The Issue Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account of her late husband for the period September 1999 through February 28, 2003.
Findings Of Fact Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of Commissioners and had approximately 25 years of creditable FRS service at the time of his death. Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made. Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner. According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death. After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567. However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband. Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death. On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows: We are sorry to learn of the death of Robert Roberts on August 20, 1999. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received. If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207. At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter. In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not. Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court. The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed. On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows: This is in reference to the retirement account of Robert R. Roberts. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate. If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999. To receive the Option 3 benefit, the following documents are needed: Copy of member’s death certificate. Proof of member’s date of birth. Proof of your date of birth. Completed application, Form FST-11B. Copy of your marriage certificate. The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter. No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division. The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits: If you will furnish this information within 30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999. Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information. Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts. Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation. Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records. Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003. Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given. Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing. The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected. A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate. On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document. Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits. On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts. On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following: As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $561.35 effective March 1, 2003. To receive the Option 3 benefit, we need the following: Completed application, Form FST-11b. (Emphasis supplied) A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003. Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin, Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date. Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred. Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999. DONE AND ENTERED this 27th day of April, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 27th day of April, 2004. COPIES FURNISHED: James C. Campbell, Esquire James C. Campbell, P.A. 4 Eleventh Avenue, Suite 2 Shalimar, Florida 32579 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 Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner, a surviving beneficiary, is entitled to change the Florida Retirement System retirement benefits 1 All references to chapter 120 are to the 2019 version. payment option selected by her now-deceased spouse, a member of the Florida Retirement System.
Findings Of Fact Respondent, Department of Management Services, Division of Retirement, is the state agency charged under chapter 121, Florida Statutes (2002),2 with administering the Florida Retirement System ("FRS"). Petitioner is the spouse of James L. Williams, now deceased, who was employed by the School District of Palm Beach ("District) for 38 years, and was a member of the FRS. Williams retired from his employment with the District on August 23, 2002. At that time, he executed the Florida Retirement System Application for Service Retirement Form, Form FR-11. On Form FR-11, he designated Petitioner as his primary beneficiary and Jones as his contingent beneficiary. Williams signed this form, and his signature was notarized. Also on August 23, 2002, Williams executed the Florida Retirement System Option Selection for FRS Members Form, Form FRS-11o. On that form, he selected FRS retirement benefits payment Option 2, and designated that choice by writing an "X" on the line next to Option 2. Option 2 was described on Form FRS-11o as: A reduced monthly payment 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. 2 All references to chapter 121 are to the 2002 version of the Florida Statutes, which was in effect at the time that the retirement benefits application and option selection forms that have given rise to this proceeding were executed. Form FRS-11o contained a section, immediately below the description of Option 2, that was required to be completed by the spouse of a married FRS member who had selected Option 1 or Option 2. On August 23, 2002, Petitioner completed, signed, and dated that section, confirming that she was the legal spouse of Williams and acknowledging that she was informed that Williams had selected either Option 1 or Option 2. The purpose of that section on Form FRS-11o is to inform the spouse of the FRS member that, by the member's selection of either Option 1 or Option 2, the surviving spouse is not entitled to receive a continuing benefit for the rest of his or her life. The last sentence on Form FRS-11o, immediately above the space for the FRS member's signature, states in pertinent part: "[m]y retirement becomes final when any payment is cashed . . . [or] deposited." DeVonnia Jones was present with Williams at the time he was given Form FR-11 and Form FRS-11o to execute. Jones testified that when Williams arrived at the District office on August 23, 2002, Form FR-11 and Form FRS-11o already had been filled out by District staff, and were presented to him by his supervisor, who informed him that he needed to retire or he would be terminated. According to Jones, Williams did not wish to retire at that time. Jones asked District staff how much more Williams' monthly benefits would be if he did not retire for another year or two, and was told that Williams' benefits would be between $25 and $30 more per month. According to Jones, "my dad basically shed a couple tears. He was not comfortable, but he went ahead and signed it because I told him to, because they made it seem like he wasn't going to be eligible to get what he was supposed to get." Williams signed and dated Form FRS-11o on August 23, 2002, and his signature was notarized. On August 28, 2002, Respondent sent Williams a document titled "Acknowledgement of Service Retirement Application." This document stated, among other things, that Williams had selected FRS Option 2, and that his retirement was effective September 2002. At the bottom of this document was a standalone paragraph, in bold face type, that read: "ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED!" Also on August 28, 2002, Respondent sent Williams a document titled "Florida Division of Retirement Estimate of Retirement Benefit (Estimate only, subject to final verification of all factors)." This document provided information regarding the amount of the monthly benefits Williams would receive for the four options offered under the FRS. A statement in bold face type at the bottom of the document read: "Comments: You have chosen Option 2. Your option