The Issue The issue in this case is whether Petitioner’s husband’s selection of Option 1 for his pension plan benefits could be changed.
Findings Of Fact Mrs. Renaud, who is deaf, was married to Mr. Renaud for approximately 40 years. Mr. Renaud was employed by the State of Florida as a correctional officer at all times relevant hereto. He entered the State retirement program (in the pension plan) in November 1994. Mr. Renaud was in the “special risk” category of retirement class based on his position as a correctional officer. On October 24, 2013, Mr. Renaud signed and submitted a “Florida Retirement System Pension Plan Application for Service Retirement” form to the Department, indicating his intent to retire. The application was signed and notarized; it designated Mrs. Renaud as the sole beneficiary of his retirement benefits. On the same day, Mr. Renaud signed an “Option Selection” form, wherein he designated which of four payment options he wanted to utilize for payment of his retirement income. He selected Option 1, which states: A monthly benefit payable for my lifetime. Upon my death the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. The form also contains the following statement: “I understand that I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options or change my type of retirement . . . once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins.” The option selection form was signed by Mr. Renaud and notarized by a certified notary public. Inasmuch as Mr. Renaud selected Option 1, it was necessary that he and his designated beneficiary (Mrs. Renaud) also fill out form SA-1, the “Spousal Acknowledgement” form. On the acknowledgement form, Mr. Renaud indicated that he was married. Mrs. Renaud then signed the “spousal acknowledgement” portion of the form. The acknowledgement statement included this statement: “I, Vivian Renaud, being the spouse of the above named member [Mr. Renaud], acknowledge that the member has selected either Option 1 or 2.” Option 2 provides for continued benefits during the retiring person’s lifetime. However, benefits to the person’s spouse will continue for only a 10-year period. If the retiring person dies within the first 10 years of retirement, the spouse would only receive benefits for the balance of the 10-year period starting at the retirement date. The benefits under Option 2 are, therefore, limited in nature. The state retirement system requires a person selecting Option 1 or Option 2 to have their spouse acknowledge that selection choice because those benefits have finite ending dates, whereas retirement benefits under the other options continue as long as either the retiree or his/her beneficiary is living. By letter dated October 30, 2013, the Department acknowledged receipt of Mr. Renaud’s retirement application. The letter referenced the date the application was received (October 24, 2013) and the option Mr. Renaud had selected (Option 1). The letter was mailed to Mr. Renaud’s address of record, the same address he listed in his retirement application. The letter was sent to Mr. Renaud some 30 days before the first retirement benefit check was deposited in his account. Mrs. Renaud does not remember seeing the letter, but inasmuch as it was addressed to Mr. Renaud, her recollection of its receipt is not relevant. After Mr. Renaud’s death, his family found numerous un-opened letters in his car; the acknowledgement letter from the Department could well have been in that group. Mr. Renaud retired on November 1, 2013. His first payment of retirement benefits was transferred to his bank by way of electronic fund transfer, commonly referred to as direct deposit, on November 27, 2013. The gross amount of his monthly retirement benefit was $1,987.85; the net amount was $1,937.75 after $30.09 had been deducted for taxes. At that time, Mr. Renaud had not signed form W4P, the form which showed how many dependents the retiree was claiming for tax purposes. After later filling out that form (in which he indicated he would prefer to file as “single” for tax purposes), his monthly net benefit was reduced to about $1,735. Mr. Renaud received a direct deposit of retirement benefits on December 31, 2013; on January 31, 2014; and again on February 28, 2014. Mr. Renaud passed away on March 26, 2014, only five months after commencing his retirement. In accordance with the provisions of Option 1, Mr. Renaud’s retirement benefits ceased at that time. His beneficiary was entitled to payment for the entire month that he expired, but was not to be provided any further retirement benefits. Thus, a final payment was deposited in Mr. Renaud’s account on March 31, 2014. Mrs. Renaud was provided notice of the cessation of retirement benefits due to Mr. Renaud’s death. She timely filed a protest, seeking to have the payment of benefits reinstated. The Department denied her request, resulting in the instant matter. It is clear from the evidence that Mr. Renaud selected Option 1, Mrs. Renaud acknowledged that Mr. Renaud had selected either Option 1 or Option 2, and that retirement benefits were directly deposited to Mr. Renaud’s bank account for several months. Mr. and Mrs. Renaud’s signatures were duly notarized and have a presumption of legitimacy. Mrs. Renaud disagrees as to whether Mr. Renaud’s selection of Option 1 was legitimate, legal, or proper under the circumstances as she views them. First, Mrs. Renaud contends that Mr. Renaud was not mentally