The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
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, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 28th day of August, 2014.
Findings Of Fact The petitioner Petitioner, Huey G. Manges, was employed as a fire fighter by the Port Everglades Authority (the Port) in September 1961, and over the years rose through the ranks until in 1975 or 1976 he became Chief of the department. Petitioner served as Chief until 1988 or 1989, and was then promoted to Public Safety Director. As an employee of the Port, petitioner was a member of the Florida Retirement System. The Port's deferred compensation plan In 1983, the Port adopted a deferred compensation plan for all employees. The plan provided that employees could "make contributions into the fund in an amount not to exceed 33.3 [percent] of base salary, with a maximum cap of $7500." Under the plan, the Port, as the employer, made no contribution to the plan. In September 1984, the plan was amended to create a special provision for "key management persons," as an incentive to motivate them to perform in an outstanding manner and to encourage their continued commitment to the Port. At the time, it was observed that such employees have "extensive responsibilities," and "are not compensated for the many hours they work beyond the normal '40- hour' work week." As amended, the Port matched the qualified "key management person['s]" contribution on a dollar for dollar basis, not to exceed a maximum of 5 [percent] of base salary." The combined employer/employee contribution was limited to $7,500, annually. Among the positions designated as "key management persons" was the position of Fire Chief. Subsequently, at a date not apparent from the record, but at least 5 years before petitioner's retirement, the plan was amended to its current format, and further refined the classes of participants. For employees, such as petitioner, who had attained senior management Grade 9 or higher under the Port's management pay plan, and who elected to participate in the plan by executing a participation agreement, the Port agreed to contribute, on behalf of the employee, "an annual amount equal to the lesser of (i) $7,500 or (ii) 10 [percent] of such Employee's Compensation," regardless of whether they contribute to the plan. For employees below senior management Grade 9, and who elected to participate in the plan, the Port agreed to make "a matching contribution equal to 100 [percent] of the amount of a Participant's annual Deferred Compensation, up to an annual maximum matching contribution of 5 [percent] of the Participant's Compensation." According to petitioner, he participated in the plan from its inception, and "maxed it" each year. [Transcript, page 56]. By such testimony, it is concluded that the annual contribution to his deferred compensation account was $7,500, and that the Port's contribution varied, over the years, from a "dollar for dollar" match under the September 1984 amendment, to a full $7,500 contribution during the period that included, at least, petitioner's last five years of employment with the Port. Petitioner's retirement and subsequent events In or about June 1994, petitioner applied with respondent, Division of Retirement, for retirement under the Florida Retirement System, and his request was approved effective July 1, 1994. Since that date, petitioner has duly received his monthly retirement benefits, as calculated from the Division's records at the time of his retirement. On March 8, 1995, petitioner, through counsel, wrote to the Division and requested that his retirement benefits be recalculated predicated on an error he felt was committed by the Port in its contributions to the Florida Retirement System on his behalf. Such error, petitioner contended, was the Port's failure to treat the contributions it made to his deferred compensation account as retirement creditable wages, and to make the necessary contributions to the State Retirement Account. Essentially, petitioner wanted the Division to collect the contributions from the Port, and then recalculate his average final compensation to include the $7,500 annual contribution by the Port, and adjust his pension payments accordingly. 2/ Regarding petitioner's contention, the proof demonstrates that from the inception of the plan until May 1989, the Port, unbeknownst to the Division, had included the contribution it made to an employee's deferred compensation plan in calculating an employee's retirement creditable wages and Florida Retirement System (FRS) contributions. In May 1989, Mary Meynarez, the new director of finance for the Port, wrote to the Division concerning the propriety of such treatment. That letter was in response to a conversation the Port's CPA had with the Division, wherein he was advised that employer contributions to a deferred compensation plan were not subject to FRS contributions because gross or retirement creditable wages do not include matching contributions or fringe benefits. Ms. Meynarez's letter sought written confirmation of the Division's position. By letter of May 19, 1989, the Division advised Ms. Meynarez, consistent with its long established interpretation of the retirement laws, that such was the Division's position. Thereafter, the Port made no further contributions to the FRS based on its contribution to an employee's deferred compensation plan, and it submitted and received from the Division a credit adjustment for the erroneous payments for prior periods. Given the Division's interpretation of the retirement laws, it concluded that the Port properly excluded the contributions it made to his deferred compensation account when calculating FRS contributions, and by letter of July 5, 1995, advised petitioner that his retirement benefits had been correctly calculated and no adjustment would be made. Such letter further advised petitioner of his right to a section 120.57 hearing if he disagreed with the Division's decision. Petitioner timely filed such a request, and this proceeding duly followed. Pertinent legislation