selection cannot be changed after you cash or deposit any benefit payment." Had Williams wished to change his retirement benefits payment option, he could have done so up to the time he cashed or deposited a retirement benefits payment. Williams began receiving his monthly FRS retirement benefits payments from Respondent on October 4, 2002. He cashed or deposited the first FRS benefits warrant (Warrant #0618275) that he received. Thereafter, Williams received monthly FRS retirement benefits payments until his death on April 26, 2010. Williams received a total of 92 monthly benefits payments before his death. All of the FRS retirement benefits payment warrants issued to Williams were deposited or cashed. On May 17, 2010, Respondent contacted Petitioner to inform her that she needed to complete a Florida Retirement System Pension Plan Application for Beneficiary of Monthly Retirement Benefits Form, Form FST- 11b, in order for her to receive monthly FRS retirement benefits payments as Williams' beneficiary. In the contact letter, Respondent informed Petitioner that "you will receive the same gross monthly benefits to which the member was entitled through August 31, 2012." Petitioner completed Form FST-11b on June 25, 2010, and began receiving FRS monthly benefits payments on June 30, 2010. Petitioner received a total of 28 FRS retirement monthly benefits payments. The last warrant issued to Petitioner (Warrant #0375196) was issued on August 31, 2012. All of the warrants issued to Petitioner were cashed or deposited. In sum, Williams and Petitioner collectively received a total of 120 FRS retirement monthly benefits payments, pursuant to Option 2. All of the warrants issued to Williams, and then to Petitioner, as his beneficiary, were deposited or cashed. Petitioner testified that beginning in 2003, she made numerous attempts, over a period of years, to contact the District and Respondent regarding changing the FRS retirement benefits payment option that Williams had selected on August 23, 2002. During this time, Williams and Petitioner continued to cash or deposit the benefits payment warrants they received from Respondent. In this proceeding, Petitioner does not claim that Williams accidentally selected Option 2, or that he intended to select another option, when he signed Form FRS-11o on August 23, 2002. Rather, she asserts that at the time Williams retired, he suffered from confusion and memory loss such that he did not understand the option he chose—effectively, that he lacked the mental capacity to have chosen Option 2 as his retirement benefits payment option. Alternatively, Petitioner contends that because Williams was forced to retire under threat of termination from his employment, he was under duress when he chose Option 2 on Form FRS-11o. On these grounds, Petitioner asserts that she should be permitted to change Williams' choice of retirement benefits payment option.3 3 Here, Petitioner, has requested that she be allowed to "change" Williams' choice of Option 2 on the FRS retirement option selection forms. She did not identify, or present evidence, Petitioner's impassioned testimony at the final hearing shows that she fervently believes her husband was wrongly treated by the District when it required him to retire in 2002, against his desire to continue to work.4 However, as was explained to Petitioner at the final hearing, the purpose of this proceeding was not to determine whether the District wrongly forced Williams out of his employment; rather, it is to determine whether there is any factual or legal basis for changing the retirement benefits option that Williams selected when he executed Form FRS-11o nearly 18 years ago. The evidence does not support Petitioner's argument that Williams lacked the mental capacity to adequately understand the option that he chose on Form FRS-11o. Although Petitioner testified that Williams had been treated by a neurologist, no direct medical evidence was presented establishing that Williams was mentally incapacitated at the time he executed Form FRS-11o. Additionally, at the time Williams signed the form, he was accompanied by his daughter, who, after speaking to District staff regarding his options, advised him to sign the form. Petitioner herself also was present at the District office and signed Form FRS-11o, expressly acknowledging that she understood Williams had chosen Option 2. Thus, to the extent that Williams may not, on his own, have fully appreciated his choice of options on Form FRS-11o—and there is no competent direct evidence showing that to be the case—both his daughter and wife were present with him when he executed Form FRS-11o, his daughter told him to sign the form, and his wife expressly acknowledged that she understood his choice of Option 2. These circumstances do not support a finding that Williams lacked the mental capacity to understand, or did not adequately regarding which specific option she would choose, if permitted to change Williams' selected FRS benefits option. 4 The evidence indicates that the District required Williams to retire because he began having difficulty with his job as a mail carrier. According to Petitioner, Williams had an accident in a District vehicle and did not report the accident to the District, and that when he was transferred to the mail room, he had difficulty remembering to do certain required tasks. understand, the consequence of choosing Option 2 when he executed Form FRS-11o. The evidence also does not support a finding that Williams' choice of Option 2 should be changed, due to duress. There is no direct evidence establishing that Williams was under duress when he chose Option 2. Although Jones testified, credibly, that her father was upset about being forced to retire when he wanted to continue working, her testimony that he was under duress was based on her subjective conclusion. Furthermore, even if Williams was emotionally distressed when he signed the FRS benefits options forms, there is no evidence showing that as result of such distress, he chose Option 2 instead of a different option. It also is noted that Form FR-11 and Form FRS-11o both expressly informed Williams that once his retirement became final—which would occur when any benefit payment was cashed or deposited—his retirement benefits option selection would become final and could not be changed. Further, Williams received two more pieces of correspondence from Respondent—both containing statements in bold face type—expressly informing him that once any FRS retirement benefits payments were cashed or deposited, his retirement benefits option choice could not be changed. As noted above, Williams could have changed his FRS benefits option at any time before he cashed or deposited a benefits payment; however, he did not do so. Thus, pursuant to the express terms of Form FR-11 and Form FRS-11o, when Williams cashed or deposited the first benefits payment, his selection of Option 2 became final and could not be changed. In sum, the evidence does not establish any factual basis for permitting Petitioner to change Williams' selection of Option 2 as his FRS retirement benefits payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner's request to change the FRS retirement benefits payment option selected by her husband, an FRS member, when he retired. DONE AND ENTERED this 4th day of March, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 4th day of March, 2020. COPIES FURNISHED: Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Deloris Williams 1219 West Ninth Street Riviera Beach, Florida 33404 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Mangement Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Mangement Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue in this case is whether Petitioner’s husband’s selection of Option 1 for his pension plan benefits could be changed.
