The Issue The issue is whether payment of Petitioner's retirement benefits should have commenced after the filing of an application to retire with the Division of Retirement, with an effective date of April 1, 2004, or be retroactively changed to the date of his termination of employment, July 1, 2003.
Findings Of Fact On July 19, 1995, Petitioner applied for membership in the Special Risk Division of the Elected Officers' Class of the Florida Retirement System ("FRS"). On August 14, 1995, Respondent sent Petitioner a letter admitting him into FRS. On September 6, 1995, Sarabeth Snuggs, Chief of the Bureau of Enrollment and Contributions for Respondent, sent Petitioner a letter revoking his membership in FRS. On December 17, 1996, Petitioner wrote to Sarabeth Snuggs responding to Respondent's decision to revoke his membership in FRS. Petitioner cited Section 121.052(2)(d), Florida Statutes, which provides that membership in FRS includes "any constitutional county elected officer assuming office after July 1, 1981, including any sheriff." The Consolidated City of Jacksonville was created by the Florida Legislature with the enactment of Chapter 67-1320, Laws of Florida. Section 1.01 of the Jacksonville Charter provides that the county government of Duval County and the municipal government of the City of Jacksonville are consolidated into a single body politic. The Charter further provides that the consolidated government succeeds to and possesses all of the properties of the former government. After being denied membership in FRS, Petitioner and other members of the consolidated government and its instrumentalities worked diligently to convince Respondent to admit Petitioner into FRS. During Petitioner's attempts to be included in FRS, Respondent repeatedly took the position that Duval County did not exist as a county agency. In a letter to Petitioner dated January 15, 1997, Ms. Snuggs wrote that the consolidated Duval County government "chose to consolidate as a 'city' government." Mr. Keane worked with the Duval County Legislative Delegation to amend Chapter 121 to specifically clarify the fact that the Duval County Sheriff and Clerk of Court are constitutional officers entitled to participate in FRS. In 2002, the Florida Legislature adopted language to clarify the Duval County Sheriff and Clerk of Court's status with respect to FRS. In a letter dated June 24, 2002, Petitioner thanked Ms. Snuggs for recognizing his right to elect membership in FRS. Petitioner observed that, since he was in the last year of his second term as Sheriff (Duval County allows only two consecutive terms), he wanted confirmation of his "right to connect the previous seven (7) years of service as Sheriff." The June 24, 2002, letter also asked for "guidance" from Respondent. The purpose of the June 24, 2002, letter was for Petitioner to learn how Respondent intended to treat his first six years of service. Petitioner sought to avoid any problems since his retirement date was rapidly approaching. On October 10, 2002, Petitioner and Mr. George Dandelake, the Chief of the Budget and Management Division of the Sheriff's Office, wrote to Ms. Snuggs requesting a calculation of the amount of employer contributions required on Petitioner's behalf. The October 10 letter also requested that Respondent "identify what documents are required, in addition to the contribution amount which will be paid by the City, that must be supplied to the Florida Retirement System." Petitioner re-applied for membership in FRS, which was granted on June 1, 2002, after the effective date of the legislation designed to specifically admit the Duval County Sheriff and Clerk of Court into FRS. On June 18, 2003, twelve days before the expiration of his term of office, still not having received confirmation of the status of his prior service, Petitioner sent a letter to Ms. Snuggs advising that FRS had not recognized his service from 1995 through 2002. Petitioner again stated in the letter that he was terminating his position as Sheriff on June 30, 2003. Less than a week prior to the termination of his term, Petitioner received two "Statement[s] of Account" dated June 24, 2003, indicating that "you have until retirement to pay the amount due on your account." The statements further indicated that "when you become vested for monthly benefits, we will provide you an estimate of benefits with and without this service." According to the first Statement of Account, Petitioner was entitled to purchase prior service at the 1.6 percent multiplier rate for the FRS regular class. According to the second Statement of Account, Petitioner was entitled to purchase prior service at the 2.0 percent multiplier rate for the FRS special risk class. Neither Statement of Account was correct, as both failed to permit Petitioner to purchase service at the 3.0 percent rate for special risk, despite the fact that Petitioner had served a continuous and uninterrupted term as Sheriff. The Statement of Account did not advise Petitioner that he must submit a separate retirement application, Form FR-11, in order to preserve his retirement date. The statement did advise Petitioner that interest would be assessed at a rate of 6.5 percent. This warning appeared in bold face on the Statement of Account. The June 24, 2003, statements were the first time that Petitioner was supplied with the amount due to