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 The issue is whether Petitioner violated Chapter 440, Florida Statutes, by not having workers’ compensation insurance coverage, and if so, what penalty should be imposed.
Findings Of Fact Petitioner operates a gas station and convenience store in Winter Garden. Mohammad Sultan is Petitioner’s owner and president. On November 2, 2006, Margaret Cavazos conducted an unannounced inspection of Petitioner’s store. Ms. Cavazos is a workers’ compensation compliance investigator employed by the Department. Petitioner had nine employees, including Mr. Sultan and his wife, on the date of Ms. Cavazos' inspection. Petitioner had more than four employees at all times over the three-year period preceding Ms. Cavazos' inspection. Petitioner did not have workers’ compensation insurance coverage at the time of Ms. Cavazos’ inspection, or at any point during the three years preceding the inspection. On November 2, 2006, the Department served a Stop-Work Order and Order of Penalty Assessment on Petitioner, and Ms. Cavazos requested payroll documents and other business records from Petitioner. On November 6, 2006, the Department served an Amended Order of Penalty Assessment,1 which imposed a penalty of $70,599.78 on Petitioner. The penalty was calculated by Ms. Cavazos, using the payroll information provided by Petitioner and the insurance premium rates published by the National Council on Compensation Insurance. The parties stipulated at the final hearing that the gross payroll attributed to Mr. Sultan for the period of January 1, 2006, through November 2, 2006, should have been $88,000, rather than the $104,000 reflected in the penalty worksheet prepared by Ms. Cavazos. The net effect of this $16,000 correction in the gross payroll attributed to Mr. Sultan is a reduction in the penalty to $68,922.18.2 On November 3, 2006, Mr. Sultan filed a notice election for exemption from the Workers’ Compensation Law. His wife did not file a similar election because she is not an officer of Petitioner. The election took effect on November 3, 2006. On November 6, 2006, Petitioner obtained workers’ compensation insurance coverage through American Home Insurance Company, and Petitioner also entered into a Payment Agreement Schedule for Periodic Payment of Penalty in which it agreed to pay the penalty imposed by the Department over a five-year period. On that same date, the Department issued an Order of Conditional Release from Stop-Work Order. Petitioner made the $7,954.30 “down payment” required by the Payment Agreement Schedule, and it has made all of the required monthly payments to date. The payments required by the Payment Agreement Schedule are $1,044.09 per month, which equates to approximately $12,500 per year. Petitioner was in compliance with the Workers’ Compensation Law at the time of the final hearing. Petitioner reported income of $54,358 on gross receipts in excess of $3.1 million in its 2005 tax return. Petitioner reported income of $41,728 in 2004, and a loss of $8,851 in 2003. Petitioner had total assets in excess of $750,000 (including $540,435 in cash) at the end of 2005, and even though Petitioner had a large line of credit with Amsouth Bank, its assets exceeded its liabilities by $99,041 at the end of 2005. Mr. Sultan has received significant compensation from Petitioner over the past four years, including 2003 when Petitioner reported a loss rather than a profit. He received a salary in excess of $104,000 in 2006, and he was paid $145,333 in 2005, $63,750 in 2004, and $66,833 in 2003. Mr. Sultan’s wife is also on Petitioner’s payroll. She was paid $23,333.40 in 2006, $25,000 in 2005, and $12,316.69 in 2004. Mr. Sultan characterized 2005 as an “exceptional year,” and he testified that his business has fallen off recently due to an increase in competition in the area. Todd Baldwin, Petitioner’s accountant, similarly testified that 2006 was not as good of a year as 2005, but no corroborating evidence on this issue (such as Petitioner’s 2006 tax return) was presented at the final hearing. Mr. Sultan testified that payment of the penalty imposed by the Department adversely affects his ability to run his business. The weight given to that testimony was significantly undercut by the tax returns and payroll documents that were received into evidence, which show Petitioner’s positive financial performance and the significant level of compensation paid to Mr. Sultan and his wife over the past several years. The effect of the workers’ compensation exemption elected by Mr. Sultan is that his salary will no longer be included in the calculation of the workers’ compensation insurance premiums paid by Petitioner. If his salary had not been included in Ms. Cavazos’ calculations, the penalty imposed on Petitioner would have been $40,671.36. Ms. Cavazos properly included Mr. Sultan’s salary in her penalty calculations because he was being paid by Petitioner and he did not file an election for exemption from the Workers' Compensation Law until after her inspection.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order imposing a penalty of $68,922.18 on Petitioner to be paid in accordance with a modified payment schedule reflecting the reduced penalty and the payments made through the date of the final order. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S 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 22nd day of August, 2007.
The Issue Whether Petitioners, as named beneficiaries of William Wenz, deceased, are entitled to a refund of the Teachers Retirement System account balance of Mr. Wenz, or whether the widow, Joanne Metzler Wenz, is entitled to receive a monthly retirement.
