The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
Findings Of Fact Petitioner was employed as a Police Sergeant with Metropolitan Dade County. He is 38 years old and has 13.83 years of creditable service under the Florida Retirement System. (Exhibit A) On February 16, 1973, Petitioner was involved in an automobile accident in Broward County, Florida while serving with a detached drug abuse unit. On February 25, 1974, Petitioner applied for disability retirement benefits under Section 121.091(4) and Section 121.021(13), Florida Statutes, stating: "I believe I am incapacitated for further service in Florida because of injuries received in an in-line-of-duty automobile accident that occurred on 16 February 1973." (Exhibit A) After considering the evidence submitted in support of Petitioner's application, the Administrator of the Florida Retirement System determined that insufficient information was submitted to substantiate a finding of total and permanent disability as provided by Section 121.091(4), Florida Statutes. As a result, Petitioner was notified on March 20, 1975 of the Administrator's intention to deny the subject disability retirement application. (Exhibit B) Notice of Petitioner's right to an administrative hearing pursuant to Chapter 120, Florida Statutes, was also provided at that time. On April 2, 1975, Petitioner notified the Respondent of his intention to Petition for an administrative determination of his disability application pursuant to Section 120.47(1), Florida Statutes. (Exhibit C) Whereupon, the Director of the Respondent requested that the Division of Administrative Hearings assign a hearing officer to conduct a hearing which was ultimately held at 1350 N.W. 12th Avenue, Miami, Florida on the 12th day of September, 1975. (Exhibit D) The first witness to appear at this hearing on Petitioner's behalf was Detective Pete Kreimes who is employed by Metropolitan Dade County. The witness testified that he was trained by the Petitioner for the narcotics section and the two later became personal friends. He has known Petitioner for about five (5) years. Mr. Kreimes testified that Petitioner was an outstanding investigator while employed by Metropolitan Dade County. While performing these duties, Petitioner participated in the physically demanding activities of a law enforcement officer. He related the circumstances surrounding Petitioner's accident of February 16, 1973, and the long range affects he felt the accident had on Petitioner's physical condition. This included Petitioner's apparent discomfort in walking, standing or sitting for extended periods of time. The witness also stated that Petitioner developed a serious drinking problem after the accident due to what he believed was the frustration of not being able to continue in police work and because of the financial problems being encountered. Mr. Kreimes felt there were no jobs available in the area of law enforcement wherein the Petitioner could render useful and efficient service on a full-time basis. The next witness to appear was one Dr. Gilbert. Dr. Gilbert is a Medical Doctor with specialties in Psychiatry and Neurology. He also holds a Ph.D.. degree in the field of Psychology. Dr. Gilbert detailed the neurological impairments to the cervical and lumbar areas of Petitioner's spine. The witness related that the Petitioner suffered from a post concussion syndrome following a brain concussion. The doctor also diagnosed a traumatic neurosis resulting from the pain and trauma of the accident and manifesting itself in tension and anxiety. The witness acknowledged Petitioner's allergies to various medications which might otherwise be used to alleviate muscle spasm, tension and some of the pain brought on by neurological probless. Dr. Gilbert felt that the combination of Petitioner's inability to alleviate pain in this manner and his various emotional problems led to the excessive use of alcohol. However, the witness did not feel that Petitioner's excessive use of alcohol was advisable; although, he did feel, considering Petitioner's allergies, that the only hope of Petitioner's dealing with his pain was by mental conditioning. Dr. Gilbert felt that the Petitioner had not reached maximum medical improvement, because he had not yet completed his diagnosis and work up on Petitioner's disability due to possible brain damage. However, he did feel that, due to the combination of Petitioner's post concussion syndrome, neurological and emotional problems, he was unemployable at this time, without regard to Petitioner's excessive drinking. Mr. Harold Dunsky also testified as an employment expert on behalf of the Petitioner. Mr. Dunsky holds B.A., M.A., and J.D. degrees and has worked in the area of job placement and vocational counseling for the State of Illinois and the U.S. Government for over twenty years. Mr. Dunsky testified that after interviewing the Petitioner and considering various unidentified medical reports, he felt the Petitioner was unemployable on a full-time basis. The final witness to testify was the Petitioner, Robert Barr. The Petitioner related his educational and employment experience which consisted of an in precriminology and approximately fourteen (14) years as a police officer with Metropolitan Dade County. Mr. Barr explained that the first indication of his allergy problems was in 1961 when his upper back, shoulders and arm began to ache while playing ball. As a result of his allergic reaction to the medication taken at this time, he suffered his first cardiac arrest. In 1966 the Petitioner suffered another cardiac arrest as a result of a penicillin shot administered during a bout with the flu. Another allergic reaction took place in a dentist's office in 1970 as a result of an injection of sodium penathol. The medical witnesses had been advised by Barr of his past allergic reactions. Petitioner next detailed the circumstances surrounding his accident in February of 1973. He also related his current physical limitations, his financial problems, his desire to return to the field of law enforcement and his frequent use of alcohol to alleviate his pains and problems. At this point the Deposition of Dr. William Scott Russell, Jr., Dadeland Medical Building, Suite 303, Miami, Florida, was made a part of the record. Dr. Russell is a neurologist who began treating the Petitioner on September 10, 1973. Dr. Russell testified that the Petitioner complained of shoulder and arm pain due to thoracic outlet syndrome. The witness stated that this could be caused by a so-called jerk-injury or as a secondary phenomena in association with muscle spasm produced by an underlying disc injury. Dr. Russell also explained an impairment to the lower lumbar region of Petitioner's spine. This was diagnosed as nerve roots irritation of the, S1 nerve root. (Dep. Russell, 20) The witness stated that the Petitioner had a history of low-back problems relating to an automobile accident which occurred several years prior