The Issue Whether Petitioner's request for retirement credit should be approved.
Findings Of Fact Petitioner previously worked for the Sheriff's Office for DeSoto County, Florida. It is undisputed that the Sheriff's Office is a qualified Florida Retirement System ("FRS") employer and that Petitioner was, during all times relevant hereto, an FRS eligible employee. In the instant case, it is undisputed that in October 2006, Petitioner sustained a work-related injury while in the course and scope of her employment with the Sheriff's Office. Petitioner, from the time of her injury through approximately September 11, 2007, received temporary total disability workers' compensation benefits for her employment- related injuries. The precise dates when these benefits were received by Petitioner are not at issue in the instant dispute. On September 12, 2007, Petitioner returned to work at the Sheriff's Office with light-duty work limitations. Also on this date, Petitioner resumed receiving payroll wages from the Sheriff's Office. Petitioner continued to receive temporary partial disability wage payments through December 2008 and received workers' compensation medical benefits through October 2010. When Petitioner returned to work on September 12, 2007, she was still receiving medical treatment from the workers' compensation physician and attended regular sessions with the physician throughout the duration of her employment with the Sheriff's Office. The visits to the workers' compensation physician often occurred during times when the Sheriff's Office scheduled Petitioner to work, thus, resulting in her absence from work on these days. The Sheriff's Office terminated Petitioner's employment on December 12, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner was on the Sheriff's Office payroll and received wages as follows: For the period September 23, 2007, through October 6, 2007, she received payroll wages for 14 days; For the period October 7, 2007, through October 20, 2007, she received payroll wages for five days; and For the period October 21, 2007, through December 12, 2007, she received payroll wages for 14 days. No evidence was presented at the hearing explaining Petitioner's work schedule for the period September 13, 2007, through October 5, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner worked and received payroll wages from the Sheriff's Office for a total of 34 days. Although the 34 days that Petitioner worked were dispersed throughout the months of September, October, November, and December, Petitioner, nevertheless, received a paycheck from the Sheriff's Office for wages for each pay period following her return to work. There was no testimony offered at the hearing as to the total number of days that Petitioner was scheduled to work between September 12, 2007, and December 12, 2007. However, Petitioner testified that any scheduled work days that she missed during this period occurred as a result of her having to attend medical appointments with the workers' compensation physician. Respondent offered no evidence to the contrary as to this point. Given the severity of Petitioner's work-related injury, which apparently resulted in her being away from work for nearly a year, coupled with the fact that she continued to receive workers' compensation medical benefits through October 2010 (some four years after the date of her injury), the undersigned accepts as credible Petitioner's testimony that any scheduled work days that she missed between September 12, 2007, and December 12, 2007, resulted from her having to attend medical appointments with the workers' compensation physician. On April 4, 2008, Petitioner submitted correspondence to the Division and stated therein the following: Sir, I am writing this email in regards to my retirement. Under the florida [sic] retirement system, a member is entitled to retirement credit for periods of eligible workman [sic] comp[ensation]. The member must return to FRS covered employment for one month. Creditable workman [sic] comp[ensation] includes all periods that workman [sic] comp[ensation] are made. FRS employers are required by Section 121.125, Florida Statutes, and Section 60S-2012, Florida Administrative Code, to report the period covered by workman [sic] comp[ensation] on the monthly retirement report. D.C.S.O. stated I worked intermittently but where is it written in the Florida State Statutes or Administrative Code, how many days during the month you are allowed to miss and it would not be credible service or considered a break in service. [sic] Sir, I was still active [sic] employed with D.C.S.O. upon returning to work on Sept[ember] 12, 2007. The days I missed was [sic] due to medical appointmentts [sic] for my workman's [sic] comp[ensation] injury I sustained at D.C.S.O. I always provided documentation from the physician. I was not terminated until December 13, 2007 when Capt. McClure of D.C.S.O. called me at 8:21 A.M. [sic] on my scheduled day off. The three months I was allowed to work and the period on workman [sic] comp[ensation] should be credible service towards retirement. Sir, my question is when the other employees at D.C.S.O. take off more than a couple