well at the time he signed the option selection form. The basis for her contention is that Mr. Renaud had experienced some seizure-related behavior during the year prior to signing the form. He had driven his car north on US Highway 301 one day in July 2012, “heading to work,” but ended up in Georgia without remembering why or how he got there. He later apparently lost his driver’s license because of the seizures (although the testimony on that issue was not clear).1/ Mr. Renaud worked for approximately 15 more months after his inexplicable drive to Georgia. Mrs. Renaud also argued that Mr. Renaud’s signatures on the three different forms he signed on October 24, 2013, were not similar to each other, indicating in her mind that he was having some sort of medical or psychological difficulty at that time. Inasmuch as there could have been any number of reasons the signatures were different (whether he was in a hurry, what base existed under the paperwork, etc.), there is insufficient evidence to determine why the signatures did not match. Mrs. Renaud’s testimony regarding the signatures is not persuasive. Ed Renaud said Mr. Renaud had been forced to retire due to his medical condition, i.e., that he had lost his driver’s license due to having seizures and the Department of Corrections would not let him work if he could not drive. However, Ed Renaud also said Mr. Renaud was able to continue working even when he was “forced” to retire. Again, the testimony on these facts was not clear. Mrs. Renaud said she should have been provided an interpreter on the day she signed the acknowledgement form. She did not state whether she requested an interpreter or whether the agency employee who provided her the form was aware of her disability.2/ Again, no one from Mr. Renaud’s employer, the Department of Corrections, testified at final hearing as to what happened on the day the forms were signed. Mrs. Renaud stated that she could read and write English, so she knew what she was signing.3/ She did claim to be confused as to whether her husband had selected Option 1 or Option 2, but candidly admitted that Mr. Renaud never told her one way or the other which option he had chosen. He only told her that he would “continue to provide for her in the future.” She believed the amount which was to be deposited in their account each month under Option 2 would be approximately $1900. The first check was in that approximate amount (due to the fact that Mr. Renaud had not established the amount of taxes to be deducted from his check at that time). The next five checks were in a lesser amount, approximately $1700. There is no evidence that Mrs. Renaud questioned the amount of the later checks. However, once the first check had been deposited in Mr. Renaud’s bank account, he would not have been allowed to change his option anyway. Lastly, Mrs. Renaud said her husband’s medical and mental condition was not conducive to making the option selection in October 2013. However, there was no competent evidence to support her claim. There was no direct testimony as to Mr. Renaud’s condition on the day he signed, nor as to whether he was or was not capable of understanding what he was signing. The only statement about his condition that day was that he wanted to park the car far enough away from the building that his co-workers could not see that Mrs. Renaud had driven the car. Ed Renaud also pointed out the issue of Mr. Renaud’s three signatures that day looking different from each other, but his lay opinion is not evidence upon which a finding of fact can be made as to Mr. Renaud’s mental condition. On October 24, 2013, Mr. Renaud had not been adjudged mentally incapacitated and no guardian had been appointed. Ed Renaud said that Mr. Renaud still believed he could perform his work assignments at that time and did not want to retire. But, other than his wife, no one provided any evidence that Mr. Renaud did not understand what he was signing. Mrs. Renaud, however, could not say which option he had selected because he never told her. Her subsequent presumption that Mr. Renaud did not intend to choose Option 1 is not persuasive. It should be noted that selection of Option 1 by Mr. Renaud set his average pre-tax monthly benefit at around $1,900.00; had he chosen Option 2, the benefit would have been around $1,700. Thus, there was incentive to “roll the dice” and select Option 1, hoping that he would survive long enough to provide for his wife. In this case, sadly, that gamble did not pay off. The facts of this case are sad in that Mr. Renaud had every intention of providing for his wife financially as long as she lived. However, he either made a mistake when he selected his payment option or he attempted to tempt fate and hope for the best. In either case, once he made his selection and began receiving benefits, the die was cast. Based upon the facts as presented, there is no basis for overturning the Department’s denial of Mrs. Renaud’s requested amendment of the payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's request for entitlement to her husband’s retirement benefits following his untimely death. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2015.
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Albert F. Cook, had a relationship with the Department of Corrections (DOC) at any time during the month of April, 1993, and if so, whether he was eligible to receive a retirement benefit for that month, as well.
