The Issue Whether or not Respondent appropriately denied Petitioner's retirement benefits and what, if any, amount Petitioner must repay.
Findings Of Fact Petitioner Dr. Evelyn A. Sebree was employed by Lake-Sumter Community College (LSCC) for over 25 years. LSCC is an agency within the State of Florida Retirement System (FRS). Petitioner was employed by LSCC as an instructor and later as a part- time counselor. She was subsequently named the Director of Financial Aid and the Executive Director of the Foundation. She served simultaneously in both capacities for many years. The Foundation is the fund-raising arm of LSCC and a nonprofit corporation separate from LSCC with its own governing board, bylaws and constitution. Only an employee of the college can be Director of the Foundation, but the Foundation Board is not made up of LSCC employees. In her LSCC employment as Director of Financial Aid, Petitioner was responsible for administering the college's student financial aid program. Her immediate supervisor in this employment category was Dr. Dixie Lee, and Petitioner reported ultimately to the Dean of Student Services. In this employment capacity, she administered federal, state, institutional and private grants, loans, and scholarship programs, including but not limited to Pell Grants, the Basic Education Opportunity Grant Program, the GI Bill, and work- study programs. She supervised three work-study students, who were part-time LSCC employees, and a financial aid specialist, a full-time LSCC employee, and had her own private office on campus. As Executive Director of the Foundation, Petitioner was responsible for raising money for the college and for scholarships. She reported to the LSCC President, was responsible for fund raisers, making contacts with potential donors, and soliciting money from various wealthy people for the college. During her LSCC employment as Financial Aid Director and collateral service as Executive Director of the Foundation, Petitioner developed many influential contacts in the fields of higher education and financial administration. These contacts were not only statewide, but also national. Petitioner also served on many state and national boards, including: State Financial Aid Association, Board of Directors of the Southern Association of Student Financial Aid, National Board of Student Financial Aid Directors, and the Florida Association of Community College and College Board Council on Higher Education Services. After her retirement as an employee of LSCC, Petitioner could no longer serve as Executive Director of the Foundation, but Petitioner continued to serve on the Board of the Foundation, as a private citizen. As a result of her contacts with many influential people, Petitioner considered herself to be a mover and a shaker in the community. Petitioner decided to retire after 29 years of service at the college when she was offered an early retirement incentive package. The package included paid health insurance for three years and partial salary for three years. Prior to her retirement, DOR mailed Petitioner a brochure. The brochure advised the Petitioner of the re-employment limitations. Prior to receiving her first retirement warrant, DOR mailed Petitioner a letter, again advising her that benefits would be suspended if she was re-employed within twelve months of her retirement date. As an agency within the FRS, LSCC was mailed several numbered memoranda advising reporting agencies to avoid "sweetheart" arrangements by hiring recently retired employees to fill positions within the system. Petitioner retired, effective July 1, 1992. In the fall of 1992, the LSCC college president quit. Dr. Kenneth Stack was appointed acting president while the LSCC Board of Trustees mounted a search for a permanent replacement president. The LSCC Board of Trustees is the governing board of the college which, among other duties, hires and fires the college president, sets college policy and adopts a budget. The LSCC Board of Trustees decided the new college president should be someone from Florida. They desired a college president who would have knowledge of the Florida educational system. The LSCC Board of Trustees had previously hired two college presidents, one six years previously and one eleven years previously. In each instance, a search committee made up of faculty, students, trustees, townspeople and residents of the two counties, Lake and Sumter, had been formed, and the Board had contracted with an outside "facilitator" to focus the presidential search and assist the presidential search committee. The last facilitator had been hired in 1986 from a professional group of "consultants" from Washington, D.C. This time, in 1992, LSCC's Board of Trustees decided they needed to hire a facilitator with knowledge of LSCC, the geographic area, college personnel within the state, and the Florida Community College System. The Board also believed that an in-state facilitator would help achieve their ultimate desired result of obtaining a qualified Floridian to fill the vacant LSCC presidency. Petitioner was nominated for facilitator by Board of Trustees member, Randall Thornton, an attorney. Due to her past employment and community reputation, Petitioner's education, training, experience, and status in the community were well known to all Board members. The Board considered facilitator candidates from the University of Florida and Florida State University also, but Petitioner was selected instead. All Board members cast a vote for their choice of facilitator. One consideration in favor of Petitioner was that she would accept a contract capped at $5,000, while the last professional out-of-house facilitator's total cost to LSCC was nine times that figure, or roughly $45,000. Petitioner was appointed Presidential Search Committee Facilitator pursuant to a contract drawn by attorney Randall Thornton. This contract significantly paralleled the contract between LSCC and its last out-of-state facilitator in that Mr. Thornton used the old contract as his model for the new one. For purposes of this proceeding, the significant provisions of Petitioner's contract are that: Petitioner was to be paid at the rate of $40 per hour up to a maximum of $5,000, regardless of how long the search took to complete. Clearly, it may be inferred that Petitioner's services would end when a college president was selected. In order to be paid, Petitioner was to bill the Board of Trustees monthly for hours worked and for expenses. She was to be reimbursed for any expenditures or expenses in addition to her hourly fee for personal services. To minimize costs to LSCC, Petitioner's travel expenses were geared to Chapter 112 F.S., normally covering state employees. She also was required to use the college's Watts line "to the extent possible," but she would be reimbursed for all her out of pocket expenses, including but not limited to telephone calls, fax, express mail, travel, and similar items. Because this was a personal services contract, Petitioner could not delegate her duties except with express prior agreement of the Board, but there was no specific prohibition on her hiring subordinate support service helpers. Either LSCC or Petitioner could cancel the contract upon 30 days' written notice without incurring liability to each other. However, Petitioner agreed to indemnify and "hold harmless" the college both for her own negligence in conducting the search and for any other liability arising out of her activities during the search. She was required to comply with equity rules and regulations. This requirement may be inferred to reiterate the obvious, that she, like any other citizen, was bound to comply with all equal opportunity and labor laws for appropriate hiring practices. One contract clause specifically denied Petitioner any employee, servant, or agency authority to bind or incur liability for the college, and described her as an independent contractor. Mr. Thornton modeled LSCC's contract with Petitioner on the contract drafted by the 1986 facilitator from Washington, D.C., who was clearly an independent contractor. According to Dr. Kenneth Stack, the contract as finalized is similar to the standard contract by which LSCC contracts for outside labor, power, and such professional services as those of architects, normally considered to be independent contractors. This facilitator contract differs significantly from Petitioner's employment contract as Director of Financial Aid for LSCC prior to her