to his accident in February of 1973. (Dep. Russell, p. 14) Dr. Russell stated that the Petitioner represented that the pain from his prior accident ceased over a period of eight (8) months. (Dep. Russell, p. 14 and 44) Dr. Russell stated that based upon Barr's statements to him Barr had apparently fully recovered from that accident. The witness also stated that the Petitioner had a congenital defect in the lower lumbar area of his spine. Dr. Russell however concluded that this congenital defect had not effected Barr prior to the February 1973 accident because Barr had not had any pain prior to that accident, and lack of pain would have been evidence of an absence of disease or problems with regard to the congenital defect. (Dep. Russell, p. 29) The witness testified further as follows: "Q. Doctor, do you have an opinion, based on the reasonable degree of medical probability, as to whether or not the laminectomy defect was, is related at all to the accident here? First of all, I don't think it is a laminectomy defect. I think a laminectomy implies a surgical defect. I think it is probably a bony, let's say a failure, of the bone to fuse over a specific area. Q. Does that contribute, Doctor, in your diagnosis of the disc, does that contribute to the pain and discomfort in the area that you found? A. By itself it should not but it can contribute to an unstable back which may, in turn, make it easier for that particular individual to have to sustain disc injury." (emphasis supplied) Dr. Russell also testified that the Petitioner had multiple and severe drug allergies. Dr. Russell testified that the Petitioner began consuming excessive amounts of alcohol as a substitute for various muscle relaxants. As a result of Petitioner's resort to alcohol he began experiencing episodes of alcoholic gastritis or peptic ulcer disease. (Dep. Russell, p. 38) When asked to express in layman's terms the extent of the Petitioner's physical limitations, Dr. Russell testified: "A. I don't -- I wouldn't consider him, at present, employable under any circumstances or under any quasi- responsible type position, either from the point of view of having to do any sort of physical activity or, I hate to say this, but from the point view of his reliability at this particular moment. Q. What do you mean by that, 'reliability'? A. I'm not certain that alcohol and reliability go hand in hand." (emphasis supplied)
Findings Of Fact Sally T. Sperling commenced teaching for the Leon County School Board in 1969 as an elementary teacher at Sabal Palm Elementary School. Following maternity leave and absences to continue her education, Mrs. Sperling returned to the Leon County School System in 1971 as a full-time teacher and subsequently gained continuing contract status before resigning in 1976. In 1978 Petitioner submitted an application (Exhibit 5) for part-time employment with the Leon County School System in which she indicated a desire to work "perhaps, three days per week. She was employed in the Adult Education Program at Lively Vocational-Technical School in Tallahassee teaching remedial reading. The form contract used by the Leon County School Board for Petitioner's employment is the same that is used for all instructional personnel. The contract purported to run for one year and Petitioner was paid on an hourly basis, with no minimum or maximum hours specified. Full-time teachers are hired on an annual basis. Some of the teachers in the Adult Education Program are full-time teachers and are on annual or continuing contracts. Most of the teachers in the Adult Education Programs are part-time teachers and are paid only for the hours they teach. Petitioner taught remedial reading classes and sufficient interest in this course has been maintained so the program has continued semester after semester for the four years Petitioner has taught adult education courses. Other Adult Education Programs in which sufficient interest has not developed have been dropped. Funding for Adult Education Programs depends upon the number of students attending the classes. If this number drops below the number required to keep the course self-sufficient, the course will be dropped. In such a case the teacher of the course will not remain on the Leon County payroll, as no hours will be devoted to teaching this course. Unless an actual course is taught, the part-time teacher is not paid. Teachers on annual contracts are paid for the full year regardless of the number of hours of classes taught. At the time Petitioner was hired she was given a packet of information (Exhibit 7) but was not specifically told that part-time teachers are not eligible for the Florida Retirement System. During the four years Petitioner has been employed as a part-time teacher she has had no social security deductions taken from her pay and has earned no annual or sick leave. Pursuant to an agreement between the state and federal governments all members of the Florida Retirement System are covered by social security and FICA deductions are taken from their pay. This deduction is indicated on the check stub given to the employee with each pay check. State employees not under the Florida Retirement System and not specifically made parts of the Social Security System are not covered by social security. Full-time teachers are considered salaried employees holding a regularly established position. They are paid from funds provided in the "100" account. Part-time employees are designated as Other Personal Services (OPS) and are paid from funds in the "700" account. These accounting codes are established by the Department of Education to provide uniformity in accounting in the various school systems. The accounting code designation from which fund the employee is paid gives a quick reference to the status of the employee. When the pay records show Petitioner is paid from "751" funds, there will be no state retirement or FICA contributions from the code that disburses those funds. When the Florida Retirement System replaced older state retirement systems, some confusion developed regarding the status of personnel hired temporarily and retained on the payroll for an extended period. This confusion carried over to part-time teachers in the Adult Education Programs throughout the state. Some of the counties placed these part-time teachers in the Florida Retirement System where they have been covered for nearly ten years. The Division of Retirement is in the process of removing those people from the retirement system. At the time Petitioner wads hired she did not believe she was eligible for the Florida Retirement System and no FICA deductions were ever taken from her pay. After a visiting friend advised her she might be eligible for the Florida Retirement System Petitioner initiated the inquiries that led to these proceedings.