Findings Of Fact The Petitioner was employed at times pertinent hereto by the Department of Corrections (DOC) at its Baker Correctional Institution facility. On February 19, 1993, he was notified of his transfer to the Florida State Prison, purportedly for disciplinary reasons. Upon learning of this eventuality, the Petitioner immediately went on sick leave. He maintains that it was duly- approved sick leave. No medical evidence to that effect was presented, but the Petitioner suggested that his illness might be of a psychiatric nature. He clearly was disgusted with the action taken by the DOC to transfer him. Subsequently thereto, he decided to apply for retirement, effective March 31, 1993. Shortly thereafter, he sought to have his retirement request rescinded or withdrawn; however, that request was denied. He was thereupon removed from the DOC payroll, effective March 31, 1993, essentially as a termination action. He received a retirement benefit check for the period of April 1-30, 1993 in the amount of $2,324.53 from the Division of Retirement. The Petitioner appealed the DOC employment action to the Public Employees Relations Commission and an administrative proceeding ensued. Ultimately, a settlement agreement was reached in that case which resulted in the Petitioner being allowed to resign, effective April 16, 1993, rather than suffer termination effective March 31, 1993. That agreement entered into by the parties in that case specifically stated that "the agency [DOC] will take whatever action is necessary to return the employee [Cook] to the payroll for the period between March 31, 1993 and April 16, 1993". The Division of Retirement was, of course, not a party to that agreement since it was not a party to the litigation involved. The agreement was incorporated into a Final Order issued by the Public Employees Relations Commission in Case No. CF-93-196, entered June 7, 1993. The Petitioner sent a letter to E.I. Perrin, the Superintendent of Florida State Prison, dated April 12, 1993, in which he stated "that if I am still on the payroll, I hereby resign my position with the Florida Department of Corrections effective April 16, 1993 . . .". According to attendance and leave reports signed by both the Petitioner and Marion Bronson, the Personnel Director of Florida State Prison, the Petitioner was on sick leave for the payroll period of March 26, 1993 through April 8, 1993. While the date of the Petitioner's signature on the relevant time sheet was April 8, 1993, the end of the pay period, the Petitioner testified that the time sheets had actually been submitted earlier. Attendance and leave reports for the following pay period indicated that the Petitioner continued on sick leave status through April 16, 1993. The time sheets for the latter period were not signed by the Petitioner but were signed by Marion Bronson. DOC ordered a manual payroll made up to record payment and to pay the Petitioner through April 16, 1993. He received a salary warrant for $1,234.43 for that period from April 1-16, 1993. That salary check and warrant reflects that retirement contributions were paid as to that April payroll period salary. Because he received additional retirement service credit and a new average final compensation as a result of being in a payroll status and being paid for the period of time in April 1993, the Petitioner's monthly retirement benefits actually now exceed what he would receive as retirement benefit payments had he not been compensated as an employee for his service through April 16, 1993. The Petitioner testified at hearing that he was terminated on March 31, 1993 and not re-hired. He further testified that he neither wanted nor expected payment from DOC for the period of March 31, 1993 through April 16, 1993 and that he "merely wanted to clear his name". Nevertheless, he entered into the settlement agreement which provided for him to be compensated and on payroll status through April 16, 1993, when he entered into the settlement with DOC in the proceeding before the Public Employees Relations Commission. He is presumed to have full knowledge of the content of that settlement agreement, and it reflects that he freely and voluntarily entered into it, as does his testimony. According to Mr. Bronson's testimony, during the relevant period from March 31, 1993 through April 16, 1993, the Petitioner was occupying an authorized and established employment position with DOC. His employment relationship continued with the Department, as a result of the settlement agreement, until April 16, 1993. Because Mr. Bronson and DOC are not parties to the present proceeding and have no financial interest in the outcome of this litigation, Mr. Bronson's testimony is deemed credible and is accepted insofar as it may differ from that of the Petitioner. The Respondent agency learned that a payroll had been prepared for the period of time in April of 1993 in question and that a salary warrant was issued on the basis of the settlement agreement extending the Petitioner's employment with DOC through April 16, 1993. The Division of Retirement thus temporarily reduced the Petitioner's retirement benefits to recover the amount of the resulting, unauthorized April retirement check. It was unauthorized because he remained employed for the period of time in April and was paid as though he were employed, as a result of the settlement agreement. Consequently, he was not entitled to retirement benefits for that period of time in April 1993 ending on April 16, 1993. Mr. Snuggs testified that every retirement applicant, such as the Petitioner, receives a form FRS-TAR, entitled "Retirement System Termination and Re-Employment". The Petitioner did not deny receiving that form (Respondent's Exhibit 4) which advises prospective retirees of their rights and obligations in terms of retirement and retirement benefits as it relates to re- employment.
