Annuity. DONE AND ENTERED this 21st day of September, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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, 2018.
Findings Of Fact The Division of Retirement will make no Findings of Fact relating to whether Petitioner's disability was in-line-of-duty. Accordingly, for the reasons mentioned previously, all findings contained in paragraphs 5, 6, 7, and 8, of the recommended order are rejected. However, the Division accepts the remaining Findings of Fact contained in the recommended order. As taken from the order these findings are: Herman Williams was an employee of the Department of Transportation and a member of the Florida Retirement System. The Division of Retirement approved payment of regular disability benefits to Herman Williams. Herman Williams is currently receiving and accepting these benefits. Herman Williams is an illiterate Seminole Indian, 62 years of age. Williams' duties with the Department of Transportation were driving a mowing tractor and cleaning out roadside ditches. Williams worked for the Department of Transportation approximately 21 years 11 months prior to being placed on the retired roles [sic]. On May 1, 1975, Williams was driving his tractor in the course of his regular employment at the Department of Transportation when the power steering of the tractor malfunctioned causing the front wheels to swerve violently, wrenching the steering wheel in Williams' hands and nearly throwing him from the tractor. Repairs had to be made to Williams' tractor by a Department of Transportation mechanic because the tractor was inoperative. The mechanic discovered a loose nut in the power steering assembly when he exchanged the power steering unit in Williams' tractor with another from the maintenance yard. When the new unit was installed in Williams's tractor it functioned normally. When the power steering from Williams' tractor was installed in the other tractor, it also functioned normally. The mechanic stated that the loose nut which he had discovered could cause the tractor to swerve violently in the manner Williams' had described. On the afternoon of May 1, 1975, Williams reported this instant [sic] to his supervisor, David McQuaig. Mr. McQuaig inquired as to any injuries to Williams and the tractor. Williams reported to McQuaig that the tractor had not been harmed and that he was only sore and stiff. No report of injury was prepared by McQuaig whose duty it was to file such reports. Williams' condition did not materially improve after seeking medical treatment by Dr. Albritton. Williams remained on sick leave until August 11, 1975, when it was exhausted. Williams then took annual leave from August 12, 1975 until September 23, 19975, when his retirement became effective. When the Petitioner's sick leave was exhausted, he was contacted by his supervisor in the Department of Transportation. He suggested that Williams could retire on disability if two physicians would state that he was disabled. This letter was read to Williams by his son, Eddie, because Williams is illiterate. Retirement application forms were provided Williams by the Department of Transportation. The physician report forms were completed by Dr. Albritton and Dr. Wilkerson. The statement of disability by employer form was completed by Williams' supervisor, David A. Young, Maintenance Engineer, for the Department of Transportation. Young stated that he completed the Statement of Disability by Employer, indicating that the application was for regular disability benefits because he had determined that no workman's compensation claim had been made by Williams and because Dr. Wilkerson's medical report had stated that the injuries occurred at Williams's home. The determination that the application was for regular disability benefits was solely Young's. The Application for Disability Retirement signed by Williams was prepared by personnel at the Department of Transportation District Office. This form was signed by Herman Williams; however, this form does not make provision for the member to state the nature of the disability benefits sought. Eddie Williams, son of Herman Williams, took his father to sign the forms at the Department of Transportation office. These forms were not explained to Williams, nor did Eddie Williams read them. Herman Williams was also unaware that such a benefit existed. Herman Williams stated he sought disability benefits based upon his injury on the job. Disability retirement was not discussed between Herman Williams and David Young. Based upon the application submitted in his behalf, the Division of Retirement made a determination that Williams was entitled to regular disability benefits. Williams was unaware that he was not receiving the in-line-of-duty benefits until his son inquired as to how much money he was receiving. When he was advised, he told his father that it appeared to be too little money. At this point Eddie Williams discovered that the application had been for regular disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the administrator permit the applicant to file an amended application for disability in-line-of-duty retirement, and, further, that said application be approved. DONE and ENTERED this 8th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. W. Chalkley, III, Esquire Post Office Box 1793 Ocala, Florida 32670 Douglas Spangler, Jr., Esquire Asst. Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT DEPARTMENT OF ADMINISTRATION HERMAN H. WILLIAMS, Petitioner, vs. CASE NO. 77-982 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. / FINAL AGENCY ORDER A petition for formal proceedings having been duly filed, and a request for hearing officer having been duly made, a hearing was held in the above-styled cause pursuant to the provisions of Section 120.57(1), Florida Statutes, before the Honorable Stephen F. Dean, Hearing Officer, in Ocala, Florida, on September 15, 1977. The Petitioner requested relief from the Division's determination that Petitioner was not entitled to resubmit an application for disability retirement requesting in-line-of-duty disability retirement benefits because he had previously applied for and accepted regular disability retirement. The purpose of the hearing was to determine the factual basis for Petitioner's claim that he should be allowed to apply for in-line-of-duty disability retirement benefits. APPEARANCES AT THE HEARING: Eric E. Wagner, Esquire J. W. Chalkey, III, Esquire Law Offices of Eric E. Wagner, P.A. Post Office Box 1763 Ocala, Florida 32670 For the Petitioner E. Douglas Spangler, Jr., Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 For the Respondent The Hearing Officer entered his Recommended Order on December 8, 1977, in which he sustained Petitioner's assertion and concluded, on the basis of the findings made as a result of the hearing, that Petitioner should be entitled to resubmit his application and request in-line-of-duty disability benefits. In addition to this determination, the Hearing Officer found that Petitioner was in fact entitled to in-line-of-duty disability retirement benefits. In making this latter conclusion, both as a matter of fact and of law, the Hearing Officer went beyond his scope of authority. As will be developed more fully herein, the Hearing Officer was without jurisdiction to consider the issue of whether Petitioner was in fact entitled to the in-line-of-duty benefits. Therefore, so much of the recommended order as purports to address this issue is of no effect, being the result of a hearing that did not comply with the essential requirements of law.
The Issue Whether the Petitioners are entitled to benefits as joint annuitants of the deceased employee.
Findings Of Fact Petitioners are the adult, nondependent children of the deceased, Leonora Chapin. Respondent is the state agency charged with the responsibility of managing the Florida Retirement System (FRS). Leonora Chapin was a vested member of the FRS with over ten years of service as a teacher with the Miami Dade County School District. The exact number of years of her service was not established nor is it dispositive of the issues of this case. In February of 1991, Ms. Chapin became extremely ill. This illness prevented her from returning to work but she did not formally retire. Instead, Ms. Chapin continued as an active member of the FRS until her death, April 14, 1991. At the time of her death, Ms. Chapin had designated "according to will" as her beneficiary to receive benefits, if any, which would be payable at her death. This Personal History Record form is the only record of any designation by the deceased received by the FRS. Based upon the foregoing designation, the Respondent determined that the deceased's two sons would share the deceased's personal contributions to the FRS account. This amount totaled $4,305.17. The Petitioners have disputed this determination and claim they are entitled to benefits as joint annuitants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioners' claim for benefits and returning the member's contributions in the amount of $4,305.17. DONE AND ENTERED this 14th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1999. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Robert Chapin 14014 Northwest Passage Unit 240 Marina Del Ray, California 90292 Stuart Chapin 10729 Westminster Avenue Los Angeles, California 90034 Barry M. Brant, C.P.A. Berkowitz, Dick, Pollack & Brant, LLP One Southeast Third Avenue, Suite 150 Fifteenth Floor Miami, Florida 33131