of days, during the month, for various reasons, without medical documentation[,] do[es] it count for credible service towards retirement or is it a break in service. [sic] On April 7, 2008, Doug Cherry, on behalf of the Division, responded to Petitioner's inquiry of April 4, 2008, and stated the following: Ms. Leonard, as I explained in our phone conversation, for periods of workers' compensation (temporary partial or temporary total) to be eligible for retirement credit there must be a return to active employment for one complete calendar month. The attached letter from the Sheriff of DeSoto County shows that from your scheduled date of return in September 2007, your employment was not active for the required month. This letter states you worked intermittently until your termination of employment in December 2007. To satisfy the one calendar month of active work, you needed to be consistently working through October 31, 2007. You indicated in our conversation that the information from the Sheriff was incorrect. If so, you would need to contact that office to resolve any discrepancy. I [have] also attached the appropriate Florida Statute (121.125) and the Florida Administrative Code (60S-2.012) which states [sic] this requirement. The law does not provide for exceptions or a combination of active and non-active employment during the one calendar month. Regarding your question about active members taking off days during the month, the requirements for earning service credit are different than the eligibility requirement for periods of workers' [sic] compensation. In your own account, you did earn credit for the months of September, October, November and December 2007 for the time you did work and earn salary. However, as stated above, for the period of workers' compensation to be creditable for retirement, the requirement is active employment for the full calendar month, not to earn service credit after such period. You also indicated that you were going to provide your attorney with this information. If your attorney would like to give me a call (850-488-9623), I will be glad to discuss this issue with him or her. I hope this information will help clarify this issue for you. On January 7, 2011, Respondent wrote Petitioner and informed her of the following: Dear Ms. Leonard: This will respond to your request for retirement credit for the period of time you received Workers' Compensation (WC), that was submitted to the State Board of Administration (SBA). Because this is an issue of creditable service, the SBA forwarded the request to the Division of Retirement since the Division is the proper agency to address such an issue. Information you and your agency provided indicates that you were out on WC October 2006 through September 2007 at which time your employer, the DeSoto County Sheriff's Office, sent you a letter dated September 6, 2007 requiring you to return to work within two weeks or be terminated from employment. The Division has not received any documentation from the Workers' Compensation carrier to substantiate the actual periods of WC or the date maximum medical improvement was reached. Therefore, this letter cannot address periods of possible eligibility for retirement credit but will address whether your employment from September 2007 met the return to work requirement for such eligibility. The Sherriff's [sic] office provided us with documentation of your time worked in September, October, November, and December 2007. During these months, you worked intermittently and did not have a full calendar month of active employment before your employment was terminated by your employer on December 12, 2007. * * * You did not consistently work during any of those calendar months until your employment was terminated by your employer on December 12, 2007. Therefore, starting in September 2007, you did not meet the return to actively performing service requirement of the above provision to establish eligibility for possible retirement credit. Petitioner's failure to return to active employment status was the only reason given by the agency when denying Petitioner's claim. Andy Snuggs has worked as a benefits administrator for the Division for approximately the last 20 years. The Division offered, and the undersigned accepted, Mr. Snuggs as an expert in matters related to the Act. Mr. Snuggs testified that in the exercise of the agency's discretion, the agency defines the phrase "active employment," as it relates to section 121.125, to mean that an employee must work each scheduled work day in a regularly established position for at least one calendar month following the employee's return to work and that no allowances are made for any absences, excused or otherwise. Mr. Snuggs did not offer any testimony explaining why the Division selected the particular definition that it did for the term "active."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order determining that Petitioner, Irene Leonard, met the return-to-work requirements necessary to receive retirement credit for workers' compensation payment periods. DONE AND ENTERED this 8th day of September, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of September, 2011.
