The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Erin R. McGuire, is entitled to purchase retirement service credit for the 1980-1981 school year based upon the determination of whether she was on a properly authorized leave of absence for that school year or, conversely, had actually resigned for that year before returning as a full- time employee of the Bay County School System the following year.
Findings Of Fact The Petitioner is a regular class member of the FRS, with some 28 years of service credit. Her entire FRS career has been with the Bay County School District. On October 8, 1980, the Petitioner resigned her employment with the Bay County School System to re-locate her residence to Alabama. She wanted to be closer to her family in Alabama and at the time did not intend to return to Bay County. She changed her mind, however, and on September 9, 1981, was re-hired by the Bay County School System. She has continued her employment with Bay County schools from that time until the present. The Petitioner maintains that she spoke to her school principal after tendering her resignation in 1980, and he persuaded her to rescind her resignation and instead take a leave of absence. No school board record of such a decision or denomination of her absence from employment as a leave of absence, was produced at hearing. The Petitioner did admit that when she left her employment with Bay County in 1980, she had no intention of ever returning at that point. She did, however, return for the following school year and has been employed by Bay County Schools ever since. When a member, such as the Petitioner, seeks to purchase a leave of absence from the FRS, they, and their employer, must verify the leave of absence on the FRS form FR That form is provided by the Division and must be executed by both the employer and the employee. The leave of absence must have been approved by the employer, the school board, either prior to or during the time period of the leave of absence, according to the rule cited herein. When Ms. McGuire submitted her form FR 28 to the school board, the board completed the form indicating that she had resigned on October 8, 1980 (not a leave of absence), and was re-hired as a "new hire" on September 9, 1981. It is also the case that the school board approved amending her record to show the time period in question as a leave of absence. That amendment of her record was approved by the school board on January 14, 2004, however, long after the time period of the purported leave of absence itself.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, denying the Petitioner's request to purchase leave of absence credit for the period October 1980 through September 1981. DONE AND ENTERED this 1st day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2004. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Erin McGuire 1507 Rhode Island Avenue Lynn Haven, Florida 32444
The Issue The issue in this case is whether Petitioner, Barbara L. Hughes, who was reemployed as a "media specialist," but who also taught a class, violated the provisions of Section 121.091, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Barbara L. Hughes, is a member of FRS. She terminated DROP and retired effective June 30, 2007. Petitioner returned to work on August 14, 2007. Petitioner was paid retirement benefits and health insurance subsidy payments for August 2007. The retirement benefit for August was $1,640.23. The health insurance subsidy payment for August was $150.00. The total amount for retirement benefits and health insurance benefits was $1,790.23. To avoid a threatened penalty, she voluntarily repaid these benefits subject to her belief that she was legally entitled to them. Petitioner's retirement benefits have been inactivated since September 2007. Petitioner is currently employed and has been employed for more than 32 years as a media specialist for the Glades County School Board, teaching at Moore Haven Junior-Senior High School. The school's student population is approximately 350. Although her position title is "media specialist," her present instructional activities are mixed, i.e., she is a media specialist 71 percent of the workday and a classroom teacher 29 percent of the workday. In July 1999, Petitioner enrolled in the Florida Retirement System DROP plan. The Florida Retirement System DROP plan allows a member of the FRS to retire and accrue retirement benefits while the member continues employment. Since the member does not accrue further service credit while in DROP, the FRS considers the member retired. Petitioner terminated her DROP and retired, effective June 30, 2007. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes. Petitioner returned to employment with an annual contract with a position title, media specialist, in August 2007. This was the same position that she had been employed in when she entered and terminated DROP.