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 RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Retirement, temporarily reducing the Petitioner's retirement benefits, in the manner already proposed by that agency, until such time as his April 1993 retirement benefit, paid to him previously, has been reimbursed to the agency. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2292 Respondent's Proposed Findings of Fact 1-11. Accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Albert F. Cook Post Office Box 782 Sneads, Florida 32460 Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 A.J. McMullian, III, Director Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity: Stipulated Facts Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows: In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions; In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11); In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5). That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business. Stipulated Evidence Exhibit 1 - The deposition of Charles Kellum, Petitioner Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974. Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974. Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974. Exhibit 5 - The reports and deposition of Dr. Samartino. Exhibit 6 - The reports and deposition of Dr. Jacobson. Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36. Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975. Upon a consideration of the evidence further findings of fact are: The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification. The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled." Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman. Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years. His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service. Petitioner contends: That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work; That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty. Respondent contends: That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.
Recommendation Grant Petitioner Charles E. Kellum disability retirement benefits. DONE and ORDERED this 24th day of May, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building A Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT CHARLES E. KELLUM, Petitioner, vs. DOAH CASE NO. 77-465 DIVISION OF RETIREMENT, Respondent. /
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Evelyn S. Day, is entitled to modify her type of retirement benefits from "early service retirement" to "disability retirement."
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are accepted. The Findings of Fact set forth in paragraph 5 are accepted in part. In that paragraph, the Hearing Officer found as follows: Her memory and thought processes had evidentially [sic] already begun deteriorating because Mrs. Day was unable to ask guestions concerning her retirement rights, responsibilities, and entitlements very well. Because of this condition, Ms. Hobby agreed to accompany her to the offices of the Division of Retirement in order to ascertain what her retirement rights, entitlements, and responsibilities might be preparatory to Mrs. Day electing to retire. The above-quoted findings are rejected as conclusory and not supported by competent, substantial evidence. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence, except the finding that Mrs. Day retired and Ms. Hobby filled out her application for retirement. Additionally, the Hearing Officer's findings that petitioner was incompetent and suffering from Alzheimer's disease are rejected as being legal conclusions not supported by any judicial order or by any competent, substantial evidence in the record. The Findings of Fact as set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted. The Findings of Fact as set forth in paragraph 9 are accepted. That portion of the Findings of Fact in paragraph 10 which concluded the petitioner was incompetent is rejected as not supported by competent, substantial evidence. The petitioner has never been declared incompetent or determined to be incompetent by a medical doctor. Findings of Fact as set forth in paragraph 11 are accepted in part and rejected in part. That portion of the Findings which states that the application for retirement was not filed by Ms. Day is not supported by competent, substantial evidence. In point of fact, the Division has a filed application signed by the petitioner. The portion of the paragraph finding the petitioner incompetent is rejected as not supported by competent, substantial evidence. There has been no legal or medical determination that the Petitioner is incompetent. Additionally, there is no competent, substantial evidence that petitioner is suffering from Alzheimer's disease. The Hearing officer's finding that the petitioner's application was filed in error is not supported by competent, substantial evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, 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 Administration, Division of Retirement, according the Petitioner, Evelyn Day, the opportunity to change the status of her retirement benefits from early retirement to disability retirement, effective as of the date her earlier retirement application was accepted by the agency. DONE AND ORDERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 48B-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2085 PETITIONER'S PROPOSED FINDINGS OF FACT 1-8. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted to the extent that the record establishes that the Petitioner signed the application. Accepted to the extent that it was established that Petitioner has received the retirement checks. It is not established that the Petitioner cashed or deposited those retirement checks by preponderant evidence of record. Accepted insofar as it recites the Respondent's position in this matter. Accepted. Accepted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esq. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Mr. Joseph G. Stokes 911 "B" Street Crestview, Florida 32536 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center Building C 1639 North Monroe Street Tallahassee, Florida 32399-1560
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 sole issue in this cause is whether or not the payments received from Gadsden County by Petitioner, as set forth on pages 4 through 8 of her Amended Petition, for services rendered as Official Court Reporter pursuant to Chapter 29, Florida Statutes, constitute "compensation" within the meaning of that term in Chapter 121, Florida Statutes.