Findings Of Fact Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows: Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty. Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Ralph Miller, Esquire P.0. Box 112 DeFuniak Springs, Florida 32433 L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304
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
The Issue Whether Petitioner is eligible to participate in the Deferred Retirement Option Program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1976, a firefighter employed by Miami-Dade County and, as such, a Special Risk member of the Florida Retirement System. Petitioner's date of birth is September 19, 1937. Accordingly, on July 1, 1998, the effective date of DROP, Petitioner was 61 years of age and had approximately 22 years of creditable service as a Special Risk member of the Florida Retirement System. Petitioner was aware that he needed to file an application to join DROP within 12 months of July 1, 1998, but he opted not to file such an application because he believed that the retirement benefits he would receive if he joined DROP within this 12-month period would not be enough for him to "live on" after he stopped working.2 Petitioner thought that it would be in his best interest, instead, to wait until 2003 to retire (and enjoy higher retirement benefits). On June 7, 2001, Petitioner sent an e-mail to Governor Bush, which read, in pertinent part, as follows: Yesterday I met with the head spokesman of FL. State Retirement concerning my participation in the D.R.O.P. [and] he advised me to send this note. As you know it started in 1998 at which time I was offered a small window because of my age (unlawful discrimination) for which I was not able to get into because of the insignificant amount offered as permanent retirement. Since then, as anticipated, my retirement has increased from the high 30's to the low 60's due thanks to you . . . Now, I am asking, by special request, to be allowed to enter into the D.R.O.P. either to finish these two years or to be given an opportunity to go for the whole 5 years, which I doubt I would complete. . . . Petitioner's e-mail correspondence was referred to the State Retirement Director who, by letter dated June 8, 2001, advised Petitioner that Petitioner's "request to join DROP at this late date must be denied."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding that Respondent is not eligible to participate in DROP because he did not elect to do so within the time frame prescribed by Subsection (13)(a)2. of Section 121.091, Florida Statutes. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
Findings Of Fact On June 19, 1987, the last day of the 1986-87 school year, Petitioner received his class schedule for the forthcoming 1987-88 school year at Kinlock Park Junior High School in Dade County, Florida, where he was the band director. Petitioner was discomfited with the schedule and resolved that he would investigate the process of applying for retirement benefits in view of a total of 36 years of service in the Florida Retirement System (FRS), inclusive of four years of military service. He knew he had been eligible for retirement since August, 1985. On July 1, 1987, Petitioner requested an appointment with administrative personnel of the Dade County School Board to discuss retirement options by executing and mailing a form entitled "Retirement Information/Appointment Request" to the Dade County School Board's Bureau of Personnel Management, Retirement Section. The form was received by the bureau on July 8, 1987. On the form, Petitioner stated he was tentatively planning to retire in August, 1987. Thereafter, Petitioner was contacted and attended a conference with a representative of the school board's retirement section on July 27, 1987, where he executed numerous personnel documents and completed the application for retirement benefits. The application was received by Respondent on July 30, 1987. The face of the application form contains a blank where an applicant for retirement inscribes the date for termination of service with all FRS employers. In the instant case, that blank reflects the date of June 19, 1987, as the effective date of Petitioner's termination of employment. Following the effective date of termination of employment on the application is the form's emphatic printed statement that this is the date for termination of employment and not the effective date of retirement. The application is notarized and bears the signature of Petitioner. While evidencing Petitioner's intent to terminate his employment on June 19, 1987, the application form provides no evidence of Petitioner's intent to retire prior to July 1, 1987. Another of the many forms which Petitioner received at the July 27, 1987, retirement conference is entitled "Retirement Information Form." Petitioner acknowledged his signature on this form which sets forth language stating that the signatory understands the data on the form is an estimate of his potential retirement benefits and that the amount may change. That form sets forth an effective retirement date of August 1, 1987. The Dade County School Board has 26,000 to 27,000 employees. Of this total number, approximately 18,000 are teachers. Between 400 and 500 of the employees seek retirement each year. Of that number, approximately 150-200 teachers retire in June of every year. All employees of the board are urged to contact the retirement section as soon as possible. The general policy is for the employee contemplating retirement to telephone the office. Four or five seminars are held throughout the year by various entities to familiarize school board employees with retirement procedures and benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered establishing Petitioner's retirement date for purpose of receipt of retirement benefits to be August 1, 1987. DONE AND ENTERED this 15th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3317 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Addressed. Addressed. Addressed. Addressed. Addressed. Addressed in part, remainder unnecessary to conclusion. COPIES FURNISHED: Jonathan W. Thurston 4850 Northwest 24th Court Miami, Florida 33142 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hon. Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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 Petitioner is entitled to purchase leave of absence retirement credit on behalf of James Gapinski, Petitioner's ex- husband and a deceased member of the Florida Retirement System.
