Findings Of Fact Petitioner, EVELYN S. WRIGHT, as an employee of Metropolitan Dade County and a member of the State and County Officers and Employees Retirement System, elected to transfer into the Florida Retirement System (FRS) effective December 1, 1970. (Exhibit 3) On April 10, 1972, Petitioner terminated her employment with Metropolitan Dade County and applied for FRS disability retirement benefits pursuant to Section 121.091(4), Florida Statutes, on May 22, 1972. (Exhibit 2) Petitioner's application for FRS disability retirement benefits was initially denied by the Administrator of the Florida Retirement System on August 21, 1972. (Exhibit 4) On January 6, 1975, Petitioner inquired of the Supervisor of the Respondent's Disability Determination Unit, Mr. David Ragsdale, as to the possibility of withdrawing the accumulated contributions in her retirement account. At this time, Petitioner, was advised by Mr. Ragsdale that a withdrawal of contributions would cancel her membership rights in the Florida Retirement System. (TR - p.9) Respondent forwarded to Petitioner, by letter dated January 7, 1975, the appropriate form for making application for a refund of accumulated retirement contributions. The transmittal letter specifically advised the Petitioner that, "Should you complete and return the enclosed card, M81, you would have no further rights or service credit with the Division of Retirement." (Exhibit 5) On January 14, 1975, Petitioner executed, and her employer verified, an application for refund of accumulated retirement contributions. The application form clearly stipulated: "I hereby make application for refund of my accumulated contributions in the Florida Retirement System. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement System." (Exhibit 6) Petitioner's application for refund of contributions was received by the Respondent on January 17, 1975. Respondent refunded to Petitioner her accumulated contributions in the amount of $3,056.02 by Voucher No. 237738, Warrant No. 0309435, dated January 28, 1975. (Exhibit 6) The attorney for Petitioner, John H. Abramson, was advised by the undersigned hearing officer by telephone that Leave to Take Deposition was granted. By letter from the said attorney the Division was notified that Petitioner's file was being closed.
The Issue The ultimate issue is whether Julie E. Reeber, Alexander Reeber and Christine Tadry are entitled to receive survivor benefits payable under the Florida Retirement System (FRS) for Marjorie A. McCollum, deceased, under the facts and circumstances of the Case. The factual issue is whether Marjorie A. McCollum was incompetent when she made the designation of beneficiary and under the undue influence of her daughter Suzanne L. Benson.
Findings Of Fact In August of 1991, Ms. Marjorie A. McCollum, a member of the Florida Retirement System (FRS) applied for disability retirement benefits. (Deposition of Stanley Colvin). As part of her application for disability retirement benefits on Form FR-13 (Florida Retirement System Application for Disability Retirement), Ms. McCollum designated her daughter, Suzanne L. Benson, as her beneficiary. (Exhibit 1 of the deposition of Stanley Colvin). The designation reads, "All previous beneficiary designations are null and void. The beneficiary whom I designate to receive the benefit or refund at my death is Suzanne L. Benson." (Deposition of Stanley Colvin, Exhibit 1). According to the date on the form, Ms. McCollum signed the application on August 28, 1991, and was properly witnesses by a notary public, John T. West. (Testimony of Mary Shere). According to the application, Ms. McCollum was suffering from cancer. She selected the Option 2 retirement benefit. (Exhibit 1 of Stanley Colvin deposition). Ms. McCollum's application for disability retirement benefits, with the Option 2 retirement benefit, was approved by the Division of Retirement with an effective date of September 1, 1991. (Deposition of Stanley Colvin, Exhibit 9). Prior to receiving her first check, Ms. Marjorie McCollum died on September 23, 1991. (Deposition of Stanley Colvin, Exhibit 9). On November 4, 1991, the Division, by letter, notified Suzanne L. Benson that as designated beneficiary of Ms. Marjorie McCollum, she was entitled to the Option 2 benefit in the amount of $280.69 per month through August 31, 2001, for ten years. On November 19, 1991, the Division received a letter from Julia Reeber, another daughter of Ms. McCollum (the deceased), disputing the designation of her sister Suzanne L. Benson as the beneficiary. (Deposition of Stanley Colvin, Exhibit 16). As a result of the notice of dispute by Julia Reeber, the Division on November 26, 1991, notified Ms. Benson by letter that payment of the Option 2 benefit would not be forthcoming until the dispute was resolved. (Deposition of Stanley Colvin, Exhibit 12). The designation of beneficiary executed by Ms. McCollum was properly executed and filed with the Division of Retirement in accord with the Florida Statutes and rules pertaining to the designation of beneficiaries for Florida retirement benefits. (Deposition of Stanley Colvin). Suzanne L. Benson was the properly designated beneficiary, and the Division intended to pay the Option 2 benefit to Suzanne L. Benson in accord with the Division's rules. (Deposition of Stanley Colvin). Ms. McCollum suffered some deterioration of her mental faculties prior to her death because of her illness, she could no longer handle her financial matters, and needed aid from her children in the payment of her bills. However, at no time was the Petitioner legally declared incompetent. Testimony of Julie Reeber). Despite suffering from the ravages of the disease, Ms. McCollum was at times able to function in a normal matter without evidence of diminished mental capacity. (Testimony of Mary Shere). On August 23, 1991, the deceased came to the office of Ms. Mary Shere. Ms. McCollum had been a regular customer of Ms. Shere's beauty parlor and later her accounting service. Ms. Shere had known Ms. McCollum for over ten years. (Testimony of Mary Shere). On August 23, 1991, Ms. McCollum and Ms. Shere talked for an hour to an hour and a half regarding her illness and her application for disability retirement. Ms. McCollum expressed her desire for Ms. Shere to notarize the application for disability retirement benefits. Ms. McCollum told Ms. Shere that Ms. McCollum wanted her daughter Suzanne to be the beneficiary of her death benefits. However, they could not complete the designation of beneficiary because the form had not come. Another discussion concerning the arrival of the forms took place by telephone on August 24, 1991, between Ms. Shere and the Deceased. On August 26, 1991, Suzanne Benson telephoned Ms. Shere advising Ms. Shere that her mother had been hospitalized, and that she needed to come to the hospital in order to notarize the disability application. (Testimony of Mary Shere). On August 26, 1991, Ms. Shere accompanied by one of her employees, John West, visited Ms. McCollum in the hospital. In her presence, the application was signed by Ms. McCollum and notarized by John West. (Testimony of Mary Shere). Ms. Shere's very credible testimony was that Ms. McCollum knew what she was doing, was aware of what she possessed and knew she was terminal. Ms. McCollum made a knowing and rational decision to designate Suzanne L. Benson as her beneficiary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a Final Order be entered by the Division holding that Marjorie McCollum retired with an Option 2 retirement benefit and that Suzanne L. Benson, her designated beneficiary, receive the Option 2 benefit. DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 29 day of May, 1992. COPIES FURNISHED: Julie E. Reeber 133 Kirkwood Drive Debary, FL 32713 Larry D. Scott, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 Rhonda B. Goodson, Esquire Post Office Box 4319 South Daytona, FL 32121 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2539 North Monroe Street Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 415 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Sally T. Sperling commenced teaching for the Leon County School Board in 1969 as an elementary teacher at Sabal Palm Elementary School. Following maternity leave and absences to continue her education, Mrs. Sperling