The Issue The basic issue in this case is whether the Petitioner, Mr. Joseph M. Lesko, violated the provisions of Section 238.181(2)(a), Florida Statutes, by being reemployed within twelve (12) months of retirement by an agency participating in the Florida Retirement System, and, if so, whether his retirement benefits were overpaid and need to be refunded to the Florida Retirement System.
Findings Of Fact Mr. Joseph M. Lesko was employed as an instructor with the Palm Beach Community College (hereinafter "the College") and retired under the provisions of the Teachers' Retirement System (hereinafter "TRS"), Chapter 238, Florida Statutes, on July 1, 1986. In October of 1986 a science instructor at the College suffered a stroke and was unable to continue working. Dr. Paul Dasher, then the Chairman of the College's Science Department, called Mr. Lesko and asked him to be a substitute instructor for some of the classes of the instructor who had suffered the stroke. Mr. Lesko, a former Senior instructor in Chemistry, was the only qualified candidate who was known to be available on short notice. Although Mr. Lesko had not intended to teach at that point in his retirement, he agreed to teach for the balance of the semester to help the College during the incapacity of the stricken instructor. When the stricken instructor was unable to return during the next semester, Mr. Lesko also agreed to substitute in Chemistry for the following semester. The incapacitated instructor died in March of 1987, and Mr. Lesko finished substitute teaching for the balance of the semester. At the time Mr. Lesko was reemployed as described above, the College's Director of Human Resources, Mr. Schneider, was not aware that Mr. Lesko had retired under the TRS, because the vast majority of the College's instructors retire under the Florida Retirement System. Mr. Schneider believed that Mr. Lesko was covered by certain amendments to the Florida Retirement System that became effective in July of 1986. Those amendments allowed retired instructors who retired under the Florida Retirement System to be reemployed by community colleges on a noncontractual and part time basis after one month of retirement without loss of retirement benefits. Mr. Schneider was under the erroneous impression that those amendments applied to all retired instructors, because he did not recall receiving any information from the Division of Retirement indicating that retirees under TRS were to be treated differently from retirees under the Florida Retirement System for purposes of eligibility for reemployment. Three other instructors who retired at the same time as Mr. Lesko, and who were rehired during the same time period as Mr. Lesko, have not been required to repay any retirement benefits because they all retired under the Florida Retirement System. Neither Mr. Schneider nor Mr. Lesko were aware that Mr. Lesko's retirement benefit would be jeopardized by his returning to work for the College in October of 1986. Both believe that the information regarding TRS retirees provided by the Division of Retirement is at least unclear, if not misleading. Mr. Lesko would not have returned to teach at the College during the first year of his retirement if he had been aware that doing so would require him to lose his retirement benefits during that period. During the period from October 1986 through May 1987, Mr. Lesko earned $4,460.60 for the services he provided to the College. During that same period he received retirement benefits of $6,506.72.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be issued in this case requiring Mr. Lesko to repay retirement benefits to the Division of Retirement in the amount of $6,506.72. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2 day of April, 1990. MICHAEL M. PARRISH 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 Administrative Hearings this 2 day of April, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5717 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: First page, First unnumbered paragraph: All covered in the Preliminary statement portion of this Recommended Order. First Page, Second unnumbered paragraph: Accepted in substance. Second Page, Paragraph No. 1: Accepted in substance. Second Page, Paragraph No. 2: Accepted in substance. Second Page, Paragraph No. 3: Accepted in part and rejected in part; rejected portion is portion following the comma. The rejected portion is contrary to the greater weight of the evidence. Second Page, paragraph No. 4: Accepted in substance. Third Page, Paragraph No. 5: Rejected as irrelevant to the disposition of this case. Third Page, Paragraph No. 6: Rejected as constituting subordinate and unnecessary details. Third Page, Paragraph No. 7: First sentence accepted in substance. Second sentence rejected as constituting argument, rather than findings of fact. Third Page, Last paragraph of Findings: Rejected as constituting commentary about the proceedings, rather than proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with certain unnecessary details omitted. Paragraphs 3 and 4: Rejected as subordinate and unnecessary procedural details. Paragraphs 5 and 6: Accepted in substance. Paragraph 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Mr. Joseph M. Lesko 184 Meadows Drive Boynton Beach, Florida 33462 Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether or not the position Petitioner held with Brevard County, Florida, from December 5, 2005, to October 31, 2006, entitled him to service credit in the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a member of the FRS. He first worked for the Florida Department of Transportation in October 1976 and remained with the Department of Transportation until January 1980, when he began working for Osceola County, Florida. He worked for Osceola County until May 1990, when he began working for Brevard County, Florida. He worked for Brevard County until 2004. At the time he was laid off by Brevard County, Petitioner had 25.5 years of credible service in the FRS. Petitioner's expressed desire was to complete 30 years of credible service in the FRS. To that end, he met with Brevard County officials seeking re-employment in a position that would qualify him for additional credible service. In October 2005, Petitioner met with several Brevard County employees, including the county manager and Human Resource director, seeking a job that would enable him to get 4.5 more years of credible FRS service. As a result of his meetings and efforts, on October 28, 2005, Petitioner was offered a part-time position as a park ranger with duties that included "monitoring any scheduled activities at Rodes [sic] Park on Friday and Saturday evenings from approximately 9:00 p.m. to 1:00 a.m., to ensure orderly behavior of park patrons." Accepting the offered position, Petitioner was employed as a Park Ranger I, with the stated job description. The following information appears on a Brevard County document titled "Authorization to Place Special Services Employee on Payroll" which memorialized his employment: Working Title: Park Ranger I, Part Time (less than 40 hrs per week); Hire