retirement on July 1, 1992, the form of which employment contract is prescribed by the Florida Community College System. After negotiating with Mr. Thornton, who was acting for the Board in the place of the college's general counsel, Petitioner had input into the final version of the facilitator contract. Exactly what Petitioner's input was, is unclear. Although there is some testimony that the former facilitator was paid in a lump sum of $20,000, there is also testimony that the total payments to that facilitator by LSCC totalled $45,000. Although this fact, together with the contents of the final contract between Petitioner and LSCC is not sufficient to infer that the prior out-of-state facilitator was also paid at an hourly rate up to a certain capped amount plus an expense reimbursement, it is sufficient to infer that expense reimbursement was part of the prior out-of-state independent contractor's agreement with the college. Petitioner's $40/hour fee as "facilitator" constituted a higher hourly rate than she had been paid when employed by LSCC as its Financial Aid Director prior to retirement. Petitioner was not covered for health insurance or unemployment or workers' compensation benefits under her contract as presidential search facilitator. No social security, retirement, or income tax was withheld by LSCC from her hourly rate as facilitator. LSCC provides all its regular employees with these fringe benefits. In practice, as LSCC presidential search committee facilitator, Petitioner used her own telephone and the LSCC telephone. She worked out of an established office in her own home where she simultaneously cared for her 92 year old mother. She also had the use of, and occasionally utilized, the Board room at LSCC which the Board of Trustees had been made available to her and the search committee whenever the Board was not using it. Because there was no college president, the secretary assigned to the president was available for Petitioner's use, and this secretary did some minimal work for Petitioner, primarily copying materials for the search committee members. An employee of LSCC who regularly deals with equity matters also was available to Petitioner and the search committee for advice as needed. As facilitator, Petitioner utilized a comprehensive notebook compiled by a prior Chairman of the LSCC Board of Trustees in the course of the 1986 presidential search. She also utilized two professional books she specifically purchased in order to fulfill her contract with LSCC. Petitioner gave the Board-appointed search committee their direction, worked with a subcommittee to design the advertisement for position, received all applications, analyzed them, and copied and distributed them to the search committee. After the committee read and ranked the applications and selected the finalists, Petitioner did background checks on the finalists and held personal conversations with applicants' employers, prior employers, and colleagues to get a "feel" for each applicant's qualifications. She then reported these findings to the search committee, and apparently another "cut" was made. She coordinated all visits, receptions, and committee interviews for the last five presidential finalists. In this process, she took no direction from LSCC's Acting President, Dr. Kenneth Stack, who was an applicant, and the Board of Trustees' input was more in the nature of questions concerning what was she doing and what were the search committee's time frames, than directions on what to do or how to do it. On her own initiative, Petitioner gave interim reports on the search committee's progress, usually at the regularly scheduled monthly Board of Trustees meetings, until the final presidential candidates were chosen, at which time the Board met weekly for the specific purpose of selecting the college president. Petitioner was required to bill her hours and expenses monthly but was not required to appear before the Board of Trustees. She was never summoned to appear before the Board. She had to ask to be put on the Board agenda each time she gave a report. On the basis of her education, training, experience, investigation, and analysis, Petitioner made suggestions to the Board of Trustees as to search procedures, deadlines, the profile of the president, and advertising the college presidency position. The LSCC Board of Trustees voted on the selection of a college president in April 1993. By its terms, Petitioner's contract terminated with the selection of a college president. The presidential search was not a regularly established function of the college, although employment of a college president was integral to the college's function and purpose. The search committee and search committee facilitator were not regularly established job positions with the college. Petitioner did not incorporate because no state license or certification is required for her services. She also did not advertise her services because she planned to work only intermittently as an independent contractor/consultant in a variety of higher education/administrative fields, relying on her professional networking to get offers of specific projects. At the time of formal hearing, she had the potential for contracts to do financial aid counseling at Seminole Community College and to rewrite a policy and procedure manual for South Florida Community College. LSCC paid Petitioner approximately $435 for her work for LSCC during the month of October 1992, plus some reimbursed expenses. In November 1992, DOR advised Petitioner it had determined that she was an employee and not an independent contractor. Prior to advising Petitioner, DOR requested the federal Internal Revenue Service (IRS) render its opinion. This opinion concluded that Petitioner was an employee of LSCC rather than an independent contractor, but the IRS opinion is not binding upon DOR or dispositive of this instant de novo proceeding pursuant to Section 120.57(1) F.S. It is noted that the review sheets filled out by LSCC and Petitioner and utilized by DOR and the IRS were not as detailed as the evidence adduced at formal hearing, and in some respects the answers were unintentionally misleading. At some point, DOR demanded approximately $435 from Petitioner and $1,018.79 from LSCC for retirement benefits DOR had paid Petitioner during October 1992, but apparently DOR now seeks $2,037.58 solely from Petitioner. Because of the controversy with Respondent DOR, Petitioner did not accept any payment from LSCC pursuant to their facilitator contract after October 1992, when she was notified by DOR that any payment from LSCC for employment would result in a DOR repayment demand and/or withholding of her FRS benefits by DOR.
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 absolving Petitioner of any pay back to FRS for the month of October 1992. RECOMMENDED this 29th day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-1592 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: The factual matters are accepted. The legal argument is covered in the Conclusions of Law. Accepted (FOF 10). Rejected as argument only. Covered in substance in FOF 3 and 23 and the Conclusions of Law. Accepted (FOF 25). Accepted except as to Conclusion of Law which is covered in the Conclusions of Law. (FOF 22-25). Accepted except to the degree unnecessary, subordinate or cumulative (FOF 16-19). Accepted (FOF 12-15). Constitutes a request to rule certain evidence irrelevant. Not a PFOF. Covered in FOF 27 and the Conclusions of Law. Accepted except to the degree unnecessary or subordinate. (FOF 27). Rejected as related to matters outside the record which apparently occurred after formal hearing. Similar material covered in FOF 27. Respondent's PFOF 1-17 Accepted (FOF 1-16). Accepted in part and rejected in part upon the greater weight of the record as set forth in FOF 15. Accepted (FOF 23). Rejected as a Conclusion of Law. See, Conclusions of Law. Accepted (FOF 17, 22). Rejected because as stated it is misleading. Covered in FOF 17-19. 23-25 Accepted (FOF 17-25). 26-27 Accepted (FOF 9). 28-29 Accepted (FOF 29). 30 Accepted (FOF 30) COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Sylvan Strickland, Esquire General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Ms. Evelyn A. Sebree Post Office Box 150 Umatilla, Florida 32784
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
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, 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 31st day of March, 2003.