Findings Of Fact Petitioner, Geraldine Gapinski, is the former spouse of James Gapinski, deceased. At the time of his death, Mr. Gapinski was an employee of Florida State University and a "vested" Florida Retirement Service (FRS) member. Petitioner is an employee of the Florida Department of Law Enforcement (FDLE) and an active member of FRS. Mr. Gapinski was continuously employed by Florida's Univeristy System from approximately 1970, until his death on November 20, 2000, with the exception of a period from September 10, 1976 to June 9, 1977, during which period he took an approved leave of absence. During the period September 10, 1976 to June 9, 1977, no contributions were made by Mr. Gapinski or on Mr. Gapinski's behalf to FRS toward his accruing retirement benefits and he earned no creditable service in FRS for this eight month period he was on his leave of absence. On May 4, 2000, Mr. Gapinski requested an audit and estimate of retirement benefits from Respondent. At the time of his request for an audit and estimate, Mr. Gapinski and Petitioner had begun a dissolution of marriage proceeding (divorce). At all times material, each litigant had independent legal counsel, and each lawyer was aware that Mr. Gapinski's FRS benefits were "on the table" for division of the marital estate in the course of the divorce proceedings. At all times material, Mr. Gapinski was terminally ill with cancer. On September 14, 2000, Mr. Gapinski applied for participation in the Deferred Retirement Option Program (DROP). His application (DROP Form DP11) requested a DROP "begin date" of September 1, 2000, and designated each of Mr. Gapinski's two adult daughters as 50 percent primary beneficiaries. Petitioner, who at that time was still married to Mr. Gapinski, was not even designated a secondary beneficiary. The application, which Mr. Gapinski signed, stated in pertinent part, I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law . . . I cannot add additional service, change options, or change my type of retirement after my DROP begin date (emphasis in original). The application also specified eight required acts before Mr. Gapinski could retire and become a DROP participant, including, but not limited to, 4. A check payable to FRS for any amount you owe, or a written statement that you do not wish to claim the service . . . . On September 15, 2000, Respondent provided James Gapinski with two estimates of benefits. Estimate No. 1 showed the benefit Mr. Gapinski would be entitled to if he chose to purchase the one year leave of absence for $6,820.52, providing for a DROP beginning date of September 1, 2000. This estimate further advised that 6.5 percent per annum would be posted on June 30, 2001. It also stated, Comments: The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. This amount must be paid for a DROP begin date of September 1, 2000. Mr. Gapinski was also notified of the need to purchase his leave of absence credit in a letter from Respondent dated September 15, 2001, stating, in pertinent part, as follows: The following items are pending. The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. * * * Completion of the Option Selection for FRS members, . . . AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. * * * Estimate No. 2 sent to Mr. Gapinski on September 15, 2000, showed the benefit Mr. Gapinski would be entitled to if he chose not to purchase his leave of absence and waited until March 1, 2001, to participate in DROP, when he would accrue 30 years of service without counting the gap left by his 1976-1977 leave of absence. This estimate also stated: Comments: This estimate does not include the purchase of your leave of absence and is provided for comparison purposes. It is provided for DROP purposes with a March 1, 2001, DROP begin date (see the enclosed DROP brochure). If you do not elect to pay the amount due and purchase the service it represents, we must have written notice of your intent. Apparently, neither attorney ever saw any of the foregoing papers. The thrust of Petitioner's attorney's actions and advice was to obtain survivorship retirement benefits, not necessarily DROP benefits, for Petitioner. On October 23, 2000, Petitioner's attorney was told by telephone by Ms. Ferguson, a representative of Respondent, that Petitioner must make a non-party request to release Mr. Gapinski's retirement information to her. So far as this record shows, no third party request was ever made, but that day, Petitioner's attorney and Ferguson also generally discussed retirement pay-out options that Mr. Gapinski could elect, and Petitioner's attorney was generally aware that the DROP process was not complete. On October 24, 2000, Petitioner's attorney discussed by telephone, retirement, divorce, and survivorship benefit issues and life insurance payment options with Ms. Hudson, a representative of Respondent. On October 26, 2000, Petitioner's attorney discussed, by telephone, retirement options and steps to be taken, with both Ms. Ferguson and Mr. Helms, another of Respondent's representatives. Mr. Helms told her the DROP application was not complete but if the couple were still married, Option No. 3 would give the most benefit for survivorship benefits. During the October 2000, conversations, Petitioner's attorney made each of Respondent's representatives aware of the impending divorce and of Mr. Gapinski's