returned to the Leon County School System in 1971 as a full-time teacher and subsequently gained continuing contract status before resigning in 1976. In 1978 Petitioner submitted an application (Exhibit 5) for part-time employment with the Leon County School System in which she indicated a desire to work "perhaps, three days per week. She was employed in the Adult Education Program at Lively Vocational-Technical School in Tallahassee teaching remedial reading. The form contract used by the Leon County School Board for Petitioner's employment is the same that is used for all instructional personnel. The contract purported to run for one year and Petitioner was paid on an hourly basis, with no minimum or maximum hours specified. Full-time teachers are hired on an annual basis. Some of the teachers in the Adult Education Program are full-time teachers and are on annual or continuing contracts. Most of the teachers in the Adult Education Programs are part-time teachers and are paid only for the hours they teach. Petitioner taught remedial reading classes and sufficient interest in this course has been maintained so the program has continued semester after semester for the four years Petitioner has taught adult education courses. Other Adult Education Programs in which sufficient interest has not developed have been dropped. Funding for Adult Education Programs depends upon the number of students attending the classes. If this number drops below the number required to keep the course self-sufficient, the course will be dropped. In such a case the teacher of the course will not remain on the Leon County payroll, as no hours will be devoted to teaching this course. Unless an actual course is taught, the part-time teacher is not paid. Teachers on annual contracts are paid for the full year regardless of the number of hours of classes taught. At the time Petitioner was hired she was given a packet of information (Exhibit 7) but was not specifically told that part-time teachers are not eligible for the Florida Retirement System. During the four years Petitioner has been employed as a part-time teacher she has had no social security deductions taken from her pay and has earned no annual or sick leave. Pursuant to an agreement between the state and federal governments all members of the Florida Retirement System are covered by social security and FICA deductions are taken from their pay. This deduction is indicated on the check stub given to the employee with each pay check. State employees not under the Florida Retirement System and not specifically made parts of the Social Security System are not covered by social security. Full-time teachers are considered salaried employees holding a regularly established position. They are paid from funds provided in the "100" account. Part-time employees are designated as Other Personal Services (OPS) and are paid from funds in the "700" account. These accounting codes are established by the Department of Education to provide uniformity in accounting in the various school systems. The accounting code designation from which fund the employee is paid gives a quick reference to the status of the employee. When the pay records show Petitioner is paid from "751" funds, there will be no state retirement or FICA contributions from the code that disburses those funds. When the Florida Retirement System replaced older state retirement systems, some confusion developed regarding the status of personnel hired temporarily and retained on the payroll for an extended period. This confusion carried over to part-time teachers in the Adult Education Programs throughout the state. Some of the counties placed these part-time teachers in the Florida Retirement System where they have been covered for nearly ten years. The Division of Retirement is in the process of removing those people from the retirement system. At the time Petitioner wads hired she did not believe she was eligible for the Florida Retirement System and no FICA deductions were ever taken from her pay. After a visiting friend advised her she might be eligible for the Florida Retirement System Petitioner initiated the inquiries that led to these proceedings.
Findings Of Fact John Wallace began service as a Sumter County school board member on January 1, 1959. (Joint Stipulation). On or about January 1, 1959, he completed a blue-top computer enrollment card (Petitioner's Exhibit 1), which also designated his wife Effie as his first beneficiary of his retirement benefits and his daughter, Mrs. Kindle Johnson, as the second beneficiary. (Joint Stipulation). Effie Wallace died January 22, 1963. (Joint Stipulation) John Wallace married Estell Loudin June 9, 1964. (Joint Stipulation). John Wallace executed an election to transfer to the Florida Retirement System, effective December 1, 1970. (Petitioner's Exhibit 2). (Joint Stipulation). John Wallace died September 8, 1975. (Joint Stipulation). On November 12, 1975, Betty Carruthers, an employee of the Sumter County School Board, notified the Division of Retirement of Mr. Wallace's death. Margie Smith in the Division of Retirement completed a form (Petitioner's Exhibit 4) setting forth the information she received from Betty Carruthers in the November 12, 1975, telephone conversation. Not having any beneficiary designation form in the School Board file, Carruthers simply advised Smith that petitioner was Wallace's second wife, his first wife, Effie, having predeceased him. Smith's quick check of the Division of Retirement records management section did not uncover Wallace's designation of beneficiary form. (Petitioner's Exhibit 1, 5). On March 9, 1977, the Division of Retirement received petitioner's FR- 11, an application (albeit on the incorrect form) for her deceased husband's benefits, along with certain supporting documents. In an April 13, 1977, letter (Petitioner's Exhibit 6) sent out over David Ragsdale's name but written and signed by a benefits calculation specialist trainee, petitioner was erroneously informed that she was the beneficiary of her husband's benefits, since he had designated his first wife Effie, who had predeceased him. But after the letter went out, it came to the attention of Marjorie Smith that the April 13, 1977 letter was incorrect since Wallace's original January 1, 1959 designation of beneficiary form designated Wallace's daughter, Mrs. Kindle [sic] Johnson, who is still living, as Wallace's second beneficiary. In a June 5, 1977, latter (Petitioner's Exhibit 7), again sent out over David Ragsdale's name but dictated by Marjorie Smith and signed by Ragsdale's secretary, petitioner was informed that respondent had located the designation of beneficiary card, signed by Mr. Wallace, designating his daughter, Mrs. Kindle [sic] Johnson, as his second beneficiary. On June 20, 1977, Randall Thornton, petitioner's attorney at the time, wrote a letter (Petitioner's Exhibit 8) to David Ragsdale, seeking a copy of the beneficiary card upon which the respondent based its decision in the June 15, 1977, letter to petitioner. On July 12, 1977, Mr. Thornton sent another letter to the respondent, attention Mrs. Ferguson (Petitioner's Exhibit 9), asking again for a copy of the beneficiary designation upon which its decision was based awarding Mr. Wallace's retirement benefits to his daughter. On the same date, respondent sent Mr. Thornton a letter (Petitioner's Exhibit 10), enclosing a copy of the original enrollment card. (Petitioner's Exhibit 1). Thornton's secretary called petitioner into the office on July 15, 1977, the day after Thornton received and reviewed respondents' July 12, 1977 letter. Petitioner looked at the copy of Wallace's designation of beneficiary form and stated that she did not believe her husband had written both his first wife's name and his daughter's name as first and second beneficiaries, respectively, at the same time. She did not, however, prove this at final hearing. Petitioner did not prove that there is or ever was another designation of beneficiary executed by Mr. Wallace other than Petitioner's Exhibit 1. Prior to 1972, if a member of the Florida Retirement System or any pension plan in existence prior to December 1, 1970, wanted to change his designated beneficiary, he would complete another blue-top enrollment card. In 1972, a new enrollment form, FRS-M10, was instituted consisting of three identical parts. If a member of the Florida Retirement System completed the form, the original would be sent to the respondent, with a copy to the agency employing the individual and a copy to the individual. (Carruthers deposition, p.4). Respondent has searched its records and has found no other designation of beneficiary form signed by Mr. Wallace apart from Petitioner's Exhibit 1. The files at the Sumter County School Board have been searched and no designation of beneficiary signed by Mr. Wallace found. (Carruthers deposition, p.3). Petitioner's attorney Randall Thornton has searched his files and found no designation of beneficiary signed by Mr. Wallace other than Petitioner's Exhibit (Thornton deposition, p.18)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration, Division of Retirement, enter a final order denying petitioner's request for benefits on the ground that she is not, in law and fact, entitled to benefits resulting from the death of her husband, John Wallace. RECOMMENDED this 9th day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1984.