Findings Of Fact In April, 1963, Petitioner, Carl E. R. Nelson, soon to graduate from Florida Southern College with a degree in citrus, wrote to representatives of the State of Florida, Department of Agriculture, with questions regarding his possible employment by the agency upon his graduation. In his reply letter to Petitioner, dated April 24, 1963, H. L. Jones, Assistant Director, Division of Plant Industry, inter alia, outlined the benefits package offered to state employees which convinced Petitioner to apply for a position with the state rather than work for the federal government, which reportedly paid 40% more than the state for similar positions. After an interview with Mr. Jones and the Division Director, Mr. Nelson was offered a regularly established position with the Division of Plant Industry in its Miami office at a salary of $405.00 per month. The letter of notification to him indicated his first six months employment would be on a "probationary" basis. Petitioner was sent an "info" copy of a June 26, 1963 memo from the Department of Agriculture's Personnel Director to the Director of Petitioner's Division, reflecting he was to be paid out of "OPS" funds. However, neither the Division Director's letter nor that of the Secretary of Agriculture, advising him of his hiring, made any mention of the source of his pay or indicated he would be other than a regular probationary employee. Petitioner believed that from the day he began work, on July 1, 1963, he was earning credit toward retirement. In February, 1968, unsolicited by Petitioner, the Department of Agriculture sent him a notice of Continuous and Creditable Service calculation which reflected his beginning employment date as July 1, 1963, and that as of December 31, 1967, he had accumulated four years, 6 months of total continuous and creditable service. Computing back reveals service began on July 1, 1963. On October 31, 1973, a memo from one Department of Agriculture office to another, with an information copy to Petitioner, reflected he had completed ten years service in July, 1973, and an August 10, 1972 memo to Mr. Nelson, in relation to his military service, reflected the Department's calculation that he would complete ten years service in July, 1973. Twenty-two Personnel Action Request Forms of the Department of Agriculture, relating to the Petitioner, and dated from September 23, 1970 to August 14, 1985, all reflect Petitioner's initial service date as July 1, 1963. Ten employee leave statements pertaining to Petitioner, covering the period November 13, 1987 through March 31, 1988 also reflect his continuous creditable service date as July 1, 1963. In early 1975, Petitioner requested of the Department of Agriculture an audit of his service time. This request was forwarded to the Division of Retirement. Mrs. Ruth Sansom, Bureau Chief of Retirement Calculations did the check and determined that as of the end of March, 1975, Petitioner had 11.67 years creditable service. This equates to 11 2/3 years or 11 years, 8 months. Mrs. Sansom's computation was based in part on a November 9, 1973 record check of Department of Agriculture payroll tapes which showed that for July, 1963, Petitioner was paid out of OPS funds. Computing back, 11 years and 8 months prior to March 31, 1975, is August 1, 1963. Consequently, as early as May 1, 1975, Petitioner was advised he was not given credit for the month of July, 1963, but it is obvious he did not recognize the situation as it existed. In October, 1987, Petitioner was again advised by the Division of Retirement, as a response to his inquiry regarding credit for his military service, that as of the end of July, 1987, he had accumulated 24 years service indicating his creditable service started on August 1, 1963, not July 1, 1963. If the latter had been the case, his record would show 24 years, 1 month. It was this last credit report which prompted Petitioner's request for hearing. The evidence of record shows clearly that Petitioner began work with the State of Florida on July 1, 1963 as a probationary but not temporary employee and served continuously since that time. He was paid for the month of July, 1963, out of OPS funds. The June 26, 1963 memo from the Personnel Director to Petitioner's employer indicates he was to be on probationary status for six months and paid out of OPS funds. By implication that could mean he would not be a regular employee during the six months probationary status, but the fact that the source of payroll funds for Petitioner was changed to regular funds after one month would also imply he was supposed to be a regular employee from the inception of his employment, and this is supported by the recruiting correspondence which referred to the many benefits which inure only to regular employees. Consequently, it is found that Petitioner was intended to be a regular employee from the inception of his employment, but he was paid out of OPS funds for the month of July, 1963.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that Petitioner, Carl E. R. Nelson be granted credit toward state retirement for the month of July, 1963. Recommended in Tallahassee, Florida, this 7th day of May, 1988. ARNOLD H. POLLOCK 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 7th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5541 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner 1. Accepted and incorporated herein. 2 - 3. Accepted as to the fact that Respondent was offered employment. Rejected as to the fact that the "offer" of retirement was the motivating factor in Petitioner's choice to accept state rather than federal employment. 4. Accepted and incorporated herein. 5 - 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the finding that Petitioner was never notified he had been paid one month out of OPS funds. However, the method of notification was erroneous in content and did not serve to bring this change to his attention. Accepted and incorporated herein. For the Respondent 1 - 2. Accepted and incorporated herein. Accepted but irrelevant. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. COPIES FURNISHED: E. G. Couse, Esquire Grace and Couse, P.A. Post Office Drawer 1647 Ft. Myers, Florida 33902 William A. Frieder, Esquire Senior Attorney Office of the General Counsel Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact The Petitioner James H. Clendenin was elected to the office of Commissioner of the Canaveral Port Authority and served as a Port Commissioner from January 1, 1967 through December 31, 1982. The Petitioner was one of five Commissioners of the Authority. The Petitioner was not enrolled in the Florida Retirement System, Chapter 121, Florida Statutes, or any prior system until January 1, 1969. Prior to that date he was enrolled from January 1, 1969 through November 30, 1970, in the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. The Port Authority, the authorized governing body of the Canaveral Port District, is an autonomous public entity created and established by Chapter 28922, Laws of Florida, 1953. As a Commissioner, the Petitioner was paid monies for his service for calendar years 1967 and 1968 which were reported as income--to the Internal Revenue Service. Prior to January 1, 1969, the Petitioner was required to submit a voucher for expenses and was paid on a fee basis. He received $25 per day in per diem and was reimbursed through an expense account. In order to receive the $25 which was characterized as per diem pay under the special act, the approval of the other four Commissioners was required. The total per diem was paid to each Commissioner on a monthly basis. After January 1, 1969, salaries were authorized for Commissioners and the per diem system was abandoned. Thereafter, the Petitioner received a salary check without request or required attendance at the Authority's meetings. On January 1, 1969, Petitioner submitted an application for enrollment in the State Retirement System. His application was accepted and the Petitioner began to accrue retirement service credits. Upon Petitioner's retirement, he attempted to claim and purchase prior service credits for 1967-1968. However, Petitioner was denied the opportunity to pay retirement contributions for retirement service credits for those years, and monies he had paid to purchase the prior service period were refunded. Consequently, Petitioner was credited with only 13.30 total years of service instead of 15.30 years. The difference in benefits amounts to 18.78 per month.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Respondent permitting the Petitioner to purchase additional service as a Port Commissioner for 1967 and 1968 upon payment to the Retirement Fund of $496.68 and increase the Petitioner's retirement benefit to the amount originally calculated to be due him by the Division of Retirement, retroactive to the date the Respondent received from the Petitioner monies paid for the purchase of the additional service. DONE and ENTERED this 19th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984. COPIES FURNISHED: Robert T. Westman, Esquire STROMIRE WESTMAN LINTZ BAUGH McKINLEY AND ANTOON, P.A. 1970 Michigan Avenue, Bldg. C Post Office Hox 1888 Cocoa, Florida 32923 Augustus D. Aikens, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, the City of Crystal River, is required to report Myrl David Sallee as a member of the Senior Management Services Class (SMSC) of the Florida Retirement System (FRS) for the period from June 7, 1999, through July 2000, and remit the required contributions for that period.