purchase service credit. Since neither statement applied the correct multiplier rate (3.0 percent) for all eight years of Petitioner's service as Sheriff, neither statement was correct. Recognizing that only six days remained prior to the expiration of Petitioner's term as Sheriff, Mr. Keane advised Petitioner to submit payment to Respondent on an expedited basis. After receiving the June 24, 2003, Statements of Account, Petitioner prepared a letter dated June 26, 2003, to Cal Ray, the Director of the Department of Administration and Finance for the Consolidated City of Jacksonville. In this letter, Petitioner requested an employer contribution in the amount of $163,554.32 to purchase his prior service. Petitioner further requested an expedited preparation of the check to ensure delivery to Respondent by July 1, 2003. The letter to Mr. Ray requested payment of the amounts that would have been periodically contributed by the City of Jacksonville if Respondent had been acknowledged as a participant in FRS in 1995. On June 27, 2003, three days prior to the expiration of his term of office, Petitioner drove from Jacksonville to Tallahassee to meet with Respondent's representatives, including Ms. Snuggs, regarding Petitioner's retirement. Mr. Dandelake accompanied Petitioner on this trip. At the June 27, 2003, meeting, Petitioner personally delivered a check to Respondent in the amount of $163,554.32. Respondent accepted the check and issued a written receipt signed by Sarabeth Snuggs. Petitioner was never told during the June 27, 2003, meeting with Respondent that he would forfeit benefits if he failed to complete an application. Respondent knew that Petitioner was leaving office on June 30, 2003. Respondent never discussed the filing of an application for retirement benefits at any time during the course of its conversations and correspondence with Petitioner. Petitioner was never told by Respondent to complete any forms to protect his rights to the 2.0 percent multiplier during the pendency of his dispute with Respondent. Petitioner was never provided any handbook, notice, statutes, or rules indicating he would forfeit benefits under any circumstances. When Petitioner left the June 27, 2003, meeting, both he and Mr. Dandelake understood that he was still engaged in a dispute with Respondent over his entitlement to the 3.0 percent multiplier. Petitioner knew that he was required to file an application in order to receive retirement benefits. Petitioner testified that if he had left the June 27 meeting with any indication that he would forfeit benefits by not filing an application, he would have filed something, with advice of counsel, to preserve his rights. Petitioner received an Estimate of Benefits via fax from Respondent on June 27, 2003, reflecting an annual benefit of $23,105.90. This statement valued 6.92 years of Petitioner's uninterrupted special risk service as Sheriff using the 2.0 percent multiplier, and 1.08 years of service as Sheriff using the 3.0 percent multiplier. The June 27, 2003, statement lists Petitioner's retirement date as July 1, 2003. The estimate does not warn Petitioner that he must do anything in order to preserve his July 2003 retirement date. The estimate states only that it is subject to "final verification of all factors." Petitioner's term of office as elected Sheriff ended on June 30, 2003. Petitioner's employment terminated when his term expired on that date. Respondent was aware of the dates of the expiration of Petitioner's term of office as well as his employment termination date. When Petitioner's employment terminated on June 30, 2003, it was unclear whether he would be credited with the 3.0 percent multiplier for his eight years of special risk service. Petitioner was not notified by Respondent prior to the expiration of his term as Sheriff on June 30, 2003, that he needed to submit a retirement application. The first time Petitioner was advised by Respondent of the need to file an application for retirement benefits was in the comment section of the Estimate of Retirement Benefits provided to him by letter dated March 4, 2004. The warning was printed in bold face type. The Estimate of Retirement Benefits dated June 27, 2003, did not include the bold face warning to file an application. Respondent was not provided with a Division of Retirement publication entitled "Preparing to Retire" prior to his leaving service on June 30, 2003. In fact, the copy of the publication offered into evidence by Respondent is dated "July 2003," subsequent to Petitioner's retirement. As the only member of FRS in his office in Jacksonville, Petitioner had no staff or employees trained in FRS or Florida retirement benefits. Petitioner was provided with a "Preparing to Retire" booklet in March 2004. On November 3, 2003, Florida Attorney General Opinion 2003-46 confirmed that Petitioner, as the elected Sheriff, was eligible for membership in the Elected Officer's Class of the Florida Retirement System. On December 31, 2003, and on January 16, 2004, Petitioner's counsel attempted to obtain clarification from Respondent regarding Petitioner's retirement benefits. The December 31, 2003, letter noted that the "extraordinary delay" in resolving the issue of Petitioner's benefits was at no time due to fault on the part of Petitioner. Respondent never refuted or disputed this statement. By letter dated March 