and the Division's interpretation Section 121.021(24), Florida Statutes, defines "average final compensation," as that term is used in deriving a members retirement benefits under the Florida Retirement System, to mean: [T]he average of the 5 highest fiscal years of compensation for creditable service prior to retirement, termination, or death . . . The payment for . . . bonuses, whether paid as salary or otherwise, shall not be used in the calculation of the average final compensation. Prior to 1989, section 121.021(22) defined "compensation," as that term is used in the Florida Retirement System, as follows: (22) "Compensation" means the monthly salary paid a member, including overtime payments and bonuses paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compens- ation shall be the total cash remuneration received from such fees. Under no circum- stances shall compensation include fees paid professional persons for special or particular services. During the course of the 1989 Legislative session, proposals were made to amend the provisions of section 121.021(22). The reason for amendment was twofold. First, pursuant to subsection 121.021(22) and (24) bonuses were included in the definition of "compensation" but excluded when calculating "average final compensation." This resulted in a conflict because retirement contributions were due on bonuses, but bonuses could not be used in calculating a member's "average final compensation." Second, the definition of "compensation" was silent with regard to the treatment of salaries paid to employees who participated in a deferred compensation, salary reduction, or tax- sheltered annuity program. Consequently, although the Division had consistently interpreted the subsection to so provide, it was felt appropriate to amend the statute to clearly provide that an employee's election to defer a portion of his salary to a deferred compensation plan did not reduce his retirement creditable wages. As a consequence, pursuant to Chapter 89-126, Section 1, Laws of Florida (1989), subsection 121.021(22), effective June 26, 1989, was amended to read as follows: "Compensation" means the monthly salary paid a member by his or her employer for work per- formed arising from that employment, including overtime payments paid from a salary fund. Under no circumstances shall compensation in- clude fees paid professional persons for special or particular services or include salary payments made from a faculty practice plan operated by rule of the Board of Regents for eligible clinical faculty at the Univer- sity of Florida and the University of South Florida. [For all purposes under this chapter, the compensation or gross compensation of any member participating in any salary reduction, deferred compensation, or tax-sheltered annuity program authorized under the Internal Revenue Code shall be deemed to have been the compen- sation or gross compensation which the member would have received if he or she were not participating in such program] [Emphasis added]. Here, while recognizing that the contributions made by the Port to petitioner's deferred compensation plan may be part of a management package designed to encourage employment fidelity, the Division considers such payments fringe benefits, similar to employer paid health and life insurance, and not "compensation," as defined by subsection 121.021(22) for retirement purposes. In reaching such conclusion, the Division first points to the provision of subsection 121.021(22), as amended, which provides that "[f]or all purposes under this chapter, the compensation or gross compensation of any member participating in any salary reduction, deferred compensation, or tax- sheltered annuity program . . . shall be deemed to have been the compensation or gross compensation which the member would have received if he or she were not participating in such program." Since petitioner would not have received the $7,500 Port contribution had he not elected to participate in the Plan, the literal application of the statutory language would exclude such payments from the definition of "compensation or gross compensation" for retirement purposes. In contrast, petitioner points out that the amendment to subsection 121.021(22) relied upon by the Division was not occasioned to address the peculiarities of his situation, but was designed to clarify that the portion of the employee's salary he elected to defer would not reduce his retirement benefits. Such issue is distinct, according to petitioner, from the issue of whether employer contributions to a deferred compensation plan are "compensation" for retirement purposes. While petitioner may be correct as to the purpose of the amendment to subsection 121.021(22), such does not compel the conclusion that the Division's literal application of that subsection, as excluding employer contributions from the calculation of retirement creditable wages, was not consistent with the Legislature's intent. In concluding that the Division's interpretation is reasonable and consistent with the purpose and intent of subsection 121.021(22), it is observed that under that subsection "compensation" is defined to mean "the monthly salary paid a member by his . . . employer for work performed." "Monthly salary," as observed by the Division, is commonly understood and reasonably read to refer to the fixed compensation for services paid to the employee on a regular basis or, as in petitioner's case, his fixed monthly salary under the Port's management pay plan, and does not include fringe benefits, such as employer matching payments or contributions to a deferred compensation plan. 3/ Consequently, the Division's decision to exclude such benefits from the calculation of petitioner's retirement benefits under the Florida Retirement System was reasonable. 4/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing petitioner's petition for formal hearing, and denying his request for additional retirement benefits. DONE AND ENTERED this 13th day of June, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 13th day of June, 1996.