Findings Of Fact Mrs. Renaud, who is deaf, was married to Mr. Renaud for approximately 40 years. Mr. Renaud was employed by the State of Florida as a correctional officer at all times relevant hereto. He entered the State retirement program (in the pension plan) in November 1994. Mr. Renaud was in the “special risk” category of retirement class based on his position as a correctional officer. On October 24, 2013, Mr. Renaud signed and submitted a “Florida Retirement System Pension Plan Application for Service Retirement” form to the Department, indicating his intent to retire. The application was signed and notarized; it designated Mrs. Renaud as the sole beneficiary of his retirement benefits. On the same day, Mr. Renaud signed an “Option Selection” form, wherein he designated which of four payment options he wanted to utilize for payment of his retirement income. He selected Option 1, which states: A monthly benefit payable for my lifetime. Upon my death the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. The form also contains the following statement: “I understand that I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options or change my type of retirement . . . once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins.” The option selection form was signed by Mr. Renaud and notarized by a certified notary public. Inasmuch as Mr. Renaud selected Option 1, it was necessary that he and his designated beneficiary (Mrs. Renaud) also fill out form SA-1, the “Spousal Acknowledgement” form. On the acknowledgement form, Mr. Renaud indicated that he was married. Mrs. Renaud then signed the “spousal acknowledgement” portion of the form. The acknowledgement statement included this statement: “I, Vivian Renaud, being the spouse of the above named member [Mr. Renaud], acknowledge that the member has selected either Option 1 or 2.” Option 2 provides for continued benefits during the retiring person’s lifetime. However, benefits to the person’s spouse will continue for only a 10-year period. If the retiring person dies within the first 10 years of retirement, the spouse would only receive benefits for the balance of the 10-year period starting at the retirement date. The benefits under Option 2 are, therefore, limited in nature. The state retirement system requires a person selecting Option 1 or Option 2 to have their spouse acknowledge that selection choice because those benefits have finite ending dates, whereas retirement benefits under the other options continue as long as either the retiree or his/her beneficiary is living. By letter dated October 30, 2013, the Department acknowledged receipt of Mr. Renaud’s retirement application. The letter referenced the date the application was received (October 24, 2013) and the option Mr. Renaud had selected (Option 1). The letter was mailed to Mr. Renaud’s address of record, the same address he listed in his retirement application. The letter was sent to Mr. Renaud some 30 days before the first retirement benefit check was deposited in his account. Mrs. Renaud does not remember seeing the letter, but inasmuch as it was addressed to Mr. Renaud, her recollection of its receipt is not relevant. After Mr. Renaud’s death, his family found numerous un-opened letters in his car; the acknowledgement letter from the Department could well have been in that group. Mr. Renaud retired on November 1, 2013. His first payment of retirement benefits was transferred to his bank by way of electronic fund transfer, commonly referred to as direct deposit, on November 27, 2013. The gross amount of his monthly retirement benefit was $1,987.85; the net amount was $1,937.75 after $30.09 had been deducted for taxes. At that time, Mr. Renaud had not signed form W4P, the form which showed how many dependents the retiree was claiming for tax purposes. After later filling out that form (in which he indicated he would prefer to file as “single” for tax purposes), his monthly net benefit was reduced to about $1,735. Mr. Renaud received a direct deposit of retirement benefits on December 31, 2013; on January 31, 2014; and again on February 28, 2014. Mr. Renaud passed away on March 26, 2014, only five months after commencing his retirement. In accordance with the provisions of Option 1, Mr. Renaud’s retirement benefits ceased at that time. His beneficiary was entitled to payment for the entire month that he expired, but was not to be provided any further retirement benefits. Thus, a final payment was deposited in Mr. Renaud’s account on March 31, 2014. Mrs. Renaud was provided notice of the cessation of retirement benefits due to Mr. Renaud’s death. She timely filed a protest, seeking to have the payment of benefits reinstated. The Department denied her request, resulting in the instant matter. It is clear from the evidence that Mr. Renaud selected Option 1, Mrs. Renaud acknowledged that Mr. Renaud had selected either Option 1 or Option 2, and that retirement benefits were directly deposited to Mr. Renaud’s bank account for several months. Mr. and Mrs. Renaud’s signatures were duly notarized and have a presumption of legitimacy. Mrs. Renaud disagrees as to whether Mr. Renaud’s selection of Option 1 was legitimate, legal, or proper under the circumstances as she views them. First, Mrs. Renaud contends that Mr. Renaud