The Issue The issue presented is whether Petitioner's application for retroactive retirement benefits should be granted.
Findings Of Fact Petitioner was employed by the Palm Beach County Sheriff's Office for approximately twelve years, working in a special risk capacity. As a result of that employment, he was a member of the Florida Retirement System. In 1972 Petitioner completed Respondent's form FRS-M10 setting forth his membership as a special risk member of the Florida Retirement System as of November 1, 1970. Petitioner resigned his position on March 15, 1982, when he was 47 years of age and had more than ten years of creditable service. At the time of his resignation, he was employed in the position of Inspector, Director of Law Enforcement, the third in command at the Sheriff's Office. There are approximately 550,000 active members in the Florida Retirement System. Many members choose not to submit an application for retirement benefits on their normal retirement date for a variety of reasons. An application for retirement benefits is a prerequisite for the establishment of an effective retirement date for a member of the Florida Retirement System. In September of 1991, Petitioner applied for retirement benefits. At the time of his application, he was 57 years of age. Petitioner never contacted Respondent to request information or advice regarding his retirement benefits prior to filing his retirement application in September of 1991. Based upon receipt of Petitioner's application for retirement benefits in September of 1991, Respondent established October 1, 1991, as Petitioner's effective retirement date. In October of 1986 Petitioner received from the Palm Beach County Sheriff's Office a copy of some of Respondent's forms which are utilized by persons filing applications for retirement benefits. Some of the information included in that package relates to persons who are regular members of the Florida Retirement System, not special risk members.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to change his effective retirement date and denying Petitioner's request for retroactive retirement benefits. DONE and ENTERED this 1st day of September, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0849 Petitioner's proposed findings of fact numbered 1 and 3-5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being contrary to the evidence in this cause. Petitioner's proposed findings of fact numbered 6-13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Mary Alice Gwynn, Esquire Suite 302 215 Fifth Street West Palm Beach, Florida 33401 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee FL 32399-1560 A. J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue is whether Petitioner is eligible to participate in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida Statutes (2009),1 as a substitute teacher for the Lee County School Board.
Findings Of Fact Petitioner has been an employee of the Lee County School Board (the School Board) from February 28, 2001, through the date of the final hearing. The School Board is a participating member in the FRS. Petitioner has never been a full-time employee of the School Board and has never been eligible for service credits for purposes of the FRS. From February 28, 2001, until some time in May 2004, the School Board employed Petitioner in a temporary, part-time position. From some time in May 2004 through the date of the final hearing, the School Board has employed Petitioner as a substitute teacher. From February 28, 2001, through some time in May 2004, the School Board required part-time employees such as Petitioner to participate in a plan identified in the record as the Bencor FICA Alternative Plan (the Bencor Plan). The Bencor Plan provided retirement benefits for temporary teachers, who were not eligible for FRS retirement benefits. On May 25, 2004, Petitioner submitted a Distribution Request Form to withdraw her accumulated savings from the Bencor Plan. Petitioner was eligible to withdraw her retirement benefits from the Bencor Plan, because she changed her employment status from a temporary teacher to a substitute teacher. Some time in May 2004, Petitioner began teaching as a substitute teacher for the School Board. Petitioner has continued as a substitute teacher for the School Board through the date of the final hearing. As a substitute teacher, Petitioner is not a full-time employee, who is eligible for service credits for purposes of the FRS.
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 denying Petitioner's request for FRS benefits. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of August, 2010.
Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue Whether the Petition has forfeited his rights and benefits under the Florida Retirement System (FRS) as a result of a guilty plea in the United States District Court, Southern District of Florida, for acts committed in connection with Petitioner's employment with the Broward County Sheriff's Department.
Findings Of Fact From the Joint Stipulation of Facts: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS on behalf of the Department of Management Services. Petitioner was employed as an Assistant State Attorney by the State Attorney's Office from December 1972 to January 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed as Executive Director of the Broward County Charter Commission from January 1974 to November 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed by the Broward County Board of County Commissioners from March 1975 to November 1978. During this time, Petitioner was a member of the FRS, and this service is credited as service under the FRS. In November 1978, Petitioner was elected to serve as a member of the Florida Legislature; he continued to serve as a state legislator for approximately 18 years. As a state legislator, Petitioner was a member of the FRS class of State Elected Officers, and this service is credited service under the FRS. Most recently, Petitioner was the elected Sheriff of Broward County. By reason of his service as Sheriff, Petitioner was a member of the FRS. Petitioner was initially appointed Sheriff in January 1998 by then-Governor Lawton Chiles. Petitioner was subsequently elected Sheriff in 1998 and reelected in 2000 and 2004. As Sheriff of Broward County, Petitioner was Broward County's chief law enforcement officer and was responsible for directing the Broward County Sheriff's Office ("BSO"), a law enforcement agency that currently employs over 6,000 employees. The office of Sheriff is a constitutional office established under Article VIII, Section 1(d), Constitution of Florida. Upon assuming his duties as Sheriff of Broward County, Petitioner took an oath to support, protect, and defend the Constitution and Government of the United States and the State of Florida and to faithfully perform the duties of sheriff pursuant to Article II, Section 5(b), Constitution of Florida. On or about September 4, 2007, Petitioner wrote a letter to Governor Charlie Crist notifying him of his resignation from the office of Sheriff of Broward County. By reply letter of the same date, Governor Crist accepted Petitioner's resignation. Petitioner is not retired from the FRS and currently does not receive FRS retirement benefits. On or about September 4, 2007, Petitioner was charged, by information, in the United States District Court for the Southern District of Florida, in case number 0:07-cr-60209-WPB, with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 371, and three counts of filing a false tax return, in violation of Title 26, United States Code, Section 7206(1). The same four-count information is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr- 60209-WPB as document 1. At all times relevant to the information, Petitioner was the Sheriff of Broward County. The section of the information entitled "General Allegations" contains numerous references to Petitioner's service as Sheriff of Broward County and the power and authority vested in that position. The "Objects of the Conspiracy" contained in count one of the information states: An object of the conspiracy was for JENNE to unlawfully enrich himself by obtaining monies from P.P. and L.N., who were Broward Sheriff's Office vendors, by making false representations, omitting to state material facts, and concealing material facts concerning, among other things, the ultimate destination of monies that JENNE asked P.P. and L.N. to give to his secretaries, A.V. and M.Y. It was further an object of the scheme for JENNE to perpetuate and conceal the scheme and the actions taken in furtherance of it by, among other things, making false, misleading, and incomplete statements in public filings and to investigators. The "Manner and Means of the Conspiracy" contained in count one of the information states: JENNE and M.Y. arranged for JENNE to receive $20,000 from P.P. by having the money transferred from P.P. through JENNE's secretary, M.Y., to JENNE. JENNE and M.Y. did this in order to conceal that JENNE was the true recipient of the funds. JENNE provided L.N. with access to off- duty Broward Sheriff's Office deputies, who L.N. hired to do work for his companies. On two different occasions, in exchange for the access to the deputies, JENNE instructed L.N. to pay money to JENNE's secretary, A.V., purportedly to compensate A.V. for work done for L.N. JENNE instructed A.V. to cash checks given to her by L.N. and to have the cash deposited