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, Barbara L. Hughes, meets the definition of "classroom teacher" in Subsection 1012.01(2)(a), Florida Statutes, and that she is eligible for retirement payments from August 2007 to present. DONE AND ENTERED this 7th day of February, 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 7th day of February, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Barbara L. Hughes c/o Norman L. Hughes Education Center of Southwest Florida, Inc. Post Office Box 183 LaBelle, Florida 33975 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
Findings Of Fact Eugene L. Borus began employment with the Department of Transportation (DOT) in February, 1962, and was enrolled in the Florida Retirement System (FRS) as a mandatory member. In April, 1976, he terminated employment and applied for retirement. He was retired effective May 1, 1976, with 12.33 years of credible service (Exhibit 2). Mr. Borus was reemployed on May 23, 1977, by DOT. During 1977 and under the provisions of the "Reemployment After Retirement" provisions of Section 121.091(9), Florida Statutes, Petitioner received both his salary and his retirement benefit up to 500 hours of employment at which point his retirement benefits ceased. Beginning January 1, 1978, and on each January 1 thereafter Petitioner was again paid his retirement benefit up to 500 hours of employment after which the retirement benefit was discontinued. In early 1984, Mr. Borus applied to the Division to have his 1976 retirement cancelled and his employment service with DOT since 1976 included in his creditable service so that at such time as he would again retire, his total creditable service would include all his employment time. If this transpired, his future retirement benefits would be greater than those currently paid. His request was denied by the Respondent by letter dated April 5, 1984 (Exhibit 1). No member of FRS who has retired and drawn retired pay, except for those excepted in Section 120.091(4)(e) and 121.091(9)(d) have ever been "unretired" and allowed to rejoin the FRS.
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.
Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
Findings Of Fact Petitioner enrolled in "Plan A" of the Teachers Retirement System on August 13, 1954 as a teacher in the Orange County Florida school System. Petitioner transferred to Jacksonville, Florida and began teaching in Duval County on August 18, 1959 and continued hem membership in the Teachers' Retirement System "Plan A". Petitioner requested a change from the Teachers' Retirement System "Plan A" to Teachers' Retirement System "Plan E" by letter dated April 5, 1965. Petitioner was approved on March 26, 1966 for Teachers' Retirement System benefits and received disability retirement benefits for a period of time until she re-entered the teaching profession on November 27, 1970 in Duval County, Florida. She subsequently repaid an overpayment of these disability benefits which been paid for a period of time when she had returned to work in Duval County without notice to the Division of Retirement. Petitioner transferred from the Teachers Retirement System to the Florida Retirement System on October 15, 1970 when she signed a ballot entitled "Social Security Referendum and Application for Florida Retirement System Membership". Petitioner complains that she did not know when she signed the ballot that she was in fact changing her retirement from the Teachers' Retirement System to the Florida Retirement System contending that the statements of the person conducting the meeting at which the ballots were distributed informed the group the ballots were for an election for social security coverage. The ballot, however, clearly reflects that if social security benefits are desired, a change in the retirement system is necessary. Petitioner applied for Florida Retirement System disability benefits on October 20, 1971 and was approved. This benefit is $26.07 per month greater than the benefits she would have received had she remained in the Teachers' Retirement System. On October 3, 1975, Petitioner was supplied with the various documents concerning her actions in regard to her retirement benefits and was informed that her election to transfer into the Florida Retirement System was irrevocable and there was no method by which she could be transferred back into the Teachers' Retirement System. She requested a hearing on the transfer.
