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RICHARD W. HOLLAND vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 02-000986 (2002)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Mar. 12, 2002 Number: 02-000986 Latest Update: Oct. 01, 2002

The Issue Whether Petitioner was overpaid $961.87 in 1975 when he received a refund of his retirement contributions, and, if so, whether Petitioner is required to refund that amount to the Division of Retirement before receiving any retirement benefits.

Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a law enforcement officer employed by the Florida Highway Patrol (FHP). Petitioner was first hired by FHP in August 1968. He left FHP on October 15, 1975, to pursue a private venture. Petitioner rejoined FHP in July 1981, and he is currently a member of the troop that patrols the Florida Turnpike. Between September 1968 and December 1974, Petitioner made monthly contributions to the FHP pension fund which, at the time, was administered by FHP. In 1970, when the Florida Retirement System (FRS) was created, Respondent took over the administration of the FHP pension fund, and Petitioner elected to participate in the FRS. The FRS was, and still is, administered by Respondent pursuant to Chapter 121, Florida Statutes. Prior to January 1, 1975, the FHP pension fund and the FRS were "contributory," meaning that the employee was required to contribute a percentage of his or her salary to the fund, and contributions were also made by the employer. Starting on January 1, 1975, the FRS became "non-contributory," meaning that the employer made all of the contributions. Petitioner's contributions to his FHP pension fund account were recorded on a four-column ledger sheet which showed the old balance, date of contribution, amount of the contribution, and the total balance. The ledger sheet was not computerized. The entries were manually typed onto the ledger sheet. Petitioner's account showed a total balance of $4,656.71 on December 31, 1974, and because the FRS was "non- contributory" after that date, the account had the same balance on October 15, 1975, when Petitioner left FHP. The total balance shown for Petitioner's account was incorrect as a result of a calculation error made when Petitioner's December 1968 contribution was entered onto the ledger sheet. Prior to that contribution, the old balance reflected on the ledger sheet was $108.89. Petitioner's December 1968 contribution was $37.45, so the total balance should have been $146.34. However, a calculation error was made and the total balance entered on the ledger sheet was $1,108.21. The effect of this error was that the balance shown in Petitioner's account was $961.87 (i.e., $1,108.21 minus $146.34) more than Petitioner had actually contributed. The error was carried forward to the following month when $1,108.21 was entered as the old balance, and all subsequent entries to Petitioner's account reflected the error. As a result, Petitioner's actual contributions as of December 31, 1974 (and, hence October 15, 1975, when he left FHP) were $3,694.84, not $4,656.71. The error was not discovered in October 1975 when Petitioner left FHP and requested a refund of his contributions. Apparently, the account was not audited prior to payment of the refund to Petitioner. In October 1975, Petitioner signed a card requesting a refund of his contributions. The address listed on the card corresponded to Petitioner's address at that time. The pertinent information from the card (i.e., the payee and the amount) was provided to the Comptroller by Respondent when a warrant was requested. The Comptroller prepared a warrant in the requested amount and returned it to Respondent along with a computer- printed label that contained Petitioner's name and social security number, the refunded amount ($4,656.71), warrant number (173213), and the date of the warrant (November 4, 1975). The label was affixed to the refund request card, and the warrant was mailed to Petitioner. The Comptroller's records show that warrant number 173213 was paid on November 21, 1975. The records do not show the payee of the warrant. Nor do the records show whether the warrant was deposited into a bank account or cashed. The cancelled warrant no longer exists. Petitioner did not recall receiving a warrant in the amount of $4,656.71. Petitioner and his wife both testified that they recalled receiving only $2,500.00. Petitioner produced a deposit slip dated November 15, 1975, showing a $2,500.00 deposit as well as bank records which showed that deposit as the only large deposit into Petitioner's account between November 1975 and February 1976. The source of the $2,500.00 check is not shown on the deposit slip. The Comptroller's records show no FRS warrants in that amount during the period of November 15, 1975, through November 21, 1975, when such a warrant would likely have been paid. Moreover, Petitioner conceded that he may have had another bank account at the time, although he could not locate any records for such an account. Petitioner received a statement of account from Respondent in June 1974 showing the balance of his account to be $4,220.47 at that time. Despite having that information and despite his financial circumstances being "tight" at the time, Petitioner did not make any inquiry to Respondent as to why he received only $2,500.00. This suggests that the $2,500.00 check was not the FRS warrant. The overpayment was first discovered in 2000 when Respondent conducted an audit of Petitioner's FRS account as part of its preparation of the member annual statement required by Section 121.136, Florida Statutes. Petitioner was first informed of the error and the 1975 overpayment in August 2001 when he received an unsolicited telephone call from Brenda Shiver, an employee of the Respondent, regarding his retirement plans and the cost of "buying back" his prior service with the FHP between 1968 and 1975. Petitioner has no current plans to retire. Nor does Petitioner have a current desire to "buy back" his prior service which would cost over $21,000, not including the amount at issue in this proceeding. The cost of the prior service is not at issue in this proceeding.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement issue a final order that increases the cost for Petitioner to "buy back" his prior service by $961.87 to reflect the 1975 refund overpayment, but eliminates the mandate that Petitioner pay that amount as a condition of receiving retirement benefits related to his current service. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 24th day of June, 2002. COPIES FURNISHED: Richard W. Holland 17964 Lookout Hill Road Winter Garden, Florida 34787 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560

Florida Laws (6) 120.569120.57121.071121.13617.0495.011
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JOY RUTH CARRUTHERS vs. DIVISION OF RETIREMENT, 89-000043 (1989)
Division of Administrative Hearings, Florida Number: 89-000043 Latest Update: Jun. 28, 1989

The Issue The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories: that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.