was not mentally well at the time he signed the option selection form. The basis for her contention is that Mr. Renaud had experienced some seizure-related behavior during the year prior to signing the form. He had driven his car north on US Highway 301 one day in July 2012, “heading to work,” but ended up in Georgia without remembering why or how he got there. He later apparently lost his driver’s license because of the seizures (although the testimony on that issue was not clear).1/ Mr. Renaud worked for approximately 15 more months after his inexplicable drive to Georgia. Mrs. Renaud also argued that Mr. Renaud’s signatures on the three different forms he signed on October 24, 2013, were not similar to each other, indicating in her mind that he was having some sort of medical or psychological difficulty at that time. Inasmuch as there could have been any number of reasons the signatures were different (whether he was in a hurry, what base existed under the paperwork, etc.), there is insufficient evidence to determine why the signatures did not match. Mrs. Renaud’s testimony regarding the signatures is not persuasive. Ed Renaud said Mr. Renaud had been forced to retire due to his medical condition, i.e., that he had lost his driver’s license due to having seizures and the Department of Corrections would not let him work if he could not drive. However, Ed Renaud also said Mr. Renaud was able to continue working even when he was “forced” to retire. Again, the testimony on these facts was not clear. Mrs. Renaud said she should have been provided an interpreter on the day she signed the acknowledgement form. She did not state whether she requested an interpreter or whether the agency employee who provided her the form was aware of her disability.2/ Again, no one from Mr. Renaud’s employer, the Department of Corrections, testified at final hearing as to what happened on the day the forms were signed. Mrs. Renaud stated that she could read and write English, so she knew what she was signing.3/ She did claim to be confused as to whether her husband had selected Option 1 or Option 2, but candidly admitted that Mr. Renaud never told her one way or the other which option he had chosen. He only told her that he would “continue to provide for her in the future.” She believed the amount which was to be deposited in their account each month under Option 2 would be approximately $1900. The first check was in that approximate amount (due to the fact that Mr. Renaud had not established the amount of taxes to be deducted from his check at that time). The next five checks were in a lesser amount, approximately $1700. There is no evidence that Mrs. Renaud questioned the amount of the later checks. However, once the first check had been deposited in Mr. Renaud’s bank account, he would not have been allowed to change his option anyway. Lastly, Mrs. Renaud said her husband’s medical and mental condition was not conducive to making the option selection in October 2013. However, there was no competent evidence to support her claim. There was no direct testimony as to Mr. Renaud’s condition on the day he signed, nor as to whether he was or was not capable of understanding what he was signing. The only statement about his condition that day was that he wanted to park the car far enough away from the building that his co-workers could not see that Mrs. Renaud had driven the car. Ed Renaud also pointed out the issue of Mr. Renaud’s three signatures that day looking different from each other, but his lay opinion is not evidence upon which a finding of fact can be made as to Mr. Renaud’s mental condition. On October 24, 2013, Mr. Renaud had not been adjudged mentally incapacitated and no guardian had been appointed. Ed Renaud said that Mr. Renaud still believed he could perform his work assignments at that time and did not want to retire. But, other than his wife, no one provided any evidence that Mr. Renaud did not understand what he was signing. Mrs. Renaud, however, could not say which option he had selected because he never told her. Her subsequent presumption that Mr. Renaud did not intend to choose Option 1 is not persuasive. It should be noted that selection of Option 1 by Mr. Renaud set his average pre-tax monthly benefit at around $1,900.00; had he chosen Option 2, the benefit would have been around $1,700. Thus, there was incentive to “roll the dice” and select Option 1, hoping that he would survive long enough to provide for his wife. In this case, sadly, that gamble did not pay off. The facts of this case are sad in that Mr. Renaud had every intention of providing for his wife financially as long as she lived. However, he either made a mistake when he selected his payment option or he attempted to tempt fate and hope for the best. In either case, once he made his selection and began receiving benefits, the die was cast. Based upon the facts as presented, there is no basis for overturning the Department’s denial of Mrs. Renaud’s requested amendment of the payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's request for entitlement to her husband’s retirement benefits following his untimely death. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2015.
The Issue The issue is whether the correct retirement date was established for Petitioner.