Findings Of Fact The Petitioner, the City of Crystal River (City) is a Florida municipal corporation which has elected to participate in the Florida Retirement System (FRS). The Respondent is an agency of the State of Florida charged with administering the Florida Retirement System and enforcing the statues and rules which pertain thereto. On June 7, 1999, the City hired Myrle David Sallee as its City Manager, pursuant to a written contract which required Mr. Sallee to begin his employment on that date. The City's contract with Me. Sallee provided, "City shall contribute an amount equal to 24 percent of salary to agreed upon retirement plan in lieu of city retirement." The term "city retirement" refers to the FRS, of which the city normally was a participating member. Upon commencement of his employment, Mr. Sallee elected to have his city retirement contributions paid into a retirement plan operated and managed by the International City Manager's Association (ICMA) and the city agreed. From the date of his employment with the city until his employment terminated on June 6, 2001, the city made the required 24 percent contributions for Mr. Sallee to the ICMA plan. Mr. Sallee's position as city manager was one which is required to participate in the FRS Senior Management Service Class pursuant to Section 121.055(1)(b)1, Florida Statutes, and Rule 60S-1.0057(1)(c)2, Florida Administrative Code. Persons in such a position may, however, elect to withdraw from the FRS altogether, pursuant to Section 121.055(1)(b)2, Florida Statutes. There is no rule that corresponds to such an unconditional withdrawal; however, Rule 69S-1.0057(2)(c), Florida Administrative Code, provides that some person eligible to participate in the Senior Management Service Class of the FRS, including city managers, may elect to participate in a lifetime annuity program provided by their employer, in lieu of being a member of the FRS Senior Management Service Class. Local government employees participating in the FRS Senior Management Service Class are obligated by Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, to complete and file with the division a form SMS-3 and a form FRS-M10. Pursuant to Rule 60S-1.0057(3)(b)2, Florida Administrative Code, the election to withdraw from the FRS altogether and participate in an employer-provided lifetime annuity program is also made by filing a form SMS-3. According to Rule 60S-1.0057(2)(c)1, such an election is effective the first day of the month following the month in which the form SMS-3 is received by the Division. Mr. Sallee was unaware of his obligation to participate in the FRS until July 7, 2000, at which time he completed and filed with the Division a form SMS-3. In his form SMS-3, Mr. Sallee elected to withdraw from the FRS and participate in an employer-provided annuity program instead. Mr. Sallee never did file with the Division a from FRS- M10. The City made a required FRS contribution for Mr. Sallee for July of 2000, but no other. On November 20, 2000, the Division notified the City, by letter, that FRS contributions were due for Mr. Sallee from the date of his employment, June 7, 1999, until the effective date of his election to withdraw from the FRS, August 1, 2000. By various telephone calls and letters, the City informed the Division of its position and requested relief from making the contributions payments that the Division claimed were due. On September 30, 2002, the Division notified the City, by letter, that it had not changed its position and that the letter of that date constituted final agency action, to the effect that the Division was maintaining its claim that the City owed the contribution payments at issue. Rule 60S-1.002(2), Florida Administrative Code, provides that the Division "shall deny membership" in the FRS to any employee who does not comply with statutory requirements for membership or requirements for membership set forth in Chapter 60S, Florida Administrative Code. In addition to Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, Rule 60S-1.002(2), Florida Administrative Code also requires an employee to file a form FRS-M10 with the Division for enrollment into the FRS. The Division has admitted that the City does not have to make FRS contributions for employees who are not me member of the FRS. Within a week after Sallee was hired by the City, the City's Finance Director and Assistant Finance Director resigned their positions. According to witness Linda Stilson, during the thirteen months from when Sallee was hired on June 7, 1999, until July 7, 2000, the date he completed and filed with the Division a form SMS-3 (electing not to be a participant in the FRS) the City hired and lost another finance director; hired another finance director who left in October of 2000; hired and lost another assistant finance director; and hired Ms. Stilson as assistant finance director on May 25, 2000. It was Ms. Stilson who discovered that Mr. Sallee had not been enrolled in the FRS. Although the Division put on testimony that the City had been sent notices of the general requirements for enrollment in the FRS, there was no testimony that the City had actually received such notices prior to Mr. Sallee's hiring. Rule 60S- 3.011(2) provides for the assessment of delinquent fees for FRS contributions which have not been timely made; however, Florida Administrative Code Rule 60S-3.011(4) allows the Division to waive delinquent fees because of exceptional circumstances beyond an employer's control.
The Issue Whether Petitioner, following his conviction for driving under the influence of alcohol, was properly terminated from his employment by Respondent on January 29, 1999,. Whether Petitioner's termination was an unreasonable and too severe disciplinary action under the facts and circumstances of this case.