Findings Of Fact William Wenz was an active member of the Teachers Retirement System (TRS) when he passed away on March 27, 2002, having become a member in 1964 when he was employed as a teacher. William Wenz had approximately 35 years of creditable service in the TRS at the time of his death. Throughout his more than 30 years as a teacher, William Wenz made contributions to the TRS. When William Wenz died, his TRS account consisted of $166,285.44 in contributions and interest. William Wenz and Joanne Metzler were married on August 14, 1998. On November 9, 1998, William Wenz filed a personal history and beneficiary designation with the Division of Retirement. On that form, William Wenz designated Joanne Metzler Wenz as primary beneficiary and their children as contingent beneficiaries. On May 4, 2000, William Wenz filed a new beneficiary designation with the Division of Retirement and named his brother, Henry Wenz; his daughter, Wendy Gasior; and his son, William Kurt Wenz, as his beneficiaries. Henry Wenz and Wendy Gasior are Petitioners in this proceeding. Petitioners contend that by virtue of his executing the May 4, 2000, beneficiary form described above, William Wenz clearly intended that his retirement benefits or TRS accumulated contributions would go to his children and brother and not to his wife. In March of 2002, Joanne Metzler Wenz filed for a divorce from William Wenz. Shortly thereafter, on March 27, 2002, William Wenz died. At the time of his death, the divorce action was still pending and had not been finalized. After the death of William Wenz, Petitioner Wendy Gasior sought a refund of William Wenz's TRS accumulated contributions. The Division denied this request by letter dated June 26, 2002. In the denial letter, the Division of Retirement stated that, "under TRS law, the right of a spouse to the lifetime Option 3 benefit supercedes the beneficiary's right to a refund of contributions."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that (1) Petitioners are ineligible for a refund of accumulated contributions on the account of William Wenz; and (2) Intervenor Joanne Metzler Wenz is eligible for a monthly retirement benefit. DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2003. COPIES FURNISHED: Derek F. Johnson, Esquire 1970 Michigan Avenue, Building D Cocoa, Florida 32922 Henry A. Wenz 658 Whitemarsh Avenue Deltona, Florida 32725 Allan P. Whitehead, Esquire Frese, Nash & Hansen, P.A. 930 South Harbor City Boulevard Suite 505 Melbourne, Florida 32901 Thomas E. Wright, Esquire Division of Retirement Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issues in this case are whether Respondent, Raul A. Correa, M.D. (Dr. Correa), failed to provide workers' compensation coverage, and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing section 440.107, Florida Statutes (2013). That section mandates, in relevant part, that employers in Florida secure workers’ compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. At all times relevant, Dr. Correa was a Florida small business engaged in the practice of medicine, with his principal office located at 2505 Manatee Avenue West, Bradenton, Florida. Dr. Correa is not incorporated. On February 12, 2014, Ms. Green conducted an on-site workers’ compensation compliance investigation (compliance investigation) of Dr. Correa’s office. After identifying herself to the receptionist, Ms. Green met Dr. Correa and explained the reason for her presence, a compliance investigation. Dr. Correa telephoned his wife who handles his office management from their residence. Mrs. Correa immediately faxed a copy of the liability insurance policy to the office. However, that liability policy did not include workers’ compensation coverage. After a telephonic consultation with her supervisor, Ms. Green served a Request for Production of Business Records (Request) on Dr. Correa at 11:50 a.m. on February 12, 2014. This Request encompassed records from October 1, 2013, through February 12, 2014, for all of Dr. Correa’s payroll documents, account documents, disbursements, and workers’ compensation coverage policies. Ms. Green consulted the Department’s Coverage and Compliance Automated System (CCAS) database to determine whether Dr. Correa had secured workers’ compensation coverage or an exemption from the requirements for coverage for his employees. CCAS is a database Ms. Green consults during the course of her investigations. Ms. Green determined from CCAS that Dr. Correa did not have any current workers’ compensation coverage for his employees and he did not have an exemption from such coverage from the Department. The records reflected that Dr. Correa’s last active workers’ compensation coverage was in 2004. Dr. Correa obtained workers’ compensation coverage on February 20, 2014. Approximately one month later, Ms. Green served a Request for Production of Business Records for Penalty Assessment Calculation on Dr. Correa. Dr. Correa produced the requested records. These records were given to Lynne Murcia, one of the Department’s penalty auditors, to calculate the penalty. Ms. Murcia determined that the appropriate classification code for Dr. Correa’s employees was 8832, which incorporates physicians and clerical workers. This code was derived from the Scopes Manual, which lists all of the various jobs that may be performed in the context of workers’ compensation. The manual is produced by the National Council on Compensation Insurance, Inc., the nation’s most authoritative data collecting and disseminating organization for workers’ compensation. Dr. Correa listed seven employees on the Florida Department of Revenue Unemployment Compensation Tax (UCT-6) form for the time period of the non-compliance. The UCT-6 form lists those employees who are subject to Florida’s Unemployment Compensation Law. Ms. Murcia reasonably relied upon the UCT-6 filings for the relevant time period to calculate Dr. Correa’s gross payroll in Florida. Using Dr. Correa’s payroll chart, the UCT reports, and the classification codes for each employee, Ms. Murcia calculated the penalty assessment for the three-year penalty period preceding the investigation. This three-year period is the allocated time for reviewing coverage for those who do not have the appropriate workers’ compensation coverage. On April 9, 2014, Ms. Murcia determined the penalty to be $4,287.12. However, upon receipt of additional information regarding a former employee of Dr. Correa, an Amended Order of Penalty Assessment of $3,898.77 was issued on July 28, 2014. Dr. Correa’s position is that his practice is a small “mom and pop” operation. He employs members of his family to run the business side of his practice. His daughter, Antonia, works as Dr. Correa’s “doctor’s assistant.” She works at the various nursing homes that Dr. Correa services. Antonia believed that the nursing homes’ liability insurance would cover her, and she was not subject to workers’ compensation coverage. However, she was, in fact, paid by Dr. Correa. Dr. Correa’s daughter-in-law, Valeria, works from her home computer completing the medical billing for her father-in- law. She has been working in this capacity for approximately 14- 16 years, and it never occurred to her that she needed workers’ compensation coverage. She was paid by Dr. Correa. Dr. Correa’s brother-in-law, Mr. Collado, runs all the errands for the practice. He may go to the bank, take care of car maintenance, buy office supplies or fix things, all in support of Dr. Correa’s practice. Mr. Collado receives regular pay checks from Dr. Correa. Dr. Correa testified that his wife is his office manager and has been since he opened the practice in 1978. Mrs. Correa works from their home, in a small home office. She does all the paper work related to the practice. Dr. Correa firmly believed that he did not require workers’ compensation coverage because some of his employees were “independent contractors” or never worked in his office, but at other locations (individual homes, nursing homes, or just outside the office). Dr. Correa believed his insurance agent who did not think Dr. Correa needed the workers’ compensation coverage. Based upon the testimony and exhibits, the amended penalty assessment in the amount of $3,898.77 is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order upholding the Amended Order of Penalty Assessment, and assessing a penalty in the amount of $3,898.77. DONE AND ENTERED this 24th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2014.