Findings Of Fact Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers. During his employment with the two school boards, Mr. Carruthers earned 8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely. Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day. The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)

Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits. DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989. COPIES FURNISHED: Joy R. Carruthers Post Office Box 680-151 Orlando, Florida 32858 Stanley M. Danek, Esquire Office of General Counsel 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550

Florida Laws (4) 120.57121.021121.091121.121
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GLADYS L. WHALEY vs DIVISION OF RETIREMENT, 95-000059 (1995)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Jan. 09, 1995 Number: 95-000059 Latest Update: Oct. 06, 1995

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

Florida Laws (4) 120.56120.57121.031121.091 Florida Administrative Code (2) 60S-4.00260S-4.010
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COLLEEN HYLTON-JULIUS vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 11-004534 (2011)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Sep. 08, 2011 Number: 11-004534 Latest Update: May 03, 2012

The Issue Whether the Division properly denied Petitioner's request to change Petitioner's retirement in the Florida Retirement System from an early retirement service benefit to disability retirement.

Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System ("FRS"). Petitioner worked for Miami Dade Transit from August 1990 to March 2004, and was a member of FRS while employed there. Afterwards, Petitioner went to work as an auditor with a private employer, Robert Half, in New York. In 2007, Petitioner sustained an injury while working for Robert Half. In 2008, the Division generated an Estimate of Retirement Benefits for Petitioner detailing what her benefit amounts would be if she decided to retire. In February or March 2009, Petitioner informed the Division by telephone that she could no longer work and wanted to retire. Subsequently, the Division mailed Petitioner a retirement application. On April 13, 2009, the Division received Petitioner's filled-out application for service retirement. Directly above Petitioner's signature, the application stated: I understand 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 additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. Petitioner's application was incomplete and could not be processed upon receipt. On or about April 17, 2009, the Division sent Petitioner an Acknowledgment of Service Retirement Application requesting that Petitioner send "birth date verification of your joint annuitant" if she chose Option 3 or 4 and "The Option Selection for FRS Members, Form FRS-11o" to finalize the application. The acknowledgment stated at the bottom: ONCE YOU RETIRE, YOU CANNOT ADD SERVICE CHANGE OPTIONS, CHANGE YOUR RETIREMENT DATE, CHANGE YOUR TYPE OF RETIREMENT OR ELECT THE INVESTMENT PLAN. RETIRMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED. In April 2009, the Division generated a second Estimate of Benefits for Petitioner, which she received. On or about May 8, 2009, Petitioner completed her retirement application by providing the Division the option selection form, which notified the Division that she selected Option 2. Directly above Petitioner's signature, the selection form FRS-11o stated: I understand 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 additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. When Petitioner received the estimate and saw the early retirement benefit amount, she called the Division to question what she considered a small amount. It was explained to Petitioner that she lost a certain percentage because she was retiring early and that her retirement was either "being processed, or it was processed." Petitioner's application for retirement was approved by the Division and Petitioner was awarded the Option 2 retirement benefit she requested with the effective date of May 1, 2009. Petitioner's first retirement check was dated April 23, 2010, and was cashed by Petitioner on July 28, 2010. Petitioner's retirement status was final when she cashed her benefit payment. On June 6, 2011, Petitioner contacted the Secretary of Division of Management Services by email and requested that she receive disability retirement for the first time.1 On, June 23, 2011, the Division informed Petitioner by letter that her retirement status was final when she cashed or deposited a benefit payment and that the request to change her retirement from regular service retirement to disability retirement could not be honored. On or about July 19, 2011, Petitioner requested a hearing regarding the issue.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying Petitioner's request to change her early service retirement benefit to disability retirement. DONE AND ENTERED this 9th day of February, 2012, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of February, 2012.

Florida Laws (4) 120.569120.57120.68121.091 Florida Administrative Code (1) 60S-4.002
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JOE BAZZEL vs DIVISION OF RETIREMENT, 91-005774 (1991)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Sep. 09, 1991 Number: 91-005774 Latest Update: Dec. 03, 1992

The Issue The issues to be resolved in this proceeding concern whether the Petitioner's deceased wife, Dorothy Bazzel, made a valid selection of retirement "option 1" instead of "option 2"; whether that apparent selection was a mistake and, consequently, whether the Petitioner should be allowed to receive retirement survivors benefits in accordance with "option 2", as provided for under section 121.091(6), Florida Statutes.