Findings Of Fact Brevard Community College, Respondent, is a body politic operating as a political subdivision of the State of Florida and authorized as a public employer to employ personnel and otherwise carry out the mission of the college as prescribed by the Legislature. Brevard Community College participates in the State Retirement Program as a public employer, but Brevard Community College is not involved in the State Career Service System. Respondent approves each non-instructional employee's continued employment for the next fiscal year each June, which includes an annual salary and a daily rate of pay. The employment approval provides that should the employee not remain employed through the entire year, the employee's pay is to be adjusted based on the number of days actually worked. Lloyd Creel, Petitioner, was a full-time employee of Respondent beginning December 17, 1979, and his employment was renewed annually until his termination. Petitioner had been a full-time employee of the college for a period of approximately 19 years prior to his termination, advancing to the position of maintenance supervisor. Petitioner's evaluations were consistently satisfactory and above-average during his employment. Creel was never warned, demoted, placed on a probationary status, or given any other disciplinary action whatsoever during his employment by Respondent. Operating under Chapter 240, Florida Statutes, and based on the recommendation of the District president of the college, the District Board of Trustees of the Brevard Community College approved Petitioner's continued employment for the fiscal year ending June 30, 1999. Petitioner was notified of his employment approval in June 1998. Petitioner's rate of pay was $38,700.00 for the 1998- 1999 fiscal year, at Step No. 257 for an annualized salary for a period of 261 days. The daily rate of pay was $148.28. During his employment with the college, Petitioner accumulated approximately $26,000.00 in sick leave. Florida law provides sick leave is compensable only in the event of death or retirement from the college. On or about October 13, 1998, Petitioner was arrested and charged with Driving Under the Influence of Alcohol (DUI), after hours in his private vehicle. This matter was brought to the attention of officials at Brevard Community College soon thereafter. After Petitioner was charged with DUI, he discontinued utilizing a college vehicle on the job and used his own vehicle. Petitioner continued to perform his responsibilities as maintenance supervisor. These included scheduling work, ordering supplies, occasionally viewing work completed by his subordinates on the job site, and attending meetings. Petitioner's subordinates performed their responsibilities without his direct supervision most of the time. Petitioner had a temporary permit which allowed him to drive through December 1998. Thereafter, the permit expired. After Petitioner's driver's permit expired, he had his roommate take him to work and provide his transportation whenever necessary. Occasionally, when he was required to attend a meeting on another campus, he sought and received rides with other Brevard Community College employees. On January 13, 1999, Petitioner pled no contest to the charge of driving under the influence of alcohol before the County Court of Brevard County, Florida. The Court adjudicated Petitioner guilty of the charge and sentenced him, inter alia, to six months driver's license suspension. Petitioner was eligible to obtain a business purpose driver's license in March 1999. Petitioner continued to perform his job functions until January 29, 1999, when he was terminated by letter from Robert E. Lawton, Associate Vice President for Human Resources. Petitioner protested his termination by writing a letter dated February 9, 1999. He questioned both his termination and the denial of payment for his sick leave. Following the termination of Petitioner, Respondent immediately employed the services of a replacement for the position of maintenance supervisor. That replacement continues to serve and be employed by the college. Counsel for Respondent communicated to counsel for Petitioner in writing that the college was willing to submit this dispute to a hearing before an Administrative Law Judge of the Division of Administrative Hearings. Petitioner was given notice of his rights by the college, together with a summary of the factual and legal policy grounds for his termination on or about May 21, 1999. On or about June 15, 1999, Petitioner filed a Petition for Relief from the employment decision rendered herein. The employment of Petitioner as an air-conditioning and electrical maintenance supervisor required Petitioner to transport himself on a regular and periodic basis among the four campuses of Brevard Community College located in Titusville, Cocoa, Melbourne, and Palm Bay, respectively. The nature of the employment of Petitioner was such that he was required to have a driver's license in order to perform his job properly. The suspension of Petitioner's driver's license, as a result of his conviction for driving under the influence of alcohol, effectively prevented Respondent from performing his job as maintenance supervisor in that he was not able to travel between the college campuses which span a distance of approximately 50 miles in Brevard County, Florida. At that time, there did not exist a lateral position at the college to which Petitioner could be transferred pending the restoration of his driving privileges. A number of college employees, numbering at least three in the recent past, received DUI convictions and have had their licenses suspended. However, they did not suffer a loss of employment as did Petitioner. The following individuals were convicted of DUI during their employment with Brevard Community College. Robert A. Anderson was convicted of DUI on December 9, 1994, while he was Associate Vice President of Student Services, College-Wide. He was not terminated, demoted, or otherwise disciplined as a result of his DUI conviction. Wayne Wilkening was convicted of DUI on November 6, 1995, March 4, 1996, August 19, 1997, and on August 21, 1997, was convicted of violating his probation. Prior to these convictions, Wilkening's driver's license was revoked for ten years. Wilkening's employment, as a groundskeeper, continued until September 7, 1999. Jay Matheny was convicted of DUI on March 15, 1995, while he was employed by the college as mail courier. He was transferred after his conviction to a position as Groundskeeper I, where he is still employed today. Respondent does not have a policy which requires termination in the event of a conviction of DUI and loss of driving privileges. Likewise, the college does not have a policy which requires an employee who is convicted of DUI and who loses driving privileges to be retained or laterally transferred and continued in employment at the college. Petitioner was terminated because he lost his driver's license for a period of six months, and was unable to satisfactorily perform his job. Petitioner contends that he could have performed his job using a surrogate driver to transport him from campus to campus. He further argues that termination was too severe and was inconsistent with past practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District Board of Trustees of Brevard Community College enter a final order, as follows: The Brevard Community College Board of Trustees is lawfully entitled to terminate Petitioner, Lloyd Creel, under the facts and circumstances of this case; however, the appropriate disciplinary action under the facts and circumstances of this case is suspension without pay for the period January 13, 1999, until the time Petitioner obtained a business purpose driver's license. Petitioner was a non-instructional employee of the college and the Board of Trustees had approved his employment for the fiscal year 1998/1999 and no rule, statute or policy gave Petitioner the expectancy of continued employment beyond the fiscal year ending June 30, 1999. Petitioner should be compensated at the daily rate of pay of $148.28 for the period March through June 30, 1999. Petitioner should be compensated for his accrued sick leave for his period of employment. Petitioner has not demonstrated a legal basis for an award of attorney's fees. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of April, 2000. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach & Erlenbach, P.A. 400 Julia Street Titusville, Florida 32796 Joe D. Matheny, Esquire 355 Indian River Avenue Titusville, Florida 32782-6526 Thomas E. Gamble, President Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922 Eugene C. Johnson, Chairman District Board of Trustees Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922