Findings Of Fact On April 27 and May 1, 1992, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their Proposed Recommended Orders including proposed Findings of Fact. In the Appendix to Recommended Order, the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's and Respondent's proposed Findings of Fact Nos. 1, 2, 3, 4, 5, 6, and 7, are hereby accepted and adopted in that they track the stipulated facts contained in the PREHEARING STIPULATION dated and filed March 30, 1992. The Petitioner's proposed Findings of Fact Nos. 8, 9, 10, and 11, are hereby rejected in that they are conclusions of law and were not contained within the stipulated facts contained within the PREHEARING STIPULATION, and are, therefore, not based upon competent substantial evidence. The actual employment position held by the Petitioner as an employee of the judicial branch of the State of Florida is clearly identified on Florida Retirement System Form FR-11, which was executed by the Petitioner on January 24, 1990, and certified by the Chief Judge of the Second Judicial Circuit (Exhibit 6 attached to the PREHEARING STIPULATION), whereon the "Title of Position held" is stated to have been "Official Court Reporter, Second Judicial Circuit of Florida assigned to Gadsden County." The supplemental salary that was paid to the Petitioner by the County required paper work identifying her as a county employee for payroll purposes only; but, as a matter of law, she held her State position as an official court reporter solely at the pleasure of the Judges of the Second Judicial Circuit pursuant to Section 29.01, Florida Statutes. In the Conclusions of Law in this Final Order, this issue shall be fully analyzed. RULINGS ON HEARING OFFICER'S RECOMMENDED CONCLUSIONS OF LAW Recommended Conclusion of Law No. 1 is hereby accepted as a proper statement of applicable law. Recommended Conclusion of Law No. 2 is hereby accepted as a correct statement of applicable law. Recommended Conclusion of Law No. 3 is hereby rejected in that it erroneously concludes that the Petitioner's salary and fees were authorized and set by statute, when, they had to have been authorized and set pursuant to Rule 2.070, Florida Rules of Judicial Administration. The conclusion of the Hearing Officer is incorrect because under Rule 2.070, Florida Rules of Judicial Administration, the compensation of, and the fees in question to be charged by, court reporters are authorized and set by such judicial rule. Rule 2.070, Florida Rules of Judicial Administration, adopted generally by reference the annual salary for court reporters set forth in Section 29.04, Florida Statutes, for a 60-hour work month. That judicial rule then goes on to provide for overtime at the rate of $10.00 per hour. That Rule 2.070, Florida Rules of Judicial Administration, also provides that the fees in question (for transcripts and depositions) to be charged by court reporters should be set in each circuit by administrative order, and, in the absence of such order, as provided by law. Such court reporters' fees, therefore, are set pursuant to said judicial Rule 2.070, which authorizes the charging of such fees in accordance with a circuit administrative order, and, in its absence, as provided by law. The setting of such fees and the authorization to charge same arise from said judicial Rule 2.070, and not from Chapter 29, Florida Statutes. The fee schedule set forth in Chapter 29, Florida Statutes, derives its legal efficacy not from its legislative enactment alone, but from its judicial approval in said Rule 2.070 in the event that a local circuit administrative order setting such fees has not been entered. In such instance, the fees are not set by statute, but by judicial approval of a statutory fee schedule. The judicial branch has set such fees, not the legislative. Thus, any such fees were not set by statute. The citations by the Hearing Officer in recommended Conclusion of Law No. 4 of Rules 22B-1.004(4)(b)1., and 22B-6.001(49), Florida Administrative Code, are rejected as being inapplicable to the proceeding at bar inasmuch as the Petitioner as an Official Court Reporter appointed pursuant to Section 29.01, Florida Statutes, was an employee of the State of Florida and was not an employee of Gadsden County. Under said Section 29.01 all official court reporters are appointed by and serve at the pleasure of the Chief Judge and a majority of the Judges of the Court in which the reporter is serving. Provision is made in Section 29.04, Florida Statutes, for the respective counties to provide funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings, but any such monies paid to such official court reporters would be paid to state employees. The judicial branch of government in Florida is a State court system. Official Court Reporters are hired and retained by the State Judges in a Circuit, and their employment is not determined or continued to any extent whatsoever by any Board of County Commissioners. Under Section 29.04(3), Florida Statutes, provision is made for the counties to supplement the funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings. The counties are a source of funding, and are not employers of the Official Court Reporters. In the case of Matter of Compensation of Hunter, 635 P.2d 1371 (Or. App. 1981), the Court of Appeals of Oregon held that where court reporters are appointed and hold their offices at the pleasure of the Judges, and are officers of the Court subject to the direction and control of the Judges, those court reporters are employees of the State of Oregon and not of the counties. At page 1373 of 635 P.2d the Court held: "The right to control is also important from a policy standpoint. The judges of the State of Oregon benefit directly from the services of the court reporters. They not only perform reporting duties in court, but are also the judges' official