into JENNE's bank account. JENNE and A.V. did this in order to conceal that JENNE was the true recipient of the funds, which totaled $5,500. JENNE perpetuated this fraud and attempted to prevent its detection by mailing incomplete and misleading annual financial disclosure forms, which did not list his receipt of the payments from P.P. and L.N., to the Florida Commission on Ethics. On or about September 5, 2007, after being advised of the nature of the charges against him, the above-referenced information, and of his rights, Petitioner waived in open court prosecution by indictment and consented to proceeding by information. The same waiver of indictment is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 13. On or about September 5, 2007, Petitioner entered into an agreement with the United States of America to plead guilty as charged in the four-count information. The same plea agreement is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 3. Paragraph 7.c. of the plea agreement provides: 7. The United States and the defendant agree that, although not binding on the probation office or the court, they will jointly recommend that the court make the following findings and conclusions as to the sentence to be imposed: * * * c. Advisory sentencing range on the conspiracy to commit mail fraud count: That, pursuant to U.S.S.G. § 2X1.1, the applicable guideline to be used in calculating the defendant's advisory sentencing range on the conspiracy to commit mail fraud count is § 2B1.1; that under § 2B1.1(a)(1), the Base Offense Level is 7; that under § 2B1.1(b)(1)(C), four levels are added because the loss was between $10,000 and $30,000; that under § 3B1.3, two levels are added because of the defendant's abuse of his position of public trust; and that under § 3E1.1(b), two levels are subtracted for acceptance of responsibility . . . The United States Sentencing Guide, Section 3B1.3, referenced in paragraph 7.c of the plea agreement, provides in relevant part that "[i]f the defendant abused a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." USSG § 3B1.3. Paragraphs 10. and 12. of the plea agreement provide: 10. The defendant confirms that he is guilty of the offenses to which he is pleading guilty; that his decision to plead guilty is the decision that he has made; and that nobody has forced, threatened, or coerced him into pleading guilty. The defendant affirms that he has discussed this matter thoroughly with his attorneys. The defendant further affirms that his discussions with his attorneys have included discussion of possible defenses that he may raise if the case were to go to trial, as well as possible issues and arguments that he may raise at sentencing. The defendant additionally affirms that he is satisfied with the representation provided by his attorneys. The defendant accordingly affirms that he is entering into this agreement knowingly, voluntarily, and intelligently, and with the benefit of full, complete, and effective assistance by his attorneys. * * * 12. This is the entire agreement and understanding between the United States and the defendant. There are no other agreements, promises, representations, or understandings. On or about September 5, 2007, Petitioner entered a statement of factual basis for guilty plea with the United States of America (hereinafter "factual proffer"), wherein he agreed that, if the case went to trial, the government would have been able to establish the facts recited therein beyond a reasonable doubt. The same factual proffer is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 8. On or about September 5, 2007, a hearing was held in which Petitioner pled guilty as charged in the information. At the hearing, Petitioner admitted to committing the acts set forth in the charges and to which he pled guilty. In addition, at the hearing Petitioner admitted to the following facts and to committing the following actions: At no point in time did Petitioner ever disclose to the public that he received an $8,130 benefit from P.P. in November 2001 in connection with the demolition of a house he owned in Lake Worth, Florida. Within P.P.'s internal accounting system, the $8,130 check was attributed to the "HIDTA project" (i.e., a lease committing BSO and HIDTA as tenants of an office building owned by P.P.). Petitioner never reported the $8,130 benefit on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. At no point in time did Petitioner ever disclose to the public that, in September 2002, he had received $10,000 from P.P. as a reward for his work concerning a new company called SuperTech Products, Inc. Petitioner never reported the $10,000 payment on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. Prior to becoming Sheriff, Petitioner was a partner in Conrad, Scherer & Jenne, a law firm located in Fort Lauderdale. Petitioner was with the firm from 1992 through the beginning of 1998, when he left to become Sheriff. While Petitioner was at the firm, he, like some other partners, drove a car paid for by the firm's investment arm, CSJ Investments. In October, 1997, at Petitioner's request, the law firm, through CSJ Investments, bought a used 1994 Mercedes E320 convertible for Petitioner to drive. The price of the Mercedes was $61,297. Rather than pay for the car all at once, the firm financed the car with a 60-month loan. When Petitioner left the firm in early 1998 following his appointment as Sheriff, he took the Mercedes with him. Despite the fact that Petitioner no longer worked for the firm, the firm continued to pay off the Mercedes loan for the balance of the loan term, making the final payment in 2003. The loan payments were $1,320 per month, resulting in a total eventual cost to the firm of approximately $79,234 in loan payments, all but approximately $1,320, of which were made after Petitioner had already left the firm to become Sheriff. In addition, after Petitioner left the law firm, the firm continued to pay for the insurance on the Mercedes. The insurance payments continued even unto September 2007. At that time, the firm had made a total of approximately $30,961 in insurance payments on Petitioner's behalf, all but approximately $880, of which were made after Petitioner had already left the firm to become Sheriff. Petitioner never disclosed any of the loan payments or insurance payments made by the firm on his behalf on any state ethics filing. During the time that Petitioner was receiving these undisclosed payments from Conrad, Scherer, the firm was billing BCSO for legal work that it was doing on its behalf. At the hearing, Petitioner did not take any exception or make any objections to the facts as summarized in the factual proffer. In fact, with the exception of one non-substantive addition, Petitioner accepted the factual proffer as indicated. On or about November 16, 2007, a judgment was entered on the aforesaid guilty plea, wherein Petitioner was adjudicated guilty of all counts charged in the four-count information. The same judgment is filed in U.S. District Court (S.D. Fla.) in case number 0:07-cr-60209-WPB as document 59. By certified letter dated January 24, 2008, Petitioner was notified of Respondent's proposed action to forfeit his FRS rights and benefits as a result of the aforesaid guilty plea. The notice set forth the basis for the Division's decision and informed Petitioner of his right to an administrative hearing. Petitioner, by and through counsel, timely requested a formal administrative hearing to challenge said proposed agency action. [End of Stipulated Facts] The parties agreed that the following exhibits would be considered in this cause: Petitioner's resignation letter dated September 4, 2007; Governor Crist's letter accepting Petitioner's resignation dated September 4, 2007; The Information filed against Petitioner on September 4, 2007, in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Plea Agreement offered in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Statement of Factual Basis for Guilty Plea of Defendant Kenneth C. Jenne in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Transcript of the Plea of Guilty before the Honorable William P. Dimitrouleas, U.S. District Judge, United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209- WPB, United States District Court, Southern District of Florida; The Waiver of Indictment from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Judgment in a Criminal Case from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Agency Action letter dated January 24, 2008; Form 6 Full and Public Disclosure of Financial Interests 2001 (with attachments and amendments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, June 27, 2002; Form 6 Full and Public Disclosure of Financial Interests 2002 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 7, 2003; and Form 6 Full and Public Disclosure of Financial Interests 2004 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 1, 2005. Petitioner did not have a trial on the merits of the charges against him. Instead, he voluntarily accepted and admitted to the factual allegations set forth in the charging and plea documents. The factual statements set forth in those documents are not subject to interpretation or conjecture. They must be considered facts of this case based upon the stipulation of the parties. Petitioner was notified of the Department's preliminary decision to forfeit the FRS benefits and rights and Petitioner timely challenged that decision.