4, 2004, Petitioner was finally advised by Respondent that he was entitled to be credited with the higher 3.0 percent multiplier for all eight years of his service as Sheriff. Petitioner noted that the March 4, 2004, Statement of Account, while properly applying the 3.0 percent multiplier, now had changed Petitioner's retirement date to April 2004 from the previous estimates showing a retirement date of July 2003. The March 4, 2004, statement included the bold face notice to Petitioner that he must file an application for retirement benefits. No prior notices or correspondence from Respondent had informed Petitioner that he must file Form FR-11 in order to retain his retirement date of July 1, 2003. After formally being notified that he would receive the 3.0 percent multiplier for all eight of his years of service as Sheriff, and after having received the notice that he must file Form FR-11, Petitioner submitted the form in April 2004. Respondent is a fiduciary charged with acting in the best interest of participants in FRS. Andy Snuggs, who travels around the state educating employers and employees in FRS, acknowledged that Petitioner was not responsible for the delay by Respondent in recognizing Petitioner's entitlement to the 3.0 percent multiplier. Mr. Snuggs acknowledged that he does not tell employees that they will forfeit benefits if they delay the filing of their applications. Petitioner received his first retirement check in May 2004 which was based upon the benefit established in March 2004 of $32,624.58 annually, not the $23,105.90 previously established by Respondent in June 2003. Petitioner has received no retroactive benefits for the period of July 1, 2003, through April 30, 2004. In a letter dated May 6, 2004, Petitioner stated that his acceptance of the first retirement check was not to be construed by Respondent of a waiver of his rights to retroactive benefits from July 1, 2003, forward.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be awarded retirement benefits at the rate of 3.0 percent per year for his eight years of Elected Officer's Class of service, retroactive to July 1, 2003. DONE AND ENTERED this 21st day of July, 2005, 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 21st day of July, 2005. COPIES FURNISHED: Robert D. Klausner, Esquire Klausner & Kaufman, P.A. 10059 Northwest 1st Court Plantation, Florida 33324 Robert B. Button, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
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 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 is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 2001
The Issue The issue presented is whether Petitioner's application for retroactive retirement benefits should be granted.
Findings Of Fact Petitioner was employed by the Palm Beach County Sheriff's Office for approximately twelve years, working in a special risk capacity. As a result of that employment, he was a member of the Florida Retirement System. In 1972 Petitioner completed Respondent's form FRS-M10 setting forth his membership as a special risk member of the Florida Retirement System as of November 1, 1970. Petitioner resigned his position on March 15, 1982, when he was 47 years of age and had more than ten years of creditable service. At the time of his resignation, he was employed in the position of Inspector, Director of Law Enforcement, the third in command at the Sheriff's Office. There are approximately 550,000 active members in the Florida Retirement System. Many members choose not to submit an application for retirement benefits on their normal retirement date for a variety of reasons. An application for retirement benefits is a prerequisite for the establishment of an effective retirement date for a member of the Florida Retirement System. In September of 1991, Petitioner applied for retirement benefits. At the time of his application, he was 57 years of age. Petitioner never contacted Respondent to request information or advice regarding his retirement benefits prior to filing his retirement application in September of 1991. Based upon receipt of Petitioner's application for retirement benefits in September of 1991, Respondent established October 1, 1991, as Petitioner's effective retirement date. In October of 1986 Petitioner received from the Palm Beach County Sheriff's Office a copy of some of Respondent's forms which are utilized by persons filing applications for retirement benefits. Some of the information included in that package relates to persons who are regular members of the Florida Retirement System, not special risk members.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to change his effective retirement date and denying Petitioner's request for retroactive retirement benefits. DONE and ENTERED this 1st day of September, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0849 Petitioner's proposed findings of fact numbered 1 and 3-5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being contrary to the evidence in this cause. Petitioner's proposed findings of fact numbered 6-13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Mary Alice Gwynn, Esquire Suite 302 215 Fifth Street West Palm Beach, Florida 33401 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee FL 32399-1560 A. J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The retirement benefits to which Petitioner is entitled.