secretaries. See ORS 8.330. The State benefits most directly from court reporters' services, and it should be responsible for providing their workers' compensation insurance." Recommended Conclusion of Law of No. 5 is hereby rejected as a conclusion of law in that is a recitation of the relative positions of the parties and is not of any recommended holding or ruling by the Hearing Officer. Upon the reasoning and authorities set forth in Paragraph No. (3), above, recommended Conclusion of Law No. 6 is hereby rejected in that the fees in question were not authorized or set by legislative statute but were, in fact, authorized and set pursuant to judicial Rule 2.070, Florida Rules of Judicial Administration. The first three sentences of recommended Conclusion of Law No. 7 are hereby rejected in that they misconstrue the first sentence of Section 121.021(22), Florida Statutes, that states: "`Compensation', means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form." [Emphasis supplied] A form 1099 is not a form on which an employer reports salary paid from a salary fund to an employee, but, rather is a form utilized to report payments of income to an independent contractor. The "similar form" in that statute refers to an employer's wage and tax statement, which may be a form W-2, which is not the equivalent to a form 1099. As hereinafter discussed in Conclusions of Law Nos. (11), (12), and (13) of this Final Order, Official Court Reporters are "professional persons" within the meaning of that term in Section 121.021(22), Florida Statutes. The recommended Conclusion of Law of the Hearing Officer that the transcribing of criminal proceedings do not constitute "special or particular services" does not comport with either judicial Rule 2.070, Florida Rules of Judicial Administration, or a 1957 Opinion of the Attorney General of Florida. Under said judicial Rule 2.070 the basic salary for a court reporter is set in subsection (g) together with provision for the payment of overtime for hours in excess of 60 worked per month. In subsection (e) of Rule 2.070, provision is made for fees for what would constitute special or particular services by a court reporter, and the fees that may be charged for same. In a 1957 Opinion of the Attorney General of Florida (1957 0p. Att'y. Gen. Fla. 057- 109 (April 26, 1957)), the Attorney General of Florida analyzed Section 122.02, Florida Statutes, the predecessor to Section 121.021(22), Florida Statutes, as to what constituted compensation under the State and County Officers and Employees Retirement System (SCOERS). The opinion of the Attorney General was that hourly wages plus overtime would be included within the monthly compensation. But, at the end of that opinion the Attorney General concluded: "We conclude that in the case mentioned in the question the employing authority has prescribed the formula for fixing the monthly compensation or salary. It may vary depending upon the hours employed in discharging the routine work of the employment but the formula is fixed and applicable mathematically. This is not a situation where fees are paid for special or particular services. It is a regular retainer made depending upon the actual hours engaged in performing the month by month routine duties as School Board Attorney. It has no reference to fees for handing special items such as bond validation or other litigation." Under Rule 2.070, Florida Rules of Judicial Administration, official court reporters are paid their basic salary and overtime for their court appearances in reporting the proceedings. But, if they are to furnish transcripts of proceedings or depositions, which work would be done after their regular working hours, then the fees for such special or particular services are to be set by local circuit administrative order, or in the absence of same, as provided by law. These special or particular services that the court reporters are performing for such additional fees are not performed during their regular working hours, which by said Rule 2.070, is limited to 60 hours per month. And the last sentence of Recommended Conclusion of Law No. 7 that the Petitioner was a county employee is hereby rejected upon the grounds and reasoning set forth in Paragraph No. (4) above. The Hearing Officer's Recommended Conclusion of Law No. 8 (misnumbered as "7") is hereby rejected upon the grounds and for the reasons set forth in Paragraph Nos. (3) through (7) set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order approving petitioner's request for additional retirement benefits by including in the calculation of average final compensation those fees received by petitioner between January 1973 and February 1990 as set forth on pages 4 through 8 of her amended petition. RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3168 Petitioner: Accepted in finding of fact 1. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4. 7. Accepted in finding of fact 5. 8-11. Accepted in finding of fact 3. Respondent: Accepted in finding of fact 1. Covered in preliminary statement and in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4. 7. Accepted in finding of fact 5. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1500 Edgar Lee Elzie, Esquire P. O. Box 82 Tallahassee, FL 32302 Burton M. Michaels, Esquire Cedars Executive Center, Building C 2630 North Monroe Street Tallahassee, FL 32399-1560