The Issue Should Petitioner Alma Slocum receive either the Option 3 or Option 4 retirement benefits retroactive to the death of Clyde Slocum in March 1975?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Clyde Slocum (Slocum), deceased, was a member of the State and County Officers Retirement System (SCOERS) under Chapter 122, Florida Statutes. Slocum was employed by the Suwannee County School Board as a school bus driver until he became physically unable to work in June 1970. Slocum married Alma Sanchez in October 1934, and was continuously married to her until his death on March 30. 1975. By letter dated May 6, 1968, Slocum made an inquiry to the Division regarding the benefits he would be eligible for if he retired from his employment as a school bus driver with the Suwannee County School Board. Slocum noted in the letter that he was not ready to quit work but wanted to know what benefits would be available, if and when he retired. The Division, by letter dated June 20, 1968, notified Slocum of the amount of his contributions on file and the benefits he would be eligible for under Options 1 through 4. It was pointed out that Options 3 and 4 would provide a smaller monthly benefit. However, these options would provide survivor benefits for his wife. It was also stated that proof of age for Slocum and his wife, Alma Slocum, would be required, if he selected Option 3 or 4. The following information was provided to Slocum: (a) Option 1 would provide $43.60 a month, but upon his death, no further benefits would be paid; (b) Option 2 would be 13 cents lower at $43.47, but in the event he died, his beneficiary would receive any balance of the amount of his contribution ($1,006.81) not paid; (c) Option 3 would provide a reduced monthly payment of $35.58 and one-half of that amount ($17.79) to his wife upon his death; and (d) Option 4 would provide for a payment of $30.08 and the same benefit to the wife upon his death. By letter dated August 5, 1970, Lavada Reuthinger, daughter of Slocum, sought information on the three different ways that Slocum could receive his retirement benefits. By letter dated August 7, 1970, Elizabeth Smith, Supervisor, Benefits Section, notified Slocum of the availability of an option election that would provide benefits for his wife after his death. The letter also notified Slocum that proof of his age was required, and if he chose benefits for his wife, then proof of her age was required as well. An estimate, dated September 22, 1970, of benefit amounts, similar to the estimate sent to Slocum in 1968, was prepared by the Division, and sent to Slocum. This estimate of benefits was for Options 1 an 2 only, and did not set forth a benefit amount for Options 3 and 4. The letter stated: "Only the first two options apply in your case." Apparently, the Division assumed that Slocum was retiring under disability. By letter dated October 2, 1970, the Division was notified by Dr. G. L. Emmel that Slocum was disabled and was not able to work. Elizabeth Smith notified Dr. Emmel of the statutory language requirement for an application for disability. Using a form provided by the Division, Slocum, on October 10. 1970, also under the assumption that he was retiring on disability, elected to receive benefits under Option 2. At this point, Slocum had been advised by the Division that neither Option 3 or Option 4 were available to him. Dr. Emmel provided the Department with the requested documentation that Slocum was permanently disabled. On October 26, 1970, Elizabeth Smith requested that Slocum submit proof of his age. By letter dated November 13, 1970, Elizabeth Smith advised Slocum that he had failed to furnish proof of his age, but instead he had furnished his wife's birth certificate. Slocum's wife's birth certificate was returned by letter dated November 13, 1970. By letter dated November 21, 1970, Elizabeth Smith advised Slocum that he could not retire under disability because he had reached normal retirement age, but that he could retire under Option 3 or Option 4 which would provide monthly payments to his wife upon his death, if he accepted a reduction in the amount of benefits. Smith further advised Slocum that he would need to furnish proof of his wife's age if he selected Option 3 or Option 4. Smith further stated that: "It was thought you were retiring under disability when proof [of your wife's age] was returned to you." Smith also advised Slocum that if he waited until June 30, 1970, he would receive the five-year average. The letter does not indicate what the payment amounts would be for the four different options, and the letter does not indicate that a option election form was included with the letter. Furthermore, the letter does not refer to the Option 2 selection form that Slocum had previously submitted to the Division. Slocum responded to Smith's letter on November 30, 1970, and enclosed a copy of his wife's birth certificate. Slocum also requested "the necessary forms concerning his retirement." Additionally, he notified the Division that since he had not worked since June 1970 he wanted retirement benefits to be paid as soon as possible. The Division did not comply with Slocum's request for the "necessary forms concerning his retirement." A warrant was mailed to Slocum on December 31, 1970, for retirement benefits from July 1, 1970, through December 31, 1970, at $59.17 a month. This benefit amount was the Option 2 retirement benefit amount furnished to Slocum on September 22, 1970, by the Division when it was assumed that he was retiring under disability. No explanation was given to Slocum if, or that, the Division was using Option 2 benefit selection that Slocum had signed and submitted to the Division on October 1970, prior to the time the Division had notified Slocum that he could choose Option 3 or Option 4. Slocum and his wife were both under the impression that since Slocum had furnished the Division a copy of his wife's birth certificate that she would receive retirement benefits after his death. Slocum died on March 30, 1975, five years after he retired. The Division advised Alma Slocum by letter dated May 19, 1975, that her husband had retired under Option 2 and, therefore, no benefits would be paid to her. A copy of his option election and the computation of his monthly benefits were enclosed in the May 19, 1975, letter from the Division. Thereafter, Petitioner repeatedly inquired of the Division why she was not entitled to retirement benefits as Slocum's widow. These inquires were made from the time of Slocum's death in 1975 through the present. In response to each inquiry the Division replied that Slocum had selected Option 2, and no benefits were payable to Petitioner under that option. In February 1999, Petitioner and her granddaughter, Theresa L. Crosby, visited the Division's office in Tallahassee, Florida and reviewed Slocum's file. After they reviewed the file, it was their position that Petitioner was entitled to receive survivor benefits and made a demand on the Division for Petitioner to receive those benefits. At no time prior to February 1999, had the Division advised Petitioner that she was entitled to a formal hearing on the matter. A final agency action letter dated March 26, 1999, was mailed to Petitioner which pointed out that her husband elected and received Option 2 benefits from 1970 until his death in March 1975 and there was no provision under SCOERS, Chapter 122, Florida Statutes, to change the option choice at this time. This letter is the first written notice to Petitioner that she was entitled to request