Recommendation Based upon the Findings of Fact and the Conclusions of Law set forth above, it is RECOMMENDED that Respondent enter a final order finding Petitioner was convicted of crimes that require the forfeiture of his rights and benefits under the FRS, pursuant to Florida law. DONE AND ENTERED this 3rd day of March, 2009, 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 3rd day of March, 2009. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mark Herron, Esquire Thomas M. Findley, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317-5579 Clifford A. Taylor, Esquire Barbara M. Crosier, Esquire Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner, EVELYN S. WRIGHT, as an employee of Metropolitan Dade County and a member of the State and County Officers and Employees Retirement System, elected to transfer into the Florida Retirement System (FRS) effective December 1, 1970. (Exhibit 3) On April 10, 1972, Petitioner terminated her employment with Metropolitan Dade County and applied for FRS disability retirement benefits pursuant to Section 121.091(4), Florida Statutes, on May 22, 1972. (Exhibit 2) Petitioner's application for FRS disability retirement benefits was initially denied by the Administrator of the Florida Retirement System on August 21, 1972. (Exhibit 4) On January 6, 1975, Petitioner inquired of the Supervisor of the Respondent's Disability Determination Unit, Mr. David Ragsdale, as to the possibility of withdrawing the accumulated contributions in her retirement account. At this time, Petitioner, was advised by Mr. Ragsdale that a withdrawal of contributions would cancel her membership rights in the Florida Retirement System. (TR - p.9) Respondent forwarded to Petitioner, by letter dated January 7, 1975, the appropriate form for making application for a refund of accumulated retirement contributions. The transmittal letter specifically advised the Petitioner that, "Should you complete and return the enclosed card, M81, you would have no further rights or service credit with the Division of Retirement." (Exhibit 5) On January 14, 1975, Petitioner executed, and her employer verified, an application for refund of accumulated retirement contributions. The application form clearly stipulated: "I hereby make application for refund of my accumulated contributions in the Florida Retirement System. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement System." (Exhibit 6) Petitioner's application for refund of contributions was received by the Respondent on January 17, 1975. Respondent refunded to Petitioner her accumulated contributions in the amount of $3,056.02 by Voucher No. 237738, Warrant No. 0309435, dated January 28, 1975. (Exhibit 6) The attorney for Petitioner, John H. Abramson, was advised by the undersigned hearing officer by telephone that Leave to Take Deposition was granted. By letter from the said attorney the Division was notified that Petitioner's file was being closed.
The Issue Whether the purported selection of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was valid and effective.
Findings Of Fact On or about June 20, 1990, Lon Emory Sweely executed a Division of Retirement Form FR-13 Florida Retirement System Application for Disability Retirement. The application indicated that Sweely's disability resulted from AIDS-related conditions. It selected Option 1, which the application designates as the "Maximum Benefit" and describes as follows: Full benefits payable to the member for his lifetime. If death occurs before the total benefits paid to member equals the contributions made, the difference, if any, is refunded to beneficiary in a lump sum payment. In so doing, Sweely rejected Option 2, which the application designates as "Ten Years Certain," and describes: Lifetime benefit to member, but not less than 120 monthly payments to someone. A decreased retirement benefit payable to a member during his lifetime, and in the event of his death with a period of ten (10) years after his retirement, the same monthly amount shall be payable for the balance of such ten (10) year period to his beneficiary, or in case the beneficiary is deceased, in accordance with Section 121.091(3), Florida Statutes, as though no beneficiary has been named. The application, also designated the Petitioner, Richard A. Castillo, Jr., as Sweely's sole beneficiary. (Sweely previously had designated the Petitioner as his beneficiary, with the Petitioner's mother as the first contingent beneficiary, on a Division of Retirement Personal History Record Form FRS-M10 (Revised 3/89) executed by Sweely on January 25, 1990.) At the time of Sweely's application for disability retirement, Sweely knew that he had full-blown AIDS and that his life expectancy would have to be estimated at approximately two years or less. There also is evidence that Eulah Lee McWilliams, the principal at the elementary school where Sweely taught, counseled Sweely on his options and advised Sweely to select the "Ten Years Certain" option. It is clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided. McWilliams believed that Sweely wanted the Petitioner to have the benefits of the "Ten Year Certain" Option 2. Based on their conversations, McWilliams believed that Sweely concurred with her recommendation in order to provide the maximum possible benefit to the Petitioner upon Sweely's death. But, in the face of Sweely's knowledge and McWilliams's advice and understanding, the application indicates that Sweely selected Option 1. There was evidence that the Petitioner was present and assisting Sweely when the Form FR-13 was executed and that the Petitioner filled out part of the form at Sweely's direction, as writing was inconvenient and difficult for Sweely at the time. But there was no evidence that Sweely was unable to make informed decisions when he executed Division of Retirement Form FR-13 on or about June 20, 1990. The evidence also did not prove that Sweely's choice of Option 1 was inadvertent error. At that point in time, Sweely may have wanted to be optimistic and to be able to enjoy and share with the Petitioner the maximum possible monthly benefit for as long as Sweely lived. McWilliams testified that, at the time, Sweely was trying to remain "up-beat" concerning his illness, in part thinking that this might extend his lifetime. A decision to choose Option 1, contrary to McWilliams's recommendation, also would not