Recommendation Dismiss the Petition of Petitioner Martha A. Crosson. DONE and ORDERED this 15th day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Martha A. Crosson 801 West Myrtle Independence, Kansas 67301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT MARTHA A. CARSON, Petitioner, vs. CASE NO. 76-1456 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
Findings Of Fact The Respondent, State of Florida, Division of Retirement, is charged with the general administration and the responsibility for the proper operation of the retirement system, and for implementing the provisions of Chapter 238, Florida Statutes. The Division of Retirement was created in 1972, and is the trustee of the annuities savings trust fund and the pension accumulation trust fund of which Petitioners are beneficiaries. In this capacity Respondent is successor to prior trustees, the Teachers Retirement System and the State Board of Administration. Subsection 238.07(2)(d), Florida Statutes, provides for a teacher's retirement upon reaching the age of 50 after 25 years of service (known as Plan D). Petitioners retired in 1973 an 1974, having satisfied the requirements of Plan D and are receiving retirement allowances under this plan. The allowance consists of a pension funded by the State of Florida and an annuity funded by member contributions. Petitioner, Rex C. Bishop, was a teacher in the Dade County Public School System from 1949 until his retirement under Plan D in 1974. At retirement on August 1, 1974, Mr. Bishop began receiving an annual retirement allowance of $5,656.40 which included an annual pension of $3,477.65 and an equal annuity of $2,178.75. The annuity was financed by the member's accumulated contributions plus accrued interest of $34,422.07, resulting in a monthly benefit of $471.37 under the option chosen by Mr. Bishop. Petitioner, Jessie N. Karp, was a teacher in the Alachua County Public Schools from 1950 until 1969, at Lake City Community College from 1969 through 1972, and the University of Florida, Gainesville, Florida, from 1972 until her retirement in 1973 under Plan D. At retirement on July 1, 1973, Mrs. Karp began receiving an annual retirement allowance of $4,158.85 which included an annual pension of $2,676.67 and an annual annuity of $1,482.18. The annuity was financed by the member's accumulated contributions plus accrued interest of $25,111.13, resulting in a monthly benefit of $346.58 under the option chosen by Mrs. Karp. Petitioner, Stanley G. Rosenberger, was a member of the faculty of the University of Florida, Gainesville, Florida, from 1947 until his retirement in 1974 under Plan D. At retirement on January 1, 1975, Mr. Rosenberger began receiving an annual retirement allowance of $7,446.33 which included an annual pension of $4,708.44 and an annual annuity of $2,737.89. The annuity was financed by the member's accumulated contributions plus accrued interest of $41,572.08, resulting in a monthly benefit of $620.53 under the option chosen by Mr. Rosenberger. Plan D provides for a pension to be funded from monies paid by the State equal to one one-hundredth (one percent) of the average final compensation times the number of years served. Plan D also includes a variable annuity funded by the member's accumulated contributions. The total benefit or retirement allowance is not a fixed percent of average salary because the annuity is variable. However, Plan D was designed to provide an annual retirement benefit equal to approximately one-half of the average final compensation after twenty-five years of service at age fifty. This would require an annuity of one percent, which would approximately match the state funded pension. 1/ When Mr. Rosenberger, who was the only Petitioner to testify in this proceeding, elected to participate in Plan D effective in 1947, he was advised by the personnel administrators at both the Florida Agricultural Extension Service and the University of Florida that he would receive half of his average income at the retirement age of 50 after 25 years of service. This information was consistent with the goal of Plan D as established in Chapter 238, Florida Statutes. An actuary had assisted in setting up Plan D in 1947, based on 1939 data. However, no actuary was utilized again until about 1955. By the early 1950's, it became apparent to retirement system administrators that Plan D was not obtaining the funds required for the one percent annuity. Factors contributing to annuity benefits of less than one percent included increasing average salaries, low earnings on investments, and a limitation on contribution rates. The rate of contribution to Plan D as initially set by the actuarial firm of George Buck & Company, New York, was 9.24 percent to 13.58 percent of salary depending upon the member's age at entry into Plan D. That rate of contribution was later raised to 9.49 percent to 13.83 percent based on a legislative increase in the Survivor's Benefit Fund under Subsection 238.09(5), Florida Statutes (1957). The actuarial funding of a one percent annuity would ultimately have necessitated raising the contribution rate to between fifteen and twenty percent of salary during the years of active employment. Rather than increase contribution rates to levels considered prohibitive, retirement system administrators closed Plan D to new members on July 1, 1951. When the annuity funding problems became apparent to administrators, various meetings were held with teachers' groups and letters were mailed to personnel officials in the state school system to advise Plan D members that they could not expect the proposed one percent annuity to be realized. However, retirement system officials did not attempt to inform individual members of the Plan D annuity shortfall since mailing addresses were not maintained. Petitioner Rosenberger first became aware of the shortfall in 1972, when he began preparing for retirement. Until 1957, the funds were invested by the Board of Trustees of the Teachers Retirement System. During this period, investments were limited by law to government guaranteed securities. Interest was distributed to member accounts by determining total earnings in the annuity trust fund, subtracting expenses, and distributing the remainder proportionally to each member's account. The interest credited to members' accounts from 1947 to 1957 did not exceed three percent. After 1957, the State Board of Administration assumed responsibility for investing all state funds including retirement funds. Interest credited to member accounts increased from three percent in 1957 to seven percent in 1974. During comparable years, U.S. Treasury Note interest payments generally exceeded these annual interest credits by one to two percentage points. High grade corporate bond interest rates and new home mortgage yields were substantially higher than the interest credited to member accounts during comparable years. The annuities Petitioners now receive are the actuarial equivalent of their accumulated contributions on the basis of the assumptions in effect at the time of their retirement in 1973 and 1974. Had Petitioners retired before an annuity rate table change in 1972, they would have received a 15 percent higher annuity with respect to their final salaries. These reduced rates resulted from changes in mortality assumptions and interest rates, and cost of living escalation mandated by the Legislature. As a result of changes in the system and the early funding shortfalls, each Petitioner suffers a deficit in anticipated retirement benefits in excess of $1,000 annually. However, each Petitioner had the opportunity to make a lump sum contribution to the retirement trust account in order to assure a retirement allowance equal to one-half of his or her prospective average final compensation. See Subsection 238.09(1)(f), Florida Statutes. Mr. Rosenberger specifically declined the limp sum contribution option when it was called to his attention. The remaining Petitioners were presumably aware of this provision and likewise declined.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration, Division of Retirement, enter a final order dismissing the Petition. 2/ DONE AND ENTERED this 12th day of May, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.