Date: 12/03/05; and How many pay periods do you anticipate this job will last? 19 (PP) 38wks. Also noted on this document, "Enroll in FRS 95HA." An inter-office memorandum dated November 17, 2005, from Jeff Whitehead, south area parks operations manager to Peggy Busacca, county manager, regarding Petitioner's hiring, states in part: "This position will require an individual that has an extremely flexible schedule and that can be asked, at times, to report with very little notice. Furthermore, the majority of shifts will be on Friday and Saturday evenings, generally from 8:00 p.m. to 1:00 a.m. . . In addition, providing Mr. Bright with this opportunity will render him eligible to collect his retirement benefits." Frank Abbate, Brevard County Human Resource director, emailed Petitioner on December 19, 2005, stating, in part: "I'm glad to see that . . . you were able to get a position with Parks and Recreation that meets both[,] one of their Department's needs[,] as well as your interest in continuing to earn FRS service credits. I wish you the best and look forward to your achieving your goal of thirty years service under FRS!" Brevard County knew that Petitioner's employment was conditioned on his inclusion as a participant in the FRS, and, in fact, enrolled him in the FRS by making appropriate contributions on his behalf to FRS. At no time did Brevard County advise Petitioner that he was not participating in the FRS. Petitioner relied on Brevard County's assertion that he was an enrolled member of the FRS. Petitioner was hired with the mutual expectation that he would be available to work at Rhodes Park on any Friday and Saturday nights from 8:00 p.m. to 1:00 a.m. and that the employment would continue for 4.5 years so Petitioner would be able to obtain 30 years of credible FRS service. There was nothing "temporary" in the expectation of Petitioner and his employer regarding the duration of employment. During the period in question, December 2005 through October 2006, Petitioner worked at least one day per month. Petitioner's employment was continuing, not temporary, on-call, in that he was scheduled to be available to work at his assigned responsibility every Friday and Saturday. While Petitioner did not work every Friday and Saturday night, Petitioner did, in fact, work every Friday and Saturday night during the period in question, as requested by his employer, Brevard County. That is, he never failed to perform his assigned duties when requested. Petitioner was finally notified on November 7, 2007, that he was ineligible for participation in FRS. During this nearly two-year period of employment, Petitioner satisfactorily performed his employment responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Thomas L. Bright, is eligible for participation in the Florida Retirement System, while employed by Brevard County from December 3, 2005, through October 31, 2006. DONE AND ENTERED this 10th day of October, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Brian D. Solomon, Esquire Brian D. Solomon, P.L. 101 East 13th Street St. Cloud, Florida 34769 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue for consideration in this matter is whether Peter McRedmond, the deceased, should have been permitted to change the beneficiary on his state retirement plan to elect an annuity for the benefit of his estate and the Intervenor, Martin Horton.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Division of Retirement, was the state agency responsible for the control, operation and monitoring of the State Retirement System. Petitioner, Eugene McRedmond, is the surviving brother of Peter McRedmond, deceased, a former member of the Florida Retirement System. Intervenor, Martin V. Horton, is the former live-in friend and companion to Peter McRedmond and the individual who claims an interest in Peter's retirements benefits. For some period prior to 1988, Peter McRedmond was employed at Manatee Community College as a psychology professor and as such was a member of the Florida Retirement System, (FRS). He was so employed until he retired for disability in early 1990. Before that time, however, in August or September, 1988, he was diagnosed as having AIDS by Dr. Warren D. Kuippers, a physician with the Community Migrant Health Center. Tests taken at or around that time indicated he was suffering from toxoplasmosis, a disease of the brain in which significant portions of that organ are eaten by parasites, resulting in intermittent periods of impaired judgement and reasoning ability. He also suffered numerous other medical problems including weight loss, a wasting syndrome, general weakness and fatigue. Notwithstanding the seriousness of his illness, because Mr. McRedmond wanted to qualify for retirement under the FRS system, he continued to work for another year to meet the minimum requirements for retirement. On April 27, 1990, he made application for disability retirement to be effective July 1, 1990. As a part of that application, Mr. McRedmond selected Option 1 under the FRS as the method under which he desired his benefits be paid and named the Intervenor, Mr. Horton, as his designated beneficiary to receive any benefits legally due after his death. Mr. McRedmond could have elected to receive benefits under either Option 1 or Option 2 of the plan. Option 3 was not available to him because of his marital status. Under Option 1, he would receive payments of $639.33 per month for the remainder of his life, regardless of how long he lived. Under Option 2, he would have been paid a slightly lesser monthly sum, $587.51, for the rest of his life, but not less than 10 calendar years, and if he were to die before 10 years were up, the payments would go to his designated beneficiary. In May, 1990, consistent with the procedure then in effect within the Division, Mr. McRedmond was sent a second Option selection form to give him as much information as was possib1e and to make sure he understood what he was doing as it related to his option selection. Mr. McRedmond again selected Option 1, had his signature notarized, and returned the executed form to the Division. The individual who performed the notary service did not recall the transaction but indicated her routine practice was not to notarize a document for anyone who did not appear to know what he was doing. Peter McRedmond died on August 23, 1990 from the disease with which he was afflicted. Several months before his death, in mid June, 1990, Mr. McRedmond and Mr. Horton discussed finances and what Horton could expect after McRedmond's death. It is clear that Mr. McRedmond wanted to make arrangements for Mr. Horton to finish his education without having to work while doing so. At that time, McRedmond's life insurance policy, in the face amount of $60,000.00, had Horton as the beneficiary. Shortly before his death, however, upon the prompting of his brother, Eugene, Petitioner herein, Peter McRedmond directed the policy be changed to make