Findings Of Fact Jules Cofman was born September 20, 1911, and died September 23, 1990. Mr. Cofman was happily married to Petitioner, Beatrice Cofman, for 55 years, and they had two children. Prior to his death, Mr. Cofman was employed by the City of Margate, Florida, as an inspector and became entitled to retirement benefits from the Florida Retirement System. Mr. Cofman retired effective March 1, 1990, with 10.14 years of credible service in the Florida Retirement System. On June 20, 1989, Mr. Cofman was diagnosed as having cancer of the bladder. On June 30, 1989, Mr. Cofman underwent surgery, but the cancer continued to spread following the surgery. After his surgery in June 1990, Mr. Cofman was in constant pain and was on medication, including narcotic analgesics. Following his surgery, Mr. Cofman was treated at Bethesda Memorial Hospital between July 20, 1989, and September 14, 1990, on seven occasions as an inpatient and on twelve occasions as an outpatient. Between January 11, 1990, and July 23, 1990, Mr. Cofman was treated at Boca Medical Center on 16 separate occasions. The record does not reflect the nature of his treatments at Boca Medical Center or whether Mr. Cofman was treated as an inpatient or as an outpatient. No medical records were introduced into evidence. A letter from Dr. Mark Ziffer, the urologist who treated Mr. Cofman, was admitted into evidence as a joint exhibit, but there was no testimony from any of Mr. Cofman's treating physicians. There was no competent medical evidence introduced in this proceeding upon which it can be concluded that Mr. Cofman was incompetent when he selected his retirement option or when he cashed his retirement checks. On July 21, 1989, the Respondent mailed to Mr. Cofman an estimate that provided him with an explanation of his options under the Florida Retirement System and provided him with an estimate of the benefits under each option. On February 16, 1990, Mr. Cofman executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. On the reverse side of the form is an explanation of each option. By this form, Mr. Cofman selected retirement benefit Option 1, which is described as being a "member benefit only." The explanation of Option 1 on the reverse side of FR-11 is as follows: Option 1: A monthly benefit payable to you for your lifetime. Upon your death, the monthly benefit will cease and your beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. This option does not provide a continuing benefit to a beneficiary. If you wish to provide a beneficiary with a continuing monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial equivalency factors to the option 1 benefit. The FR-11 also contained the following statement in capital letters: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE NOR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN THE FIRST BENEFIT CHECK IS CASHED OR DEPOSITED! Between the date of his retirement and the date of his death, Mr. Cofman received seven retirement benefit checks from the Florida Retirement System and cashed those benefit checks. The Respondent was notified of the death of Mr. Cofman by a telephone call from Mrs. Cofman on September 24, 1990. On October 2, 1990, the Respondent notified Mrs. Cofman by letter that Mr. Cofman had ". . . elected to retire under Option 1 of the Florida Retirement System which provides the maximum monthly benefit for the lifetime of the member only." This was the first time that Mrs. Cofman was aware that Mr. Cofman had selected a retirement option that would not provide her benefits after his death. By letter to Respondent dated December 7, 1992, Ms. Cofman stated, in pertinent part, as follows: My husband, Jules Cofman (Social Security No. 028-01-6868) has worked as Lot Inspector at the Public Works Department of Margate, Florida for 13 years. In June of 1989 he was diagnosed with bladder cancer. Because of surgery, chemotherapy and radiation he found it necessary to retire. He received notice that he would receive his retirement check the end of April, 1990. In conversations I have had with him in regard to his retirement, he said "of course I would be his beneficiary". He did not discuss the Options with anyone. He received about four checks before he passed away on September 23, 1990. I was shocked to learn that because of his state of mind, he had inadvertently put down Option One instead of Option Two. He had been unable to accept the fact that he was so sick and could not discuss his possible death even with me. He never made any arrangements for my financial security. He had no insurance and no savings. We always planned on his retirement to augment our Social Security. I cannot believe that he would knowingly do this to me. We had been happily married for 55 years. If he had been in a rational state of mind, knowing that he had less than a year to live, he would have certainly chosen OPTION TWO. I would greatly appreciate it if you would review his case and determine whether it would be possible for me to receive his Retirement Benefit. Thank you for your consideration. By letter dated January 28, 1993, the Respondent denied Petitioner's request to change the option selected by Mr. Cofman. The letter asserted the position that the selection cannot be changed since the retirement checks were cashed and cited the following portion of Rule 60S-4.002(4)(b), Florida Administrative Code: After a retirement benefit payment has been cashed or deposited: * * * (b) The selection of an option may not be changed . . . Mrs. Cofman does not believe that her husband made a rational choice in selecting retirement Option 