The Issue Whether Petitioner's application to participate in the Deferred Retirement Option Program should be approved.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On August 24, 2001, Petitioner submitted to the Division a Florida Retirement System Application for Service Retirement and the Deferred Retirement Option Program (DROP), Form FRS DP-11. On the form, Petitioner indicated his name, social security number, birth date (June 22, 1946), his position title (guidance counselor), present Florida Retirement System employer (Miami-Dade County Public Schools), work phone, home phone, and home mailing address. These entries were followed by the a printed statement, which read as follows: I have resigned my employment on the date stated below and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement . I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit. I cannot add additional service, change options, or change my type of retirement after the DROP begin date. If I fail to terminate my employment in accordance with s. 121.021(39)(b), F.S., on my DROP termination date, my retirement will be null and void and my FRS membership shall be established retroactively to the date I began DROP. I have read and understand the DROP Accrual and Distribution information on the reverse side of this form. The "DROP begin date" and the "DROP termination and resignation date" that were filled in the form were August 1, 2001, and July 31, 2006, respectively. On the "Beneficiary Designation" portion of the form, Petitioner named his wife, Marianne F. Coto, as his "primary" beneficiary, and his daughter, Claudine Coto, as his "contingent" beneficiary. Their birth dates (but not their social security numbers) were noted on the form. At the bottom of the form was the following "Employer Certification," signed and dated (August 24, 2001), by Miami- Dade County Public Schools personnel officer, Maria Perez: This is to certify that the above named member will be enrolled as a DROP participant on the date stated and will terminate his or her employment on the date stated. On August 24, 2001, Petitioner also submitted to the Division a Florida Retirement System Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment, Form FRS DP-ELE. On the form, Petitioner indicated his name, social security number, birth date, his position title, present Florida Retirement System employer, work phone, home phone, and home mailing address. These entries were followed by a printed statement, which read as follows: Resignation From Employment to Participate in the DROP: I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate in the DROP for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. I cannot add additional service, change options, or change my type of retirement after my DROP begin date. On the form, Petitioner indicated that his "DROP begin date" and his "DROP termination and resignation date" were August 1, 2001, and July 31, 2006, respectively. Also on the form was an "Employer Certification," signed and dated (August 24, 2001), by Ms. Perez, the aforementioned Miami-Dade County Public Schools personnel officer, which was identical to the "Employer Certification" on the Form FRS DP-11 that Petitioner had submitted. Petitioner did not submit to the Division (along with Forms FRS DP-11 and DP-ELE) Form FRS 11o, on which he was required to indicate the form of payment of retirement benefits he desired. (Pursuant to the Division's Rule 60S-4.010, Florida Administrative Code, there are four optional forms of payment from which to choose.) Neither did Petitioner furnish the Division with any proof of age. In addition, Petitioner, in September of 1998, had submitted to the Division an Application to Purchase Retirement Credit for a Leave of Absence, but had not yet paid the amount necessary to purchase the credit. Accordingly, by letter dated September 8, 2001, the Division advised Petitioner of the following: This will acknowledge receipt of your Application for Service Retirement and the Deferred Retirement Option Program (DROP) You will be notified should we need additional information. If there is an amount due your account, please make your check payable to the Florida Retirement System (FRS) and reference your social security number on all future correspondence with this office. Date Received: 08/24/2001 Member SSN: . . . . Drop Begin Date: 08/2001 Drop End date: 07/31/2006 Amount Due, if any: $1,126.78 Option Selected: None The following items must be received. Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. The amount due is to purchase service for your leave of absence from 1975-76. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. A Final Salary Certification, FC-1, with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. Petitioner did not provide the Division with the items listed in the September 8, 2001, letter. The Division therefore sent Petitioner a follow-up letter, dated October 24, 2001, which read as follows: DROP RETIREMENT APPLICATION TO BE EFFECTIVE: 08/2001 The item(s) listed below must be received to complete your DROP application and retain the above retirement date: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. Not having received any response from Petitioner, the Division sent Petitioner an identical letter on November 29, 2001. Still not having received any response from Petitioner, the Division sent Petitioner another letter, dated January 3, 2002, requesting that Petitioner provide the items that had been requested from him in the previous correspondence. The January 3, 2002, letter warned that the items "must be received immediately to avoid cancellation [of Petitioner's] DROP application." The items were not provided by Petitioner. Accordingly, the Division sent him the following letter, dated February 14, 2002: For your Florida Retirement System (FRS) Application for Service Retirement and Deferred Option Program (DROP), DP-11 to be effective 08/2001, the following item(s) previously requested, must be received within 21 calendar days from the date you receive this letter: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). You should place your social security number on any documentation provided. Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) You should place your social security number on any documentation provided. Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. It is our intent to disapprove your application for the DROP if the requested information and documents are not received within the 21-day period. Should we disapprove your DROP application, the following will be applicable to you: You will be deemed to not have retired and the DROP application will be null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of applying for DROP. Your FRS membership will be reestablished retroactively to the effective date of DROP for which you applied. Your employer will be required to pay the FRS Trust Fund any difference between the DROP contributions and the contributions required for the applicable FRS class of membership. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. The beneficiary you designated on the retirement application you filed will remain in effect unless changed by you at a later date. Please call me if you have any questions. Petitioner received this February 14, 2002, letter from the Division on February 25, 2002, but, as of April 9, 2002, had not provided any of the items listed in the letter. Accordingly, on that date (April 9, 2002), Doug Cherry, the Division's Benefits Administrator, telephoned Ms. Perez, and asked her to attempt to make contact with Petitioner and remind him that that if he did not submit the items listed in the February 14, 2002, letter, his application to participate in DROP would be denied. On April 18, 2002, Ms. Perez faxed Mr. Cherry a copy of Petitioner's passport, along with a note that Petitioner would make additional submissions at a later date. No additional submissions were made by Petitioner. Accordingly, on May 29, 2002, the Division sent Petitioner the following letter: We have not received the items that were requested in our February 14th letter (copy enclosed) to you. Accordingly, your Florida Retirement System (FRS) Application for Service Retirement and the Deferred Retirement Option Program (DROP), DP-11, cannot be approved. Therefore, the following are applicable to you: You are deemed to not have retired and the DROP election is null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program (DROP) and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program (DROP) during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of your having applied for the DROP. Your FRS membership is being reestablished retroactively to 08/2001, the date of your DROP participation. Your employer will be required to pay to the FRS Trust Fund the difference between the DROP contributions (12.50%) and the contributions required for the applicable FRS class of membership during the period you participated in the DROP. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. By copy of this letter, we are advising your employer that immediate action is required by the employer to correct your FRS retirement plan on the next payroll reported to the Division. Your employer will be billed for the appropriate FRS contribution adjustments, if any, based on you not having joined the DROP. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-206.111, F.A.C. You may contact Doug Cherry at . . . should you desire additional information. Petitioner responded by sending the following letter to Mr. Cherry: I received a certified letter signed by Maurice Helms for Erin B. Sjostrom, which asks to contact you regarding a formal appeal to the action of your agency to cancel my D.R.O.P benefits for this 2001 to 2002 school year. Please allow this to serve as the formal appeal. Needless to say I am very frustrated and upset and would like to request your help to sort through this process. A bit of background history first I believe will help. I started working for Miami-Dade County Public Schools in 1970. At that time I was told it was necessary to be a U.S. citizen to be able to work as a teacher in the school system. I had already decided that and since I had officially turned 22, I became a naturalized U.S. citizen and submitted a copy of the Certificate of Naturalization to the School Board through the Dade County office. Where is that record and why am I being asked to produce it again after having accumulated 31 years of service and after I explained to the local retirement officer in charge, Maria Perez, that I had lost the original when I lost almost the entire contents of my house to Hurricane Andrew in 1992? Honestly since I had submitted [a] copy of my U.S. passport with birth-date and all other pertinent information and I also have my Florida Driver's License, which I have had since 1963 or so, and has been what I have used to verify my age and for identification purposes since I was a kid, (although now I am told by your office that this is not a valid acceptable proof, kindly explain why not?) I never thought it was necessary for me to obtain a copy of the Certificate of Naturalization (U.S. citizenship). Also please tell me why passport and driver's license and 31 years of continuous service on record is not sufficient. It is not as if I were trying to retire after a short time of service. I do have 31 years of service! I do not feel this is the right way to treat a dedicated teacher at the end of his career and I hope you agree with me and will help. To comply with the requirement of another piece of proof of age (which I fail to see the need of in my case where I already have 31 years of verifiable and documented service to Miami-Dade County Public Schools as stated before) I requested a copy of my child's birth certificate from the Bureau of Vital Statistics. This was also a frustrating experience. I requested one copy to be sent to me and one to Dade County Public Schools to the attention of Maria Perez. I was told that the copy would arrive in approximately 10 to 14 days. I have not yet received it. I assume that Ms. Perez never received it either. After thirty-one years of faithful service to the State of Florida, which you have on record, and my birth date established with you over 31 years ago, I find it ludicrous that, after having submitted my passport, having requested, although not having been able to get a copy from the Bureau of Vital Statistics, of my child's birth certificate within a number of days, that your office does not find this to be sufficient proof and that based on the technicality that you have only one instead of two forms of verification of my age, now you will cancel my D.R.O.P., which in essence means forfeiting close to $30,000 that I should have accumulated in my account. Please see the circumstances and kindly reconsider the action taken. I will be extremely grateful. Mr. Cherry responded to Petitioner's letter by sending the following letter, dated June 10, 2002, to Petitioner: This is in response to your letter received in our office on June 6th concerning cancellation of your DROP application. The letter from the Division dated May 29th canceling your DROP application was sent only after several prior notices were also sent. The birth date verification issue raised in your letter was only one of the pending items on your application. We sent an acknowledgment of your application dated September 8, 2001, informing you that we needed an option selection, your birth date verification, your spouse's birth date verification if you selected option 3 or 4 and either payment for your leave of absence or a statement that you did not wish to purchase the service. After receiving no response, we sent memos on October 24, 2001, November 29, 2001 and January 3, 2002, all requesting the same information. We never received any response to these notices. We then sent our February 14th letter by certified mail (which you signed for on February 25, 2002) informing you of our intent to cancel because your application was not complete. A copy of all of this correspondence is enclosed. Again, we received no response [to] this letter. Before sending our cancellation letter, I personally called the Dade School Board and asked them to contact you in one last effort to avoid cancellation. It was only then that we received (on April 18th) a copy of your passport but none of the other required documentation was submitted. After waiting until May 29th for the remaining items to be submitted, we sent the final cancellation letter. It was approximately eight months from our first notice to you of items pending on your application, to the May 29th letter of cancellation. That was certainly sufficient time to submit the needed information and also explain about the difficulty you might have obtaining additional birth date verification. However, during those eight months we had no contact or response from you despite our repeated notices. To summarize, your DROP application is not being cancelled because of birth date verification, but because you did not submit all of the items needed to complete your application, even though you had eight months to do so. Your letter will be forwarded to our Legal section and they will contact you concerning the appeal process. The "Legal Section," after receiving Petitioner's letter, referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's application to participate in DROP. DONE AND ENTERED this 15th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 15th day of October, 2002.