Findings Of Fact The Petitioner, Joe Bazzel, is a resident of Blountstown, Florida, and is retired. His wife, now deceased, was Dorothy Bazzel. She was a longtime teacher in the Bay County school system, with more than 46 years continuous creditable service in the Florida Retirement System and as a teacher. She retired on July 1, 1988. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutes, embodied in Chapter 121, and related rules, by which operation of the Florida Retirement System, including determinations of entitlement to and payment of benefits, is accomplished. Mrs. Bazzel underwent surgery for breast cancer on January 11, 1987. She had been diagnosed by Dr. Dixon McCloy, of Panama City, with breast cancer sometime in January of that year. Her progress after surgery was satisfactory, and she kept all appointments, had required x-rays, examinations and mammograms thereafter, by which her physicians monitored her progress. She had expressed to several persons of her acquaintance a desire to retire by the end of the 1987-1988 school year. In order to prepare for that event, she contacted her brother-in-law, Ray Bazzel, who testified in this case, and asked him to contact the Division of Retirement in Tallahassee, Florida, to obtain an estimate of her expected retirement benefits. He made that request to Ms. Loreen Vause, an employee of the Division, on July 16, 1987, by telephone. The Division of Retirement has an ongoing program which automatically generates an estimate of benefits for members who have certain amounts of creditable service and are of a certain age. When Mr. Bazzel made his request for an estimate of benefits for Mrs. Bazzel, the Division was already in the process of preparing a benefit estimate for her through its routine program. That estimate was forwarded to Mrs. Bazzel on July 22, 1987, and it stated as follows: This is a routine audit of your account. Noting the many years of service you have, we are furnishing you an estimate of your benefits as if you terminate your employment on June 30, 1988, and retire effective July 1, 1988. This is furnished for informational purposes only. By means of that estimate, Mrs. Bazzel was informed as to the benefit amounts which she would receive under all four retirement options. See Respondent's exhibit 8 in evidence. Ray Bazzel would visit Mrs. Bazzel on occasion during his visits to Panama City. She was described by him in his testimony to be a very private person not given to talking much about her illness or the operation. She did discuss the possibility of her retirement on one occasion with him, sometime during the summer of 1987. They discussed all four retirement options, and he explained the options in detail to her. He advised her that she would have to make a decision as to which option she would take, but he was never advised by Mrs. Bazzel nor anyone else as to which option she had actually selected until after her death. He did not know that she had made application for retirement on January 14, 1988. Harold Bazzel is a nephew of the Petitioner. He testified that he did not know that Mrs. Bazzel had made an application for retirement and did not know what option she selected until after her death. Richard Locker was the personnel officer with the school board where she was employed and knew Mrs. Bazzel personally and professionally. He was the principal for six years at Cove Elementary School where both his wife, Nan Locker, and Mrs. Bazzel taught. Mr. Locker had a policy of discussing retirement issues with Florida Retirement Service members on his staff and advising them of correct procedures to follow, as to the paperwork involved, and as to the full retirement options which they could select. He advised all members who were employed at his school to call the Division of Retirement in Tallahassee for more information. He never advised anyone of which option they should take because each case is an individual case, and he did not feel comfortable advising an employee or friend which option to take and then later have that person accuse him of advising the wrong option. Mr. Locker saw Mrs. Bazzel after her surgery and stated that after the surgery, she appeared to be in good health. He saw her in May of 1988 and stated that she was very optimistic and appeared capable of teaching the next year. She did not seem moody or depressed in any way to him. He believed that she exhibited an attitude that her treatment had been a success and that her health had been restored. He discussed with her the possibility of her retiring at the end of the 1987-88 school year, and he believed that she would retire at that time. In two telephone calls, he and Mrs. Bazzel discussed the four different retirement options. She appeared to know what he was talking about and to understand those options. He felt that she understood that option 1 would pay the highest benefit amount to her of the four options. He, however, did not really know what option she had chosen until after the Petitioner, her husband, informed him after Mrs. Bazzel's death. Based upon the testimony of Ray and Harold Bazzel and that of Richard Locker, concerning their contact and discussions with and advice to Mrs. Bazzel, it is found that Mrs. Bazzel was aware of the four options and the differences between them. She was aware that option 1 provided the highest benefit to the retiring member for the lifetime of that member and that it would cease at the death of the member with no further benefits being payable to any person. On January 14, 1988, the Petitioner, Joe Bazzel, drove his wife to the offices of the school board, where she completed the forms necessary for her retirement. She talked with Vicky Poole, the records clerk, who helped teachers and administrators complete necessary retirement forms as part of her job duties. Ms. Poole had worked at the school board offices for approximately seven years and had an established procedure for informing prospective retirees of all information needed to process retirement applications. As part of her instructions to them, she would ask each potential retiree to inform her of the option they wanted to select, who their beneficiary would be and where the checks were to be sent. She would inform them when they would start receiving checks, would discuss with them their sick leave balance "payoff", and what steps they needed to take to obtain social security benefits. This discussion with prospective retirees would take up to one-half hour if the retirement form had not been partially completed before the retiree came into the office, or about 15 minutes if the form had already been partially completed. If Mrs. Bazzel already understood the retirement options and had formed an opinion of what she wanted to do concerning retirement and the selection of an option, and if the form had already been partially completed, then the entire process on January 14, 1988 could have occurred in a few minutes. It was Ms. Poole's practice to sit next