The Issue The issue in the case is as set forth in the Notice of Forfeiture of Retirement Benefits dated November 10, 2005, and issued by the Department of Management Services, Division of Retirement (Respondent), to Richard Brandenberger (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Orange County Board of County Commissioners as a correctional officer at the county jail and participated in the Florida Retirement System (FRS). The Respondent is the state agency charged with administering the FRS. The applicable position description for employment by Orange County as a correctional officer included, in relevant part, the following description of the job duties: Supervises inmates to prevent altercations, intimidation, undesirable or illegal acts, intercedes when necessary, and to ensure the safety of the facility, other Correctional staff and the inmates. On or about October 29, 2003, a grand jury issued a one-count indictment against the Petitioner as follows: On or about July 3, 2003, in Orange County, Florida, defendant knowingly and intentionally possessed with intent to distribute and distributed Methylenedioxymethamphetamine ("MDMA") commonly known as "ecstasy", and marihuana, controlled substances listed in Schedule I of 21 U.S.C. Section 812, all in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D). The Petitioner was subsequently arrested. He then retired from employment in December 2003 and began receiving benefits from the FRS the following January. On or about January 29, 2004, the Petitioner, represented by legal counsel, entered a plea of guilty to the indictment and executed a written plea agreement that stated in material part as follows: Count Pleading To The defendant shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with possession with intent to distribute and distribution of MDMA and marihuana, in violation of 21 U.S.C. Sections 841(a)(1). * * * Elements of the Offense The defendant acknowledges understanding the nature and elements with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: That defendant knowingly possessed or distributed MDMA or marihuana as charged; and Second: That defendant possessed the substance with the intent to distribute it. * * * Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order stating that the Petitioner has forfeited his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The central issue is whether the Petitioner is entitled to modify her deceased husband's retirement benefit option.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact. Petitioner is the surviving spouse of Lamar W. Whaley, Jr., deceased. From 1972 to 1990, Mr. Whaley was employed by the Hillsborough County Board of County Commissioners (Board) and as such was a member of the Florida Retirement System. Mr. Whaley retired from his position as a minibus driver with the Board on June 29, 1990. In anticipation of his retirement, Mr. Whaley filed an FR-9 Form with the Division of Retirement (Division). The FR-9 Form, entitled "Request for Audit," was signed by Mr. Whaley and dated November 6, 1989. The FR-9 Form is used by members of the Florida Retirement System who want estimates of the monthly payments which they will receive after they retire. The FR-9 Form provided a space where Mr. Whaley could list the name and birthdate of a joint annuitant. On the FR-9 Form, Mr. Whaley named the Petitioner and the Petitioner's birthdate in these spaces. On the line immediately after the spaces provided for name and birthdate of the joint annuitant, the FR-9 expressly states that "This is not an official beneficiary designation." By listing a joint annuitant and that individual's birthday on the FR-9 Form, the Division is able to calculate the monthly benefits that would be payable to a member under each of the four retirement options available. In response to Mr. Whaley's audit request, the Division calculated the amount of the monthly payments he and/or his survivor would receive under the four retirement options available. On or about November 22, 1989, the Division sent Mr. Whaley information which reflected an estimate of the monthly benefits he and/or his survivor would receive under each of the four retirement options from which he was eligible to select. Included with the estimate of retirement benefits sent to Mr. Whaley, was a document entitled, "What Retirement Option Should I Choose?". This information sheet listed sent to Mr. Whaley listed and described the four different options. In 1990, members of the Retirement System contemplating retirement were provided a Division Form FR-11, Florida Retirement System Application for Service Retirement (Application). The application listed the four different options and provided a brief description of each. Next to Option 1 was the following: "Benefit for the Member Only." A further notation on the application read, "SEE THE REVERSE SIDE FOR AN EXPLANATION OF THESE OPTIONS." The Application adequately described the consequences of the election of each option. The explanation read as follows: Option 1: A monthly benefit payable to you for your lifetime. This option does not provide continuing benefit to a beneficiary. Upon your death, the monthly benefit will stop and you beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. If you wish to provide a beneficiary with a continued 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 factors to the option 1 benefit. Option 2: A reduced monthly benefit payable to you for your lifetime. If you die before receiving 120 monthly benefit payments, your designated beneficiary will receive a monthly benefit payment in the same amount as you were receiving until the total monthly benefit payments to both you and your beneficiary equal 120 monthly payments. No further benefits are then payable. Option 3: A reduced monthly benefit payable to you for your lifetime. Upon your death, your joint annuitant (spouse or financial dependent), if living, will receive a lifetime monthly benefit payment in the same amount as you were receiving. No further benefits are payable after both you and your joint annuitant are deceased. Option 4: An adjusted monthly benefit payable to you while both you and your joint annuitant (spouse or financial dependent) are living. Upon the death of either you or your joint annuitant, the monthly benefit payable