1. Mrs. Cofman believes that her husband would not accept the fact that he had cancer and that he was in a state of denial to the extent he refused to discuss his illness. The testimony of Mrs. Cofman and that of Mr. Gold established that Mr. Cofman's personality changed after he became ill. Prior to his illness, Mr. Cofman was a warm, extroverted person. After his illness, he became withdrawn, moody, depressed, and lifeless. The testimony of Mrs. Cofman and the testimony of Mr. Gold do not, however, establish that Mr. Cofman was incompetent at the time that he selected his retirement option or at the times he cashed his retirement checks. Mrs. Cofman attempted to talk to her husband about his condition and about family financial matters, but he would not talk to her. When Mr. Cofman executed his retirement option, the form did not require the consent or signature of the spouse. Since Mr. Cofman's death, the form has been changed to require that the spouse sign if the retiree selects Option 1. Mrs. Cofman testified that had she been informed as to Mr. Cofman's retirement options, she would have insisted that he select Option 2. Mr. Cofman executed FR-11 on February 16, 1990. The form appears to have been completed in type on February 15, 1990. The evidence in this matter does not establish that Mr. Cofman was incompetent to execute the FR-11 on February 15 or 16, 1990, or that there was any irregularity in the execution of this form or in its delivery to the personnel office of the City of Margate. Between March 1, 1990, and the date of his death, Mr. Cofman received and cashed seven retirement benefit checks. Mrs. Cofman testified that she would not have permitted those checks to have been cashed had she been informed as to Mr. Cofman's retirement options.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order which denies Petitioner's request to change the retirement option selected by Jules Cofman. DONE AND ENTERED this 29th day of December 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1507 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, and 3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4, 5, and 6 are adopted in part by the Recommended Order. The argument contained in those paragraphs are rejected as findings of fact as being argument and as being, in part, contrary to the findings made and the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 8 are subordinate to the findings made. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence or as being argument that is contrary to the findings made or to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 12, and 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. As reflected by Joint Exhibit 1, Mr. Cofman had additional hospital visits. The proposed findings of fact in paragraphs 8, 9, and 10 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 11 are adopted in material part by the Recommended Order or are subordinate to the findings made. COPIES FURNISHED: Stanley M. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stuart B. Klein , Esquire Klein & Klein, P.A. 1551 Forum Place, Suite 400B West Palm Beach, Florida 33445 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Petitioner is entitled to purchase leave of absence retirement credit on behalf of James Gapinski, Petitioner's ex- husband and a deceased member of the Florida Retirement System.
Findings Of Fact Petitioner, Geraldine Gapinski, is the former spouse of James Gapinski, deceased. At the time of his death, Mr. Gapinski was an employee of Florida State University and a "vested" Florida Retirement Service (FRS) member. Petitioner is an employee of the Florida Department of Law Enforcement (FDLE) and an active member of FRS. Mr. Gapinski was continuously employed by Florida's Univeristy System from approximately 1970, until his death on November 20, 2000, with the exception of a period from September 10, 1976 to June 9, 1977, during which period he took an approved leave of absence. During the period September 10, 1976 to June 9, 1977, no contributions were made by Mr. Gapinski or on Mr. Gapinski's behalf to FRS toward his accruing retirement benefits and he earned no creditable service in FRS for this eight month period he was on his leave of absence. On May 4, 2000, Mr. Gapinski requested an audit and estimate of retirement benefits from Respondent. At the time of his request for an audit and estimate, Mr. Gapinski and Petitioner had begun a dissolution of marriage proceeding (divorce). At all times material, each litigant had independent legal counsel, and each lawyer was aware that Mr. Gapinski's FRS benefits were "on the table" for division of the marital estate in the course of the divorce proceedings. At all times material, Mr. Gapinski was terminally ill with cancer. On September 14, 2000, Mr. Gapinski applied for participation in the Deferred Retirement Option Program (DROP). His application (DROP Form DP11) requested a DROP "begin date" of September 1, 2000, and designated each of Mr. Gapinski's two adult daughters as 50 percent primary beneficiaries. Petitioner, who at that time was still married to Mr. Gapinski, was not even designated a secondary beneficiary. The application, which Mr. Gapinski signed, stated in pertinent part, I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law . . . I cannot add additional service, change options, or change my type of retirement after my DROP begin date (emphasis in original). The application also specified eight required acts before Mr. Gapinski could retire and become a DROP participant, including, but not limited to, 4. A check payable to FRS for