his estate the beneficiary. This was done by Eugene through a power of attorney. There was also some discussion of an additional $500.00 per month which was to go to Mr. Horton, but no one, other than Mr. Horton, recalls this. Also shortly before his death, Mr. McRedmond and Mr. Horton travelled to the family home in Connecticut for several weeks. During that time, Mr. McRedmond had at least one major seizure and family members noticed that while he was sometimes forgetful, for the most part his thinking was rational and normal. There can be little doubt that Mr. McRedmond had deep feelings for Mr. Horton and wanted the latter to be provided for after his death. Friends of both relate the numerous comments McRedmond made to that effect and are convinced that at the time he made the contested election, Mr. McRedmond was not of sound mind sufficient to knowingly make the choice he made. To be sure, the ravages of his disease had taken its toll and there were numerous occasions on which he was not lucid or competent to determine issues such as here. On the other hand, the benefits administrator with whom McRedmond talked at the time he selected his retirement plan option was totally satisfied that at that time, he fully understood the nature and effect of the option he selected and was choosing that which was consistent with his desires at the time. By the same token, the notary, whose testimony was noted previously herein, also was satisfied he knew what he was doing at the time of the second election. In its final configuration, Mr. McRedmond's estate includes all his assets, including the proceeds of the insurance policy previously designated to go to Mr. Horton, for a total of approximately $120,000.00. According to the terms of the will, the estate is to be put into a trust from which Mr. Norton is to receive $1,000.00 per month for his lifetime, as well as all his medical expenses. Since Mr. Horton has tested HIV positive, these can be expected to be extensive. Eugene McRedmond is the executor of the estate. Petitioner and Mr. Horton claim that since the trust contains all of Peter's assets existing at his death, the only other source of the additional $500.00 per month would be the benefits from the FRS. Both cite this as evidence of Mr. McRedmond's intent that the option selection providing for payment after death was his intention. This does not necessarily follow, however. Notwithstanding what Petitioner and Intervenor state were his intentions, Mr. McRedomnd took no action to make the change in option selection which would have effectuated them. Instead, he went out of town to visit family for several weeks, and even after receipt of the first retirement check, received on July 31, 1990, still took no action to make the change. During this period, after the return from Connecticut, Mr. McRedmond's condition deteriorated to the point he was often bedridden and was periodically unaware. However, there is ample evidence to indicate that he was often lucid during this period and still took no action to change his retirement option. During this time, Mr. Horton conducted come of Mr. McRedmond's business affairs for him pursuant to specific instructions. These included making bank deposits and as a part of one of these deposits, when Horton was to deposit two checks as requested by McRedmond, he also deposited the first retirement check. Horton and Eugene McRedmond both claim that at no time did Peter McRedmond ask or authorize him to do so. In a visit that Petitioner made to his brother in early August, 1990, just weeks prior to Peter's death, according to Petitioner his brother explained he had selected the wrong retirement option and requested that Eugene attempt to change the election. Peter gave Eugene a Power of Attorney with which he was to do this as well as to change the beneficiary on the life insurance policy. Consistent with those instructions, Eugene wrote a letter to the Division explaining the situation and that the check had been deposited by mistake. On August 13, 1990, Eugene telephonically contacted the Division where he spoke with Melanie White. During this conversation, in which he again spelled out the circumstances which he believed constituted the mistaken election, he was told to file a power of attorney. When he did this, the Division would not honor it claiming that since it had been executed in May, 1990, some three months earlier, it was not current. Subsequent to the death of Peter McRedmond and the filing of the claim against the Division, Eugene McRedmond and Martin Horton have entered into an agreement whereby any sums recovered from the Division will be split with 25% going to Mr. Horton and 75% going to the Trust. Upon the death of Mr. Horton, any sums remaining in the trust will be split by Eugene McRedmond and another brother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's and Intervenor's claims for retirement benefits under Option 2 of the Florida Retirement System retirement plan, on behalf of Peter McRedmond, be denied. RECOMMENDED in Tallahassee, Florida this 29th day of July, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Buildi5g 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clark of the Division of Administrative Hearings this 29th day of July, 1991 APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7104 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 AND INTERVENOR: Accepted and incorporated herein. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Third sentence not proven. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted that Peter McRedmond had numerous conversations with friends about providing for Mr. Horton, but it was not established that he mentioned using his retirement benefits for that purpose. & 9. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not necessarily following from the facts. Rejected as speculation not supported by fact, except that Petitioner claims Peter desired to change the option selection. First sentence accepted. Second sentence accepted in so far as it asserts Peter told Horton he would receive a monthly sum of $1,000.00. Balance rejected. Accepted and incorporated herein. Rejected as speculation and conclusion except for first sentence and first clause of second sentence. Accepted and incorporated herein. 17.-20. Accepted and incorporated herein. 21. First and second and last sentences accepted. 22.-24. Accepted. Accepted and incorporated herein. Accepted. & 28. Accepted. 29. Irrelevant. FOR THE RESPONDENT: 1-4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. 8.-10. Accepted. Ultimate finding accepted. On the date he filed his application, Peter McRedmond was capable of understanding what he was doing and the implications thereof. & 13. Rejected as comments of the evidence and not Findings of Fact. First four sentences accepted. Remainder rejected except that McRedmond wanted Horton to get at least $1,000.00 per month for life, and more if possible. & 16. Accepted except for last two sentences of 16. Accepted except for last sentence which is a comment on the evidence and not a Finding of Fact. Accepted. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. COPIES FURNISHED: Edward S. Stafman, Esquire Stafman & Saunders 318 North Calhoun Street Tallahassee, Florida 32301 Stanley M. Danek, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Bldg. C 1639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner, by pleading no contest to four counts of petit theft, in violation of Section 812.014(2)(e), Florida Statutes, despite steadfastly maintaining her innocence, must forfeit her rights and benefits under the Florida Retirement System, pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Respondent Division of Retirement is charged with the responsibility of managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. (Joint Stipulation of Fact 1.) FRS is a public retirement system as defined by Florida law. As such, Respondent had deemed its action regarding the forfeiture of Petitioner's rights and benefits under FRS subject to administrative review. (Joint Stipulation of Fact 2.) Petitioner is a senior management service class member of FRS. (Joint Stipulation of Fact 3.) At all times material to the allegations of this case, Petitioner was employed by the Town of Callahan as a planning and zoning administrator. (Joint Stipulation of Fact 4.) On or about August 23, 2005, the State Attorney for the Fourth Judicial Circuit, through an assistant, filed a Third Amended Information charging Petitioner with (a) one (1) count of grand theft, contrary to the provisions of Section 812.014(2)(c), Florida Statutes; (b) two (2) counts of grand theft, contrary to the provisions of Section 812.014(2)(b)1., Florida Statutes; (c) nineteen (19) counts of official misconduct, contrary to the provisions of Section 839.25(1), Florida Statutes; and (d) one (1) count of petit theft, contrary to the provisions of Section 812.014(2)(e), Florida Statutes. (Joint Stipulation of Fact 5.) The events that formed the basis for the Third Amended Information occurred during Petitioner's tenure as an employee of the Town of Callahan. (Joint Stipulation of Fact 6.) The Third Amended Information outlines the violations to which Petitioner pled no contest and provides, in pertinent part, as follows: COUNT 1: BARBARA F. BOONE on or between May 10, 2001 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency or gasoline, the value of $300.00 or more but less than $20,000.00, the property of the TOWN OF CALLAHAN, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefits therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . COUNT 2: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than $100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with El Nino Community Development Block Grant 00DB-6M- 04-55-02-G16, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or the use of any person not entitled thereto . . . COUNT 3: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than $100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with Housing Rehabilitation Community Development Block Grant 00DB-6B-04-055-02-H09, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . * * * COUNT 23: BARBARA F. BOONE on or between October 1, 2000 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use, or endeavor to obtain or use U.S. currency or cellular phone service, valued at One-Hundred Dollars ($100.00) or more but less than Three- Hundred Dollars ($300.00), the property of THE TOWN OF CALLAHAN, with intent to, either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . (Joint Stipulation of Fact 9.) Count 1 related to alleged misuse of a City gasoline credit card. Count 2 related to alleged dual billing of hours for the El Nino Block Grant. Count 3 related to alleged dual billing of hours for the HUD Block Grant. Count 23 related to alleged misuse of a City cell phone. (Exhibit 4: Circuit Court Hearing Transcript, pages 10-12.) Petitioner had filed a civil action against the City concerning all these issues before she was charged with them as crimes. (Exhibit 9: Informal Hearing Transcript, page 13.) On or about March 7, 2006, Petitioner entered a plea agreement with the State of Florida, wherein she acknowledged she would plead no contest (nolo contendere), while maintaining her innocence, to the "lesser included" offense of petit theft contained in Counts 1, 2, 3 and 23 of the Third Amended Information. The agreement provided, however, that Counts 1, 2, and 3 would be reduced to the lesser-included misdemeanor counts of petit theft, in violation of the provisions of Section 812.014(2)(e), Florida Statutes, and Counts 4 through 22 would be dismissed. (Joint Stipulation of Fact 7.) The first sentence of the plea agreement reads as follows: I hereby enter my plea of no contest for the reason it is in my best interest although I maintain my innocence. (Joint Stipulation of Fact 8.) On or about March 7, 2006, Petitioner pled no contest in accordance with the terms of the plea agreement. (Joint Stipulation of Fact 10.) During the plea dialogue, which included inquiry by the circuit judge taking the plea to ascertain if the accused understood the charges and was entering the plea voluntarily, Petitioner articulated that she was innocent of all charges. (Exhibit 4: Circuit Court Hearing Transcript, pages 5-13.) In accepting a nolo contendere plea and its concomitant plea agreement, a circuit judge is required to inquire and determine if there is a "factual basis" for the charges. To those types of questions at Petitioner’s plea dialogue Petitioner's counsel replied: . . . just for our purposes we do not agree that any of those facts are true, but we do agree, if they were true they would constitute a sufficient factual basis. (Exhibit 4: Circuit Court Hearing Transcript, pages 12-13.) The circuit judge then stated on the record: The Court finds that there is sufficient factual basis to support the pleas, and that the pleas have been entered into freely, willingly, and voluntarily. (Exhibit 4: Circuit Court Transcript, page 13.) Judge Robert Foster, Circuit Court Judge in the Circuit Court of the Fourth Judicial Circuit, in and for Nassau County, Florida, ordered that adjudication of guilt be withheld for good cause shown. Petitioner was ordered to pay $8,260 in restitution to the Town of Callahan and $386.00 in court costs. (Joint Stipulation of Fact 11.) The state attorney then entered a Code 30 nolle prosequi in accordance with the plea agreement. (Exhibit 4: Circuit Court Hearing Transcript, page 13.) On or about August 17, 2006, Respondent received from its legal counsel a report recommending that Petitioner's FRS rights and benefits be forfeited pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 12.) On August 21, 2006, Respondent approved the forfeiture of Petitioner's FRS rights and benefits pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 13.) On August 28, 