The Issue The issue for consideration in this matter is whether Peter McRedmond, the deceased, should have been permitted to change the beneficiary on his state retirement plan to elect an annuity for the benefit of his estate and the Intervenor, Martin Horton.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Division of Retirement, was the state agency responsible for the control, operation and monitoring of the State Retirement System. Petitioner, Eugene McRedmond, is the surviving brother of Peter McRedmond, deceased, a former member of the Florida Retirement System. Intervenor, Martin V. Horton, is the former live-in friend and companion to Peter McRedmond and the individual who claims an interest in Peter's retirements benefits. For some period prior to 1988, Peter McRedmond was employed at Manatee Community College as a psychology professor and as such was a member of the Florida Retirement System, (FRS). He was so employed until he retired for disability in early 1990. Before that time, however, in August or September, 1988, he was diagnosed as having AIDS by Dr. Warren D. Kuippers, a physician with the Community Migrant Health Center. Tests taken at or around that time indicated he was suffering from toxoplasmosis, a disease of the brain in which significant portions of that organ are eaten by parasites, resulting in intermittent periods of impaired judgement and reasoning ability. He also suffered numerous other medical problems including weight loss, a wasting syndrome, general weakness and fatigue. Notwithstanding the seriousness of his illness, because Mr. McRedmond wanted to qualify for retirement under the FRS system, he continued to work for another year to meet the minimum requirements for retirement. On April 27, 1990, he made application for disability retirement to be effective July 1, 1990. As a part of that application, Mr. McRedmond selected Option 1 under the FRS as the method under which he desired his benefits be paid and named the Intervenor, Mr. Horton, as his designated beneficiary to receive any benefits legally due after his death. Mr. McRedmond could have elected to receive benefits under either Option 1 or Option 2 of the plan. Option 3 was not available to him because of his marital status. Under Option 1, he would receive payments of $639.33 per month for the remainder of his life, regardless of how long he lived. Under Option 2, he would have been paid a slightly lesser monthly sum, $587.51, for the rest of his life, but not less than 10 calendar years, and if he were to die before 10 years were up, the payments would go to his designated beneficiary. In May, 1990, consistent with the procedure then in effect within the Division, Mr. McRedmond was sent a second Option selection form to give him as much information as was possib1e and to make sure he understood what he was doing as it related to his option selection. Mr. McRedmond again selected Option 1, had his signature notarized, and returned the executed form to the Division. The individual who performed the notary service did not recall the transaction but indicated her routine practice was not to notarize a document for anyone who did not appear to know what he was doing. Peter McRedmond died on August 23, 1990 from the disease with which he was afflicted. Several months before his death, in mid June, 1990, Mr. McRedmond and Mr. Horton discussed finances and what Horton could expect after McRedmond's death. It is clear that Mr. McRedmond wanted to make arrangements for Mr. Horton to finish his education without having to work while doing so. At that time, McRedmond's life insurance policy, in the face amount of $60,000.00, had Horton as the beneficiary. Shortly before his death, however, upon the prompting of his brother, Eugene, Petitioner herein, Peter McRedmond directed the policy be changed to make his estate the beneficiary. This was done by Eugene through a power of attorney. There was also some discussion of an additional $500.00 per month which was to go to Mr. Horton, but no one, other than Mr. Horton, recalls this. Also shortly before his death, Mr. McRedmond and Mr. Horton travelled to the family home in Connecticut for several weeks. During that time, Mr. McRedmond had at least one major seizure and family members noticed that while he was sometimes forgetful, for the most part his thinking was rational and normal. There can be little doubt that Mr. McRedmond had deep feelings for Mr. Horton and wanted the latter to be provided for after his death. Friends of both relate the numerous comments McRedmond made to that effect and are convinced that at the time he made the contested election, Mr. McRedmond was not of sound mind sufficient to knowingly make the choice he made. To be sure, the ravages of his disease had taken its toll and there were numerous occasions on which he was not lucid or competent to determine issues such as here. On the other hand, the benefits administrator with whom McRedmond talked at the time he selected his retirement plan option was totally satisfied that at that time, he fully understood the nature and effect of the option he selected and was choosing that which was consistent with his desires at the time. By the same token, the notary, whose testimony was noted previously herein, also was satisfied he knew what he was doing at the time of the second election. In its final configuration, Mr. McRedmond's estate includes all his assets, including the proceeds of the insurance policy previously designated to go to Mr. Horton, for a total of approximately $120,000.00. According to the terms of the will, the estate is to be put into a trust from which Mr. Norton is to receive $1,000.00 per month for his lifetime, as well as all his medical expenses. Since Mr. Horton has tested HIV positive, these can be expected to be extensive. Eugene McRedmond is the executor of the estate. Petitioner and Mr. Horton claim that since the trust contains all of Peter's assets existing at his death, the only other source of the additional $500.00 per month would be the benefits from the FRS. Both cite this as evidence of Mr. McRedmond's intent that the option selection providing for payment after death was his intention. This does not necessarily follow, however. Notwithstanding what Petitioner and Intervenor state were his intentions, Mr. McRedomnd took no action to make the change in option selection which would have effectuated them. Instead, he went out of town to visit family for several weeks, and even after receipt of the first retirement check, received on July 31, 1990, still took no action to make the change. During this period, after the return from Connecticut, Mr. McRedmond's condition deteriorated to the point he was often bedridden and was periodically unaware. However, there is ample evidence to indicate that he was often lucid during this period and still took no action to change his retirement option. During this time, Mr. Horton conducted come of Mr. McRedmond's business affairs for him pursuant to specific