any amount you owe, or a written statement that you do not wish to claim the service . . . . On September 15, 2000, Respondent provided James Gapinski with two estimates of benefits. Estimate No. 1 showed the benefit Mr. Gapinski would be entitled to if he chose to purchase the one year leave of absence for $6,820.52, providing for a DROP beginning date of September 1, 2000. This estimate further advised that 6.5 percent per annum would be posted on June 30, 2001. It also stated, Comments: The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. This amount must be paid for a DROP begin date of September 1, 2000. Mr. Gapinski was also notified of the need to purchase his leave of absence credit in a letter from Respondent dated September 15, 2001, stating, in pertinent part, as follows: The following items are pending. The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. * * * Completion of the Option Selection for FRS members, . . . AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. * * * Estimate No. 2 sent to Mr. Gapinski on September 15, 2000, showed the benefit Mr. Gapinski would be entitled to if he chose not to purchase his leave of absence and waited until March 1, 2001, to participate in DROP, when he would accrue 30 years of service without counting the gap left by his 1976-1977 leave of absence. This estimate also stated: Comments: This estimate does not include the purchase of your leave of absence and is provided for comparison purposes. It is provided for DROP purposes with a March 1, 2001, DROP begin date (see the enclosed DROP brochure). If you do not elect to pay the amount due and purchase the service it represents, we must have written notice of your intent. Apparently, neither attorney ever saw any of the foregoing papers. The thrust of Petitioner's attorney's actions and advice was to obtain survivorship retirement benefits, not necessarily DROP benefits, for Petitioner. On October 23, 2000, Petitioner's attorney was told by telephone by Ms. Ferguson, a representative of Respondent, that Petitioner must make a non-party request to release Mr. Gapinski's retirement information to her. So far as this record shows, no third party request was ever made, but that day, Petitioner's attorney and Ferguson also generally discussed retirement pay-out options that Mr. Gapinski could elect, and Petitioner's attorney was generally aware that the DROP process was not complete. On October 24, 2000, Petitioner's attorney discussed by telephone, retirement, divorce, and survivorship benefit issues and life insurance payment options with Ms. Hudson, a representative of Respondent. On October 26, 2000, Petitioner's attorney discussed, by telephone, retirement options and steps to be taken, with both Ms. Ferguson and Mr. Helms, another of Respondent's representatives. Mr. Helms told her the DROP application was not complete but if the couple were still married, Option No. 3 would give the most benefit for survivorship benefits. During the October 2000, conversations, Petitioner's attorney made each of Respondent's representatives aware of the impending divorce and of Mr. Gapinski's impending death, but the attorney did not specifically inquire how soon the lapsed time payment must be made and none of Respondent's representatives volunteered information on that issue. At Mr. Gapinski's request, the divorce proceeding was bifurcated. Prior to the divorce, Petitioner's attorney had done independent research and was aware that Mr. Gapinski had to pay the $6,820.52, in order to perfect the DROP program and in order to complete 30 years of creditable service in order to be eligible for survivorship benefits on his retirement. This information was communicated to Petitioner by her attorney and whether or not Petitioner would be willing to pay half the amount was discussed. Petitioner stated she would be willing to pay half the amount owed. As a condition to her agreement to bifurcate the divorce proceeding, that is, as a condition to letting Mr. Gapinski out of the marriage but reserving jurisdiction in the Circuit Court to resolve certain disputes concerning assets and entitlements, Petitioner required that the couple enter into an "Agreement" on October 27, 2000, which provided, in pertinent part, as follows: BIFURCATION: The Husband shall be entitled to bifurcation of the dissolution action. The marriage of the parties shall be dissolved with the Court reserving on all remaining unresolved issues not addressed in this agreement. In light of the Husband's health, the Wife shall schedule and appear at an ex parte hearing to dissolve the marriage, to obtain Court-ordered approval of this agreement, and to ensure the Court's reservation of jurisdiction to hear any and all issues pertinent to support and the division of property not yet settled by the parties. * * * B. The Wife further agrees that all marital assets awarded to her in this cause (including proceeds from the Husband's retirement and life insurance in the event the Husband predeceases her), shall be placed in an inter vivos trust, from which she may draw living, personal, and medical expenses, during her life, with the parties' adult daughters named as the irrevocable beneficiaries of the remainder of such trust. C. The Husband agrees to bequeath sufficient marital assets, awarded to him in this cause, to the parties' adult daughters to aid in their comfort and support. HUSBAND'S RETIREMENT: The Husband shall elect an option on his retirement with the State of Florida that provides for survivorship benefits for the benefit of the Wife. The wife shall be entitled to all such retirement