2006, Respondent notified Petitioner, by agency action letter, of the forfeiture of her FRS rights and benefits and afforded Petitioner a point of entry to challenge its decision and to request an administrative review of the issues. (Joint Stipulation of Fact 14.) The Agency conducted an informal proceeding on or about February 19, 2007. At that hearing, Petitioner maintained, under oath, her innocence with regard to all criminal charges that had been alleged against her, including those to which she had pled "no contest." She further testified that she was not guilty on all counts and had pled "no contest" to some of the criminal charges because the stress of the criminal process had been taking a toll on her and her family. The stress on Petitioner was exacerbated by a mastectomy and her subsequent treatment for breast cancer conducted during the pendency of the criminal proceeding, the plea bargaining, and the plea itself. (Exhibit 9: Informal Hearing Transcript, pages 10-14.) After the informal proceeding, the cause was referred to the Division of Administrative Hearings for proceedings consistent with Section 120.57(1), Florida Statutes. Herein, Respondent presented no evidence refuting Petitioner's testimony and no evidence of her guilt in relation to the charges to which she had pled nolo contendere.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order determining that Petitioner’s rights and benefits under the Florida Retirement System have not been forfeited and reinstituting those benefits. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
The Issue The issue presented is whether Petitioners are entitled to Option 2 continuing retirement benefits following the death of Linda Prince, a Florida Retirement System member.
Findings Of Fact Linda J. Prince was employed by the Florida Department of Law Enforcement (hereinafter "FDLE") and was a vested, regular class member of the Florida Retirement System (hereinafter "FRS"). After she was diagnosed with a serious health condition, she was able to continue as a full-time employee by participating in the Department's sick leave pool. By November 2008 her family understood that she was terminally ill. About that time, she began alternating staying at the home of her son Brian Prince and at the home of her daughter and son-in- law Wendy and Harrison T. Rivers. During the first week of November 2008, her son, daughter, and son-in-law began discussing whether she should retire rather than remaining in full-pay status. Harrison T. Rivers asked his father Harrison W. Rivers for advice since his father was a retired member of FRS. His father told him that Linda Prince should retire right away under Option 2 since that would guarantee a 10-year payout. One of the persons that Harrison T. Rivers contacted for advice referred him to Annie Lamb, a Personnel Services Specialist at FDLE. He remembers asking her about Option 2 and understood her to tell him that Option 2 required having a spouse or other dependents. She does not recall the conversation. When Harrison T. Rivers conveyed his understanding to Brian Prince, Brian requested that a meeting be set up at FDLE's Personnel Office. The two men met with Samantha Andrews, a different FDLE Personnel Services Specialist, near the end of 2008. All three persons attending the meeting recall that they discussed the sick leave pool, and the two men were assured that there were enough donations to the sick leave pool to cover Linda Prince's continuing need. The attendees at the meeting have different recollections of the other matters discussed. The two men believe they discussed Option 2 and that Samantha Andrews called across the hall to Annie Lamb who confirmed that Option 2 required a spouse. Lamb recalls Andrews asking her a question but does not remember what the question was. Andrews does not recall asking Lamb a question and further does not recall discussing the retirement options at the meeting. At the final hearing, Andrews admitted that she did not understand the differences among the four retirement options until after Linda Prince's death and that before then she thought that one had to be a spouse or a dependent child to be a beneficiary. Andrews' impression of the meeting is that Linda Prince's children wanted to be sure she remained in full- pay status through the sick leave pool to increase her income and keep her benefits available and at a reasonable cost. After this meeting, Linda Prince remained on full-pay employment status. As a result, she received (1) her full salary rather than a reduced retirement amount, (2) health insurance at a cost of $25 bi-weekly, and (3) a $44,000 life insurance policy at the cost of $2 bi-weekly. If she had retired, she would have had to pay nearly $500 a month for the health insurance and would have lost her $44,000 life insurance policy. Instead, she would have had the option of purchasing either a $10,000 or $2,500 life insurance policy for $29.65 or $7.41 a pay period, respectively. On January 10, 2009, Harrison W. Rivers was visiting at his son's home while Linda Prince was staying there. In a conversation with her, he was surprised to learn that she had not retired as he had strongly advised two months earlier. When he later questioned his son as to why she had not retired, his son told him because she did not have a spouse. Harrison W. Rivers told his son that that information was not correct. On January 20, 2009, Harrison W. Rivers met with his own financial advisor David A. Wengert and relayed the information his son had given him. Wengert agreed with Rivers that the information about a spouse or dependent child was not correct but checked with a contact he had at the Department of Corrections. That person confirmed that the spouse or dependent child requirement did not apply to Option 2 and faxed the necessary forms for retiring under Option 2 to Wengert who gave them to Rivers. Harrison W. Rivers gave the folder from Wengert containing the correct information and required forms to his son and told his son to retire Linda Prince immediately. His son subsequently called Brian Prince, gave him the correct information, and told him that Linda Prince should retire. Brian Prince agreed but was out of town at the time. On February 11, 2009, Harrison T. Rivers drove Annie Lamb from FDLE to where Linda Prince was staying. The forms were completed and signed, and Lamb notarized Linda Prince's signature. The forms provided for Linda Prince to take early retirement under Option 2 with Brian Prince and Wendy Rivers as her equal beneficiaries. The forms were filed with Respondent, the Department of Management Services, Division of Retirement, the same day. The forms she signed selected February 28, 2009, as Linda Prince's termination of employment date. A termination date of February 28, 2009, resulted in a March 1, 2009, retirement date. Linda Prince died on February 14, 2009. On that date, she was still in full-pay status since she had not