to the prospective retiree, obtain the necessary information, and type it on the retirement form at that time. She would then advise the member of the various options by referring to the back of the retirement form (Respondent's exhibit 12 in evidence) or to a pamphlet explaining the options issued by the Division of Retirement. Both of those documents contain a narrative description of the retirement options. Ms. Poole did not choose a retirement option or advise a prospective retiree of which option to choose. The retiree must choose his or her own option. Ms. Poole would never advise a person concerning which option to take and had been advised by the Division of Retirement never to give such advice on option selection. If Ms. Poole perceived that a prospective retiree was indecisive about option selection or did not appear to understand the options or the consequences of such election, she would advise that person to speak with someone else who was knowledgeable about the retirement system and about the retiree's financial situation, such as a friend or relative. If a prospective retiree was still indecisive or unsure of the meaning of options or which option to select, Ms. Poole would hold the form and not complete it without being sure in her own mind that the retiree understood the option and knew what it meant. In her standard procedure, she would go over each item on the form at least two and up to four times with a retiree. If they were very certain of the option they wanted to select, she would then finish the form and have the person sign it and give it to Ms. Bolinger to notarize. Ms. Poole realized that the choice of an option was an important decision and conducted her interview with the retiree accordingly. She testified in this regard as follows: If they said well I'm looking at 2 and 3, that's waivering. If they said I want option 1, I typed 1 in and I would say it several times as I typed it in. I mean I was very well aware that this selection was for the rest of their life and could affect someone else. I was very well aware of that. So, I would repeat it several times and when I was complete, when the form was complete, I'd give it back and go over it again, again reemphasizing the option. If they did waiver, I would briefly go over the options and there was time, I always mention, you know, there's time to do this, to choose your option, perhaps you want to talk to someone. I could not advise them. That's what I did. Ms. Poole remembered that Mrs. Bazzel came into the office but did not remember if the retirement forms had already been completed or partially completed prior to the visit. She testified that there was no doubt in her mind that Mrs. Bazzel chose option 1 and no doubt that she knew what option 1 meant. Ms. Bolinger began to work with the school board dealing with retirement applications in 1984. She is now the records clerk who handles retirement matters for teachers and school administrators. This is the same job that Ms. Poole performed in January of 1988. Ms. Bolinger notarized the retirement form of Mrs. Bazzel. Ms. Bolinger learned her job from Ms. Poole and testified that the retirement form was always completed in the office before a retirement clerk and was never sent to anyone. She stated that the clerk would ask the member if they understood each of the options, and the clerk would be sure that the member did understand them. It was the practice to ask such a retiring person if he or she was familiar with the options. If the retiree seemed the least bit confused, Ms. Bolinger testified that the clerk would discuss each option all over again with the prospective retiree, give him the form with the options listed on the back, and they would then discuss each one and make sure that the prospective retiree understood each option before continuing the process of executing the requisite forms. Thus, Ms. Poole and Ms. Bolinger or any school board clerk follows a routine practice of examining and discussing in detail each retirement option with a prospective retiree and makes sure that person understands the wording of the four options and what the four options mean before making a selection, answering any questions the prospective retiree might have and advising them to seek counsel from a qualified person if the prospective retiree remains unsure of which option to elect. After the forms are completed, the clerks, including Ms. Bolinger and Ms. Poole, when she was performing that function, examine the forms with the retiring member to make sure that all information is correct. "We wait until they check the whole thing and this is exactly what they want, and I watch them sign it." The signature is the last item which is placed on the retirement form. If the retiring member appears unsure about the options, Ms. Poole and Ms. Bolinger will ask them to go home and think about it and think it all through before they decide. Like Ms. Poole, Ms. Bolinger leaves the option selection up to the retiring member and does not attempt to advise persons about which option to select, merely giving them the information concerning the effect of selecting a particular option. In her capacity as a notary, Ms. Bolinger stated that if a person did not look like they knew what they were doing in executing the form, she would not notarize the form. If they did not appear to understand that they were applying for retirement, or which facet of it they were applying for, she would, likewise, not notarize the form. She would not notarize a signature after the fact of the signature being placed on the form. Ms. Bolinger was shown a copy of Petitioner's exhibit 7, in evidence, which is a copy of the retirement form that did not have her notary signature. She observed that her notary stamp was on that copy but that her name had merely been signed in the wrong place, possibly because she was new to those duties concerning retirement clerk matters. She testified, however, that her signature was correctly placed on the form, she believes, that same day. See pages 17 and 37 of Petitioner's exhibit 7, in evidence. On January 14, 1988, Mrs. Bazzel completed two forms: FR-11, "Application for Service Retirement", and FR-9, "Request for Audit", (see Respondent's exhibits 9 and 10, in evidence). Both of those forms contain Mrs. Bazzel's signature and are dated with the same date, January 14, 1988. The FR- 11 form had that date written on it in three places. The two forms were then filed with the Division of Retirement. They were acknowledged by the Division as being received on the next day, January 15, 1988, according to the form FST- 40C, "Acknowledgment of Retirement Application", which has January 15, 1988 as the received date. See Respondent's exhibit 11 and the testimony of Stanley Colvin, in evidence. The Petitioner testified that he believes the retirement application forms referenced above were suspect as to accuracy because, according to his testimony, he took his wife to the school board offices on