survivorship benefits which, like the other assets she receives in this bifurcated action, shall be placed in an inter vivos trust for her living, personal and medical expenses, during her life, with the adult daughters as irrevocable beneficiaries of the remainder of the trust. The Husband shall, simultaneously with the signing of the agreement, execute such documents as are necessary to create retirement survivorship benefits in accordance with this term. Should the Husband fail to execute the survivorship option on his retirement or should he ever change such option in contravention of this term, the Husband agrees that the obligation of this term is binding upon his estate, which estate shall be responsible for paying such retirement survivorship benefits to the Wife. The Agreement could have, but did not, specifically require that the leave of absence be purchased by either Mr. Gapinski or Petitioner. Petitioner's and Mr. Gapinski's Agreement does not bind the Respondent, which was in no way privy to that Agreement. Petitioner and Mr. Gapinski's marriage was dissolved on November 1, 2000. Petitioner's attorney provided Mr. Gapinski, through his counsel, with DROP forms (FST-12 and FRS-11o). On November 1, 2000, Mr. Gapinski executed Option 2 for his DROP retirement on these forms, naming Petitioner as his sole primary beneficiary and negating his prior designation of his adult daughters as beneficiaries. Option No. 2 provides for a reduced monthly benefit payable for the FRS member's (Mr. Gapinski's) lifetime. If the member dies before receiving 120 monthly payments, his designated beneficiary (Petitioner) would receive a monthly benefit in the same amount until the monthly benefit payments to both of them equaled 120 monthly payments, when payments would terminate. Option No. 2 is available for regular service retirements as well as DROP retirements. Option No. 3 is also available for regular service retirements and DROP retirements. Option No. 3 would have provided a reduced monthly benefit payable for Mr. Gapinski's lifetime, and upon his death, his joint annuitant, if living, would receive a lifetime monthly benefit payment in the same amount as Mr. Gapinski was receiving. Then, no further benefits would be payable after both he and his joint annuitant were deceased. There are exceptions to the foregoing general description, none of which matter to the case at bar. Option No. 3 would clearly provide more money to Petitioner if she were eligible. On November 2, 2000, Petitioner's attorney had three short telephone conversations with Mr. Helms, who opined that since Mr. Gapinski had signed up for DROP while the couple were still married, Petitioner could still get Option No. 3, with DROP retroactive to September 1, 2000, but that the leave of absence must be paid for. Apparently, Petitioner's attorney did not ask what would happen if the gap was not paid for before Mr. Gapinski died and no representative of Respondent volunteered that information. The thrust of Petitioner's case continued to be to persuade Mr. Gapinski to pay the whole amount due and to change his Option election to No. 3. On or about November 3, 2000, Mr. Helms sent an estimate letter based on selecting a September 1, 2000, retirement date with Option No. 1, to Mr. Gapinski. This estimate letter stated Mr. Gapinski had 30.11 years of creditable service. It did not mention DROP or any pay back. It did state that no lump sum retirement or cash value payments were available. (Second page of attachment to Exhibit P-11). On November 3, 2000, Petitioner's attorney wrote Mr. Gapinski's attorney that Mr. Gapinski was considered by Respondent to be in the DROP program as of September 1, 2000, not March 1, 2001, as supposed before the divorce, but he had not bought back his leave by paying $6,820.52, and requested that Mr. Gapinski change his Option Election Form to Option No. 3 and authorize the payment of the $6,820.52 to Respondent. On or about November 9, 2000, Petitioner's attorney sent the already-executed FST-12 (Beneficiary Designation Form) and FRS-11o (Option Selection for FRS Members) showing Option No. 2 to Respondent. Mr. Helms acknowledged receipt. On or about November 9, 2000, Mr. Helms told Petitioner's attorney that the forms were correct and anyone could pay the $6,820.52. The attorney felt Mr. Gapinski was enrolled in DROP but that the $6,820.52 was still needed. On November 15, 2000, Petitioner's attorney sent Mr. Helms a letter memorializing their conversation, in which Mr. Helms had indicated it was not necessary for Petitioner to sign below the Option No. 2 selection paragraph on FRS 11o as long as she was aware of the option Mr. Gapinski had selected. On November 20, 2000, Mr. Gapinski passed away without anyone having purchased his leave of absence credit. Mr. Gapinski was only 57 years of age when he died. DROP retirement or regular service retirement with full benefits is possible at 62 years of age or upon attaining 30 years of creditable service. Mr. Gapinski remained in regular employment until his death. Because he had not purchased the leave of absence credit, Mr. Gapinski died with only 29 years and 9 months of creditable service for purposes of retirement. In other words, he was 3 months and ten days short of the 30-year retirement mark necessary to activate DROP or regular service retirement. Petitioner never communicated directly with Respondent until after Mr. Gapinski's death. Mr. Gapinski's will provided for the effective disinheritance of Petitioner to the extent provided by law. On December 14, 2000, Petitioner's attorney spoke by telephone