a formal hearing if she disagreed with the Division's decision. A Petition for Formal hearing contesting the Division's denial of a survivor's benefit for Petitioner was received by the Division on April 19, 1999. When Slocum made the selection for Option 2 retirement benefits he did so because he was advised by the Division that only Option 1 or Option 2 were available to him since he was retiring under disability. Once Slocum became aware that his wife could receive retirement benefits after his death, it is clear that he intended to select an option which would provide his wife with benefits after his death. Furthermore, after it was determined that he could not retire under disability, which had limited his options, the Division failed to give Clyde Slocum an opportunity to make a selection of the options offered for retirement benefits, either initially in writing or verbally by telephone with a follow-up written option, notwithstanding any testimony to the contrary which, lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order finding Alma Slocum eligible to receive retirement benefits under Option 3 retroactive to Clyde Slocum's death on March 30, 1975, making adjustments for the higher rate paid Clyde Slocum during the years 1970 through his death in 1975, and any adjustments for interest that may be applicable to the benefits paid Clyde Slocum or those benefits that should have been paid to Alma Slocum. DONE AND ENTERED this 29th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1999. COPIES FURNISHED: Sandra E. Allen, Esquire 314 West Jefferson Street Tallahassee, Florida 32301 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner received a refund of retirement contributions made to the Florida Retirement System ("FRS") for his service from June 1969 to September 1975, thereby waiving his right to receive additional retirement benefits represented by the refunded contributions.
Findings Of Fact Petitioner is a member of the FRS. He was hired by Miami-Dade County ("County") in 1969, and terminated his employment with the County in 1989. At all times relevant to this proceeding, Respondent, Division of Retirement Services,1/ was the state agency charged with administering the FRS. § 121.031(1), Fla. Stat. (1989).2/ Prior to 1975, the FRS was a contributory system.3/ Under this system, members paid a portion of their salaries into the FRS Trust Fund ("Trust Fund") as a contribution toward future retirement benefits. Members who contributed to the Trust Fund could request a refund of those contributions at the time they left their FRS-eligible employment. Receipt of a refund constituted a waiver of the right to service credit for the employment period for which the contribution was paid. At the time Petitioner terminated his employment with the County, he had accrued 18.77 years of service credit. He had contributed $2,708.94 to the Trust Fund for creditable employment service from June 1969 through September 1975. In April 1990, Petitioner requested an audit of his FRS account. Specifically, he requested an estimate of his retirement benefits based on his total service credit consisting of both contributory and non-contributory service, and an estimate of his retirement benefits based only on his non- contributory service from October 1975 to August 1989. On May 17, 1990, Respondent responded to Petitioner's request. The response letter provided the requested estimates and further informed Petitioner that he had $2,708.94 in contributions in his retirement account for the period between June 1969 and September 1975, that he had 18.77 total years of service, and that he had 12.52 years of non-contributory service credit. The letter explained that if Petitioner wished to receive a lump sum refund of his contributions, he must submit a completed Request For Refund Form, FRS M-81. The letter was mailed to Petitioner at his then-current address4/ of 2221 Northwest 51st Street, Miami, Florida 33142. In addition to the May 17, 1990, letter explaining Petitioner's options, Respondent's staff engaged in several documented telephone discussions with Petitioner to explain the process for obtaining a refund of his contributions and the consequences of doing so. In September 1990, Petitioner submitted a completed Request For Refund Form, FRS M-81, requesting a lump sum refund of the $2,708.94 in retirement contributions he made for the period of June 1969 through September 1975. The form provided in pertinent part: "I give up all rights to receive any benefits from FRS based on service represented by this refund." Petitioner listed his address as 2221 Northwest 51st Street, Miami, Florida 33142, and signed the form. Upon receiving the completed Request For Refund form, Respondent provided pertinent information from the form to the Department of Banking and Finance5/ and requested issuance of a warrant in the amount of $2,708.94, the full amount of Petitioner's retirement contributions for his service between June 1969 and September 1975. The Department of Banking and Finance issued the warrant, dated September 19, 1990, and returned it to Respondent with a computer-generated label listing Petitioner's name and social security number, refund amount, voucher number, and date of the warrant. On September 26, 1990, the warrant was mailed to 2221 Northwest 51st Street, Miami, Florida 33142.6/ Respondent maintains a list of outstanding warrants. This list does not show the warrant sent to Petitioner as being outstanding; thus, Respondent's records establish that the warrant was cashed. In June 1993, Petitioner applied to receive his service retirement benefits. In the course of processing the retirement benefits application, Respondent provided Petitioner an estimate of the service benefits he would receive based on 12.52 years of creditable service. At that time, Petitioner did not question the estimate or that his benefit was based on 12.52 years of creditable service. On February 16, 2012——almost 22 years after the contributions refund warrant was sent to Petitioner and almost 19 years after Petitioner began receiving his retirement benefits based on 12.52 years of service——Petitioner contacted Respondent to inquire why he was not receiving retirement benefits based on 18 years of creditable service. Respondent's staff advised Petitioner that he was not entitled to benefits for 18 years because he had requested and received a refund of the contributions he had paid into the FRS Trust Fund between June 1969 and September 1975.7/ Petitioner insists that he did not submit the Request For Refund Form in 1990 and claims that the signature on the form was forged.8/ He further claims that he never received the warrant because Respondent mailed the warrant to an address using an incorrect zip code. He posits that an employee of Respondent forged his signature and cashed the warrant. However, the credible evidence in the record does not support these claims. The credible, persuasive evidence in the record establishes that Petitioner requested and received a refund of his retirement contributions in the amount of $2,708.94 for his employment service between June 1969 and September 1975, thereby waiving his right to receive retirement benefits for this period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, issue a Final Order determining that Petitioner is not entitled to receive retirement benefits for his service between June 1969 and September 1975. DONE AND ENTERED this 30th day of August, 2012, 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 30th day of August, 2012.