a Friday to sign the forms after the end of the teaching day on either January 8th or January 15th, and states that generally he remembers that it was a Friday because that was the day they had the habit of leaving the Panama City area to visit relatives for the weekend. However, the forms are dated January 14, 1988 in several places. The forms in evidence and the testimony of Ms. Colvin establish that the application documents were received on January 15th in the offices of the Respondent agency. Thus, they could not have been signed on Friday, January 15th. If they had been signed on Friday, January 8th, the record leaves no explanation as to why all of the forms were dated January 14th. The Hearing Officer can only logically find that, indeed, the forms were signed by Mrs. Bazzel on January 14, 1988 and received in the offices of the Division in Tallahassee, Florida, on January 15, 1988. The date of January 20, 1988, appearing on the documents, was established to be the date they were received in the bureau within the department which actually performs benefit calculations, not the date it was first received by the department. The evidence establishes that Mrs. Bazzel selected option 1, the retirement option which provides no survivor's benefits. None of the exhibits in evidence can support a finding that she chose or intended to choose option 2, which provides survivor's benefits. The application for service retirement shows an election for option 1 and the acknowledgment of receipt of that retirement application, FST-40C, shows that option 1 was selected, as well as the letter that informed Mrs. Bazzel that she was being added to the retirement payroll in the category of option 1 benefits. On August 1, 1988, the day after the first retirement warrant would have been received by Mrs. Bazzel, Ray Bazzel called the offices of the Division of Retirement to state that Mrs. Bazzel had checked the wrong number of income tax exemptions and wanted to change them. In order to know how many exemptions she had, he would have had to see the stub from that first retirement warrant. The stub would have depicted the gross amount of the benefit, which was the same amount as that provided for option 1, and not the gross amount attributable to option 2. See FST-40C form, in evidence as Respondent's exhibit 8. Additionally, in a conversation with one of her closest friends, Nan Locker, Mrs. Bazzel led Ms. Locker and friends at school to believe that her surgery had alleviated her medical problem with cancer and that she was in good health. During a conversation they had approximately nine months before Mrs. Bazzel's death, Mrs. Bazzel, in talking about retirement with Ms. Locker, who was also contemplating retirement, made a comment as follows: "Well, I've got my retirement and Joe's got his." This comment was made sometime in the fall of 1989 before Mrs. Bazzel's death in July of 1990. Although the Petitioner introduced exhibits 1, 2 and 4 in an attempt to show that his wife meant to select option 2 and that some mistake was made by the school board or the Division in preparing and submitting the documentation setting up Mrs. Bazzel's retirement benefit situation; in reality, those exhibits merely show that Mrs. Bazzel possibly did some calculations as to the difference in monthly amounts between option 1 and option 2. The exhibits can only show that she may have been aware of the difference in monthly benefit amounts between the two options, but they do not show that she intended to select option 2. Indeed, the evidence and testimony, considered in its totality, shows that her selection of option 1 was a voluntary, knowing selection. The evidence also shows that Mrs. Bazzel was mentally and medically competent to make that selection, freely and voluntarily. Her visits with Dr. McCloy, her treating physician, in the first half of 1988, to monitor her health situation after the cancer surgery, were normal and showed nothing unusual as far as any recurrence of cancer was concerned. Her chest x-rays were negative for recurrent cancer. On June 3, 1988, she was diagnosed as having a small duodenal ulcer, but no indication of recurrent cancer was present. Dr. McCloy treated her for the ulcer with medication; and by August 10, 1988, her symptoms attributable thereto had largely been alleviated. Her visits to Dr. McCloy were routine for the remainder of 1988 and 1989, with normal results. It was not until March of 1990 that she was diagnosed with a spot on the left rib, which proved to be recurrent cancer, probably attributable to the original breast cancer. She deceased as a result of this condition on July 9, 1990. Dr. McCloy testified that he never advised Mrs. Bazzel that her cancer was terminal because he believed that it had been successfully treated after the surgery and for a long period of time thereafter he had no evidence of its recurrence. Therefore, he had not advised her that she was terminally ill during the period of time she was making the retirement decisions, applying for and receiving her first retirement check during essentially the first half of 1988. Dr. McCloy's testimony further establishes, without doubt, that Mrs. Bazzel was alert, possessed her full intelligence and faculties, and understood the significance of his medical instructions, and understood his advice as to her health status. Accordingly, it has been established that Mrs. Bazzel did not have a recurrence of cancer until it was diagnosed in March of 1990, long after she had made the relevant retirement decisions pertinent hereto, and that she knew and was fully aware of her medical condition during the process of applying for her retirement benefits. She, therefore, understood the steps she took for retirement application and benefit receipt purposes, and was not medically or mentally impaired to make those decisions. It was established that she began her teaching career as a member of the Teacher Retirement System, pursuant to Chapter 238, Florida Statutes. She subsequently transferred into the Florida Retirement System under Chapter 121, Florida Statutes, during an open enrollment period. While a member of the Teacher Retirement System, she paid $12,870.33 in total contributions, plus interest, which accumulated on those contributions in the amount of $8,561.97, for a total on deposit in her account of $21,432.30. During the period of her retirement before her death, Mrs. Bazzel received total benefits in the amount of $49,551.95. She, therefore, received $28,119.65 more in benefits than she had paid into the Teacher Retirement System in contributions, plus accumulated interest. It was proven that the distance to the residence or places of business of the deponents, whose depositions were admitted into evidence, comports with the standard of Rule 1.330, Florida Rules of Civil Procedure. Since the locations of the deponents as potential witnesses accorded with the 100 mile standard, their depositions were admitted in lieu of live testimony.