Findings Of Fact Respondent, Division of Retirement, is the agency responsible for administering the Florida Retirement System (FRS), a statewide consolidated system encompassing over 500,000 active employees and over 100,000 retired employees, representing all levels of government: state agencies, counties, school boards, cities, special districts, the community colleges and the nine universities -- nearly 800 different public employers. Brevard Community College (BCC) is the previous employer of the three petitioners and is a participating employer in the FRS. BCC is located in Cocoa, Florida, with satellite campuses throughout Brevard County. Petitioners William Nunn, PhD Prior to his retirement on November 30, 1988, Dr. William Nunn worked for BCC for approximately 17 years in various capacities, including Director of Evening Studies, Chair of the Division of Social Sciences, Provost and Dean of the Titusville campus and Dean of Vocational/Instructional Planning in the central administrative offices. It was this latter position he held at the time of retirement. As Dean of Vocational/Instructional Planning, Dr. Nunn was responsible for college-wide coordination of BCC's vocational programs, developing new programs, providing reports on vocational education, developing the master course plans and the college catalog, and serving as head of the college's collective bargaining unit. Dr. Nunn received a salary of approximately $52,000.00 a year and all the fringe benefits of regular employment: vacation and sick leave, insurance benefits, worker's compensation coverage, and contributions to social security and the FRS. He reported directly to the Vice President and President of the college, and his performance evaluations were completed by the President. With the advice of his accountant, Dr. Nunn informed his employer in July or August 1988, that he would retire in November. The advance notification was a requirement for an early retirement program which provided a major incentive for retirement in the form of a cash bonus of 25% of salary. Upon his retirement, Dr. Nunn's duties were primarily split among existing staff persons and a new hire. Certain duties were not specifically assigned, and sometime in December, the BCC's President contacted Dr. Nunn and asked if he would be willing to provide work in those areas so that they would not fall through the crack while people were being trained to take them over. The arrangement to which Dr. Nunn agreed was that he would be allowed to work on his own, without specific hours, for a 6-month period, for $10,000.00. For cash-flow purposes, he asked for payment in monthly increments, with a maximum of 390 hours total, a limit he felt would assure that he would not violate the law allowing for a maximum of 780 hours of employment by retired adjunct instructors. A one-page form contract between the District Board of Trustees of Brevard Community College and William Nunn, dated January 3, 1989, provides that he perform the following services: Work to insure that the college is in compliance with the criteria of the Southern Association of Colleges and Schools. Classify for funding, reporting and data processing purposes all courses and programs of study. (Common Course Numbering and Community College Management Information System) Maintain master course plan files. Coordinate catalog additions, changes and deletions. (Pet. Exh. #2) For background information on the person performing the service, the contract provides: Dr. Nunn is a knowledgeable college administrator with over twenty years experience at the community college and university level. He has performed all of the functions for which he is being employed. (Pet. Exh. #2) A subsequent identical contract was entered between the parties for the period June 14, 1989 through December 21, 1989. Dr. Nunn continued to provide services through December 1990 under a series of contracts. Dr. Nunn worked at the college, for a while in his prior office, then in a different office. He also did some work at home. He used independent judgement based on his past experience and education. Because of his skill and because of the uniformity of the course system, Dr. Nunn could have performed most of the same services for any community college. No one else at BCC had the ability to perform the duties and eventually he trained someone to assume them. He kept his own hours and received no fringe benefits. For a period of approximately four months he was given the services of a graduate assistant who had been assigned to his office prior to retirement. He shared her services with other staff until she left when the term ended in April. He used college office supplies and the college computer. Dr. Nunn had been a member of the management team prior to retirement, and in that capacity attended various meetings and social functions. He no longer did this. As a volunteer, and not related to the services he performed under his contract, he travelled twice to statewide meetings on behalf of the college. He was reimbursed for his travel expenses. Dr. Nunn reported his earnings under the contract to the IRS as self- employment income. He did not obtain a business license and neither advertised nor did consulting work for other entities. The contract form utilized by the college for Dr. Nunn's services has no provision for termination. Both Dr. Nunn and the college administrators understood it could be terminated by mutual agreement. When he needed to consult with the college, Dr. Nunn reported directly to the President. Dr. Nunn received $35,715.99 in retirement benefits from FRS from January through November 1989. The Division has demanded repayment of that sum. John Mangus Prior to his employment with BCC in 1970, John Mangus had twenty-six years experience in machine work in private industry, including work for the Baltimore and Ohio Railroad, Hercules Power Company and the Chrysler Corporation. In 1970, he was hired by BCC to teach machine tool technology. After ten years he became Division Chairman of the Industrial Division, and in 1988, he was appointed Assistant Director of the Palm Bay Vocational Center, also part of BCC. As Division Chair, Mr. Mangus was responsible for vocational shops at the various campuses in Brevard County. He administered the Division, performed faculty evaluations, recruited students, planned curriculum and met with counterparts from other colleges. He also coordinated a move of two vocational shops when the BCC facility at Patrick Air Force Base was closed. As Assistant Director for Palm Bay Vo Tech, he assisted the Director in purchasing equipment and meeting with industry representatives; he determined curriculum and continued to do some paperwork for the Vocational Division. He received a biweekly salary and received all fringe benefits of a regular BCC employee. After a heart attack and a cancer operation, Mr. Mangus retired from BCC on January 31, 1989. By retiring just prior to his 63rd birthday he was able to take advantage of the early retirement incentive. In late December or early January, around the time of Mr. Mangus' retirement, the Vocational Division was undergoing some changes. Teachers were retiring and programs were being reorganized. The administration decided to merge programs and move four different vocational shops. Since John Mangus had extensive experience in moving equipment, he was asked to return to BCC after retirement to handle the moves for the vocational shops. A contract, the same form utilized for Dr. Nunn, was executed effective March 1, 1989 between John Mangus and BCC, providing for his services from the period March 1, 1989 through December 31, 1989, at the rate of $536.00 a month, for a total of $5,360.00. The duties specified on the contract were: Assist the Provost in the operation of the Industrial Division, assist in the development of the curriculum for Building Maintenance program, supervise moving of equipment and tooling for several programs, and to include other duties assigned by the Cocoa Campus Provost. (Pet. Ex. #12) emphasis added Justification for the service was provided in the contract as follows: Will assist the Provost in the operation of the Industrial Division, will assist in orienting the new Chairman, and will be involved in planning, implementing and supervising program moves and curriculum changes, will work a total of 268 hours. (Pet. Ex. #12) John Mangus' primary responsibility under the contract was the move, a function which required a special expertise. The mechanical lifting and transport of heavy equipment is complicated, and Mangus had acquired this skill at the railroad and at Chrysler Corporation when he moved a shop from Melbourne to Cape Canaveral in 1969. He planned the BCC moves in his own home and arranged the schedules. Basis for the 268 hour limit was his estimate of the time it would take at what he considered a fair hourly rate. He insisted on monthly increments so that his railroad retirement benefits would not be affected. He also insisted that he not be required to attend meetings and that he be allowed to work on his own. He was assisted in the move by several college instructors, but he had no supervisory responsibility for them. All equipment was provided by the college. In addition to the moving, John Mangus prepared budgets and planned the curriculum. He worked at home mostly on the budgets, just as he had done when he was employed as Division Director. John Mangus received only the $536.00 per month from BCC, no fringe benefits, and ended up working more than the maximum hours for no additional compensation. He paid his own insurance and reported his income to the IRS as self employment. During the same time that he was handling the BCC moves, he was also moving, revising the curriculum and setting up shops for Lake City Community college on a contract at $200.00 a day. He did not advertise his services and did not incorporate as a business. His engagement at Lake City was by virtue of his reputation in the field. The Division of Retirement has demanded that John Mangus repay the $11,050.76 he received from the FRS from March through December 1989. William L. Benfield William Benfield was hired by BCC in 1969 as a maintenance employee, became supervisor of maintenance, and remained in that position until approximately 1984, when he took over the college hardware and locksmith shop. His primary responsibility during the last five years prior to retirement was as locksmith. He worked under a supervisor who gave him his duties each morning when he reported to work at the Cocoa maintenance department. He worked eight hour days, with an hour for lunch and two 15 minute breaks. He was required to turn in time sheets. He received $21,000.00 