The Issue Whether the Petitioner is entitled to participate in the Deferred Retirement Option Plan ("DROP") for 60 months.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with providing retirement services to members of the Florida Retirement System ("FRS"). Section 121.1905, Florida Statutes (2002).1 Ms. Johns was born on May 15, 1942. On October 1, 1971, Ms. Johns began working for the Broward County School Board as a part-time teacher in the adult education program. She taught two nights per week during the 1971-1972 school year and was paid a total salary of $1545.63. She was not under contract with the Broward County School Board, nor did she receive any benefits associated with her employment. The Broward County School Board does not have records documenting the type of salary account from which Ms. Johns was paid for her part-time employment during this period. On February 5, 1972, Ms. Johns completed an FRS Florida Teachers' Retirement System enrollment card showing that October 1, 1971, was the date her service with the Broward County School Board began. The Broward County School Board made contributions to the FRS on Ms. Johns' behalf during the 1971- 1972 school year in the amount of $61.83. Ms. Johns was hired as a full-time teacher by the Broward County School Board in August 1972, and she is currently employed with the Broward County School Board under the DROP as an assistant principal. Ms. Johns was not given any credit by the Broward County School Board for her previous part-time teaching experience, and she began her full-time teaching career in August 1972 as a beginning teacher. In 1997, Ms. Johns requested that the Division send her an estimate of her retirement benefit if she were to retire effective July 1, 1999. The Division prepared an Estimate of Retirement Benefit, Form FRS-40, which showed that, if Ms. Johns were to retire effective July 1, 1999, she would have 27.90 years of service for purposes of calculating her retirement benefits under the FRS. This estimate included 0.9 years of service attributed to Ms. Johns for the 1971-1972 school year.2 A Summary of the Florida Retirement System Deferred Retirement Option Program was enclosed with the December 29, 1997, Form FRS-40, which included the following information: "Participation Limit: Maximum of 60 months following the date on which the member first reaches normal retirement age or date." The Form FRS-40 was mailed to Ms. Johns on February 3, 1998, at "1131 SW 72nd Ave., Plantation, Florida 33317," which was, and still is, her correct address. The Form FRS-40 was not returned to the Division as undeliverable or undelivered. In 2000, Ms. Johns requested that the Division send her an estimate of her retirement benefit if she were to retire effective July 1, 2002. Two Estimate of Retirement Benefit forms were prepared by the Division pursuant to this request: Estimate #1 was based on the assumption that Ms. Johns would retire on October 1, 2001, which was identified in the comments included on the Estimate of Retirement Benefit form as her earliest date of eligibility for normal retirement and for participation in the DROP; it was noted on the form that the estimate of benefits as of October 1, 2001, was based on 30.08 years of service. Estimate #2 assumed the July 1, 2002, retirement date specified in Ms. Johns' request for an estimate; it was noted on the form that the estimate of benefits as of July 1, 2002, was based on 30.90 years of service. The two Estimate of Retirement Benefit forms were mailed to Ms. Johns at "1131 SW 72nd Ave., Plantation, Florida 33317." Although the exact date the estimates were sent is not shown on the documents, the Division keeps a computer log which shows that Ms. Johns' file was archived on January 1, 2001, and that the two estimates were included in her file when it was archived. The estimates were not returned to the Division as undeliverable or undelivered. Ms. Johns received a Member Annual Statement as of June 30, 2001 from the Division showing that she had 29.90 years of service in the FRS as of that date. The statement included an alternative estimate based on Ms. Johns' continuing her employment until July 1, 2002, and it was noted on the statement that, should she retire on July 1, 2002, her monthly benefit would be based on 30.9 years of creditable service. This annual statement was mailed in the fall of 2001 to Ms. Johns at "1131 SW 72nd Ave., Plantation, Florida 33317." Ms. Johns' Application for Service Retirement and the Deferred Retirement Option Program was received by the Division on May 