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Joe Bazzel, is not entitled to have the retirement option selected by Dorothy Bazzel changed from option 1 to option 2. DONE AND ENTERED this 15th day of September, 1992, 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) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5774 Petitioner's Proposed Findings of Fact 1-5. Rejected as not being in accord with the preponderant weight of the evidence. 6. Accepted but not itself materially dispositive. 7-11. Rejected as not being in accord with the preponderant weight of the evidence. Respondent's Proposed Findings of Fact 1-25. Accepted. 26-30. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Mr. Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Joe Bazzel P.O. Box 46 Blountstown, FL 32424 Stanley M. Danek, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street, Bldg. C Tallahassee, FL 32399-1560

Florida Laws (3) 120.56120.57121.091
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RUFUS ROYAL vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 11-005492 (2011)
Division of Administrative Hearings, Florida Filed:Miami, Florida Oct. 27, 2011 Number: 11-005492 Latest Update: Jun. 10, 2013

The Issue Whether the Division properly denied Petitioner's request to change Petitioner's retirement in the Florida Retirement System from an early retirement service benefit to disability retirement.

Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System ("FRS"). Royal worked for the Florida Department of Transportation ("DOT") over 28 years. As a prior employee of DOT, Royal is a member of the FRS. Royal was injured on his job on July 16, 2002. After being informed by the Social Security Administration that he was disabled, Royal started applying for line-of-duty disability retirement with the FRS. Since Royal's injury, Royal has gotten his neighbor, Levern Speights, to prepare his retirement applications and write letters to the Division on his behalf. Royal signs every submission. Royal first applied for disability retirement on December 19, 2003. About three months later, Royal applied for early service retirement benefits on or about March 9, 2004. Directly above Royal's signature, the application stated: I understand 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 additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. While the two applications were pending, Royal contacted the Division to check on the status of his disability retirement application. During the call, Royal found out that he could obtain retirement monies immediately if he wrote a letter requesting early retirement. On or about April 12, 2004, Royal submitted a letter to the Division that stated he "wish[ed] to apply for early service retirement." Upon receipt of the April 12, 2004, letter, the Division switched Royal's application from a disability application to early retirement application and Royal went on the Florida Retirement System payroll effective March 1, 2004. Royal has been receiving early service retirement checks and cashing or depositing them since March 2004. However, Royal still believes he is entitled to disability retirement benefits since he is disabled. Throughout the years, Royal has continuously contacted the Division periodically in an effort to still try and get disability retirement benefits. In January, April, and May 2006, the Division received three letters from Royal questioning his receipt of early service retirement benefits and requesting to apply for in-line- of-duty disability retirement benefits. On May 16, 2006, Royal applied for disability benefits again. On June 3, 2006, the Division responded to Royal's request by letter stating: The Division of Retirement has received your letter requesting that you receive disability benefits. Our records indicated you are receiving a service retirement benefit. According to Chapter 60S-4.002(4), Florida Administrative Code, you cannot change your option selection, purchase additional service, or change your type of retirement after you have cashed or deposited any benefit payment. Therefore the Division is unable to honor your request.[2] On December 24, 2008, Royal wrote the Division and requested that his "retirement be changed to disability retirement to reflect my current condition."3 On January 21, 2009, the Division informed Royal again by letter that "Florida law does not have provisions that allow the Division of Retirement to change a member's retirement type from service retirement to disability retirement. Therefore, your service retirement benefit is final and cannot be changed to disability retirement." Royal contacted the Division on several more occasions trying to get disability benefits. On or about June 25, 2011, Royal requested a hearing regarding the issue.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying Petitioner's request to change his early service retirement benefit to disability retirement. DONE AND ENTERED this 22nd day of December 2011, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 22nd day of December, 2011.

Florida Laws (4) 120.569120.57121.021121.091
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ROSALIE KERR, O/B/O ROBERT KERR, DECEASED vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 05-004716 (2005)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Dec. 30, 2005 Number: 05-004716 Latest Update: Oct. 10, 2006

The Issue The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.

Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. 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, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was as follows: 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. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 July, 2006.

Florida Laws (4) 120.569120.57121.021121.091
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PATRICIA D. KOCH vs. DIVISION OF RETIREMENT, 89-003201 (1989)
Division of Administrative Hearings, Florida Number: 89-003201 Latest Update: Mar. 09, 1990

The Issue The issue in this cause concerns whether the death of the Petitioner's husband arose out of and in the actual performance of duty required by his employment with the Florida Department of Transportation during regularly- scheduled working hours or irregular working hours, as required by his employer, thereby entitling him to "in-line-of-duty" death benefits, as allowed for in subsection 121.091(7)(c)(1), Florida statutes.

Findings Of Fact After having considered the recommended Findings of Fact Nos. 1 through 13 on pages 4 through 9 of the Recommended Order attached hereto as EXHIBIT "A", together with all matters of record reduced to writing, or in tangible form, as of March 9, 1990, the Division of Retirement hereby accepts, adopts, and incorporates by reference herein the recommended Findings of Fact Nos. 1 through 13 on pages 4 through 9 of the Recommended Order as a part of this Final Order, and, therefore, it is, ORDERED AND DIRECTED that the recommended Findings of Fact Nos. 1 through 13 on pages 4 through 9 of the said Hearing Officer's Recommended Order be and the same are hereby adopted in toto as part of this Final Order of the agency in this cause. RULINGS ON RECOMMENDED CONCLUSIONS OF LAW After having considered the recommended Conclusions of Law on pages 9 through 14 of the Recommended Order attached hereto, the Division of Retirement hereby rejects those Conclusions of Law on the whole in that they attempt to equate Workers' Compensation rules with "in-line-of-duty" disability and death provisions under Chapter 121, Florida Statutes. The law is otherwise as set out in the following Conclusions of Law that are hereby adopted in lieu of the Hearings Officer's recommendations. The following constitute the Conclusions of Law of this Final Order.