annual salary, plus benefits such as paid leave, insurance and retirement contributions. As locksmith, Mr. Benfield worked at all the BCC campuses, as directed. He was required to utilize the tools furnished by the employer and used the employer's vehicle. In June or July 1988, Mr. Benfield notified the college that he would take an early retirement. He planned on retiring at age sixty-two in February 1989, but was eligible for the financial incentive for early retirement. His retirement occurred effective November 30, 1988. Around the latter part of December, William Benfield was contacted by Harold Creel, BCC's Vice President for Maintenance, with regard to performing short-term contract work. They met, and Mr. Creel explained that the college wanted Benfield to work on the new keying system for the college. This was a computerized code system that required re-pinning each lock in the campus buildings. The work also involved keeping records in a code that would allow a key to be made. Mr. Benfield agreed to the work so long as it did not exceed 20 hours a week, as he did not want to jeopardize his social security income. A contract was executed on the same form as used for Petitioners Nunn and Mangus, for the period January 3, 1989 through June 30, 1989. The services are described as follows: Locksmith - repair door locks, make keys, repair doors, rekey building, etc. [sic] (Pet. Ex. #17) Consideration was set at $11.50 per hour for 20 hours a week. A second contract was entered for the period July 3, 1989 through December 31, 1989 for $11.50 per hour and 12 hours a week. (Pet. Exh. #18) William Benfield was familiar with these short-term contracts since carpenters, plumbers or electricians had been retained in this manner in his maintenance department. Benfield's work under the contracts was on his own time. He was not required to work a minimum number of hours or to check in at a given hour. He picked up work orders, as before, but used his discretion as to priorities. He used his own vehicle to travel to the various campuses and used his own tools, a substantial investment of several thousand dollars. He did not advertise as a business and did no work for anyone else, as he did not want to affect his social security benefits. He did not have a business license. He received no fringe benefits and reported his income under the contracts to the IRS as self-employment. He received no performance evaluations. William Benfield earned approximately $8,000.00 under the two contracts with BCC; he also received $7,345.97 in retirement benefits from FRS during the same period in 1989. The Division of Retirement is demanding repayment of those benefits. General Findings and Summary The law with regard to reemployment of FRS retirees has been in a state of flux for over 10 years. At one time, reemployment was prohibited altogether. Then the law was changed to permit reemployment when the agency certified that no one else was available to fill the job. Reemployment was limited to 500 hours in a calendar year; the limit was expanded to 600 hours, and later to 780 hours or $4,000.00. In 1985, the legislature created a 12-month waiting period, during which retirement benefits had to be suspended if the retiree returned to work under an FRS-covered employer. After 12 months, the retiree could return and draw both salary and retirement benefits. Immediately, school boards prevailed with an amendment to allow teachers to return for a maximum of 780 hours in the first calendar year after retirement. The community colleges and nine state universities also obtained similar amendments for rehiring instructional staff. The Division of Retirement has conscientiously provided written guidance to its member employers in the form of rules, guidelines, handbooks, and memoranda. It also provides instructional leaflets to employees and retirees. As Associate Vice-President of Human Resources at BCC, Robert Lawton oversees the entire personnel operation for the college. He is familiar with the requirements of the law and rules of the Division of Retirement and reviewed the contracts for the petitioners' services. These contract forms are different from those used for adjunct faculty who are paid through a regular payroll account. Short term contractors are paid from a separate account. The contracts were drafted by the department heads seeking the petitioners' services. Robert Lawton recommended approval to the President after assuring himself that the contracts were appropriate. He had instructed a staffperson to call the Division of Retirement in his presence to get some guidance. There is no evidence that someone from the agency actually approved the circumstances. Rather, it is apparent that the guidance received through the phone call, in which the college may not have been identified, was of a general nature as to what the agency looks at in determining an independent contractor status. The college commonly uses the short-term contract form for consultant and mechanical services. While it routinely advertises to fill employment vacancies, it ordinarily obtains contractual services from individuals it knows can provide those services. The Division of Retirement became aware of Petitioners' contracts through a routine independent audit. The agency carefully scrutinizes these type of service provider relationships as it has the responsibility to maintain the actuarial soundness of the retirement fund for thousands of employees and retirees. That actuarial soundness relies on a proper balance of contributions to benefits. That balance is jeopardized if employers are able to avoid required contributions by obtaining services of employees through a contract. The opportunity to circumvent the law is particularly seductive where, as here, the employer needs the services of a recently retired employee. Scepticism by the agency in such instances is appropriate. Dr. Nunn's many successful years as a valuable member of the college's management team were served, by his choice and the college's, in the status of an employee. He retired, and was immediately retained to perform some of the same functions as before -- sensitive and significant functions that were integral to the successful administration of the institution--functions related to its accreditation and funding. Language in his contract such as "work to insure", "maintain", and "coordinate" connote an ongoing relationship, rather than discrete definable contract products. Indeed, his relationship with the college was ongoing, for two years beyond his official retirement date. The term, "coordinate", implies that he was not to work alone, but was rather meant to direct the work of others. Some actual evidence of that is found in the fact that a student assistant was provided, albeit briefly. As a highly qualified professional, Dr. Nunn could have performed the same or similar tasks for other institutions. He did not, and if he had, the circumstances would have to dictate whether he was a consultant to, or employee of, those other institutions. Dr. Nunn was not an adjunct professor nor member of the instructional staff, and was not entitled to the 780 hour exception to the 12 month reemployment prohibition. The 390 hour limit in his contract, however, reveals that his compensation, $10,000.00, was approximately the same rate of pay he received prior to retirement when he worked full time. The facts addressed at hearing regarding the relationship of Dr. Nunn to BCC, when considered as a whole, weigh more heavily in favor of finding an employee/employer relationship than that of consultant/client. The same conclusion is reached as to Petitioner, John Mangus. If his only contractual service had been the shop moves, his consultant or independent contractor status would have been more evident. As he eloquently described at the hearing, the transportation of heavy machinery is a unique skill, the exercise of which demands noninterference by others. However, the terms of his contract, and the actual services he performed also related to budget and curriculum, functions he performed as an employee and functions integral to the mission of his employer. The terms of his contract thoroughly belie his claims of independence. He was to "assist", to "supervise", to "be involved in planning, implementing, and supervising...". Perhaps most fatal is the language, "...and to include other duties assigned by Cocoa Campus Provost". Except for the move, the contractual duties were entirely open-ended and subject to the interpretation or direction of others. That he was also retained at the same time by another community college might imply that he was properly a consultant/specialist in moving industrial workshops, but this fact alone does not outweigh the more substantial evidence that at BCC he was still performing as an employee, much the same as he had performed prior to his official retirement. The evidence weighs differently as to William Benfield. His services as a locksmith were a specialized mechanical skill of a type commonly provided through a contract. His services were not integral to the nature of the institution and did not necessitate his working with, for, or over other staff. The substance of his contractual tasks is found on the face of the contract form, and his prior performance of the same or similar tasks as an employee does not indicate those tasks must always be provided by an employee. The terms and conditions of his relationship with the college were radically altered after his retirement. The college chose, in the words of Robert Lawton, to "privatize" certain mechanical functions previously provided in-house, and the locksmith function was one of them. William Benfield became an independent contractor to BCC after his retirement.