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 Whether Petitioner qualifies for retirement benefits as a joint annuitant of the late Roy Hartley, Jr.
Findings Of Fact Roy Hartley, Jr., died on June 11, 1994, with more than ten years of service as a member of the Florida Retirement System (FRS). Mr. Hartley was employed as a police officer with the Metro Dade Police Department. His Social Security Number was 267-70-3906. At the time of his death, Mr. Hartley had personally contributed the sum of $655.38 to the FRS. On October 29, 1993, Mr. Hartley designated Petitioner as the beneficiary of his retirement benefits on FRS Form M-10. After Mr. Hartley's death, Petitioner applied to the State of Florida, Division of Retirement, for benefits as Mr. Hartley's designated beneficiary. To be entitled to monthly retirement benefits, Petitioner must establish that she was a dependent of Mr. Hartley so as to qualify as a joint annuitant of his monthly retirement benefits. Section 121.091(7)(g), Florida Statutes (1994), contains the option that Petitioner seeks to exercise: (7)(g) The designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to the completion of 10 years of credible service but prior to actual retirement may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his death and the age the member would have attained on the commencement date of the deferred benefit elected by his beneficiary, paid in accordance with option 3 of paragraph (6)(a). Section 121.021(28)(c), Florida Statutes, contains the definition of the term "dependent beneficiary" that is pertinent to this proceeding: (28) Dependent beneficiary means any person designated by the member to receive a retirement benefit upon the member's death who is either: * * * (c) A person who is financially dependent for no less than one-half of his support from the deceased at retirement or at time of the death of such member, whichever occurs first. Rule 60S-6.001(34), Florida Administrative Code, defines the term "joint annuitant" as follows: JOINT ANNUITANT -- Means . . . any other person who is financially dependent where the other person is someone who is receiving one-half or more of his support from the member or is eligible to be claimed as a dependent or exemption on the Federal income tax return of the member. Petitioner and Mr. Hartley were not married, but they were living together at the time of his death. Except for a relatively short breakup, they had lived together for thirteen years. Petitioner was not claimed as a dependent on Mr. Hartley's federal income tax return. At the times pertinent to this proceeding, Petitioner worked part-time as a bartender. Respondent requires a person who is claiming to be a dependent of a deceased member pursuant to Section 121.021(28)(c), Florida Statutes, to document that the member contributed more than half of the alleged dependent's support. Stanley Colvin, the administrator of Respondent's retirement section, established that the Respondent typically reviews financial data for the year preceding the member's death in determining whether the deceased member contributed half of the alleged dependent's support. In making this determination, the Respondent determines the amount that the alleged dependent has to contribute to his or her own support and thereafter requires the alleged dependent to establish that the member contributed an amount equal to or more than that amount. Since the member died in June of 1994, Respondent in this case examined the W-2 statements for Petitioner and for Mr. Hartley for several years proceeding his death and for the year 1994. The 1993 W-2 statements reflect that Mr. Hartley had income from his employment of $67,360.23 while Petitioner had income from her employment of $9,450.00. Based on the differences between their earnings, it did not appear that there would be a problem with Petitioner's claim when Respondent's staff first reviewed the claim. The house