The Issue Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.
Findings Of Fact Mr. Gomia's Employment. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes. Mr. Gomia's Compensation. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months: Month Amount September, 1989 $1,750.00 May, 1990 500.00 September, 1990 1,750.00 May, 1991 600.00 September, 1991 2,150.00 Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office. The Clerk's Policy of Paying Additional Compensation. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners. Lack of Written Policy. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy: That applies all employees will receive Additional Compensation equally; Additional Compensation will be paid no later than the eleventh year of employment; Additional Compensation will be paid for as long as an employee continues employment; and Additional Compensation will be paid at least annually. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to. Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.
Recommendation Based upon 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 declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice. DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1992. APPENDIX Case Number 92-2504 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Gomia's Proposed Findings of Fact Findings of fact 1, 4 and 6-11. Hereby accepted. The Department's Proposed Findings of Fact Findings of fact 1-3. Findings of fact 4 and 6. Finding of fact 16. Conclusion of law. Findings of fact 4, 6 11 and 13. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law. COPIES FURNISHED: Harry H. Mitchell, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Burton M. Michaels Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan Kirkland General counsel Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes, Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Plan (Fund).
Findings Of Fact The Fund is a public retirement system as defined by Florida law and is charged with administering and managing a pension fund for employees of the City. Respondent was employed by the City from February 2, 2000, until April 18, 2012, when he was terminated. He worked in various positions, most recently as Acting Lead Specialty Equipment Operator in the Solid Waste and Environmental Program Management/Quality Control program. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund and was a vested participant. On April 18, 2012, the City terminated Respondent based on a violation of three items in the City's Personnel Manual: neglect of duty by using a City vehicle for an unauthorized purpose; moral turpitude involving the violation of the City Code relating to use of public property; and moral turpitude by engaging in an illegal enterprise. The events leading to his termination are described below. On July 11, 2011, City of Tampa Detective DeGagne was investigating environmental crimes (illegal dumping) in the East Tampa area. After being alerted that illegal dumping had occurred on a vacant lot in the Highland Pines neighborhood, and the debris was immediately picked up by a City vehicle, Detective DeGagne located the City truck involved. Because the truck was under the supervision of Respondent, Detective DeGagne spoke to Respondent who initially explained that code enforcement had told him to pick up the debris. Because Respondent could not identify anyone in code enforcement who gave him that instruction, he was arrested. During a recorded interview with Detective DeGagne later that day, Respondent admitted that on at least two occasions, he was paid $40.00 to pick up the illegally-dumped debris as a favor to a friend. This conduct is a violation of section 838.016(1), which makes it unlawful for a public employee to receive compensation for performing an illicit act. Based on his admission of guilt, the City terminated Respondent effective April 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order determining that Respondent has forfeited his rights and benefits in the pension fund. DONE AND ENTERED this 28th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 28th day of July, 2017. COPIES FURNISHED: Luis A. Santos, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602-5133 (eServed) Natasha Wiederholt, CPA, GE Pension Plan Supervisor General Employees Retirement Fund City of Tampa 7th Floor East 306 East Jackson Street Tampa, Florida 33602-5208 Dwight Rivera 3324 West Kathleen Street Tampa, Florida 33607-1840
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Respondent is the state agency charged with the responsibility of administering the FRS, including the HIS benefit. The HIS benefit is a program authorized by Florida law. The HIS benefit is calculated at five dollars times the number of years of creditable state service at the time of retirement. Only those members of the FRS who receive monthly retirement benefits are eligible to apply for the HIS. Petitioner worked for the Duval County School Board and earned creditable state service in the FRS. In July 2004, Petitioner began his participation in the FRS Deferred Retirement Option Program (DROP). Petitioner's anticipated DROP termination date was June 30, 2009. In September 2004, Respondent mailed Petitioner an acknowledgement of receipt of his DROP application to his address of record on file with Respondent. Along with the acknowledgement of DROP application, Respondent provided Petitioner an estimate of his pension benefit and enclosed the "Preparing to Retire" brochure referenced in the estimate. The "Preparing to Retire" brochure discussed the HIS benefit and stated, in pertinent part, that: Around the time you receive your first monthly benefit payment after termination, an application for HIS, Form HIS-1, will be mailed to you. You must return a completed HIS application to the Division of Retirement within 6 months after your retirement benefit starts in order to be paid retroactive to your retirement date. If you fail to return the form within the 6- month period, retroactive subsidy payments will be limited to a maximum of 6 months. You are responsible for obtaining certification of your health insurance coverage and applying for the HIS. (Emphasis provided in the original.) In March 2009, Respondent mailed Petitioner forms, brochures and informational material relevant to his upcoming DROP termination to the address of record on file with Respondent. The cover letter advised Petitioner that: After your name is added to the retired payroll, you will receive a retiree packet that contains an information letter, After You Retire booklet, Tax Withholding Certificate for Pension Payments (Form W -4P), Health Insurance Subsidy application (Form HIS-1) and Direct Deposit Authorization form. The retiree packet is mailed approximately one week before you receive your first monthly benefit. (Emphasis provided in the original.) On or about June 9, 2009, Petitioner completed his DROP termination form and