impending death, but the attorney did not specifically inquire how soon the lapsed time payment must be made and none of Respondent's representatives volunteered information on that issue. At Mr. Gapinski's request, the divorce proceeding was bifurcated. Prior to the divorce, Petitioner's attorney had done independent research and was aware that Mr. Gapinski had to pay the $6,820.52, in order to perfect the DROP program and in order to complete 30 years of creditable service in order to be eligible for survivorship benefits on his retirement. This information was communicated to Petitioner by her attorney and whether or not Petitioner would be willing to pay half the amount was discussed. Petitioner stated she would be willing to pay half the amount owed. As a condition to her agreement to bifurcate the divorce proceeding, that is, as a condition to letting Mr. Gapinski out of the marriage but reserving jurisdiction in the Circuit Court to resolve certain disputes concerning assets and entitlements, Petitioner required that the couple enter into an "Agreement" on October 27, 2000, which provided, in pertinent part, as follows: BIFURCATION: The Husband shall be entitled to bifurcation of the dissolution action. The marriage of the parties shall be dissolved with the Court reserving on all remaining unresolved issues not addressed in this agreement. In light of the Husband's health, the Wife shall schedule and appear at an ex parte hearing to dissolve the marriage, to obtain Court-ordered approval of this agreement, and to ensure the Court's reservation of jurisdiction to hear any and all issues pertinent to support and the division of property not yet settled by the parties. * * * B. The Wife further agrees that all marital assets awarded to her in this cause (including proceeds from the Husband's retirement and life insurance in the event the Husband predeceases her), shall be placed in an inter vivos trust, from which she may draw living, personal, and medical expenses, during her life, with the parties' adult daughters named as the irrevocable beneficiaries of the remainder of such trust. C. The Husband agrees to bequeath sufficient marital assets, awarded to him in this cause, to the parties' adult daughters to aid in their comfort and support. HUSBAND'S RETIREMENT: The Husband shall elect an option on his retirement with the State of Florida that provides for survivorship benefits for the benefit of the Wife. The wife shall be entitled to all such retirement survivorship benefits which, like the other assets she receives in this bifurcated action, shall be placed in an inter vivos trust for her living, personal and medical expenses, during her life, with the adult daughters as irrevocable beneficiaries of the remainder of the trust. The Husband shall, simultaneously with the signing of the agreement, execute such documents as are necessary to create retirement survivorship benefits in accordance with this term. Should the Husband fail to execute the survivorship option on his retirement or should he ever change such option in contravention of this term, the Husband agrees that the obligation of this term is binding upon his estate, which estate shall be responsible for paying such retirement survivorship benefits to the Wife. The Agreement could have, but did not, specifically require that the leave of absence be purchased by either Mr. Gapinski or Petitioner. Petitioner's and Mr. Gapinski's Agreement does not bind the Respondent, which was in no way privy to that Agreement. Petitioner and Mr. Gapinski's marriage was dissolved on November 1, 2000. Petitioner's attorney provided Mr. Gapinski, through his counsel, with DROP forms (FST-12 and FRS-11o). On November 1, 2000, Mr. Gapinski executed Option 2 for his DROP retirement on these forms, naming Petitioner as his sole primary beneficiary and negating his prior designation of his adult daughters as beneficiaries. Option No. 2 provides for a reduced monthly benefit payable for the FRS member's (Mr. Gapinski's) lifetime. If the member dies before receiving 120 monthly payments, his designated beneficiary (Petitioner) would receive a monthly benefit in the same amount until the monthly benefit payments to both of them equaled 120 monthly payments, when payments would terminate. Option No. 2 is available for regular service retirements as well as DROP retirements. Option No. 3 is also available for regular service retirements and DROP retirements. Option No. 3 would have provided a reduced monthly benefit payable for Mr. Gapinski's lifetime, and upon his death, his joint annuitant, if living, would receive a lifetime monthly benefit payment in the same amount as Mr. Gapinski was receiving. Then, no further benefits would be payable after both he and his joint annuitant were deceased. There are exceptions to the foregoing general description, none of which matter to the case at bar. Option No. 3 would clearly provide more money to Petitioner if she were eligible. On November 2, 2000, Petitioner's attorney had three short telephone conversations with Mr. Helms, who opined that since Mr. Gapinski had signed up for DROP while the couple were still married, Petitioner could still get Option No. 3, with DROP retroactive to September 1, 2000, but that the leave of absence must be paid for. Apparently, Petitioner's attorney did not ask what would happen if