Findings Of Fact Ms. Scurlock was employed as a secretary by the Public Defender of the 14th Judicial Circuit for 12 to 13 years, in Panama City, Florida. As such, and after becoming vested in the Florida Retirement System (FRS), she accrued certain rights under the FRS. The Division has over 900 employees and administers benefits for more than 700,000 members. The Division is charged with administering the FRS. Ms. Scurlock's performance while employed by the Public Defender deteriorated in 2004. As a result, she was discharged on October 27, 2004. She had been diagnosed as having multiple sclerosis prior to her discharge. She is currently medically unable to engage in gainful employment. Ms. Scurlock does not recall if the Public Defender provided her with information concerning retirement at the time of her discharge. Nevertheless, she was aware of the availability of disability retirement, and during February 2005 she completed Form FR-13, Application for Disability Retirement. She stated in the application that her disability was the result of multiple sclerosis, among other maladies. Ms. Scurlock was assisted in seeking disability retirement by her sister. Ms. Scurlock signed the FR-13 application, and it was sworn before a notary public on February 18, 2005. Ms. Scurlock believes her sister mailed the form. The FR-13 may have been addressed to the Florida Department of Health, but in any event, it was not received by the Division in 2005. Assisted by her sister, Ms. Scurlock telephonically contacted the Division on April 11, 2006, to inquire about her application for disability retirement. At that time, she avowed that the FR-13 had been sent in January 2005 to the Department of Health. Upon being advised that she needed to submit a new form in order to obtain benefits, she did so. An FR-13 was received by the Division on May 24, 2006. Attached to the application was a copy of the application sworn before the notary public on February 18, 2005. The Division found the FR-13 submitted on May 24, 2006, to be complete and sufficient to establish that Ms. Scurlock should be paid disability retirement benefits beginning June 1, 2006. Although Ms. Scurlock may have suffered some cognitive impairment as a result of being afflicted with multiple sclerosis, she was aided by her sister, who apparently has no cognitive impairment, when she first attempted to file in early 2005. Moreover, Ms. Scurlock adequately presented her case at the hearing, and to the extent that cognitive impairment might influence the outcome of this case, it is found that she is not so impaired that she could not timely file an application for disability retirement. For the reasons set forth below, whether she was physically or mentally able to file a FR-13, or whether the state or one of its agents failed to inform her of her rights, has no bearing on the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order affirming the establishment of June 1, 2006, as the beginning date of entitlement to disability retirement pay in the case of Marilyn Scurlock. DONE AND ENTERED this 18th day of December, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 COPIES FURNISHED: Marilyn Scurlock 3936 Scurlock Lane Panama City, Florida 32409 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2007. Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact The Petitioner is the surviving spouse of Huldah C. Roach. At the time of her death, Mrs. Roach was a retired member of the Florida Retirement System, and was receiving retirement benefits pursuant to Chapter 121, Florida Statutes. The Respondent, Division of Retirement, sent Mrs. Roach her retirement benefits for the month of June, 1977, at the end of that month. The warrant for the retirement benefit was received by the Petitioner on or about June 30, 1977, and was deposited by him in the joint account which he had shared with Mrs. Roach. On June 8, 1977, Mrs. Roach died. By letter dated July 4, 1977, the Petitioner advised the Respondent of his wife's death. He also advised the Respondent that he was holding the benefit warrant, but in a telephone conversation on August 22, 1977, he advised the Respondent that the warrant had been deposited in the joint account. By letter dated August 24, 1977, the Respondent advised the Petitioner that Mrs. Roach was entitled to retirement benefits only up to the date of her death, and that $330.81 of the June payment thus represented an overpayment. The letter included a demand for repayment of the asserted overpayment. The Respondent made no effort to collect the asserted overpayment between August 24, 1977, and December 5, 1979, when the Respondent, through counsel, forwarded a demand letter to the Petitioner. The petitioner was not able to identify what expenses he paid from the June, 1977, retirement benefit. Mrs. Roach received retirement benefits in excess of her total contributions to the Florida Retirement System, and under the retirement option that she selected, she was entitled to no additional benefits after the day of her death. The Respondent has consistently interpreted provisions of the Florida Retirement Law as allowing payment of retirement benefits only through the date of a retiree's death.
The Issue The issue is whether a retiree's forfeiture of Florida Retirement System (FRS) benefits authorizes Respondent to seize from unrelated remittals due Petitioner the sum of $18,271.75, which is the amount that Respondent had previously deducted from the retiree's pension benefits and remitted to Petitioner for the payment of the retiree's insurance premiums.