the form was received by Respondent. In July 2009, Respondent added Petitioner to the retired payroll for him to begin receiving his monthly pension benefit. In July 2009, Respondent also mailed Petitioner's retiree packet to his address of record on file with Respondent. The retiree packet contained a cover letter, an information brochure titled "After You Retire," a direct deposit authorization form, a tax withholding form, and an HIS application. The cover letter of the retiree packet included the following: YOUR RETIREMENT PACKET INCLUDES: - "After You Retire" Brochure - PLEASE READ FOR ADDITIONAL INFORMATION * * * -Health Insurance Subsidy Certification (Form HIS-1) and Instructions Page * * * HEALTH INSURANCE SUBSIDY (HIS): The HIS is extra money that is added to the monthly retirement benefit of eligible payees to help with the cost of health insurance. The member, or other payee who is the spouse or other financial dependent, may be eligible if he/she has health insurance, Medicare, or Tricare. If you are eligible to apply for the HIS, Form HIS-1 has been enclosed. It is your responsibility to obtain certification of your health insurance coverage and submit the enclosed Form HIS-1 to the Division. Please note that if Form HIS-1 is NOT received by the Division within six months of your first benefit payment, retroactive HIS benefits will be limited to a maximum of six months as long as your health insurance certification covers all six months. (Emphasis provided in the original.) The "After You Retire" brochure, included in the retiree packet, dedicates several pages to explaining the HIS benefit. It reiterates that it is the retiree's responsibility to obtain health insurance coverage, and to apply for the benefit by completing the HIS application included in the retiree packet. It is the Respondent's practice to comply with the requirements of Florida Administrative Code Rule 608-4.020, by mailing the retiree packet, which includes the HIS application, to retirees when they are placed on the retired payroll. In a separate mailing in July 2009, Respondent sent Petitioner's first monthly pension benefit check to his address of record. Petitioner has continued to receive his monthly pension benefit check from Respondent by mail uninterrupted to the date of the hearing. Within the first five months of a retiree’s being placed on the retired payroll, Respondent runs an HIS reminder listing to notify it of retirees who have not submitted their HIS applications. Respondent's practice is to send an HIS reminder letter to retirees on the HIS reminder listing to notify them that their HIS applications have not been received, encouraging them to file for the HIS benefit, and enclosing an HIS application. Petitioner was listed on Respondent's December 2009, HIS reminder listing. In January 2010, Respondent mailed Petitioner an HIS reminder letter to his address of record. The HIS reminder letter included yet another HIS application. Each January and July, Respondent mails a newsletter to retirees (FRS Retiree Newsletter). The HIS benefit is specifically referenced in articles in the July 2009, January 2010, July 2010, July 2011, and January 2012, FRS Retiree Newsletters. The articles range in substance and include information regarding a retiree's responsibility to apply for the HIS benefit; an explanation that the HIS benefit is not guaranteed; notification that the Florida Legislature can reduce or eliminate it; information about the tax consequences of the HIS benefit; notice that retirees can see whether they are receiving the HIS benefit by reviewing their annual statement; and that if they have questions they can consult their "After Your Retire" brochure, go online, or call the Retired Payroll Section. In January of each year, Respondent mails retirees who have received retirement benefits during the prior year information to assist them in preparing their tax returns. Included in the January mailing is the IRS Form 1099-R, an annual statement detailing the income payment types received (Retiree Annual Statement), and the January FRS Retiree Newsletter. The Retiree Annual Statement identifies two different types of income payments made to retirees: (1) the monthly retirement benefit, and (2) the monthly HIS benefit. The amount of HIS benefit reflected on Petitioner's 2009, 2010 and 2011 Retiree Annual Statement is $0.00. Petitioner disputes whether he received Respondent's various mailings regarding the HIS benefit. However, Petitioner does not dispute that he has received his monthly pension benefit check by mail from Respondent each month from July 2009, to present. Petitioner receives "a lot of junk mail," but he keeps a close eye out for his monthly pension benefit check. Respondent's records reflect, and Petitioner does not dispute, that his address at the time he retired was 1923 Durkee Drive West. Respondent's records reflect that Petitioner's address changed to 10836 Peaceful Harbor Drive, effective May 3, 2010. These two addresses are the only addresses where Petitioner has lived since he retired. It is incumbent upon a retiree to keep Respondent notified of any change of address. Respondent's records reflect that its mailings to Petitioner, including his monthly pension benefit check, have not been returned as undeliverable to Respondent. At some point in 2012, Petitioner called Respondent to inquire about changing his tax deduction status. During the course of that conversation, Respondent reminded Petitioner that he had not applied for and was not receiving the HIS benefit. Petitioner then submitted his HIS application to Respondent in December 2012. Petitioner began receiving his HIS benefit effective December 2012. Based on the date of receipt of Petitioner's HIS application, Petitioner was eligible for six months of retroactive HIS benefit, effective June 2012. Petitioner argues that Respondent should have communicated the requirement for him to apply for the HIS benefit by certified mail, by an active telephone call, or by notification in the envelope he receives his monthly pension benefit check. Petitioner asserts no statutory, regulatory, or other authority for this proposition. Petitioner also alleges that Respondent ultimately sent the HIS application to him by certified mail, and that it was the only certified mail he has received from Respondent. However, the record reflects that the certified mail Petitioner is referring to is Respondent's January 25, 2013, final agency action letter sent to Petitioner. Petitioner further asserts that the HIS benefit is an earned right, an entitlement, not subject to arbitrary forfeiture, and is unclaimed property under chapter 717, Florida Statutes. Again, Petitioner provides no authority for this argument.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request for additional HIS benefits retroactive to his retirement date. DONE AND ENTERED this 22nd day of November, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2013.