have been inconsistent with an earlier decision by Sweely in April, 1990, (this time in conformance with McWilliams's recommendation) to postpone applying for retirement benefits until he exhausted all of his accumulated fully-paid sick leave. Had Sweely died while on sick leave, the Petitioner would not have received the additional retirement benefits he is seeking in this case. (It is not clear from the record exactly what the benefits would have been, but it seems that the Petitioner would not have been entitled to any of the additional retirement benefits he is seeking in this case. Cf. Section 121.091(7), Fla. Stat. (Supp. 1990); F.A.C. Rule 60S-4.008.) A little over a month later, Sweely's condition worsened, and on or about August 14, 1990, he had to be hospitalized again (as already had happened from time to time during Sweely's full-blown AIDS.) On or about August 15, 1990, the Division of Retirement approved Sweely's application for disability retirement, effective July 1, 1990. On the same date, the Division of Retirement also sent Sweely a Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and a blank FRS- 11o "Option Selection Form for FRS Members." The Form FST-40c (R5/89) requested that Sweely "review carefully how the option one and two are paid to your beneficiary." The descriptions of the options in the Form FRS-11o were somewhat different from those in the Form FR-13 application. Option 1 was not called the "Maximum Benefit," and it was described as follows: A monthly benefit payable for my lifetime. Upon my death, the monthy benefit will stop and my beneficiary will receive only a refund of any contributionss 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. (Emphasis in the original.) Option 2 was not called "Ten Years Certain," and it was described as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly benefit payments, my designated beneficiary will receive a monthly benefit payment in the same amount as I was receiving until the monthly benefit payments to both me and my beneficiary equal 120 monthly payments. No further benefits are then payable. The FRS-11o "Option Selection Form for FRS Members" also stated in bold and underlined upper case type: "MEMBER MUST SIGN AND DATE IN THE PRESENCE OF A NOTARY PUBLIC." Whenever Sweely was hospitalized, the emotional strain on the Petitioner increased, and the time spent with Sweely in the hospital left the Petitioner less time to accomplish normal household tasks. The Petitioner's life and home usually became disorganized during Sweely's hospitalizations, and the Petitioner often allowed mail to pile up at their home at these times. The Petitioner testified that, notwithstanding Sweely's hospitalization and its disruptive effect on his life and habits, he happened to collect and read the mail on August 16, 1990. He testified that among the items of mail he read that day was the envelope postmarked the day before in Tallahassee, Florida, containing the Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and the blank FRS-11o "Option Selection Form for FRS Members." The Petitioner testified that he telephoned McWilliams to discuss the forms with her, and she asked him to bring them to the hospital. He testified, and she confirmed, that she met with the Petitioner at the hospital, looked at the forms, and explained them to the Petitioner. Believing, based on the conversations she had with Sweely before June 20, 1990, that Option 2 was Sweely's actual choice, McWilliams advised the Petitioner to choose Option 2. McWilliams testified that she discussed the matter with Sweely and with the Petitioner in Sweely's presence on August 16, 1990. (It certainly is possible that, had they discussed the matter with Sweely on August 16, 1990, Sweely might have chosen Option 2 at that time.) But the Petitioner testified that they did not discuss the matter with Sweely on August 16, 1990. The Petitioner explained that, although Sweely was oriented and physically able to write his name and, from time to time, was mentally lucid on that day, the Petitioner did not think that Sweely was in a position to give full consideration to the matter at the time they were discussing the forms because he was on morphine, was lethargic, and was having difficulty breathing without a non-rebreather mask. The Petitioner also did not think it was necessary to trouble Sweely with the matter, since the Petitioner believed that the selection of Option 2 on the Form FRS-11o was redundant and also that he was authorized to execute the form for Sweely as his attorney-in-fact under a purported durable power of attorney which Sweely executed on or about February 28, 1990, authorizing the Petitoner to act in Sweely's behalf in all matters. Under the circumstances on the afternoon of August 16, 1990, the Petitioner did not think that Sweely would have wanted to be troubled with the matter unnecessarily. He checked Option 2 and signed Sweely's name to the Form FRS-11o. On numerous previous occasions, the Petitioner had signed Sweely's name on Sweely's personal checks to pay Sweely's bills. In doing so, the Petitioner believed that he was acting properly under the authority of the purported durable power of attorney, and the bank always honored the checks the Petitioner signed this way. But on June 13, 1990, a physician insisted that the Petitioner sign a Division of Retirement medical records release form FR-13b in his own name as attorney-in-fact for Sweely. Himself not thinking well or clearly under the circumstances, the Petitioner assumed that his signature on the Form FRS-11o was valid. The Petitioner testified that it did not occur to him that there were notary services available for his use at the hospital. He testified that, after checking Option 2 and signing the Form FRS-11o, he telephoned his father, who was a notary, and asked him to come to the hospital to notarize something for him. The Petitioner's father confirmed this and also confirmed the Petitioner's testimony that they met in the hallway outside Sweely's hospital room, where the Petitioner gave his father the signed form and asked him to notarize it. Both testified that they did not discuss the form in any detail before the Petitioner returned to Sweely's hospital room. The Petitioner's father testified that he notarized the form thinking that Sweely had signed it. Sweely died two days later on August 18, 1990.