in which Petitioner and Mr. Hartley lived at the time of his death was titled solely in the name of the Petitioner. This house was purchased in 1992. The fact that Petitioner owned the house only in her name caused Respondent's staff to question this claim. After learning about the house, Respondent's staff asked Petitioner to document that Mr. Hartley contributed more than half of her support and requested that she provide copies of cancelled checks and tax returns. In response to that request, Petitioner provided copies of certain cancelled checks and copies of her tax returns for 1992 and 1993. 1/ Mr. Hartley and Petitioner routinely gambled at Seminole Bingo. The down payment for the house came from their bingo winnings. Although they both gambled at bingo, Petitioner usually sat in the chair so that she would be the one to claim any bingo winnings. These winnings were reported on Petitioner's income taxes for the years 1992 and 1993. For 1992, Petitioner claimed bingo winnings in the amount of $60,531 and wagering losses in the amount $45,850. For 1993, Petitioner claimed bingo winnings in the amount of $21,860 and wagering losses in an equal amount. Petitioner's federal income tax return for 1993 reflected an adjusted gross income of $31,508. This sum included bingo winnings of $21,860. Petitioner testified, credibly, that they did not go to bingo as frequently in 1994 because Mr. Hartley had become interested in racing automobiles, but there was no evidence as to whether Petitioner or Mr. Hartley won at bingo during 1994 prior to Mr. Hartley's death. After reviewing the documentation provided by Petitioner, the Respondent denied monthly benefits to her. Respondent's denial was based on its interpretation of its rule that all income, including gambling winnings, should be considered as being available for the support of a person claiming to be a dependent of a member of the FRS. 2/ Respondent is not concerned with whether the alleged dependent loses his or her winnings at bingo or uses the winnings to pay bills. Respondent allocated the house payments, household expenses, and grocery costs paid by Mr. Hartley to have been one-half for Petitioner's support and the other half for his own support. 3. Respondent determined, correctly, that the documentation did not support a findings that Mr. Hartley contributed more than half of Petitioner's support when the bingo winnings were considered. Respondent advised Petitioner that she was entitled to a refund of Mr. Hartley's contribution to the FRS in the amount of $655.38. Petitioner established that Mr. Hartley paid the house payment ($683.00 per month in 1994), that he paid most of the household expenses, and that he routinely gave Petitioner cash for food, clothes, and miscellaneous expenses. The only bill routinely paid by Petitioner was the utility bill. She also paid her car bill and her auto insurance bill. Mr. Hartley occasionally assisted her with those bills. Based on the totality of the evidence, 4/ including the discrepancy between Mr. Hartley's earned income and Petitioner's earned income, 5/ the fact that Mr. Hartley paid the housing expenses, except for utilities, and the fact that he routinely gave Petitioner cash to use for her support, it is found that Mr. Hartley contributed more than $10,000 a year toward Petitioner's support. The evidence does not, however, support a finding that Mr. Hartley contributed more than $31,000 a year toward Petitioner's support. 6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and approves Petitioner's application for monthly benefits as a joint annuitant of Roy Hartley, Jr. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue The issues are whether Petitioner's employment as a substitute teacher is creditable service under the Florida Retirement System, entitling her to retirement benefits and whether she may purchase retirement credit for out-of-state and federal service prior to vesting.