The Issue The issue is whether Petitioner is entitled to receive survivor benefits from a joint and survivor annuity, under Option 3 of the Florida Retirement System (FRS) defined benefit plan, following the death of her spouse, Anne M. Birch, who, as an FRS member, elected Option 1 in 2012 when Florida law would not allow Ms. Birch to elect Option 3 or 4 and designate the joint annuitant as Petitioner, whom she lawfully married after electing Option 1.
Findings Of Fact Ms. Birch, who was born on September 12, 1950, and Petitioner, who was born on August 26, 1956, fell in love and began to live together in 1992. They jointly owned all significant property, including their primary residence, with a right of survivorship and were jointly liable for household expenses and debt, including the mortgage note on their primary residence. On January 31, 2001, Ms. Birch executed a will that left any remaining property to Petitioner and named her as the personal representative of the estate.1/ Ms. Birch designated Petitioner as her primary beneficiary for employee benefits that authorized such designations. On October 11, 2002, Ms. Birch and Petitioner signed an Amended Declaration of Domestic Partnership, pursuant to the Broward County Domestic Partnership Act of 1999, to register themselves as domestic partners under Broward County Ordinance 1999-18. Fully vested and having accrued substantial benefits from having worked for Broward County in an FRS-covered position for nearly 30 years, on October 23, 2012, Ms. Birch entered DROP, effective October 1, 2012. At that time, Ms. Birch elected Option 1 for the payment of her benefits, checking the "no" box in response to the question of whether she was married. As described in the Conclusions of Law, Option 1 is the maximum benefit and is payable for the life of the retiree. Ms. Birch's monthly Option 1 benefit was $3039.25. The monthly Option 3 benefit, which, as described below, is payable until the latter death of the FRS member or her surviving spouse,2/ would have been nearly $1000 less than the monthly Option 1 benefit.3/ Respondent implemented Ms. Birch's election by paying Ms. Birch's Option 1 benefits into her DROP account. In August 2013, Ms. Birch became ill with cancer. She eventually had to quit working and terminated DROP, at which point Respondent paid Ms. Birch her Option 1 benefits directly. On June 16, 2014, Ms. Birch and Petitioner were lawfully married in Massachusetts. Almost two years later, on May 24, 2016, Ms. Birch died, at which time all payments under Option 1 ended. When Ms. Birch and Petitioner registered as domestic partners in Broward County, no state allowed or recognized same- sex marriage, often pursuant to a "Defense of Marriage Act" (DOMA). Continuously since 1997, Florida law banned the allowance and recognition of same-sex marriage, even if performed in a jurisdiction where such a marriage were legal, and restricted "marriage" to a legal union between a man and a woman and "spouse" to a member of such a union. § 741.212(1) and (3); Ch. 97-268, § 1, at 4957, Laws of Fla. (Florida DOMA).4/ Massachusetts was the first state to allow and recognize same-sex marriage, effective in 2004. Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941 (Mass. 2003) (decision stayed 180 days to allow legislature to enact law consistent with the court's ruling). Three or four years after Goodridge, Ms. Birch and Petitioner visited Massachusetts, but did not exercise their right to enter into a lawful marriage at that time. A series of court decisions invalidated the federal and state DOMAs, including the Florida DOMA. On June 26, 2013, the U.S. Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), held that the federal DOMA, as applied to federal tax law, was unconstitutional. By order entered August 21, 2014, in Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014) (Brenner I), Respondent was enjoined from enforcing or applying the Florida DOMA, although the court stayed its injunction. The U.S. Supreme Court lifted the stay,5/ as reported by the district court in Brenner v. Scott¸ 2016 U.S. Dist. LEXIS 91969 (N.D. Fla. 2016) (Brenner II), in which, on March 30, 2016, the court issued a summary judgment on its injunction in Brenner I. Between Brenner I and Brenner II, on June 26, 2015, the U.S. Supreme Court held that state DOMAs were unconstitutional in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Petitioner testified that she and Ms. Birch would have been lawfully married by October 2012, when Ms. Birch retired, but for the Florida DOMA. This testimony is credited. Long prior to 2012, Ms. Birch and Petitioner organized their financial affairs as though they were lawfully married, sharing assets and liabilities equally. Petitioner testified credibly that she and Ms. Birch always "played by the rules": thus, Ms. Birch and Petitioner would have been deterred from getting married prior to Ms. Birch's retirement, such as when they were visiting Massachusetts in 2007, due to the legal futility of attempting to obtain recognition in Florida of a marriage lawfully performed elsewhere. Less persuasive is Petitioner's testimony that, in October 2012, Ms. Birch would have elected Option 3, if this option had been available to her, and it is impossible to find on this record that she would have done so. There is no evidence that Ms. Birch and Petitioner rearranged their financial affairs to achieve, to the extent possible, an Option 3 election. Household income was $1000 per month greater under Option 1 than Option 3, so life insurance on Ms. Birch or an annuity for Petitioner could have mitigated Ms. Birch's inability to choose Option 3 when she retired. Prior to retiring, Ms. Birch did not attempt to elect Option 3 in writing or orally. Even after retiring, as noted below, Ms. Birch displayed ambivalence about whether she wanted to change her election. As a named defendant in Brenner I, on April 14, 2015, Respondent responded to the injunction against its enforcement or application of the Florida DOMA by issuing Information Release #2015-184 (Release). Sent to FRS members who retired prior to January 2, 2015, and elected Option 1 or 2, the Release states: . . . FRS retirees and . . . DROP participants who were in legally-recognized same-sex marriages at the time they retired