the gap was not paid for before Mr. Gapinski died and no representative of Respondent volunteered that information. The thrust of Petitioner's case continued to be to persuade Mr. Gapinski to pay the whole amount due and to change his Option election to No. 3. On or about November 3, 2000, Mr. Helms sent an estimate letter based on selecting a September 1, 2000, retirement date with Option No. 1, to Mr. Gapinski. This estimate letter stated Mr. Gapinski had 30.11 years of creditable service. It did not mention DROP or any pay back. It did state that no lump sum retirement or cash value payments were available. (Second page of attachment to Exhibit P-11). On November 3, 2000, Petitioner's attorney wrote Mr. Gapinski's attorney that Mr. Gapinski was considered by Respondent to be in the DROP program as of September 1, 2000, not March 1, 2001, as supposed before the divorce, but he had not bought back his leave by paying $6,820.52, and requested that Mr. Gapinski change his Option Election Form to Option No. 3 and authorize the payment of the $6,820.52 to Respondent. On or about November 9, 2000, Petitioner's attorney sent the already-executed FST-12 (Beneficiary Designation Form) and FRS-11o (Option Selection for FRS Members) showing Option No. 2 to Respondent. Mr. Helms acknowledged receipt. On or about November 9, 2000, Mr. Helms told Petitioner's attorney that the forms were correct and anyone could pay the $6,820.52. The attorney felt Mr. Gapinski was enrolled in DROP but that the $6,820.52 was still needed. On November 15, 2000, Petitioner's attorney sent Mr. Helms a letter memorializing their conversation, in which Mr. Helms had indicated it was not necessary for Petitioner to sign below the Option No. 2 selection paragraph on FRS 11o as long as she was aware of the option Mr. Gapinski had selected. On November 20, 2000, Mr. Gapinski passed away without anyone having purchased his leave of absence credit. Mr. Gapinski was only 57 years of age when he died. DROP retirement or regular service retirement with full benefits is possible at 62 years of age or upon attaining 30 years of creditable service. Mr. Gapinski remained in regular employment until his death. Because he had not purchased the leave of absence credit, Mr. Gapinski died with only 29 years and 9 months of creditable service for purposes of retirement. In other words, he was 3 months and ten days short of the 30-year retirement mark necessary to activate DROP or regular service retirement. Petitioner never communicated directly with Respondent until after Mr. Gapinski's death. Mr. Gapinski's will provided for the effective disinheritance of Petitioner to the extent provided by law. On December 14, 2000, Petitioner's attorney spoke by telephone with Mr. Helms, who told her he thought Petitioner could still pay the leave of absence money but he would call her back. On December 15, 2000, Stanley Colvin, another of Respondent's representatives, telephoned Petitioner's attorney to say Petitioner could not pay the amount after Mr. Gapinski's death. At no time prior to Mr. Gapinski's death did any representative of Respondent affirmatively represent to anyone that Petitioner could pay the money after Mr. Gapinski's death or the conditions under which no benefits would be paid or specifically what would happen if Mr. Gapinski died before the money was paid by someone. By a December 15, 2000, letter, Respondent notified Petitioner that since Mr. Gapinski had elected not to purchase the leave of absence, he could not have reached the required 30 years of service necessary to participate in the DROP program until March 1, 2001. It further stated that since Mr. Gapinski's death occurred before completion of the required months necessary to participate in DROP, his DROP application was cancelled and his choice of Option No. 2 was nullified. Moreover, Mr. Gapinski was viewed as an active FRS member on the date of his death, and because Petitioner, though designated as his beneficiary was not also a joint annuitant, she could only receive a refund of Mr. Gapinski's retirement contributions in the amount of $4,719.19,and was not eligible to receive Option No. 3. Respondent did not send a similar letter to prior beneficiaries, the decedent, or his estate/personal representatives. Petitioner requested a review, and on February 2, 2001, Respondent issued its proposed final agency action letter, to the same effect as the December 15, 2000, letter. Respondent did not send a similar proposed final agency action letter to prior beneficiaries, the decedent, or his estate/personal representatives. However, the undersigned notes that Mr. Gapinski's adult daughters, who also were his joint personal representatives, were present in the courtroom on September 24, 2001, the first day of hearing. As of the second day of hearing on October 21, 2001, the estate had been closed and the personal representatives had been discharged. Mr. Larry Hunnicutt, Benefits Administrator for the Bureau of Retirement Calculations, Division of Retirement, testified by deposition. He indicated that Respondent Division of Retirement has no rules in place specifically addressing DROP. Therefore, in DROP cases, Respondent interprets and applies Chapter 121, Florida Statutes, and the existing rules addressing regular service retirement. In practice, Respondent gives DROP applicants a 90-day grace