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: (1) that the purported selection, on the Form FRS-11o dated August 16, 1990, of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was invalid and ineffective; and (2) that the previous selection of Option 1 on the Form FR-13 executed on or about June 20, 1990, is valid and shall be given effect. RECOMMENDED this 20th day of January, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to the Petitioner, his actions were not in accordance with the statement.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 12.-14. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) Last sentence, not proven (as to expression of "clear and unqualified acknowledgment and understanding); also rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) 17.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31. "Substantially," rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 32.-35. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (The evidence was that the Patient Care Technician Records were prepared near the beginning of each nursing shift and reflected conditions at that time. Meanwhile, there was evidence that the patient's mental state would "wax" and "wane." When the patient "waned" and was lethargic, it was difficult to communicate with him. Changes during the course of a shift may or may not be noted in the Progress Notes. While the Patient Care Technician Records indicate that the patient was both oriented and lethargic, the 8 a.m. progress notes indicate "lethargic at times." The progress notes also indicate that, earlier in the day, the patient had difficulty breathing without the non-rebreather mask and that, by 2 p.m., he was wearing the mask continuously. Even disregarding the possibility that the morphine dosage was enough to affect his judgment, the patient's lethargy and his difficulty breathing without the mask probably would have made it difficult for him to communicate on legal matters on the afternoon of August 16, 1990.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (He did not allege that Sweely could not communicate or write his name. He testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily. He did not think he had to discuss it with Sweely or have Sweely sign it.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, Dr. Breen's curt medical evaluation of Sweely's general medical condition on August 16, 1990, was not for the purpose of evaluating whether it was possible or prudent to have him considering legal documents and making important legal judgments. In addition, Dr. Breen saw the patient early in the morning and would not have seen changes during the course of the day. 11.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Rejected as contrary to the greater weight of the evidence that Castillo, Jr., "insist[ed] that Sweely was incompetent, unable to provide or receive meaningful communication on August 16--and could not execute the form himself . . .." (Rather, he testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Keith F. Roberts, Esquire 201 North MacDill Avenue Tampa, Florida 33609 Robert B. Button, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioners are entitled to, and should receive, survivor retirement benefits from the Florida Retirement System account of their deceased mother, Adrianna Davis, which are presently being paid to their sister, Earnese Davis?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Adrianna Davis was a public school teacher in Broward County for more than 35 years before her retirement in or about the end of January of 1991. She enrolled in the Teacher's Retirement System of Florida in 1955, when she started her teaching career. On the enrollment form that she filled out, she designated her father, Charles Williams, who is now deceased, as her beneficiary. Adrianna subsequently became a member of the Florida Retirement System. At the time of her death, Adrianna had two adult sons, Kevin and Eddie Davis, (the Petitioners in this case) and one adult daughter, Earnese Davis, (the Intervenor in this case), all three of whom lived with her in the house she and the children's aunt co-owned. Adrianna was the undisputed head of the household and its primary decision maker. Although Earnese lived under the same roof as her brothers, she did not have a good relationship with them. Shortly after the beginning of the 1990-91 school year, Adrianna was told by a physician that he suspected that she had cancer. In October or November, she underwent exploratory surgery. The surgery confirmed that she had cancer, which was determined to be inoperable. Following the exploratory surgery, Adrianna received chemotherapy and radiation treatment. Adrianna was admitted to Humana Hospital Bennett (now Westside Regional Medical Center and hereinafter referred to as "Humana") on December 6, 1990. She was brought to Humana by Earnese, who remained with her in the hospital during the entire period of her hospitalization. 1/ After a medical history was taken and a physical examination was conducted, the following initial "assessment" was made of Adrianna's condition by the admitting physician: "Lung carcinoma with dehydration post chemotherapy." Approximately two days prior to her December 6, 1990, hospitalization, Adrianna had asked Earnese to go to the Broward County School Board (hereinafter referred to as the "School Board") offices to obtain a Florida Retirement System Application for Service Retirement form (hereinafter referred to as a "Form 11). Form 11 has four sections that need to be filled out. In the first section of Form 11 (hereinafter referred to as "Section 1"), the following information has to be provided: the applicant's name; the applicant's social security number; the applicant's job title; the applicant's birth date; the applicant's present or last employer; the applicant's home address and home and work phone numbers; and the date of termination of applicant's employment. In the second section of Form 11 (hereinafter referred to as "Section 2"), the following information has to be provided: the name of the beneficiary designated by the applicant; the beneficiary's social security number; the relationship of the beneficiary to the applicant; the beneficiary's home mailing address; and the "option" selected by the applicant. 2/ The following advisement is printed at the top of Section 2: "All previous beneficiary designations are null and void." The third section of Form 11 (hereinafter referred to as "Section 3") contains the following statement, underneath which the applicant has to place his or her signature "in [the] presence of [a] notary:" "I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES." It also has a certificate that has to be completed and signed by the notary public in whose presence the applicant signs this section of the form. The fourth and last section of Form 11 (hereinafter referred to as "Section 4") contains the following certification that has to be completed, signed and dated by an authorized representative of the applicant's employer, "if termination was within the last 2 years:" "This is to certify that was employed by this agency and will terminate or has terminated on / / , with the last day worked on / / ." As her mother had asked her to do, Earnese went to the to the School Board offices at 1320 Southwest 4th Street in Fort Lauderdale to pick up a Form There she met with Victoria Moten, a School Board retirement specialist. 3/ Earnese told Moten about her mother's situation. She explained that her mother was ill and it looked like she was "not going to make it." 4/ Moten obtained a blank Form 11. After typing in the information that needed to be provided in Section 1 of the form, Moten handed the partially completed form to Earnese and indicated what further steps needed to be taken in order to complete the application process. After her visit with Moten, Earnese returned home and gave her mother the partially completed Form 11 (with only Section 1 filled in) that Moten had provided Earnese with earlier that day (hereinafter referred to as the "Designation Form"). Adrianna kept the Designation Form in her possession and took it with her (in a knapsack, along with other papers) to the hospital on December 6, 1990. She explained to Earnese that she wanted to have the Designation Form filled out while she was in the hospital. It was Adrianna, not Earnese, who brought up the subject. On the morning of December 10, 1990, while Adrianna was still in the hospital, she told Earnese that she wanted to designate Earnese as the sole beneficiary of her retirement benefits so that Earnese would be able to get her "life together" and she asked Earnese to fill out Section 2 of the Designation Form accordingly. 5/ Adrianna also requested Earnese to obtain the services of a notary public to assist in filling out Section 3 of the Designation Form. Earnese thereupon left her mother's hospital room (without the Designation Form, which remained with Adrianna) to find a Florida notary public in the hospital. Her search was successful. She made contact with Elizabeth Sarkissian (now Gassew), a registered nurse and a Florida notary public, 6/ who agreed to help in filling out Section 3 of the Designation Form. Earnese returned to her mother's room with Sarkissian. Earnese filled out Section 2 of the Designation Form in accordance with her mother's previous instructions. Sarkissian, upon entering the room, engaged in conversation with Adrianna, who was sitting up in her hospital bed. Adrianna was alert and oriented. She spoke clearly and responded appropriately to questions Sarkissian asked her. By all appearances, she was in no way mentally incapacitated. After Earnese had finished filling out Section 2 of the Designation Form, Adrianna signed Section 3 of the form in Sarkissian's and Earnese's presence. 