or began DROP participation and chose Option 1 or Option 2 will have an opportunity to change benefit payment options in light of . . . Brennan. These retirees will be able to change their retirement payment option from their current selection to Option 3 or Option 4 to provide a continuing monthly benefit to their spouse. The retirees impacted by this change have an effective retirement date or DROP begin date on or before January 1, 2015. The Release provides that an eligible retiree interested in a second election must contact Respondent in writing, identify the retiree's spouse, and certify that the retiree and spouse were married in a state or country that allowed same-sex marriage when the FRS member retired. The Release states that Respondent will respond with an estimate of the new benefit payment under the option that the retiree intends to select and provide the retiree with the paperwork necessary to make the second election. Available on Respondent's website,6/ the Release provides the opportunity of a second election of Option 3 or 4 to any FRS member7/ who retired prior to January 2, 2015; chose Option 1 or 2 when she retired; and was in a same-sex marriage when she retired. The Release places no limit on how far in the past the retirement took place.8/ The thrust of Petitioner's case is directed toward backdating her lawful marriage to Ms. Birch to a point prior to Ms. Birch's retirement. As noted above, the timing of the lawful marriage is a problem under the Release, which requires a lawful marriage at the time of retirement, but another problem under the Release is the fact that the Release provides to the FRS retiree, not her surviving spouse, the opportunity for a second election, nor, as discussed immediately below, is this a technical requirement that can be overcome by Petitioner's serving as a representative of Ms. Birch--the second election is extended only to living FRS retirees. The virtue of the Release for Petitioner is that it confers the opportunity of a second election without any proof that, at the time of the first election, the FRS member would have elected Option 3 or 4. If Petitioner does not rely on the Release, she must also prove that Ms. Birch would have elected Option 3 or 4, which, as noted above, she has failed to prove. By limiting the second election to the FRS retiree, the Release limits the potential of adverse selection in allowing a second election, possibly years after the first election.9/ There are three possibilities at the time of the second election: both spouses are alive, only the FRS retiree is alive, and only the surviving spouse is alive. The Release's restriction of the right to make the second election to the FRS retiree means that the second and third possibilities do not result in second elections: respectively the FRS retiree would not reduce her payment to provide an annuity to a spouse who is already deceased10/ and a surviving spouse has no right to make an election under the Release. The couple may gain a minor financial advantage by the opportunity to revisit the payment option several years after the retirement of the FRS member, so that they may be better informed of the health of each of them. But the surviving spouse would gain a significant financial advantage by the opportunity to revisit the payment option after the death of the FRS member. Shortly after Respondent issued the Release, Ms. Birch filed with Respondent a Spousal Acknowledgement Form that she had signed on May 8, 2015. This form indicates that Ms. Birch is married, but nothing else. At about the same time, though, Ms. Birch contacted Respondent by telephone to discuss the Release and any choices that she may now have under the Release. By letter dated May 26, 2015, Respondent calculated monthly benefit amounts under Options 1 through 4, but the letter warns: "Your benefit option will not be changed unless you complete and return the required forms noted in this letter" and indicate a choice of repaying in a single payment or installments the excess benefits of Option 1 over the smaller benefits paid under Option 3 or 4. The May 26 letter requires further action on Ms. Birch's part and predicates any right to a second election upon a lawful marriage at the time of retirement. The record provides no basis for finding that any of Respondent's representatives misstated the lawful-marriage condition. To the contrary, in at least one conversation with Ms. Birch, Respondent's representative insisted on verification of a lawful marriage as of October 2012. Additionally, Ms. Birch was not requesting a right to make a second election; at most, she was gathering information to prepare to decide whether to ask to change her election. By June 26, 2015, pursuant to a note documenting a telephone conversation between Ms. Birch and a representative of Respondent, Ms. Birch decided to keep Option 1 rather than make a second election of Option 3.11/ In May 2016, Ms. Birch finally made a clear attempt to change her election to Option 3. By letter dated May 12, 2016, Ms. Birch stated that she was lawfully married to Petitioner on June 12, 2012, and asked for "the change in beneficiary for my pension, due to the one time option given" in the Release. Even at this late date, Ms. Birch was not yet ready to elect Option 3 because the letter concludes: "I would like to see the breakdown of monetary options to make an informed decision." However, on May 20, 2016, during a telephone call with a representative of Respondent, Ms. Birch provided the date of birth of Petitioner and asked Respondent to expedite her request because she did not have long to live. On the same date, Ms. Birch signed an Option Selection form electing Option 3. By letter dated July 18, 2016, Respondent acknowledged the death of Ms. Birch and informed Petitioner that all pension benefits ended at that time. By letter dated September 22, 2016, Petitioner asked for reconsideration and supplied copies of various documents, the relevant provisions of which have been referenced above. By letter dated October 20, 2016, Respondent denied the request for reconsideration.
Recommendation It is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under Option 3 from Ms. Birch's FRS account and dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of January, 2018.