period from the date of application in which to finalize all the outstanding documents or other requirements for DROP eligibility, including payments of amounts due, even though there are no provisions in place authorizing a grace period for DROP applicants. If there are money amounts due, the member must pay up during this period. If the member fails to pay up during this period, the DROP application and the option selected for DROP is cancelled by a certified letter, but the designated beneficiary remains intact. Herein, because the amounts were not paid before Mr. Gapinski died, and because it would serve no purpose to notify the decedent, who could no longer complete his DROP requirements, Respondent did not send the deceased member a cancellation of his DROP application and Option No. 2 selection. Rather, it treated the DROP application and option selection as null and void and notified his ex-wife, the designated beneficiary, of what Respondent understood to be her rights. In this notification, Respondent applied the statutes as its personnel understood them to apply to a member who dies in active service prior to reaching either 62 years of age or 30 years of creditable service. Respondent would have permitted Petitioner to pay the money on Mr. Gapinski's behalf only during his lifetime. If the amount due had been paid, and Petitioner were qualified for Option No. 2, she would receive approximately $500,000 plus cost of living increases as opposed to $4,719.19. She would receive considerably more if she qualified for Option No. 3.
Recommendation 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 to purchase leave of absence credit on the account of James Gapinski. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
The Issue The issue is whether Mary B. Fischer (Petitioner) is obligated to repay retirement and health insurance subsidy benefits paid in October and November 2006 by the Department of Management Services, Division of Retirement (Respondent).
Findings Of Fact The Petitioner is a retired member of the Florida Retirement System (FRS). Prior to her retirement, the Petitioner was employed as a guidance counselor with the Lee County School Board (LCSB). The Respondent is the state agency charged under Chapter 121, Florida Statutes (2006),1 with administration of the FRS. The Petitioner retired in May 2006 after completing her participation in the Deferred Retirement Option Program (DROP). The Petitioner received monthly retirement benefits of $1,194.32 and monthly health insurance subsidy benefits of $93.35 per month. The Petitioner was re-employed as a guidance counselor on October 16, 2006, by the LCSB. The LCSB participates in the FRS. The contract under which the Petitioner was employed and re-employed indicated that the Petitioner was a "teacher" serving in an instructional position as defined in Subsection 1012.01(2), Florida Statutes. Prior to her re-employment, the Petitioner had been advised by Betsy Garlock (a personnel manager with the LCSB) that the Petitioner could return to work after one month of retirement because her position as a guidance counselor was classified as "instructional personnel." Ms. Garlock's erroneous advice was apparently based on her understanding of information provided to her by the "Retirement Calculations" office within the Division of Retirement. The information included a document identifying various exclusions and exemptions to the state law regarding re- employment of retired FRS members. The document had a handwritten notation indicating that guidance counselors could be re-employed under the same rules as contract teachers, non-contract hourly and substitute teachers, non-contract paraprofessionals, non-contract transportation assistants and bus drivers, and non-contract food service workers. The evidence fails to establish the source of the handwritten notation. Prior to retirement, the Petitioner received various materials related to retirement, which included information related to restrictions on post-retirement employment. In late November 2006, the Respondent became aware that the Petitioner had been re-employed by the LCSB and informally notified the employer by telephone call that the Petitioner was in violation of the FRS re-employment rules and would have to repay benefits paid for October and November. The telephone call was an attempt to avoid payment of another month's benefits, which would have to be repaid by the Petitioner. The Petitioner's retirement benefits were inactivated in December 2006. The total of the October and November benefits paid to the Petitioner is $2,575.34, which includes two months' retirement benefits of $1,194.32 and two months' health insurance subsidy benefits of $93.35 per month. By letter dated December 6, 2006, Ms. Garlock acknowledged that she had provided incorrect information to the Petitioner and requested that the Petitioner be exempted from repaying the $2,575.34 sought by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order requiring that the Petitioner and the Lee County School Board must repay a total of $2,575.34 for retirement and health insurance subsidy benefits erroneously paid to the Petitioner. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 2nd day of August, 2007.
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 Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