to the survivor is reduced to two- thirds of the monthly benefit you were receiving when both were living. No further benefits are payable after both you and your joint annuitant are deceased. (Emphasis in original text.) On January 12, 1990, Mr. Whaley executed an Application. The Application listed the Petitioner as beneficiary and indicated that the retirement option selected was Option 1. In selecting Option 1, Mr. Whaley rejected all other options. The fact that Petitioner was listed on the application as a beneficiary is of no consequence given that Mr. Whaley chose Option 1. An explanation on the back of the retirement application expressly states, "This option does not provide continuing benefit to a beneficiary." Because Mr. Whaley chose Option 1, Petitioner, as his beneficiary, would have been entitled only to a refund of Mr. Whaley's contributions in the event that Mr. Whaley's contribution exceeded the amount of monthly benefits paid to him before prior to his death. Petitioner did not assert, nor did the evidence establish that the refund provision in Option 1 applies in the instant case. Petitioner stated that Mr. Whaley could read and was not mentally impaired at the time he completed the retirement application, yet Petitioner testified that the agency did not explain to Mr. Whaley the benefits of the plan which he selected. According to the testimony of Stanley Colvin, administrator and supervisor of the Division's Survivor Benefits Section, staff members are available to provide counseling to members who come in or call with questions relative to their retirement. There is no record that Mr. Whaley ever contacted the Division with questions regarding the various options. The pastor of the church which Petitioner is a member testified that Mr. Whaley may have needed help to understand the ramifications of legal documents. Mr. Whaley's daughter also testified that her father may not have understood the retirement option he chose. Both the pastor and Mr. Whaley's daughter testified further that in conversations with Mr. Whaley, he had indicated to them that he had taken care of the legal work necessary to ensure that his was family was taken care of in the event of his death. Notwithstanding the testimony of Petitioner and others, there is no evidence that at the time Mr. Whaley selected Option 1 he did not fully understand the nature and effect of his selection. Neither does the evidence support the claim that the selection of Option 1 by Mr. Whaley was inconsistent with his desire or intention at the time the choice was made. At the time of Mr. Whaley's retirement, he was in good health. Given this fact it is not unusual that he selected the option that would provide him with the maximum monthly benefit. Statements by Mr. Whaley that he had taken care of matters and that "things were in order" do not provide substantial evidence that the selection of Option 1 by Mr. Whaley was made only because he did not fully understand the consequences of his choice. The testimony revealed that upon Mr. Whaley's death, the Petitioner was the beneficiary of his life insurance policy and also the recipient of benefits under his social security. Under these circumstances, Mr. Whaley's selection of Option 1 was not necessarily inconsistent with his statement that things "were in order" or his listing Petitioner as beneficiary on the Application. On several documents provided to and/or completed by Mr. Whaley, it was clearly stated that once a member begins to receive his benefit, the option selection cannot be changed. The information sheet, "What Retirement Option Should You Choose?," mailed to Mr. Whaley on or about November 22, 1989, contained the following provision: Option Choice Cannot Be Changed Once you begin to receive your benefit your option selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before making your decision . . . . The Application submitted to the Division by Mr. Whaley on or about January 25, 1990, contained a statement that "[o]nce you retire, you cannot add additional service nor change options." Finally, the Acknowledgment of Retirement Application sent to Mr. Whaley by the Division on or about February 8, 1990, provided in relevant part the following: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT CHECK IS CASHED OR DEPOSITED! Mr. Whaley received his first retirement check on or about the last working day in July 1990. Petitioner testified that Mr. Whaley cashed this check in July or August of that same year. By cashing that check, Mr. Whaley was precluded from thereafter changing his retirement option. By selecting Option 1, Mr. Whaley received the maximum benefits payable to him during his lifetime. However, under the provisions of retirement Option 1, upon Mr. Whaley's death, his beneficiary, the Petitioner is not entitled to receive any benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order denying the request of Petitioner to modify the retirement benefits elected by Mr. Whaley, the deceased husband of Petitioner. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0059 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1a-1c. Rejected as not being supported by competent and substantial evidence. Respondent's Proposed Findings of Fact. 1-6. Accepted and incorporated herein. 7-8. Accepted. 9-11. Accepted and incorporated herein. COPIES FURNISHED: Gladys Whaley 3807 East Norfolk Street Tampa, Florida 33604 Robert B.Button, Esquire Division of Retirement Legal Office Cedars Executive Center-Building C 2639 North Monroe Street Tallahassee Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, Esquire General Counsel Department of Management Services 4050 Esplanade Way, Suite 265 Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY 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 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