Findings Of Fact Petitioner, aged 53, applied for retirement benefits from the Florida Retirement System (FRS) on October 20, 2003. Petitioner has 4.53 years of creditable service with the FRS due to her employment as a full-time teacher with the Alachua County School Board (School Board). She worked for the School Board from sometime in the early 1970s through May 1977. In May 1977, Petitioner terminated her employment with the School Board. She then joined the military, serving four years of active duty. After completing her military service in 1981, Petitioner worked out of state as a civil service employee with the Federal government. She also worked for a period of time in the private sector. In the 1990s, Petitioner returned to Alachua County, Florida. She worked as a substitute teacher for the School Board for approximately four years, from November 21, 1999 through February 14, 2002. Before beginning her employment as a substitute teacher/temporary employee in 1999, Petitioner signed a document entitled "Acknowledgement of FRS Status and Alternative Plan." This document clearly advised Petitioner that her employment as a substitute teacher was not covered under FRS. Petitioner was not employed by a participating employer in a regularly established position on July 1, 2001. She needs an additional 1.47 years of credible service in order to vest in FRS with six years of credible service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to FRS benefits. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 13th day of January, 2004. COPIES FURNISHED: Robert R. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Carolyn Johnson-Rollins Apartment N118 2701 Northwest 23rd Boulevard Gainesville, Florida 32605 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
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
Findings Of Fact The Petitioner James H. Clendenin was elected to the office of Commissioner of the Canaveral Port Authority and served as a Port Commissioner from January 1, 1967 through December 31, 1982. The Petitioner was one of five Commissioners of the Authority. The Petitioner was not enrolled in the Florida Retirement System, Chapter 121, Florida Statutes, or any prior system until January 1, 1969. Prior to that date he was enrolled from January 1, 1969 through November 30, 1970, in the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. The Port Authority, the authorized governing body of the Canaveral Port District, is an autonomous public entity created and established by Chapter 28922, Laws of Florida, 1953. As a Commissioner, the Petitioner was paid monies for his service for calendar years 1967 and 1968 which were reported as income--to the Internal Revenue Service. Prior to January 1, 1969, the Petitioner was required to submit a voucher for expenses and was paid on a fee basis. He received $25 per day in per diem and was reimbursed through an expense account. In order to receive the $25 which was characterized as per diem pay under the special act, the approval of the other four Commissioners was required. The total per diem was paid to each Commissioner on a monthly basis. After January 1, 1969, salaries were authorized for Commissioners and the per diem system was abandoned. Thereafter, the Petitioner received a salary check without request or required attendance at the Authority's meetings. On January 1, 1969, Petitioner submitted an application for enrollment in the State Retirement System. His application was accepted and the Petitioner began to accrue retirement service credits. Upon Petitioner's retirement, he attempted to claim and purchase prior service credits for 1967-1968. However, Petitioner was denied the opportunity to pay retirement contributions for retirement service credits for those years, and monies he had paid to purchase the prior service period were refunded. Consequently, Petitioner was credited with only 13.30 total years of service instead of 15.30 years. The difference in benefits amounts to 18.78 per month.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Respondent permitting the Petitioner to purchase additional service as a Port Commissioner for 1967 and 1968 upon payment to the Retirement Fund of $496.68 and increase the Petitioner's retirement benefit to the amount originally calculated to be due him by the Division of Retirement, retroactive to the date the Respondent received from the Petitioner monies paid for the purchase of the additional service. DONE and ENTERED this 19th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984. COPIES FURNISHED: Robert T. Westman, Esquire STROMIRE WESTMAN LINTZ BAUGH McKINLEY AND ANTOON, P.A. 1970 Michigan Avenue, Bldg. C Post Office Hox 1888 Cocoa, Florida 32923 Augustus D. Aikens, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
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 Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is eligible to participate in the Deferred Retirement Option Program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1976, a firefighter employed by Miami-Dade County and, as such, a Special Risk member of the Florida Retirement System. Petitioner's date of birth is September 19, 1937. Accordingly, on July 1, 1998, the effective date of DROP, Petitioner was 61 years of age and had approximately 22 years of creditable service as a Special Risk member of the Florida Retirement System. Petitioner was aware that he needed to file an application to join DROP within 12 months of July 1, 1998, but he opted not to file such an application because he believed that the retirement benefits he would receive if he joined DROP within this 12-month period would not be enough for him to "live on" after he stopped working.2 Petitioner thought that it would be in his best interest, instead, to wait until 2003 to retire (and enjoy higher retirement benefits). On June 7, 2001, Petitioner sent an e-mail to Governor Bush, which read, in pertinent part, as follows: Yesterday I met with the head spokesman of FL. State Retirement concerning my participation in the D.R.O.P. [and] he advised me to send this note. As you know it started in 1998 at which time I was offered a small window because of my age (unlawful discrimination) for which I was not able to get into because of the insignificant amount offered as permanent retirement. Since then, as anticipated, my retirement has increased from the high 30's to the low 60's due thanks to you . . . Now, I am asking, by special request, to be allowed to enter into the D.R.O.P. either to finish these two years or to be given an opportunity to go for the whole 5 years, which I doubt I would complete. . . . Petitioner's e-mail correspondence was referred to the State Retirement Director who, by letter dated June 8, 2001, advised Petitioner that Petitioner's "request to join DROP at this late date must be denied."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding that Respondent is not eligible to participate in DROP because he did not elect to do so within the time frame prescribed by Subsection (13)(a)2. of Section 121.091, Florida Statutes. DONE AND ENTERED this 14th day of December, 2001, 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 14th day of December, 2001.