Findings Of Fact Employed by Petitioner in April 1974, Garfield Perry participated in the FRS pension plan. On or about October 31, 2009, Mr. Perry terminated his employment and began receiving his monthly FRS pension benefit. Two months earlier, Mr. Perry had entered into an agreement with Petitioner for it to provide post-retirement life insurance for Mr. Perry and medical and dental insurance for Mr. Perry and his wife with all three policies commencing in November 2009. While these policies were in effect, pursuant to an agreement between Petitioner and Respondent that is described below, Respondent remitted to Petitioner a portion of Mr. Perry's FRS pension benefit equal to $17,429.47 for medical and dental premiums and $842.28 for life insurance premiums, for a total of $18,271.75. Petitioner is a self-insurer for medical insurance, so, on receipt of medical insurance premiums, Petitioner pays a portion of the premiums to a third-party administrator for insurance-related services and reserves the remainder for the payment of claims. For dental and life insurance, Petitioner remits the premiums to the respective insurers. On May 7, 2014, Mr. Perry pleaded guilty to one count of bribery and extortion in the United States District Court, Southern District of Florida, in connection with his employment in Petitioner's Public Works Department. On or about July 29, 2014, the court adjudicated Mr. Perry guilty. By letter dated August 6, 2014, Respondent advised Mr. Perry that, pursuant to article II, section 8(d), of the Florida Constitution, and sections 112.3173 and 121.091(5), Florida Statutes, his FRS benefits were forfeited due to his guilty plea. Mr. Perry requested an administrative hearing on the forfeiture, and Respondent transmitted the file to DOAH, which designated the case as DOAH Case No. 14-4195. On December 31, 2014, Mr. Perry voluntarily dismissed his request for hearing prior to the final hearing, and, on January 9, 2015, Respondent issued a Final Order of Dismissal that finds, among other things, that Mr. Perry committed the criminal offenses "from in or about 2006 through in or about October 2009." The final order formally declares a forfeiture of Mr. Perry's FRS pension benefits, evidently including benefits already paid. Respondent did not provide Petitioner with a copy of the August 6, 2014, letter, the Final Order of Dismissal, or any of the pleadings in DOAH Case No. 14-4195. The present record does not indicate if Petitioner had actual notice of the forfeiture process. However, this case likely represents the first time that Respondent has attempted to recover insurance premiums that it has remitted to an agency or company following the retiree's forfeiture of retirement benefits, and it is unlikely that Petitioner was aware of its potential liability to repay these amounts until April 1, 2016, as described below. This potential liability arguably arises from a Payroll Deduction Agreement entered into by Petitioner and Respondent. The agreement allows a retiree to authorize Respondent to deduct monthly from his pension benefit an amount equal to his insurance premiums and to remit this sum to Petitioner, so that it can pay the retiree's premiums. In this case, Respondent remitted insurance premiums to Petitioner from November 2009 through October 2012 and allocated them in the manner set forth above in paragraph 2. Three and one-half years after the last remittal that included any sums for Mr. Perry's insurance premiums, almost two years after Mr. Perry's guilty plea, and about 15 months after the final order declaring the forfeiture, Respondent withheld $18,271.75 from Respondent's March 2016 consolidated remittal to Petitioner on the account of other retirees in an attempt to recover the remittals that Respondent had made to Petitioner to pay Mr. Perry's insurance premiums. The Payroll Deduction Agreement is a form prepared by Respondent that is signed by the agency or company seeking to receive remittals for its FRS retirees. Under the agreement, which has a signature line only for the agency or company and not Respondent, the agency or company agrees to preserve the confidentiality of the information, assume responsibility for the accuracy of the premium deductions, and notify Respondent timely of the discontinuation of this payroll deduction service. An employee of Petitioner signed the Payroll Deduction Agreement on April 27, 2009. The Payroll Deduction Agreement requires the agency or company to accept the "Procedures for Admitting Insurance Providers for Retired Payroll Deduction." The procedures document states that Respondent offers the convenience of payroll deduction of insurance premiums as a service to FRS pension recipients. Only two paragraphs of this document address post-deduction adjustments: 11. If a retiree's insurance premium is deducted incorrectly for any reason (i.e.-- overpayment of amount, policy cancelled, administrative error, etc.), the Insurance provider company or FRS agency is responsible for refunding the premium amount to the retiree. 13. [1] If a retirement benefit is cancelled by the Division of Retirement, the corresponding insurance premium that was deducted from that same dated payment is recovered from the following month's consolidated insurance payment. Reasons for cancellations include payee deaths, [sic] cancelling retirement. When determining the amount of insurance premiums to be reimbursed to families of deceased members, please note that the Division cannot determine when a death will be reported or when funds will be funds will be returned [sic] from banks (resulting in cancellations). [4] There are occasions when a report of death is received months after a retiree's death. [5] If payments for the deceased are still outstanding, they most likely will be cancelled. A common example follows: Example: Payee dies 1/5/09. Family reports death to the Division on 4/1/09. Retiree was only due payments through the month of January. Since the February and March payments are still outstanding, these paper checks are cancelled by the Division of Retirement. This cancellation action recovers the 2/27/09 and 3/31/09 premium deductions from the 4/30/09 consolidated payment. A credit entry will also appear on the April 2009 report of retiree insurance deductions. Please Note: We recommend that you contact the Division of Retirement to inquire about possible payment cancellations prior to processing premium reimbursements. Paragraph 11 of the Payroll Deduction Agreement requires that an agency or company repay the retiree any excessive premium deduction, so is