instructions. These included making bank deposits and as a part of one of these deposits, when Horton was to deposit two checks as requested by McRedmond, he also deposited the first retirement check. Horton and Eugene McRedmond both claim that at no time did Peter McRedmond ask or authorize him to do so. In a visit that Petitioner made to his brother in early August, 1990, just weeks prior to Peter's death, according to Petitioner his brother explained he had selected the wrong retirement option and requested that Eugene attempt to change the election. Peter gave Eugene a Power of Attorney with which he was to do this as well as to change the beneficiary on the life insurance policy. Consistent with those instructions, Eugene wrote a letter to the Division explaining the situation and that the check had been deposited by mistake. On August 13, 1990, Eugene telephonically contacted the Division where he spoke with Melanie White. During this conversation, in which he again spelled out the circumstances which he believed constituted the mistaken election, he was told to file a power of attorney. When he did this, the Division would not honor it claiming that since it had been executed in May, 1990, some three months earlier, it was not current. Subsequent to the death of Peter McRedmond and the filing of the claim against the Division, Eugene McRedmond and Martin Horton have entered into an agreement whereby any sums recovered from the Division will be split with 25% going to Mr. Horton and 75% going to the Trust. Upon the death of Mr. Horton, any sums remaining in the trust will be split by Eugene McRedmond and another brother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's and Intervenor's claims for retirement benefits under Option 2 of the Florida Retirement System retirement plan, on behalf of Peter McRedmond, be denied. RECOMMENDED in Tallahassee, Florida this 29th day of July, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Buildi5g 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clark of the Division of Administrative Hearings this 29th day of July, 1991 APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7104 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER AND INTERVENOR: Accepted and incorporated herein. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Third sentence not proven. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted that Peter McRedmond had numerous conversations with friends about providing for Mr. Horton, but it was not established that he mentioned using his retirement benefits for that purpose. & 9. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not necessarily following from the facts. Rejected as speculation not supported by fact, except that Petitioner claims Peter desired to change the option selection. First sentence accepted. Second sentence accepted in so far as it asserts Peter told Horton he would receive a monthly sum of $1,000.00. Balance rejected. Accepted and incorporated herein. Rejected as speculation and conclusion except for first sentence and first clause of second sentence. Accepted and incorporated herein. 17.-20. Accepted and incorporated herein. 21. First and second and last sentences accepted. 22.-24. Accepted. Accepted and incorporated herein. Accepted. & 28. Accepted. 29. Irrelevant. FOR THE RESPONDENT: 1-4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. 8.-10. Accepted. Ultimate finding accepted. On the date he filed his application, Peter McRedmond was capable of understanding what he was doing and the implications thereof. & 13. Rejected as comments of the evidence and not Findings of Fact. First four sentences accepted. Remainder rejected except that McRedmond wanted Horton to get at least $1,000.00 per month for life, and more if possible. & 16. Accepted except for last two sentences of 16. Accepted except for last sentence which is a comment on the evidence and not a Finding of Fact. Accepted. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. COPIES FURNISHED: Edward S. Stafman, Esquire Stafman & Saunders 318 North Calhoun Street Tallahassee, Florida 32301 Stanley M. Danek, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Bldg. C 1639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the purported selection of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was valid and effective.
Findings Of Fact On or about June 20, 1990, Lon Emory Sweely executed a Division of Retirement Form FR-13 Florida Retirement System Application for Disability Retirement. The application indicated that Sweely's disability resulted from AIDS-related conditions. It selected Option 1, which the application designates as the "Maximum Benefit" and describes as follows: Full benefits payable to the member for his lifetime. If death occurs before the total benefits paid to member equals the contributions made, the difference, if any, is refunded to beneficiary in a lump sum payment. In so doing, Sweely rejected Option 2, which the application designates as "Ten Years Certain," and describes: Lifetime benefit to member, but not less than 120 monthly payments to someone. A decreased retirement benefit payable to a member during his lifetime, and in the event of his death with a period of ten (10) years after his retirement, the same monthly amount shall be payable for the balance of such ten (10) year period to his beneficiary, or in case the beneficiary is deceased, in accordance with Section 121.091(3), Florida Statutes, as though no beneficiary has been named. The application, also designated the Petitioner, Richard A. Castillo, Jr., as Sweely's sole beneficiary. (Sweely previously had designated the Petitioner as his beneficiary, with the Petitioner's mother as the first contingent beneficiary, on a Division of Retirement Personal History Record Form FRS-M10 (Revised 3/89) executed by Sweely on January 25, 1990.) At the time of Sweely's application for disability retirement, Sweely knew that he had full-blown AIDS and that his life expectancy would have to be estimated at approximately two years or less. There also is evidence that Eulah Lee McWilliams, the principal at the elementary school where Sweely taught, counseled Sweely on his options and advised Sweely to select the "Ten Years Certain" option. It is clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided. McWilliams believed that Sweely wanted the Petitioner to have the benefits of the "Ten Year Certain" Option 2. Based on their conversations, McWilliams believed that Sweely concurred with her recommendation in order to provide the maximum possible benefit to the Petitioner upon Sweely's death. But, in the face of Sweely's knowledge and McWilliams's advice and understanding, the application indicates that Sweely selected Option 1. There was evidence that the Petitioner was present and assisting Sweely when the Form FR-13 was executed and that the Petitioner filled out part of the form at Sweely's direction, as writing was inconvenient and difficult for Sweely at the time. But there was no evidence