The Issue The central issues in this case are (1) whether Petitioner is eligible for membership in and retirement benefits from the Teachers' Retirement System; and (2) whether Petitioner is entitled to receive as a refund contributions paid by his employing agency and, if so, how much and at what interest rate.
Findings Of Fact Petitioner, currently sixty-six years old, was employed as a professor of economics and finance at the University of South Florida (USF), Tampa, Florida, from September 1965 through August 31, 1981, when he terminated employment. As a member of the teaching faculty, Petitioner automatically became a compulsory member of the Teachers' Retirement System (TRS) and remained a member throughout his tenure at USE. When Petitioner originally enrolled in the TRS in September 1965, he signed an enrollment form entitled "Teachers' Retirement System of Florida, Enrollment Blank New Teachers." The form provided general information concerning the TRS, and included information about contributions, service credit, and service retirement benefits under the TRS. The enrollment form provided in part the following: I understand that the full amount of deductions from my compensation for annuity purposes with compound interest will be returned to me if I leave the service without a retirement benefit or will be paid to my beneficiary if I die in active service. At all times relevant hereto, the TRS required that members make contributions of six-quarter percent of their total salaries to their retirement accounts. Of this amount, six percent went into the TRS member's retirement account and the quarter percent was allocated to the Survivors' Benefits Fund. In addition to the contributions made by TRS members, employers were required to contribute matching funds to the TRS Retirement Fund. While employed at USF, the prescribed six quarter percent of Petitioner's salary was deducted, with six percent appropriately posted to his TRS retirement account. During the time Petitioner was employed at USF, the employer contribution paid by USF to match Petitioner's contribution was $23,846.06. Had Petitioner remained a member of TRS, he would have been eligible to begin receiving benefits in February 1993. While employed at USF, Petitioner was given the option to transfer from the TRS to the newly created Florida Retirement System on five different occasions: December 1970; June 1971; July 1972; January 1975; and January 1979. Through information disseminated by Respondent, TRS members were notified that by transferring to the "new" Florida Retirement System, they would become mandatory members of the federal Social Security System. Petitioner chose to remain in TRS rather than transfer to the Florida Retirement System, thereby foregoing membership in the federal Social Security System. In August 1981, prior to his normal age of retirement, Petitioner terminated his employment with USF and requested that Respondent refund Petitioner's retirement contributions. In making the request, Petitioner completed and signed a form entitled, "Request for Refund," FRS M81. Completion of this form is a requisite for receiving retirement refunds and applies to members of any of the Florida retirement systems. The Request for Refund states: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. On the reverse side of the Request for Refund card, is the following: Under the provision of the Florida Statutes, a member MUST terminate employment before he can obtain a refund. * * * The refund process may be started upon receipt of this application. It may be necessary to issue a second refund after all payrolls on which a member's name appears are received and audited by the Retirement System Office. A member who has ten or more years of creditable service has a vested interest in retirement and may leave his contributions on deposit indefinitely and qualify for deferred retirement. Pursuant to Petitioner's request, the Division refunded $22,153.10 to Petitioner in October 1981. The refund, which was provided in three warrants, included all employee contributions and earned interest posted to Petitioner's retirement account as of the date of the refund. Petitioner's refund was provided in three separate warrants because the system in place, in 1981, was incapable of generating a single check for an amount in excess of $9,999.99. In late 1995 or early 1996, Petitioner called the Division of Retirement to inquire about his benefits under