7/ Sarkissian then completed and signed the notary certificate underneath Adrianna's signature (in Section 3 of the Designation Form), 8/ after which the form (now with Sections 1, 2 and 3 filled in) was returned to the knapsack in which Adrianna kept the papers she had brought with her to the hospital. Her presence no longer needed, Sarkissian left Adrianna's hospital room. Sarkissian's visit lasted approximately five or ten minutes. Later that day (December 10, 1990), in the evening, Adrianna underwent a surgical procedure involving the insertion of a vascular access port. Adrianna was discharged from the hospital on December 12, 1991. She took the knapsack which contained the Designation Form home with her. Adrianna kept the Designation Form in her possession until January 3, 1991, when she gave it to Earnese, with instructions that Earnese deliver it to Moten for filing. Earnese followed her mother's instructions. Later that same day (January 3, 1991), she went to Moten's office (without her mother) and handed Moten the Designation Form. Moten thereupon completed Section 4 of the form. The now fully completed form was then filed for processing. In June of 1991, Adrianna went into a coma and eventually died. At the time of her death, the Designation Form (which, in Section 2, designated Earnese as the sole Option 2 beneficiary of Adrianna's retirement benefits) was the most recent designation of beneficiary form executed by Adrianna. At no time subsequent to signing the Designation Form did she express to Earnese a desire to make any changes to Section 2 of the form, nor were any such changes made. It has not been shown that Adrianna's designation of Earnese as the sole beneficiary of her retirement benefits was the product of any fraud, misrepresentation, trickery, coercion, undue influence, active procurement, or suggestion on Earnese's part or that it was anything other than a decision made freely, voluntarily and knowingly by a woman who, although terminally ill, was in all respects capable of making such a decision 9/ and fully understood the consequences her decision. On or about July 18, 1991, through the submission of a completed Application of Beneficiary for Retirement Benefits form, Earnese requested that the Division begin to pay her Adrianna's retirement benefits. On the form, Earnese designated her brothers, Eddie and Kevin, as the first and second contingent beneficiaries, respectively, of these benefits in the event of her death. Earnese has received monthly payments from her mother's retirement account since July of 1991. 10/ She currently receives a monthly payment of $1,986.30.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division enter a final order refusing to grant Petitioners' request that it treat as a nullity Adrianna Davis' written designation of Earnese Davis as her sole beneficiary and, based upon such nullification, discontinue paying Adrianna's retirement benefits to Earnese Davis and instead pay them to Petitioners. 13/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of February, 1996. STUART M. LERNER, 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 8th day of February, 1996.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, as a surviving spouse, is entitled to a continuing benefit from the Florida Retirement System (FRS) based on the retirement account of her deceased husband, George S. Bohler. More specifically, it must be determined whether the forgery of the spousal acknowledgement form renders the member's election of the "Option 1" retirement benefit payment, which precludes a survivor's benefit for his spouse, invalid and void.
Findings Of Fact George Bohler, the FRS member at issue, was employed, at times pertinent, as a Professor of Economics at Florida Community College in Jacksonville. The College is an FRS employer and Mr. Bohler was a member of the FRS retirement system. The Division of Retirement is an administrative agency charged with regulation and operation of the Florida retirement system, including calculation of and determination of entitlement to retirement benefits, under various options and member circumstances. On March 22, 1999, Mr. Bohler filed a completed Florida Retirement System Application for service retirement and the Deferred Retirement Option Program (DROP). This was accomplished through his filing of "Form DP-11." The Form provides a retiree with information pertaining to four options by which his retirement benefits may be paid. One full page of that form provides an explanation of each option. Mr. Bohler selected Option 1, a retirement benefit pay-out plan which provides the highest monthly benefit. The Option 1 selection provides that this highest monthly benefit is payable for the lifetime of the retiree only. Upon his death, the benefit would stop and his beneficiary, here his spouse, the Petitioner, would receive only a refund of any contributions the member might have paid into the FRS which exceeds the amount he had received in benefits. Option 1 provides no continuing or survivor benefit to a beneficiary or surviving spouse. The DP-11 Form filed with the retirement application contained an apparent spousal acknowledgement purportedly signed by Deborah T. Bohler, the spouse of member George Bohler. It appears to acknowledge that the member had elected either Option 1 or Option 2, which provide no survivor/spouse benefit. The DP-11 Form indicated to the Division that the member was married. The parties have stipulated, however, that the Petitioner's signature on the FRS application for service retirement and the DROP program was actually forged. George Bohler, the member, was an FRS member from August 19, 1968, to March 31, 2005. He received FRS retirement benefits based upon the above-referenced application from the Division from April 1, 2000, to October 31, 2007. The Form DP-11 contained a statement to the effect that the retiree member understood that he could not add additional service, change options, or change his type of retirement once his retirement became final. Mr. Bohler began participation in the DROP program on April 1, 2000. Thereafter, his last date of employment was March 31, 2005, and he passed away on October 18, 2007. He received FRS benefits from April 1, 2000, until October 31, 2007. For 28 years, until his death on that date, Mr. Bohler was legally married to the Petitioner, Deborah Bohler, during which time they were never separated or divorced. On March 10, 1999, Mr. Bohler executed the FRS Application for Service Retirement and the DROP program. He had his signature notarized as required for that form. Joint Exhibit 1, in evidence. Mr. Bohler designated the Petitioner as his primary beneficiary on the DROP Application. He elected to begin participation in the DROP program as of April 1, 2000, and to retire from state employment effective March 31, 2005, which he did. There are four options which an FRS member may select for his or her retirement benefits to be paid to the member or to the survivors/beneficiaries. Mr. Bohler selected "Option 1" on his DROP Application form. This results in a significantly higher retirement monthly benefit than does Options 3 or 4, which have survivorship rights. The acknowledgement section on the DROP Application form requires that a member's spouse be notified and must acknowledge a member's selection of Option 1 or Option 2 by signing that DROP Application form, so that the FRS is thus informed that the spouse made a knowing, intelligent waiver of survivorship rights to benefits. The spousal acknowledgement provision or section does not require that the member's spouse's signature be notarized. The form also does not require a member to swear under oath that the spouse was notified. The parties have stipulated that the Petitioner's apparent signature shown on Mr. Bohler's retirement application form was forged. The Petitioner had no knowledge that her name had been placed on the form by some other person, nor did she have any knowledge that Mr. Bohler had selected Option 1 prior to his death. The Petitioner first learned that her husband had selected Option 1 when she contacted the Respondent, after his death, to request that his retirement benefits now be paid to her. She believed that she was entitled to survivorship benefits. Her husband never informed her that he had selected a retirement option which would not pay her survivorship benefits, nor had they discussed the matter before or since his retirement. In their marital and family relationship, the Bohlers had divided certain duties in such a way that Mr. Bohler, the FRS member at issue, handled all financial matters himself. The Petitioner, Mrs. Bohler, dealt with any tax issues or filings the couple was required to make during the years of their marriage. The Petitioner is a certified public accountant. The Petitioner was simply aware that her husband received retirement benefits, and knew the amount of them, but did not know that they represented benefits for Option 1 rather than Option 3 or 4. The Petitioner's signature on the spousal acknowledgment section of the DROP Application form is stipulated to have been forged. The fact of the forgery, and the Petitioner's un-refuted testimony, establishes that she was never notified, nor did she ever acknowledge that her husband had selected Option 1. She was not aware that an attempt to waive or extinguish her survivor's benefits had been made. She believed, during his lifetime, that she was to be accorded survivor benefits. Testimony presented by the Respondent shows that the Respondent Division will not accept a retirement application form, or process it, if a member fails to complete the spousal acknowledgement section or, alternatively, to submit a signed statement explaining why that section is left blank, or the signature of the spouse has not been obtained. The fact that the Division will not accept a retirement or DROP Application form or process the related benefits if the acknowledgement section is unsigned or blank establishes the mandatory nature of the requirement that a spouse acknowledge a member's election to receive benefits under an option which would preclude a spouse's survivorship benefits. The acknowledgement is thus not an optional requirement. In fact, the legislature clearly placed that requirement in the statute, Section 121.091(6)(a), Florida Statutes, as a mandatory requirement so a spouse would know of any such attempt to waive the spouse's survivorship rights and benefits. It is an acknowledgement that the spouse has a vested or property right in such benefits, which must be knowingly and intelligently waived. The Statute says, in fact, that the spouse of any member "shall be notified of and shall acknowledge any such election." Therefore, obtaining a spouse's signature is not the only desired result set forth by the legislature (and under the rule adopted pursuant thereto) because it requires actual notification of the spouse, not merely the obtaining of a spouse's signature, whether genuine or forged. Actual notification is what must be accomplished. The required notification and indeed the obtaining of the Petitioner's signature was not accomplished in the facts of this case. In light of these facts, the act of declaring and accomplishing retired status, and selection of the related benefit option, was never completed. The Option selection was obviously a nullity and void ab initio because the mandatory condition precedent never was accomplished by the member.