that Sweely was unable to make informed decisions when he executed Division of Retirement Form FR-13 on or about June 20, 1990. The evidence also did not prove that Sweely's choice of Option 1 was inadvertent error. At that point in time, Sweely may have wanted to be optimistic and to be able to enjoy and share with the Petitioner the maximum possible monthly benefit for as long as Sweely lived. McWilliams testified that, at the time, Sweely was trying to remain "up-beat" concerning his illness, in part thinking that this might extend his lifetime. A decision to choose Option 1, contrary to McWilliams's recommendation, also would not have been inconsistent with an earlier decision by Sweely in April, 1990, (this time in conformance with McWilliams's recommendation) to postpone applying for retirement benefits until he exhausted all of his accumulated fully-paid sick leave. Had Sweely died while on sick leave, the Petitioner would not have received the additional retirement benefits he is seeking in this case. (It is not clear from the record exactly what the benefits would have been, but it seems that the Petitioner would not have been entitled to any of the additional retirement benefits he is seeking in this case. Cf. Section 121.091(7), Fla. Stat. (Supp. 1990); F.A.C. Rule 60S-4.008.) A little over a month later, Sweely's condition worsened, and on or about August 14, 1990, he had to be hospitalized again (as already had happened from time to time during Sweely's full-blown AIDS.) On or about August 15, 1990, the Division of Retirement approved Sweely's application for disability retirement, effective July 1, 1990. On the same date, the Division of Retirement also sent Sweely a Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and a blank FRS- 11o "Option Selection Form for FRS Members." The Form FST-40c (R5/89) requested that Sweely "review carefully how the option one and two are paid to your beneficiary." The descriptions of the options in the Form FRS-11o were somewhat different from those in the Form FR-13 application. Option 1 was not called the "Maximum Benefit," and it was described as follows: A monthly benefit payable for my lifetime. Upon my death, the monthy benefit will stop and my beneficiary will receive only a refund of any contributionss 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. (Emphasis in the original.) Option 2 was not called "Ten Years Certain," and it was described as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly benefit payments, my designated beneficiary will receive a monthly benefit payment in the same amount as I was receiving until the monthly benefit payments to both me and my beneficiary equal 120 monthly payments. No further benefits are then payable. The FRS-11o "Option Selection Form for FRS Members" also stated in bold and underlined upper case type: "MEMBER MUST SIGN AND DATE IN THE PRESENCE OF A NOTARY PUBLIC." Whenever Sweely was hospitalized, the emotional strain on the Petitioner increased, and the time spent with Sweely in the hospital left the Petitioner less time to accomplish normal household tasks. The Petitioner's life and home usually became disorganized during Sweely's hospitalizations, and the Petitioner often allowed mail to pile up at their home at these times. The Petitioner testified that, notwithstanding Sweely's hospitalization and its disruptive effect on his life and habits, he happened to collect and read the mail on August 16, 1990. He testified that among the items of mail he read that day was the envelope postmarked the day before in Tallahassee, Florida, containing the Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and the blank FRS-11o "Option Selection Form for FRS Members." The Petitioner testified that he telephoned McWilliams to discuss the forms with her, and she asked him to bring them to the hospital. He testified, and she confirmed, that she met with the Petitioner at the hospital, looked at the forms, and explained them to the Petitioner. Believing, based on the conversations she had with Sweely before June 20, 1990, that Option 2 was Sweely's actual choice, McWilliams advised the Petitioner to choose Option 2. McWilliams testified that she discussed the matter with Sweely and with the Petitioner in Sweely's presence on August 16, 1990. (It certainly is possible that, had they discussed the matter with Sweely on August 16, 1990, Sweely might have chosen Option 2 at that time.) But the Petitioner testified that they did not discuss the matter with Sweely on August 16, 1990. The Petitioner explained that, although Sweely was oriented and physically able to write his name and, from time to time, was mentally lucid on that day, the Petitioner did not think that Sweely was in a position to give full consideration to the matter at the time they were discussing the forms because he was on morphine, was lethargic, and was having difficulty breathing without a non-rebreather mask. The Petitioner also did not think it was necessary to trouble Sweely with the matter, since the Petitioner believed that the selection of Option 2 on the Form FRS-11o was redundant and also that he was authorized to execute the form for Sweely as his attorney-in-fact under a purported durable power of attorney which Sweely executed on or about February 28, 1990, authorizing the Petitoner to act in Sweely's behalf in all matters. Under the circumstances on the afternoon of August 16, 1990, the Petitioner did not think that Sweely would have wanted to be troubled with the matter unnecessarily. He checked Option 2 and signed Sweely's name to the Form FRS-11o. On numerous previous occasions, the Petitioner had signed Sweely's name on Sweely's personal checks to pay Sweely's bills. In doing so, the Petitioner believed that he was acting properly under the authority of the purported durable power of attorney, and the bank always honored the checks the Petitioner signed this way. But on June 13, 1990, a physician insisted that the Petitioner sign a Division of Retirement medical records release form FR-13b in his own name as attorney-in-fact for Sweely. Himself not thinking well or clearly under the circumstances, the Petitioner assumed that his signature on the Form FRS-11o was valid. The Petitioner testified that it did not occur to him that there were notary services available for his use at the hospital. He testified that, after checking Option 2 and signing the Form FRS-11o, he telephoned his father, who was a notary, and asked him to come to the hospital to notarize something for him. The Petitioner's father confirmed this and also confirmed the Petitioner's testimony that they met in the hallway outside Sweely's hospital room, where the Petitioner gave his father the signed form and asked him to notarize it. Both testified that they did not discuss the form in any detail before the Petitioner returned to Sweely's hospital room. The Petitioner's father testified that he notarized the form thinking that Sweely had signed it. Sweely died two days later on August 18, 1990.