the TRS. Petitioner made after this call after he reviewed his Social Security wage earning history and learned that no contributions had been posted to his Social Security account during the sixteen years he had been employed at USF. Upon reviewing the Petitioner's request, Respondent discovered that $1,692.96 remained in Petitioner's TRS account. Of the amount remaining in Petitioner's account, $292.63 represented Petitioner's employee contributions, and $1,400.33 was earned interest. Respondent's failure to refund Petitioner's $292.63 and the interest earned thereon as soon as these moneys were posted to Petitioner's account was the result of an unintentional accounting error. Under the procedures used by the Division at that time, Petitioner's most recent employee contributions were not posted to his account until November or December 1981. The interest earned on Petitioner's employee contributions were not posted to Petitioner's account until the end of the 1981/1982 fiscal year. This matter is addressed in the Request for Refund which notified members that "it may be necessary to issue a second refund" after all payrolls on which the member's name appears have been posted. After discovering this inadvertent accounting error, Respondent initially agreed to refund Petitioner the outstanding $1,692.96. Subsequently, the Division of Retirement agreed to pay Petitioner $1,692.96 plus six a-half percent interest from October 1981, for a total amount of $4,088.31. The six and a- half percent interest rate is the current rate established by Respondent. Pursuant to Petitioner's request, Respondent has not yet refunded Petitioner's outstanding employee contributions and interest, pending the culmination of this proceeding. At the time Petitioner completed and signed the Request for Refund, it was his intention to obtain all of his contributions and interest. It was not until Petitioner's inquiry in 1995 or 1996 that he became aware that a small amount of his employee contributions and interest thereon had not been refunded. Petitioner believes that because Respondent did not refund all moneys due him, some $1,692.96, he retained membership in the TRS and is now able to retire from that system with a partial benefit. Alternatively, Petitioner asserts that he is entitled to receive as a refund, all contributions paid into his retirement fund, including the contributions paid by USF. According to Petitioner, his understanding and belief in this regard is based on an explanation provided to him by Dr. John Milliken, the Dean of the College of Business at USF. Petitioner's understanding in this regard was not correct. At some point prior to Petitioner's terminating his employment at USF, he reviewed a Summary Plan Description (SPD) which was issued by the Division of Retirement in 1980. One section of the SPD, Refund of Contributions, provides in relevant part: If a member terminates employment he may elect to receive a refund of all the contributions he has made to the retirement system, except those made to the Survivors' Benefit Trust Fund. Furthermore, the first paragraph of the Summary Plan Description states: This brochure contains basic information on the Teachers' Retirement System, established by Ch. 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers' Retirement System and should not be used in place of the law on questions of interpretation and appli-cation. Any question which are not answered by this brochure may be addressed to the Div. of Retirement, . . . . Based on Petitioner's reading of the provision of the SPD quoted in paragraph 20 above, it was his "judgment" and "impression" that any refund prior to retirement, would include both employee and employer contributions and the interest on these contributions. At no time did Petitioner verify his interpretation with the Division of Retirement or the USE Personnel Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order finding that Petitioner, John C. Deiter, is (1) ineligible for retirement benefits under the Teachers' Retirement System and (2) is not entitled to receive employer contributions and interest thereon. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELDK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Murray B. Silverstein, Esquire POWELL, CARNEY, HAYES and SILVERSTEIN, P.A. Barnett Tower One Progress Plaza, Suite 1210 St. Petersburg, Florida 33701 Stanley M. Danek, Senior Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399