14, 2002. In her application, Ms. Johns identified her DROP "begin date" as July 1, 2002, and her DROP "termination and resignation date" as June 30, 2007. She acknowledged by signing the form that her "DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement." Ms. Johns planned her DROP "begin date" based on the information provided by the Broward County School Board that, according to its records, Ms. Johns' first day of employment was August 17, 2002. The Division acknowledged receipt of Ms. Johns' DROP application by letter dated May 17, 2002, confirming that her DROP "begin date" was July 2002 and that her DROP "end date" was June 30, 2007. An Estimate of Retirement Benefit form was enclosed, which showed 30.90 years of service as of July 1, 2002. A DROP Estimated Benefit Accrual Calculation was also enclosed, which showed the monthly-benefit accrual from July 2002 through June 2007. A revised Estimate of Retirement Benefit form was prepared by the Division and mailed to Ms. Johns in August 2002. Ms. Johns was advised in the comments on the revised form that she would be eligible to participate in the DROP for a maximum of 50 months because her normal retirement date was September 1, 2001, and she had not entered the DROP until July 1, 2002. Ms. Johns wrote a letter to the Division questioning the accuracy of the information contained in the revised Estimate of Benefit form. Doug Cherry, the Benefits Administrator for the Division's Bureau of Retirement Calculations, advised Ms. Johns in a letter dated October 9, 2002, that, according to the Division's records, the date on which she first became eligible for normal retirement and the DROP was October 1, 2001. Mr. Cherry also stated in his letter that, because her application for the DROP had been received in May 2002, she would be eligible for the DROP effective May 1, 2002, rather than July 1, 2002, as she had specified in her application. When determining a person's membership in the FRS, the Division looks to the law in effect at the time the service was rendered. When Ms. Johns began her service with the Broward County School Board in October 1971, Section 121.051, Florida Statutes (1971), provided: COMPULSORY PARTICIPATION.-- The provisions of this law [the Florida retirement system act] shall be compulsory as to all officers and employees who are employed on or after December 1, 1970, of an employer other than those referred to in paragraph (2)(b),[3] and each officer or employee, as a condition of employment, shall become a member of the system as of his date of employment. Section 121.021(11), Florida Statutes (1971), defined "officer or employee" in pertinent part as "any person receiving salary payments for work performed in a regularly established position." Section 121.021(12), Florida Statutes (1971), defined "member" in pertinent part as "any officer or employee who is covered or who becomes covered under this system in accordance with this chapter." "Regularly established position" was defined in the 1971 version of Florida Administrative Code Rule 22B-6(36) as "any position authorized in an employer's approved budget or amendments thereto for which salary funds are specifically appropriated to pay the salary of that position." Summary The evidence presented is sufficient to establish that Ms. Johns became a member of the FRS effective October 1, 1971, and that her normal retirement date was October 1, 2001, at which time her age was 59 years, five months. The evidence presented is sufficient to establish that, in choosing the date on which she would enter the DROP, Ms. Johns relied on the information received from the Broward County School Board and not on the information provided by the Division. The evidence presented is sufficient to establish that the Estimate of Benefits forms sent to Ms. Johns by the Division in February 1998 and in late December 2000, and the Member Annual Statement as of June 30, 2001, each included a statement of the exact number of years of service calculated by the Division for various dates of retirement. Ms. Johns was on notice, therefore, of an inconsistency between the Division's calculations of her years of service in the FRS and the information provided by the Broward County School Board setting her first date of employment as August 17, 1972.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that Carol Johns is entitled to participate in the DROP for the period extending from May 1, 2002, through September 30, 2006. DONE AND ENTERED this 25th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 September, 2003.