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 RECOMMENDED that a final order be entered by the State of Florida, Department of Management Services, Division of Retirement, awarding the Petitioner retirement benefits based upon her status as a surviving spouse and joint annuitant, in the manner described above, adjusted to reflect re-calculation and recoupment of overpayment based upon the amount of benefits already paid from the subject retirement account pursuant to Option 1. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 10th day of November, 2009. COPIES FURNISHED: Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 T. A. Delegal, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Erin R. McGuire, is entitled to purchase retirement service credit for the 1980-1981 school year based upon the determination of whether she was on a properly authorized leave of absence for that school year or, conversely, had actually resigned for that year before returning as a full- time employee of the Bay County School System the following year.
Findings Of Fact The Petitioner is a regular class member of the FRS, with some 28 years of service credit. Her entire FRS career has been with the Bay County School District. On October 8, 1980, the Petitioner resigned her employment with the Bay County School System to re-locate her residence to Alabama. She wanted to be closer to her family in Alabama and at the time did not intend to return to Bay County. She changed her mind, however, and on September 9, 1981, was re-hired by the Bay County School System. She has continued her employment with Bay County schools from that time until the present. The Petitioner maintains that she spoke to her school principal after tendering her resignation in 1980, and he persuaded her to rescind her resignation and instead take a leave of absence. No school board record of such a decision or denomination of her absence from employment as a leave of absence, was produced at hearing. The Petitioner did admit that when she left her employment with Bay County in 1980, she had no intention of ever returning at that point. She did, however, return for the following school year and has been employed by Bay County Schools ever since. When a member, such as the Petitioner, seeks to purchase a leave of absence from the FRS, they, and their employer, must verify the leave of absence on the FRS form FR That form is provided by the Division and must be executed by both the employer and the employee. The leave of absence must have been approved by the employer, the school board, either prior to or during the time period of the leave of absence, according to the rule cited herein. When Ms. McGuire submitted her form FR 28 to the school board, the board completed the form indicating that she had resigned on October 8, 1980 (not a leave of absence), and was re-hired as a "new hire" on September 9, 1981. It is also the case that the school board approved amending her record to show the time period in question as a leave of absence. That amendment of her record was approved by the school board on January 14, 2004, however, long after the time period of the purported leave of absence itself.
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 entered by the Department of Management Services, Division of Retirement, denying the Petitioner's request to purchase leave of absence credit for the period October 1980 through September 1981. DONE AND ENTERED this 1st day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of September, 2004. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Erin McGuire 1507 Rhode Island Avenue Lynn Haven, Florida 32444
The Issue Whether Petitioner, Rina Richard DeMichael (“Petitioner”), the surviving spouse of David DeMichael, is entitled to change the Florida Retirement System (“FRS”) retirement benefits payment Option 1 selected by Mr. DeMichael.
Findings Of Fact Respondent is the state agency charged under chapter 121, Florida Statutes, with administering the FRS. In 1991, Mr. DeMichael began employment with the Broward County Sheriff’s Office (“BCSO”). Mr. DeMichael was a member of the FRS pension plan based on his employment with the BCSO as a deputy sheriff. Mr. DeMichael married Petitioner on November 19, 2011. On February 11, 2013, Mr. DeMichael retired from the BCSO. At that time, he signed the Florida Retirement System Pension Plan Application for Service Retirement form (“Application for Service Retirement Form”) designating Petitioner as his primary beneficiary. On February 11, 2013, Mr. DeMichael also signed the Florida Retirement System Pension Plan Option Selection for FRS Members form (Form FRS-110)(“Option Selection Form”). On the Option Selection Form, Mr. DeMichael was required to select one of four retirement benefit payment options. The Option Selection Form provided an explanation for each of the four options. Mr. DeMichael selected to receive an Option 1 retirement benefit by checking the line next to the Option 1 benefit payment option. Option 1 provides the maximum benefit for the life of the FRS member with no continuing benefit after the member’s death. On February 11, 2013, Petitioner signed the Spousal Acknowledgement Form (Form SA-1)(“Spousal Acknowledgement Form”) acknowledging that Mr. DeMichael “selected either Option 1 or 2.” The purpose of the Spousal Acknowledgement Form is to inform the spouse that he/she will not receive a lifetime benefit following the FRS member’s death. The Spousal Acknowledgement Form does not give a spouse control over which option the FRS member selects. That option selection decision is the sole choice of the member. The Spousal Acknowledgement Form provided an explanation of the four different retirement payment options available to FRS members. At the hearing, Petitioner acknowledged she signed the Spousal Acknowledgement Form. Ms. Tiffany Pieters was a duly licensed notary with the State of Florida and an employee of BCSO on February 11, 2013. Ms. Pieters notarized the Application for Service Retirement Form and Option Selection Form signed by Mr. DeMichael, and the Spousal Acknowledgement Form signed by Petitioner. The Division received Mr. DeMichael’s Application for Service Retirement Form, Option Selection Form, and Petitioner’s Spousal Acknowledgement Form on or about February 11, 2013. On February 20, 2013, Respondent mailed Mr. DeMichael an Acknowledgement of Service Retirement Application letter acknowledging Respondent’s receipt of Mr. DeMichael’s Application for Service Retirement Form; his selection of Option 1 as the benefit payment option; his employment termination date of February 11, 2013; and retirement date of March 1, 2013. The Acknowledgement of Service Retirement Application letter expressly provides that Mr. DeMichael cannot change the option he selected once his retirement becomes final, and that retirement benefits become final when any payment is cashed or deposited. Mr. DeMichael’s Application for Service Retirement Form and Option Selection Form also expressly provide that he cannot change the