terminated her employment and retired. Option 2 under the FRS system provides a reduced monthly benefit payable for the member's lifetime, but if the member dies within ten years after his or her retirement date, the designated beneficiary receives a monthly benefit in the same amount for the balance of the ten-year period, and then no further benefits are payable. Option 1 provides for monthly payments for the member's lifetime, and upon the member's death, no further monthly benefits are payable. It, therefore, pays no continuing benefits to a beneficiary. Options 3 and 4 provide for joint annuitants and reduced monthly benefits. Under Option 3, upon the member's death, the joint annuitant, who must be a spouse or a financial dependent, will receive a lifetime monthly benefit payment in the same amount, but there are limitations on the amount and length of those payments for a joint annuitant under 25 who is not a spouse. Option 4 provides an adjusted monthly benefit while the member and the joint annuitant are living, a further reduced monthly benefit after the death of either the member or the joint annuitant, with adjustments if the joint annuitant is under the age of 25 and not a spouse. No benefits are payable after both the member and the joint annuitant are deceased. Thus, only Options 3 and 4 require a spouse or financial dependent in order for continuing benefits to be paid after the member's death. Upon learning of her death, the Division of Retirement researched whether any benefits were due to Linda Prince or her beneficiaries. Since she had paid nothing into the FRS, there were no contributions to refund. Further, since she had not retired, no retirement benefits were payable to her or her beneficiaries. The Division also looked at the dates of birth of her beneficiaries to determine if a beneficiary would qualify as a joint annuitant, but both of her beneficiaries were over the age of 25. The only time that Linda Prince contacted the Division of Retirement was in 2002 when she sent an e-mail asking that her benefits be calculated as to what she would receive if she retired at age 62. The Division performed the calculations and sent her the information as to what her benefits would be under Options 1 and 2. Her file contains her e-mail, the benefits estimates sent to her, and a copy of an informational retirement brochure. Information on the FRS, including descriptions of the Options, has been available on the Division's website, in employee handbooks available from the Division, and was available in written form in FDLE's Personnel Office on the day that Brian Prince and Harrison T. Rivers met with Samantha Andrews. During that meeting, neither Brian Prince nor Harrison T. Rivers requested a copy of the employee handbook or any written materials describing the Options for retirement. Because of Petitioners' estoppel argument, the chronology in this case must be closely reviewed. At least until early November 2008, Linda Prince had made her decision to stay on full-pay status to receive her full salary and benefits rather than take early retirement. In early November, her son, daughter, and son-in-law became involved in that decision. In early November, her son-in-law understood an FDLE employee to say that Linda Prince needed a spouse or financial dependent to qualify for continuing retirement benefits, but his father, who was a retired member of FRS, told him that information was wrong and that Option 2 would provide a ten-year continuing benefit for her beneficiaries. No contact was made on her behalf with the Division of Retirement to ascertain which information was correct. On January 10, 2009, Harrison W. Rivers, upon learning that Linda Prince was still not retired, again told his son that she should be retired under Option 2 and that his son's understanding that she needed a spouse or financial dependent was wrong. Again, no contact was made with the Division of Retirement. On January 20, 2009, Harrison W. Rivers obtained the written information and required forms. Within a few days he gave the information and forms to his son and told him again to see to it that Linda Prince was retired immediately. Yet, the forms were not executed and filed with the Division of Retirement until February 11, 2009. Had Linda Prince or anyone on her behalf contacted the Division of Retirement to clarify which information was correct once they had conflicting information the first week of November 2008, she could have retired starting December 1. Had Linda Prince or anyone on her behalf submitted her application for retirement when Harrison W. Rivers provided the correct information and forms to use in January 2009, she could have retired then with a February 1 retirement date. Even though Petitioners offered evidence to show that they relied upon erroneous information conveyed by Harrison T. Rivers and even though they offered evidence that they received erroneous information from Samantha Andrews, it would have been clear to a reasonable person that such information conflicted with the information given by Harrison W. Rivers, who had gone through the process. Further, in January when Rivers gave them the correct written information and the forms to use, there was no basis for relying upon the erroneous information. If Petitioners had acted to clarify the previous conflicting information or had not delayed in having Linda Prince execute the forms when Rivers provided them, they would have retired her before her death and would have been entitled to continuing benefits. Whatever circumstances caused the further delay in the filing of Linda Prince's application for retirement and supporting documentation, the delay was not caused by the information, erroneous or not, provided by the FDLE employees. Accordingly, Linda Prince was still a full-time employee at the time of her death not as a result of erroneous information provided by FDLE employees as alleged by Petitioners, but as a result of delay in obtaining the easily- accessible correct information from the Division of Retirement and as a result of delay in acting on the correct information when it was provided to them. There are over 960 agencies, including state departments and local governments and school boards, which participate in the FRS. The employer and employee handbooks distributed to those agencies and their employees by the Division of Retirement clearly state that representatives of participating agencies are not the agents of the Division of Retirement but rather only act as a link between employees and the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioners ineligible for an Option 2 benefit from the FRS retirement account of Linda Prince. DONE AND ENTERED this 10th day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2009. COPIES FURNISHED: Brian Prince 1063 Walden Road Tallahassee, Florida 32317 Harrison Rivers 4211 Camden Road Tallahassee, Florida 32303 Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