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: (1) that the purported selection, on the Form FRS-11o dated August 16, 1990, of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was invalid and ineffective; and (2) that the previous selection of Option 1 on the Form FR-13 executed on or about June 20, 1990, is valid and shall be given effect. RECOMMENDED this 20th day of January, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of January, 1995. APPENDIX TO RECOMMENDED ORDER 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. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to the Petitioner, his actions were not in accordance with the statement.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 12.-14. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) Last sentence, not proven (as to expression of "clear and unqualified acknowledgment and understanding); also rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) 17.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31. "Substantially," rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 32.-35. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (The evidence was that the Patient Care Technician Records were prepared near the beginning of each nursing shift and reflected conditions at that time. Meanwhile, there was evidence that the patient's mental state would "wax" and "wane." When the patient "waned" and was lethargic, it was difficult to communicate with him. Changes during the course of a shift may or may not be noted in the Progress Notes. While the Patient Care Technician Records indicate that the patient was both oriented and lethargic, the 8 a.m. progress notes indicate "lethargic at times." The progress notes also indicate that, earlier in the day, the patient had difficulty breathing without the non-rebreather mask and that, by 2 p.m., he was wearing the mask continuously. Even disregarding the possibility that the morphine dosage was enough to affect his judgment, the patient's lethargy and his difficulty breathing without the mask probably would have made it difficult for him to communicate on legal matters on the afternoon of August 16, 1990.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (He did not allege that Sweely could not communicate or write his name. He testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily. He did not think he had to discuss it with Sweely or have Sweely sign it.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, Dr. Breen's curt medical evaluation of Sweely's general medical condition on August 16, 1990, was not for the purpose of evaluating whether it was possible or prudent to have him considering legal documents and making important legal judgments. In addition, Dr. Breen saw the patient early in the morning and would not have seen changes during the course of the day. 11.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Rejected as contrary to the greater weight of the evidence that Castillo, Jr., "insist[ed] that Sweely was incompetent, unable to provide or receive meaningful communication on August 16--and could not execute the form himself . . .." (Rather, he testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Keith F. Roberts, Esquire 201 North MacDill Avenue Tampa, Florida 33609 Robert B. Button, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2001
The Issue The issue in this case is whether the Petitioner, Mr. Robert P. Hatcher, is eligible to retire under the Florida Retirement System rather than under the Teachers' Retirement System.
Findings Of Fact The Petitioner was employed by the Hillsborough County School Board on August 25, 1959, and was enrolled in the Teachers' Retirement System (TRS) at that time. The Petitioner worked for the Palm Beach County School Board for 27 years, from 1966 through May 15, 1992. The Petitioner worked with no breaks in service during all years in which the Legislature provided open enrollment periods for members of the TRS to transfer to the Florida Retirement System (FRS). The Petitioner was aware of the open enrollment periods, but declined all opportunities to transfer to the FRS. In this regard, the Petitioner specifically rejected membership in the FRS for the 1974 and 1978 open enrollment periods by signed ballots dated November 27, 1974, and November 2, 1978. Petitioner voluntarily terminated his employment with the Palm Beach County School Board on May 15, 1992. Following his termination with the Palm Beach County School Board, Petitioner began seeking employment with an agency that participated in the FRS in order to become eligible to transfer from the TRS to the FRS. The Petitioner's first contact with the Okeechobee County School Board (OCSB) was approximately two years ago when Dr. Mary Gray, Petitioner's acquaintance, introduced Petitioner to Mr. Owens. The Petitioner approached Mr. Owens in an attempt to obtain employment with the OCSB. The Petitioner sought employment with the OCSB for the sole purpose of obtaining entry into the FRS. Mr. Owens recruited and interviewed the Petitioner for the position of Custodian I at the OCSB. At the time the Petitioner was recruited and interviewed, Mr. Owens knew the Petitioner wanted to work for the OCSB for the sole purpose of establishing retirement eligibility. The Petitioner requested that he be hired to work only long enough to establish retirement eligibility by working for a state employer that was a member of the Florida Retirement System. Prior to the Petitioner's request, the OCSB had never had such a request before. The OCSB hired the Petitioner with the knowledge that he had health problems and believing that he would not be able to perform the duties of custodian for more than a short period of time. By letter dated June 23, 1993, the OCSB approved the Petitioner's employment as Custodian I for the OCSB effective June 30, 1993. The Custodian I position was classified as a regular position, not a short-term position. The Petitioner reported to work at the Okeechobee High School on June 30, 1993. He answered phones for several hours, performed some inventory work, then resigned that afternoon. The OCSB acknowledged receipt of the Petitioner's resignation letter, effective June 30, 1993, by letter dated August 2, 1993. The Petitioner submitted an application for membership in the FRS to the OCSB on June 30, 1993. Prior to his employment with the OCSB, the Petitioner investigated the possibility of transferring from the TRS to the FRS. The Petitioner was neither told nor did he receive any written communication by the DOR that he could transfer to the FRS based upon employment for one day. By letter dated August 16, 1993, the Respondent notified the Petitioner that he could not obtain entry into the FRS because his employment was not bona fide, but that he could retire under the TRS. If the Petitioner were to retire under the TRS, his Option 1 monthly benefit payment would be $2,571.64; his Option 3 monthly benefit payment would be $2,396.25. Under the FRS, Petitioner's Option 1 monthly benefit payment would be $3,054.91; his Option 3 monthly benefit payment would be $2,771.20.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Retirement issue a final order concluding that the Petitioner is not eligible for participation in the Florida Retirement System and denying Petitioner's application for transfer from the Teachers' Retirement System to the Florida Retirement System. DONE AND ENTERED this 6th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of January 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs a and b: Accepted in substance. Paragraph c: Accepted in part and rejected in part; accepted that the Petitioner obtained the described employment, but rejected that the employment was bona fide. Paragraph d: Accepted in part and rejected in part. The conclusion that the one day was sufficient to qualify the Petitioner for transfer to FRS is rejected as incorrect and as not warranted by the evidence; the remainder of the facts in this paragraph are accepted. Paragraph e: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Paragraph f: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Findings submitted by Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in whole or in substance in the Findings of Fact made in this Recommended Order. COPIES FURNISHED: Jodi B. Jennings, Esquire Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Allan L. Hoffman, Esquire 1610 Southern Boulevard West Palm Beach, Florida 3406 J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