Recommendation Based on the foregoing, it is hereby, recommended that a Final Order be entered requiring repayment of retirement benefits received by Petitioners, Nunn and Mangus, during the time they were employed by Brevard Community College in the first 12 months of their retirement. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 15th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-8015, 90-8016, and 90-8017 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraphs #3. and #5. Adopted in substance in paragraph #5. Adopted in paragraph #7. Adopted in substance in paragraph #8. Rejected as contrary to the weight of evidence or immaterial. Adopted in substance in paragraph #9. Adopted in substance in paragraphs #8. and #9. Adopted in part in paragraph #9, otherwise rejected as unnecessary. Adopted in substance in paragraph #9. Adopted in substance in paragraph #10. Adopted in substance in paragraph #11. Adopted in substance in paragraph #10. Adopted in substance in paragraph #9. Adopted in substance in paragraph #12. Adopted in substance in paragraph #13. Adopted in substance in paragraph #16. Adopted in substance in paragraphs #14. and #15. Rejected as unnecessary. Adopted in paragraph #17. Adopted in paragraphs #17. and #19. Adopted in paragraph #21. Adopted in paragraph #20. Adopted in paragraph #21. Adopted in paragraph #19. Adopted in substance in paragraph #19. Rejected as unnecessary. Adopted in paragraph #21. Adopted in paragraph #22. Rejected as immaterial in light of other evidence that the relationship was not independent. Adopted in substance in paragraph #21. Adopted in paragraph #19. 32.-33. Adopted in paragraph #24. Rejected as unnecessary. Adopted in paragraph #27. Adopted in paragraphs #28. and #29. Rejected as unnecessary. Adopted in paragraph #28. Adopted in paragraph #30. Rejected as unnecessary. 41.-43. Adopted in paragraph #30. Adopted in paragraph #31. Adopted in paragraph #34. Rejected as immaterial. Adopted in substance in paragraph #34. Adopted in substance in paragraph #35. Rejected as unnecessary. Adopted in part in paragraph #35; otherwise rejected as contrary to the evidence. Adopted in part in paragraph #34; otherwise immaterial in light of the evidence that as to Nunn and Mangus, the relationship was not independent. 52.-53. Rejected as immaterial. 54.-56. Rejected as repetitive and unnecessary. Rejected as contrary to the weight of evidence. Adopted in paragraph #36. Rejected as repetitive or immaterial. 60.-77. Rejected as immaterial, unnecessary or unsupported by the weight of evidence. Respondent's Proposed Findings of Fact Adopted in substance in paragraph #13. Rejected as unnecessary. Adopted in substance in paragraph #8. Adopted in substance in paragraph #22. Rejected as unnecessary. Adopted in substance in paragraph #18. Adopted in substance in paragraph #31. Rejected as unnecessary. Adopted in substance in paragraph #28. Adopted in paragraph #1. Rejected as unnecessary. Adopted in paragraph #1. 13.-14. Adopted in paragraph #32. 15. Adopted in substance in paragraph #37. 16.-19. Adopted in substance in paragraph #33. Rejected as unnecessary. Adopted in paragraph #37. 22.-23. Rejected as unnecessary. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #9. Adopted in paragraph #6. Adopted in paragraph #7. Adopted in paragraph #8. Adopted in paragraph #8. Rejected as contrary to the weight of evidence (as to attendance at meetings). Adopted in paragraph #5. Adopted in paragraph #12. Adopted in paragraph #8. Adopted in paragraph #11. Rejected as unnecessary. Adopted in paragraph #11. Rejected as unsupported by the evidence. Rejected as unnecessary. Adopted in paragraph #10. Adopted in substance in paragraph #8. Adopted in paragraph #8. 43.-44. Adopted in paragraph #9. 45.-46. Adopted in paragraph #14. 47.-48. Adopted in paragraph #15. Adopted in paragraph #16. Adopted in paragraph #17. Adopted in paragraph #18. Adopted in paragraph #15. Adopted in paragraph #20. Adopted in paragraph #19. Adopted in paragraph #20. Adopted by implication in paragraph #35. Adopted in paragraph #17. Adopted in substance in paragraph #21. Rejected as unnecessary. Adopted in paragraphs #23. and #26. Adopted in paragraphs #23. and #24. Adopted in paragraph #26. Adopted in paragraph #28. Adopted in part in paragraph #28; otherwise rejected as unnecessary. 65.-67. Adopted in paragraph #30. 68.-69. Rejected as immaterial. COPIES FURNISHED: Larry D. Scott, Esquire Asst. Division Attorney Dept. of Administration Div. of Retirement-Legal Ofc. Cedars Executive Ctr., Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560 Peter L. Sampo, Esquire HOGG, ALLEN, NORTON & BLUE, P.A. 121 Majorca Ave., 3rd floor Coral Gables, FL 33134 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
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.