irrelevant in the case of forfeiture. Paragraph 13 of the Payroll Deduction Agreement applies to the situation in which a premium deduction is unfunded because of the cessation of the pension benefit from which it is deducted. In its proposed recommended order, Petitioner argues that the application of paragraph 13 is prospective only, so it would not apply to a retroactive setoff of the type that has occurred in this case. The first sentence identifies the contingency of the cancelation of a retirement benefit and authorizes Respondent to recover its remittal of any premiums deducted from the cancelled pension benefit, but mentions a recovery or setoff only in the month following the cancelation. This establishes the kind of liability that Respondent seeks to impose on Petitioner, but only for the brief period of one month. Obviously, the willingness of an agency or company to assume this minor liability for the convenience of its retirees does not imply a willingness to assume a much larger liability spanning several months or even years of remittals. The second sentence cites two common reasons for cancelation: the death of the retiree and the cancellation of the pension benefit by the retiree. The use of "includes," as well as the insertion of a comma in place of "and" or "or," suggests that these two reasons are illustrative, not exhaustive. Even so, the second sentence does not add the reason of forfeiture, and, at this point in paragraph 13, the details of the parties' agreement concerning a forfeiture has not been explicitly addressed. The third and fourth sentences address only the contingency of the death of the retiree, in which case Respondent recovers unearned premiums that Respondent intends to remit to the estate of the retiree--in most cases, one assumes, indirectly to the families of the deceased member. Typically, insurers are not exposed to the risk of insured losses after the death of a retiree--even a life insurer's exposure ends after the insured's death and payment of the death benefits--so any premiums paid after death are unearned and should be refunded to the proper party. The warning that Respondent may not learn of the retiree's death for many months suggests a longer period may be available for retroactive adjustments, but this warning applies only to the contingency of death, again, where the insurers are obligated to refund unearned premiums. The fifth sentence also addresses only the contingency of the death of a retiree and seems to provide only that Respondent will cancel any pension benefits or premium remittals still outstanding at the time of the retiree's death. The example illustrates a three-month delay in the receipt of notification of a retiree's death followed by the cancellation of the pension benefits issued in the preceding two months, which presumably could not have been lawfully presented for payment by anyone besides the deceased retiree. In this case, Respondent would issue a corresponding credit entry on the next month's report of premium deductions made on account of the retiree. The procedures document thus fails to address the contingency of forfeiture. The provisions applicable to the contingencies of the death of the retiree and the retiree's cancellation of pension benefits are a poor fit for the contingency of forfeiture. Respondent has previously recovered income tax withheld on paid pension benefits following a forfeiture, but the recovery was limited to the period during which an amended personal income tax return could be filed--the effect being that the amount could be effectively recovered in the form of a tax refund from the Internal Revenue Service, rather than from an agency or company.
Recommendation It is RECOMMENDED that the Department of Management Services enter a final order dismissing the Petition Requesting an Administrative Hearing filed on August 17, 2016. DONE AND ENTERED this 8th day of February, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 8th day of February, 2017. COPIES FURNISHED: Veronica E. Donnelly, Esquire Offices of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Joni A. Mosely, Esquire Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center, Suite 2810 111 Northwest 1st Street Miami, Florida 33128-1993 (eServed) Elizabeth Stevens, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
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
Findings Of Fact The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity: Stipulated Facts Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows: In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions; In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11); In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5). That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business. Stipulated Evidence Exhibit 1 - The deposition of Charles Kellum, Petitioner Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974. Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974. Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974. Exhibit 5 - The reports and deposition of Dr. Samartino. Exhibit 6 - The reports and deposition of Dr. Jacobson. Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36. Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975. Upon a consideration of the evidence further findings of fact are: The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification. The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled." Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman. Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years. His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service. Petitioner contends: That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work; That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty. Respondent contends: That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.
Recommendation Grant Petitioner Charles E. Kellum disability retirement benefits. DONE and ORDERED this 24th day of May, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building A Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT CHARLES E. KELLUM, Petitioner, vs. DOAH CASE NO. 77-465 DIVISION OF RETIREMENT, Respondent. /
The Issue The general issue to be resolved in this proceeding concerns whether the Petitioner is entitled to modify her deceased husband's retirement benefit option by changing from "Option 1" to "Option 3". Embodied within that issue is the question of whether the Petitioner's deceased husband was competent to effect a change in his retirement option from service retirement "Option 3" to disability retirement "Option 1."