The Issue The issue is whether the Department of Management Services, Division of Retirement, correctly excluded Petitioner from participation in the Florida Retirement System from August 18, 1995, through November 17, 1996.
Findings Of Fact Petitioner was hired by Dixie County on August 18, 1995, to work the roll-off site in Jena, Dixie County, Florida. At the time of his hiring, Petitioner's position was described as "Temporary Roll-Off Site Fill In." A roll-off site is where people take their garbage which is then transferred to the main facility for disposal. A "Temporary Roll-Off Site Fill In" is defined as someone who is called to work as needed. According to the Dixie County Payroll Records, Petitioner was employed as a "Temporary Roll-Off Site Fill In" from August 19, 1995, until November 18, 1996, when he became a "Part-Time Fill In Roll-Off" with an 80-hour biweekly schedule, until a permanent position could be filled. In July 1998, Petitioner's position became classified as permanent and his position description was changed to "Full Time Roll-Off Site." Testimony from Howard Reid, the road superintendent who was Petitioner's supervisor at the Jena roll-off site during the time period of August 18, 1995, to November 17, 1996, was that Petitioner was employed to fill the full-time position of Houston O. ("Hugh") Markham who had been fired from his employment with Dixie County in August 1995. Mr. Reid testified that Petitioner was employed in a regularly established position during this time period. No documentation was produced to substantiate the claim that Petitioner worked in a regularly established position from August 18, 1995, to November 17, 1996. Respondent's records show that Houston O. Markham was employed by Dixie County during the period of August 18, 1995, to November 17, 1996. Houston Markham was paid by Dixie County until December 1, 1996. December 1, 1996 is the pay date for the period beginning November 18, 1996. Based upon the payroll records, Petitioner began working 80 hours, biweekly, on November 18, 1996. This date coincides with Respondent's records for the last pay date of Houston Markham. The only time records in evidence for Petitioner are for the time period of November 3, 1996, to July 26, 1998. For the pay date of November 3, 1996, Petitioner was paid for 42 hours of work. For the pay date of November 17, 1996, Petitioner was paid for 53 hours of work. Thereafter, for the next 43 pay periods, Petitioner was paid for 80 hours of work biweekly (with one exception, the pay date of July 13, 1997, for which he was paid 76 hours). Petitioner's other witnesses, Joseph Ruth and Arthur Bellot, were not in a supervisory position over Petitioner from August 18, 1995, to November 17, 1996, and could not attest to Petitioner's employment during that time. Membership in the Florida Retirement System is compulsory for any person who fills a regularly established position, as defined by statute. A person filling a temporary position, as defined by statute, is not eligible to participate in the FRS. The agency would not report the temporary employee's work to Respondent. The first time Dixie County ever reported Petitioner for retirement purposes was in January 1998. After review, Respondent found that Petitioner was eligible to participate in the FRS effective November 18, 1996, based upon a Payroll Change Notice from Dixie County. The number of hours a state employee works is not dispositive of the issue of whether he or she is an employee in a regularly established position. An employee who works only two days a week, for example, would be a participant in the FRS if employed in a regularly established position. Based upon the documentation in its possession, Respondent enrolled Petitioner in the FRS effective November 18, 1996. Respondent requested that Petitioner submit tax documentation to demonstrate that he had worked full-time for Dixie County during the August 18, 1995, to November 17, 1996, period, as he claimed. Respondent submitted no documentation to support his claim to have been either a full-time employee or an employee in a regularly established position.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioner's request for participation in the Florida Retirement System for the period of August 18, 1995, through November 17, 1996. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2004. COPIES FURNISHED: Spencer Kraemer, Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Joseph Lander, Esquire Lander & Lander, Attorneys at Law Post Office Box 2007 Cross City, Florida 32628 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