with Mr. Helms, who told her he thought Petitioner could still pay the leave of absence money but he would call her back. On December 15, 2000, Stanley Colvin, another of Respondent's representatives, telephoned Petitioner's attorney to say Petitioner could not pay the amount after Mr. Gapinski's death. At no time prior to Mr. Gapinski's death did any representative of Respondent affirmatively represent to anyone that Petitioner could pay the money after Mr. Gapinski's death or the conditions under which no benefits would be paid or specifically what would happen if Mr. Gapinski died before the money was paid by someone. By a December 15, 2000, letter, Respondent notified Petitioner that since Mr. Gapinski had elected not to purchase the leave of absence, he could not have reached the required 30 years of service necessary to participate in the DROP program until March 1, 2001. It further stated that since Mr. Gapinski's death occurred before completion of the required months necessary to participate in DROP, his DROP application was cancelled and his choice of Option No. 2 was nullified. Moreover, Mr. Gapinski was viewed as an active FRS member on the date of his death, and because Petitioner, though designated as his beneficiary was not also a joint annuitant, she could only receive a refund of Mr. Gapinski's retirement contributions in the amount of $4,719.19,and was not eligible to receive Option No. 3. Respondent did not send a similar letter to prior beneficiaries, the decedent, or his estate/personal representatives. Petitioner requested a review, and on February 2, 2001, Respondent issued its proposed final agency action letter, to the same effect as the December 15, 2000, letter. Respondent did not send a similar proposed final agency action letter to prior beneficiaries, the decedent, or his estate/personal representatives. However, the undersigned notes that Mr. Gapinski's adult daughters, who also were his joint personal representatives, were present in the courtroom on September 24, 2001, the first day of hearing. As of the second day of hearing on October 21, 2001, the estate had been closed and the personal representatives had been discharged. Mr. Larry Hunnicutt, Benefits Administrator for the Bureau of Retirement Calculations, Division of Retirement, testified by deposition. He indicated that Respondent Division of Retirement has no rules in place specifically addressing DROP. Therefore, in DROP cases, Respondent interprets and applies Chapter 121, Florida Statutes, and the existing rules addressing regular service retirement. In practice, Respondent gives DROP applicants a 90-day grace period from the date of application in which to finalize all the outstanding documents or other requirements for DROP eligibility, including payments of amounts due, even though there are no provisions in place authorizing a grace period for DROP applicants. If there are money amounts due, the member must pay up during this period. If the member fails to pay up during this period, the DROP application and the option selected for DROP is cancelled by a certified letter, but the designated beneficiary remains intact. Herein, because the amounts were not paid before Mr. Gapinski died, and because it would serve no purpose to notify the decedent, who could no longer complete his DROP requirements, Respondent did not send the deceased member a cancellation of his DROP application and Option No. 2 selection. Rather, it treated the DROP application and option selection as null and void and notified his ex-wife, the designated beneficiary, of what Respondent understood to be her rights. In this notification, Respondent applied the statutes as its personnel understood them to apply to a member who dies in active service prior to reaching either 62 years of age or 30 years of creditable service. Respondent would have permitted Petitioner to pay the money on Mr. Gapinski's behalf only during his lifetime. If the amount due had been paid, and Petitioner were qualified for Option No. 2, she would receive approximately $500,000 plus cost of living increases as opposed to $4,719.19. She would receive considerably more if she qualified for Option No. 3.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to purchase leave of absence credit on the account of James Gapinski. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
The Issue The issue is whether 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
The Issue The issue is whether Petitioner is eligible to purchase her employee service as a CETA employee with a state agency as credible service in the Florida Retirement Service.
Findings Of Fact Petitioner, Sherry Stearns, was employed by the State of Florida, Department of Labor and Commerce, in the Florida State Unemployment office from January 1976 until September 30, 1977. The records maintained by the Department of Retirement based upon payroll data submitted by the Department of Revenue reflect that Petitioner was not in a permanent position as reflected by the Code 0303 and the entry of "zz" in the last column showing she was not eligible for retirement benefits. The Petitioner offered no evidence in support of her claim to show that she was employed in a position which was covered or for which she could claim prior service credit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner's claim be DENIED. DONE AND ENTERED this 29th day of July, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1998. COPIES FURNISHED: Sherry Stearns 360 South Senaca Boulevard Daytona Beach, Florida 32114 Stanley N. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