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Respondent agency awarding the Petitioner, Patricia D. Koch, the in-line-of-duty death benefits provided for by subsection 121.091(7)(c)(1), Florida Statutes. DONE AND ENTERED this 9th day of March, 1990, 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) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3201 Petitioner's Proposed Findings of Fact 1-14. Accepted. Rejected, as constituting a conclusion of law. Accepted. Accepted. Rejected, as to the first sentence, since it is a conclusion of law; the second sentence being accepted. Accepted. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but not materially dispositive. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as being a conclusion of law and not a proposed finding of fact, and as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Aletta L. 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 Ronald W. Brooks, Esq. Brooks and LeBoeuf, P.A. 863 East Park Avenue Tallahassee, FL 32301 Burton Michaels, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560 =================================================================

Florida Laws (5) 120.57120.68121.021121.091440.09
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ALREE PORTEE vs DIVISION OF RETIREMENT, 91-002306 (1991)
Division of Administrative Hearings, Florida Filed:Miami, Florida Apr. 16, 1991 Number: 91-002306 Latest Update: Sep. 14, 1992

The Issue The issue for determination in this proceeding is whether Petitioner is entitled to receive benefits under the retirement plan of his deceased mother, Violet Portee, pursuant to the Florida Retirement System, Chapter 121, Florida Statutes. 1/

Findings Of Fact Violet Portee was employed by Jackson Memorial Hospital ("Jackson") in Dade County, Florida, as a ward clerk from 1970 through October 3, 1990. Mrs. Portee retired from her employment at Jackson effective December 1, 1990. 4/ Mrs. Portee was a member of the Florida Retirement System. Petitioner is the son of Mrs. Portee and Mrs. Portee's closest surviving relative. Mrs. Portee was diagnosed with terminal, gastric cancer sometime in August, 1990. Petitioner first learned of his mother's condition from the attending physician when Petitioner visited his mother in the hospital. Mrs. Portee was admitted to the hospital for approximately one week on three separate occasions between August, 1990, and December, 1990. She began taking medications for pain in November, 1990. Her pain medication included Percodan, Tylenol 3 with codeine, Demerol, and morphine. Mrs. Portee went on sick and annual leave, and eventually went on leave without pay. Mrs. Portee executed a power of attorney in favor of her son on October 25, 1990. On November 14, 1990, Mrs. Portee met for approximately an hour and a half with Luis Gonzalez, a compensation specialist in the Jackson Human Resources Division. One of Mr. Gonzalez's primary functions is counseling employees on retirement matters. Mrs. Portee completed a request for estimate of her retirement benefits ("FRS Form FR-9") and her application for retirement ("FRS Form FR-11"). A retiree may select one of four options for retirement benefits on the FRS Form FR-11. Mrs. Portee selected Option 1 on her Application For Service Retirement, Form FR-11. Option 1, Member Benefit Only, provides maximum monthly benefits for the retiree during his or her lifetime but provides no benefit for survivors of the retiree. Option 2, Ten Years Certain, provides benefits to the retiree during the retiree's lifetime and, in the event of the retiree's death within 10 years of the date of retirement, the same monthly amount is paid to the retiree's beneficiary for the balance of the 10 year period. The monthly benefit to the retiree under Option 2 is paid at an actuarial rate that is less than that paid under Option 1. Options 3 and 4 provide benefits to joint annuitants. 5/ Sometime before November 28 or 29, 1990, Petitioner and Mr. Gonzalez discussed the retirement status of Mrs. Portee. Petitioner asked Mr. Gonzalez for instructions on how to change the option selected by Mrs. Portee on her Application For Service Retirement, Form FR-11, from Option 1 to Option 2. Mr. Gonzalez explained that Mrs. Portee's selection of options could be changed in one of two ways. First, Mrs. Portee could come into Mr. Gonzalez's office, execute a new Form FR-11, and select Option 2. Second, Mrs. Portee could return the first retirement benefit warrant uncashed to the Division of Retirement and write on the warrant that she wished to change the benefits option from Option 1 to Option 2. Mrs. Portee was too ill to return to Mr. Gonzalez's office to execute a new retirement option. Petitioner decided to wait and return the first benefit warrant uncashed and request a change in the options selected. The first benefit warrant was dated December 31, 1990, Warrant No. 0580615. Mrs. Portee died on December 6, 1990, before receiving the first benefit warrant. The first benefit warrant was neither cashed nor returned to the Division of Retirement with written instructions to change the selection of benefit from Option 1 to Option 2. During his conversations with Mr. Gonzalez, Petitioner disclosed neither the seriousness of Mrs. Portee's medical condition nor that Petitioner had power of attorney for Mrs. Portee. If Mr. Gonzalez had known either fact, he would have proceeded more expeditiously to change Mrs. Portee's selection of Option 1 to Option 2. Petitioner and Mr. Gonzalez next spoke on December 8, 1990. Petitioner had telephoned Mr. Gonzalez on December 6, 1990, but Mr. Gonzalez was not in. When Mr. Gonzalez returned Petitioner's telephone call on December 8, 1990, Petitioner informed Mr. Gonzalez that Mrs. Portee had died two days earlier. A meeting between the two men was set for December 18, 1990. At the meeting on December 18, 1990, Petitioner inquired about changing his mother's retirement benefits from Option 1 to Option 2. Mr. Gonzalez telephoned the Division of Retirement in Tallahassee, Florida, and was advised that Mrs. Portee's retirement benefits option selection could not be changed after her death. A final meeting was conducted on December 24, 1990, between Petitioner, Mr. Gonzalez, and Mr. Brian Derer, a benefits specialist with Jackson. Petitioner had come into the office to complete certain documents concerning Mrs. Portee's life insurance. During this meeting, Petitioner informed Mr. Gonzalez and Mr. Derer for the first time that Petitioner had power of attorney from Mrs. Portee. Mr. Gonzalez informed Petitioner that there was nothing he could do to change Mrs. Portee's option selection after her death. Mr. Gonzalez explained that he was an employee of Jackson and that neither he nor Jackson was an agency of the Division of Retirement or the Florida Retirement System. Petitioner contacted the Division of Retirement on January 14, 1991, for assistance. Petitioner was advised by Stanley Colvin to write to the Division of Retirement. In response to Petitioner's written request, the Division of Retirement advised Petitioner that the only benefit to be paid was a return of contributions to the retirement plan.

Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent should enter a final order awarding Petitioner those benefits that are most favorable to Petitioner pursuant to Sections 121.091(6), (7)(b), and (8), Florida Statutes. DONE and ENTERED this 22nd day of July, 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 22nd day of July, 1991.

Florida Laws (4) 120.57120.68121.011121.091
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GORDON B. WILLIAMS vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 08-003326 (2008)
Division of Administrative Hearings, Florida Filed:Tavares, Florida Jul. 10, 2008 Number: 08-003326 Latest Update: Apr. 26, 2010

The Issue The issue presented in this case is whether Petitioner is entitled to change his retirement to in-line-of-duty disability benefits pursuant to Florida Administrative Code Rule 60S- 4.002(4).

Findings Of Fact The Department's Division of Retirement is charged with managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department. The FRS is a public retirement system as defined by Florida law. On or about January 3, 1983, Gordon B. Williams began his employment as a Vocational Instructor III for the Florida Department of Corrections. By reason of his employment, Mr. Williams became a member of FRS. Over the course of his career, Mr. Williams suffered a number of on-the-job accidents which resulted in various bodily injuries. On or about February 4, 1998, a Form FR-13a, signed by Sherry Rogers, Personnel Technician I, at Lake Correctional Institution was completed on behalf of Mr. Williams. The form indicated "regular" disability. By letter dated August 27, 1998, Mr. Williams tendered his resignation from his employment. His employment with the State of Florida terminated effective on or about September 23, 1998. Mr. Williams resigned because he was unable to continue performing his duties in light of his physical disabilities. Mr. Williams earned approximately 15.75 years of service credit in the FRS. Mr. Williams called the Division of Retirement to discuss his retirement twice: on or about October 22, 1998, and November 4, 1998. On or about December 14, 1999, Mr. Williams completed and filed with the Division an application for FRS early service retirement. His effective retirement date was November 1, 1998. However, the application received by the Department was not signed. On the unsigned form, immediately above where Petitioner should have signed the application, was the following statement: I understand 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 additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. (Bold in original.) On January 8, 1999, the Division of Retirement notified Petitioner that his application was not signed in the presence of a notary public, and provided another application for him to complete and have properly notarized. This letter also indicated, in all-cap, bold-face type, "Once you retire, you cannot add additional service or change options. Retirement becomes final when any benefit payment is cashed or deposited!" On January 29, 1999, a second Application for Service Retirement was filed with the Division of Retirement, signed by Mr. Williams and notarized on January 18, 1999. This application bore the same statement regarding the applicant's understanding of the inability to change retirement options or type as that quoted in Finding of Fact 9. A third application was submitted in approximately February 1999, to correct a problem related to the notarization of Petitioner's signature. This third application also contained the same statement identified in Finding of Fact 9. On or about March 24, 1999, Mr. Williams completed and filed with the Department a Health Insurance Subsidy Certificate and a withholding certificate for pension payments. Petitioner began receiving benefit payments in March 1999 and these payments were direct deposited to Petitioner's bank account. Petitioner did not apply for disability retirement prior to applying for service retirement. On or about December 28, 2007, a new Form FR-13a, signed by Luz Veintidos, Personnel Specialist, at the Department of Corrections Region III Personnel Office, was completed on behalf of Mr. Williams. This new Form FR-13a indicated "in-line- of-duty" disability. Attached to the new Form FR-13a was the original Form FR-13a completed in February 1998. On or about January 22, 2008, Mr. Williams completed and filed with the Department an application for in-line-of-duty disability retirement, along with a letter requesting that his type of retirement be changed from service retirement to disability retirement. Respondent's records do not indicate and no competent testimony indicates that Respondent received any documents related to Petitioner's claim for disability retirement prior to January 2008. While Petitioner inquired about disability retirement, no application was filed requesting it until 2008. By letter dated February 8, 2008, the Division of Retirement advised Mr. Williams that a retired member could not change his type of retirement after a benefit payment has been cashed or deposited and therefore the Division of Retirement could not honor his request. By letter dated February 25, 2008, Mr. Williams contended that he was "following Division of Retirement instructions when he applied for early service retirement instead of disability retirement" and that his October 1998 telephone conversation with the Division "was, in effect, a denial of application for benefits." He could not, however, identify who he talked to at the Division of Retirement that instructed him regarding his choice to file for early retirement. Nor did he indicate that at any time he understood that an application for retirement could be processed by an individual agency as opposed to the Division of Retirement, or processed by telephone without a written application. By letter dated April 11, 2008, the Division advised Mr. Williams of its final decision to deny his request to change his type of retirement from service retirement to disability retirement.

Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request to change his retirement status to in-line-of-duty disability retirement. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 October, 2008. COPIES FURNISHED: Gordon B. Williams 19607 North Highway 27 Clermont, Florida 34715 Geoffrey Christian, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950

Florida Laws (2) 120.569120.57 Florida Administrative Code (3) 60S-4.00260S-4.00760S-4.012
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