option he selected once his retirement becomes final, and that retirement benefits become final when any benefit payment is cashed or deposited. On February 20, 2013, Respondent also mailed Mr. DeMichael an Estimate of Retirement Benefit letter, which provides an estimate of the payment benefit for each of the four options. The letter also acknowledges that Mr. DeMichael selected Option 1, and that his option selection cannot be changed after any payment is cashed or deposited. On April 1, 2013, Respondent mailed a request for birth date verification to Mr. DeMichael. In response, on April 30, 2013, Respondent received Mr. DeMichael’s birth certificate. Based on his selection of Option 1, Mr. DeMichael received an initial retroactive payment of $7,809.76 on May 10, 2013; an initial regular retirement payment of $3,904.88 on May 31, 2013; and a subsequent retirement payment every month in 2013 in the monthly amount of $3,904.88. Mr. DeMichael received a retirement payment every month beginning May 2013 until he died on August 25, 2015. Mr. DeMichael received a total of 29 retirement payments for a total gross benefit amount of $119,832.92. Each retirement payment was cashed or deposited into Mr. DeMichael’s bank account. Respondent was notified of Mr. DeMichael’s death in August 2015. On or about October 6, 2015, Respondent notified Petitioner that Mr. DeMichael’s benefit had ended and that there would be no continuing benefit to her based on Mr. DeMichael’s Option 1 selection. In this proceeding, Petitioner claims she is entitled to change Mr. DeMichael’s Option 1 retirement benefit selection and receive a continuing monthly spousal benefit. In support of her position, Petitioner contends Mr. DeMichael’s selection of Option 1 is invalid because he lacked the mental capacity to make a retirement option at the time his Application for Service Retirement Form and Option Selection Form was submitted to Respondent. Based on the persuasive and credible evidence adduced at hearing, Petitioner failed to establish that Mr. DeMichael lacked the mental capacity to make a retirement option at the time his Application for Service Retirement Form and Option Selection Form were submitted to Respondent. No medical evidence was presented establishing that Mr. DeMichael was mentally incapacitated at the time he executed the Application for Service Retirement Form and Option Selection Form on February 11, 2013. In fact, Mr. DeMichael was released from Sunrise Detoxification Center on February 11, 2013, following in-patient rehabilitative treatment for his alcoholism. Petitioner’s Exhibit 7 expressly states that Mr. DeMichael “was medically stable for discharge” at 8:00 a.m. that morning. Moreover, Petitioner and Mr. DeMichael ate breakfast together later that morning at the BCSO cafeteria. Subsequently, Petitioner was escorted to the BCSO Internal Affairs area where she was questioned about Mr. DeMichael’s alcoholism. After Petitioner refused to answer any questions, she was escorted to the BCSO rooftop terrace. After a while, Mr. DeMichael came to the rooftop terrace. According to Petitioner, Mr. DeMichael was smiling and they exchanged pleasantries. After February 11, 2013, Mr. DeMichael continued to manage his own financial affairs, including his bank account. On April 1, 2013, Respondent sent a request to Mr. DeMichael to provide verification regarding his date of birth. In response, Mr. DeMichael sent his birth certificate to Respondent. Finally, at no time did Petitioner ever seek a guardianship or power of attorney over Mr. DeMichael, and at no time was Mr. DeMichael adjudicated incompetent by a court. Petitioner also claims that Mr. DeMichael’s selection of Option 1 is invalid and that she is entitled to a continuing benefit because she lacked the opportunity to read the Spousal Acknowledgement Form before signing it. Based on the persuasive and credible evidence adduced at hearing, Petitioner failed to establish that she lacked the opportunity to read the Spousal Acknowledgement Form before signing it. In support of her position, Petitioner testified at one point in the hearing that she only saw the area of the form near where she signed it. However, in the area of the form near where Petitioner signed (Respondent’s Exhibit No. 6) is the express “acknowledgement that the member has selected either Option 1 or 2.” At another point in the hearing, Petitioner testified she saw the small writing below her signature at the bottom of the Spousal Acknowledgement Form, but she did not read any of the writing. The small writing below Petitioner’s signature at the bottom of the form provides an explanation of the four retirement benefit payment options. Notably, Petitioner did not testify that she asked Ms. Pieters for any explanation of the Spousal Acknowledgement Form. Further, Petitioner did not testify that she needed or asked for more time to read the Spousal Acknowledgement Form before signing it, or that Ms. Pieters refused to allow her to read the form. Petitioner could have asked Ms. Pieters for more time to read the Spousal Acknowledgement Form if she felt it was necessary, but she did not. At no time did Petitioner ever file a complaint against Ms. Pieters or complain about her handling of the Spousal Acknowledgement Form. Had Petitioner been concerned about the Spousal Acknowledgement form or Mr. DeMichael’s mental capacity on February 11, 2013, she also could have spoken to Judy Cowell, Mr. DeMichael’s supervisor at BCSO. Ms. Cowell greeted Petitioner and Mr. DeMichael at the front office when they arrived at BCSO on the morning of February 11, 2013, and Ms. Cowell escorted them to the cafeteria and rooftop terrace. At hearing, Petitioner testified that Ms. Cowell “was like a mom,” and that she had spoken to her on numerous occasions when Mr. DeMichael had problems with his employment. At hearing, the undersigned had the distinct opportunity to observe Petitioner’s testimony and her demeanor. Petitioner’s testimony regarding Mr. DeMichael’s alleged mental incapacity on February 11, 2013, and her not having the opportunity to read the Spousal Acknowledgement Form and the alleged invalidity of the Spousal Acknowledgement Form, Option Selection Form, and Application for Service Retirement Form, is not credited and is rejected as unpersuasive. In sum, Petitioner is not entitled to change Mr. DeMichael’s selection of Option 1 as his FRS retirement benefits payment option and she is not entitled to a continuing benefit.
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 to change the Florida Retirement System retirement benefits payment Option 1 selected by Mr. DeMichael and receive a continuing monthly spousal benefit. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 14th day of April, 2020. COPIES FURNISHED: James C. Casey, Esquire Law Offices of Slesnick and Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134 (eServed) Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (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 Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