Findings Of Fact The decedent, Elijah B. Hutchinson, was a teacher of math and science for the Calhoun County school district for some 31 years. In the early 1980's, his health had deteriorated significantly due primarily to diabetes mellitus, which caused a number of associated complications necessitating several hospitalizations during the early 1980's. In consideration of his deteriorating health, the decedent elected to retire in the spring of 1983. He filed an application dated May 27, 1983, seeking regular retirement benefits from the Florida Retirement System. See Exhibit 1 in evidence. In response to his application, the decedent received information from the Division advising him of his retirement benefits under the different retirement options he was entitled to select. On or about June 24, 1983, the decedent elected retirement Option 3. Option 3 retirement benefits include the retiree's entitlement to a reduced monthly retirement benefit during his lifetime with the same monthly retirement benefit being paid, after his death, to his "joint annuitant", in this case, his surviving spouse, the Petitioner. Thereafter, and before he received any benefit check from his initially-selected Option 3 retirement, the decedent appeared at the Division's offices and requested to change his type of retirement or option. On August 12, 1983, therefore, the decedent requested to change his type of retirement benefit from regular retirement to disability retirement. On that date, he requested to change his option selection from Option 3 to Option 1. See Exhibit 4 in evidence. An explanation of the benefits to be provided and the differences in the two options as to his benefits was given to the decedent by an employee of the Division. See Exhibit 4 in evidence. The decedent thereupon changed his option selection from Option 3 to Option 1. In 1983, a retirement system member receiving retirement benefits as the result of a disability could only receive benefits in accordance with either Option 1 or Option 2, if he chose to elect disability retirement. On September 16, 1983, the decedent was mailed a letter from the Division advising him that his application for disability retirement benefits had been approved by the State Retirement Director and acknowledging that he had elected Option 1 for disability retirement. Thereafter, the decedent received and cashed a number of State warrants representing payment of those retirement benefits under Option 1. See Exhibit 10 in evidence. The decedent died on March 8, 1991. The Petitioner had been unaware that he had changed from Option 3 benefits to Option 1 benefits, as delineated above. Upon learning of this, after the decedent's death, the Petitioner, on April 30, 1991, requested the Division to modify the benefits option selected by the decedent to Option 3 benefits. Her basis for requesting this change was that the decedent had not been mentally or physically competent to make an informed selection at the time he changed his Option 3 retirement benefits election to Option 1 and that, therefore, she should be allowed to modify and reinstitute his retirement election to Option 3 benefits, which would provide her the death benefits permitted under the Option 3 election. This request was denied by the Division by its "final agency action letter" dated May 21, 1991, by which the Division advised the Petitioner that based upon its records, the decedent, who had requested Option 1 retirement benefits, was added to the retirement payroll in that category for September, 1983 and that he had received benefit payments and negotiated the checks, so that, under the provisions of Rule 22B-4.002(3), Florida Administrative Code, the selection of the option could no longer be altered. The Petitioner's testimony and that of Phillip H. Hutchinson indicates that sometime in 1983, the decedent suffered a cerebral-vascular incident or "stroke". This testimony is borne out by the medical records in evidence as Petitioner's Exhibit 1, which, however, does not indicate when the stroke occurred. The Petitioner and her son maintain in their testimony that the stroke resulted in a deterioration in the decedent's mental faculties such that he could no longer manage his business affairs, pay bills, and handle financial matters in general. They maintain that this was evidenced also by a marked personality change whereby the decedent became extravagant with money, as evidenced by impulsively ordering and purchasing items which he observed advertised on television, sending money to television evangelists, and otherwise being free with donations. This was entirely different from his character and personality before he suffered the stroke, whereby he was known to be miserly with the family funds and very careful about not spending money unnecessarily. As a result of his stroke, he was no longer able to handle his business affairs; and his spouse, the Petitioner, had to assume the duties of paying family bills and otherwise handling financial and business matters for the family. When the decedent first decided to retire, he had explained to the Petitioner that he would select a retirement option which would give her something after he "passed"; and he showed her the retirement system booklet of allowable retirement options in discussing the matter with her. He never mentioned to her that he decided to or did change his option to Option 1 disability retirement. Although the Petitioner may have established that due to the stroke he suffered, the decedent may have, indeed, had difficulty attending to financial matters and overseeing and managing the family finances, the Petitioner failed to establish that at the time he made the election to select Option 1 retirement benefit, he did not possess the mental capacity to make a knowing and intelligent selection of that option and to waive his previously-selected Option 3 benefits. The evidence shows that he appeared at the Division's offices and, after an explanation of the option he chose to select, he freely and voluntarily selected that option and signed the pertinent documents attesting to it. It has simply not been demonstrated by substantial evidence that at the time the decedent made the second retirement option election, he did not understand the nature and consequences of that election, especially since it was not established by the Petitioner when he actually suffered the stroke, other than that it occurred sometime in 1983. As found above, the decedent made the election to chose Option 1 retirement benefits in August, 1983. Consequently, due to insufficient evidence, it cannot be found that the Petitioner's decedent was incompetent to knowingly and intelligently elect to receive Option 1 retirement benefits at the time he made the election.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Division denying the request of the Petitioner to modify the retirement benefits elected by the decedent from Option 1 retirement benefits entitlement to Option 3 retirement benefits entitlement. DONE AND ENTERED this 24th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrativ 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 24 day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3870 Petitioner's Proposed Findings of Fact: Accepted. Accepted, except that the evidence does not support that the stroke actually occurred in mid 1983. 3-4. Accepted. Rejected, as not being demonstrated by the preponderant evidence of record. Accepted. Respondent's Proposed Findings of Fact: 1-14. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Phillip H. Hutchinson 4115 Tanglewood S., Apt. 570 Palm Beach Gardens, FL 33410 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, FL 32399-1560
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
