The Issue The issues are whether Respondent Francis Thompson's interests in the pension plan are forfeited under the law, whether he should be required to repay all monies received less accumulated contributions, and whether Respondent Patricia R. Thompson's interest in the plan is forfeited upon the forfeiture of the rights of her former husband.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The City of Daytona Beach (City) is a municipal corporation created as a political subdivision of the State of Florida. Petitioner, Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund (Board), was established by Special Act of the Legislature in 1959, as amended in 1965. The Board is responsible for administering the City's police and fire department retirement plan (plan) and paying benefits to eligible participants subject, however, to the requirements of Chapter 112, Part VII, Florida Statutes. Respondent, Francis Thompson, is a plan participant, having retired as a police officer with the City of Daytona Beach Police Department on September 24, 1994. His dates of service are from July 31, 1972, to July 30, 1977, and from June 19, 1983, to September 24, 1994. Under the terms of the plan, upon retirement, Francis Thompson was entitled to $1439.84 per month in retirement benefits. Sometime prior to his retirement, however, his marriage to Patricia R. Thompson was dissolved. As a part of the settlement between the parties, Francis Thompson agreed to transfer a portion of his benefits (48.75% had he retired on January 31, 1992), but not to exceed a total liability of $31,000.000, plus twelve percent simple interest on the unpaid balance computed from January 31, 1992. This agreement is embodied in a Domestic Relations Order entered on March 30, 1993, by the Circuit Court, in and for Volusia County, Florida. Although the City was never given notice of this proceeding nor an opportunity to participate, the order reflects that a copy of the same was served upon the plan administrator. Notwithstanding the above action, Section 10 of Sub-Part D of the City Code provides that "the right of a person to a pension . . . shall be unassignable." In other words, Francis Thompson was prohibited from assigning his plan benefits to another person. Faced with a court order which directed the City to pay a portion of the benefits to a third party, the plan administrator consulted with the City's legal counsel, who advised the adminstrator to "follow the intent" of the court's order and begin paying a portion of the benefits to the former wife. It is noted, however, that Patricia R. Thompson did not receive an interest in the plan by the court's order; rather, she obtained entitlement to a portion of the benefits of a plan member. Between September 1995 and the end of November 1997, Patricia R. Thompson has received $24,199.32 in benefits. As of the same date, Francis Thompson received a total of $55,333.18 in benefits. Based upon a belief that Francis Thompson had been convicted of a specified offense related to conduct prior to his retirement, on August 5, 1997, the Board initiated this proceeding for the purpose of terminating all of his rights and benefits under the plan and requiring him to return $42,655.20, plus all distributions, if any, made subsequent to June 1997. Because Patricia R. Thompson is now receiving a portion of her former husband's benefits, she was also named as a party. Between 1987 and 1994, Francis Thompson was evidence custodian and in charge of the evidence and property room for the City of Daytona Beach Police Department. In that position of special trust, he was responsible for keeping all weapons, drugs, moneys, and other property seized or held by the Police Department. The position of evidence custodian was a position that required the City to trust that the custodian would properly perform his responsibilities and duties. It is undisputed that during his tenure as evidence custodian, Francis Thompson removed multiple firearms from the evidence and property room and shipped them to another person in the State of Pennsylvania for personal use. The Police Department could not find any evidence that the firearms had been properly logged or recorded for removal in accordance with proper protocol. By engaging in this conduct, Respondent violated the City's trust. On June 27, 1996, Francis Thompson was convicted of multiple felony violations of the United States Code in the United States District Court, Eastern District of Pennsylvania, in Case No. 2:95CR00232-1. One of these offenses was "shipping stolen firearms in interstate commerce." Because the offense involved the commission of a theft by a public employee from his employer, it constituted a "specified offense" as defined by Sections 112.3173(2)(e)2. and 6., Florida Statutes (1997). The conviction for a specified offense calls for forfeiture of all retirement benefits under Section 112.3173(2)(e)2., Florida Statutes (1997). Finally, it is noted that the illicit activity occurred while Respondent was employed as evidence custodian with the City's Police Department. Throughout his term of employment with the City, Francis Thompson made accumulated contributions to the plan totaling $29,173.21. As of November 30, 1997, the plan administrator had distributed plan benefits in the amount of $79,532.50, or $50,359.29 more than contributions. At hearing, Respondent's present wife, Patricia B. Thompson, testified on his behalf. Her testimony was limited to a request that, due to financial and health problems incurred by her incarcerated husband, the undersigned appoint counsel on his behalf. That request was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund enter a final order determining that Francis Thompson's interest in the plan, including past payments made and future benefits payable by the plan, less accumulated contributions shall be forfeited by the Board pursuant to law; that all persons deriving an interest through his interest in the plan, including his present and former wife shall forfeit all future payments from the plan upon the issuance of a final order; and that Francis Thompson shall pay back to the Board all payments in excess of his accumulated contributions in such manner as the Board may determine. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Margaret T. Roberts, Esquire Post Office Box 832 New Smyrna Beach, Florida 32170-0832 David D. Fuller, Esquire 220 South Ridgewood Avenue Suite 210 Daytona Beach, Florida 32114 Francis Thompson Registry Number 17952-018 Eglin Air Force Base Prison Camp Post Office Box 600 Eglin Air Force Base, Florida 32542 James C. Maniak Plan Administrator City of Daytona Beach Post Office Box 2451 Daytona Beach, Florida 32115-2451
The Issue Whether the Petitioner is entitled to back- date her disability retirement date as requested.
Findings Of Fact At all times material to the findings of this case, the Petitioner, Annie L. Gibbs, was a member of the Florida Retirement System (FRS). In 1995 the Petitioner was injured and unable to work for a period of time. Although she did return to work for an unknown period, she was unable to continue. The Petitioner seeks retirement benefits from November of 1995, the date from which she initially filed an application for benefits. She has not received benefits for the years 1996 and 1997. The Department acknowledges that it received Petitioner's application for disability retirement on or about November 30, 1995. In response, the Respondent sent Petitioner requests for additional information in order for the application to be completed. The first of these requests was directed to Petitioner on December 8, 1995. The Petitioner never submitted responses to the requests for additional information. Physician reports were required in order to confirm the Petitioner's medical condition. The Petitioner did not submit the forms. On January 26, 1996, the Respondent submitted a follow-up letter again noting that the information was needed to complete the Petitioner's application for benefits. The Petitioner maintains that she provided the forms to her physician(s) and that she could not compel them to submit the forms. For whatever reason, the forms were not tendered to the Department. Without the forms the Respondent could not approve the Petitioner's request for benefits. The Department sent a third notice to the Petitioner requesting the information on April 26, 1996. Additional notices were sent to the Petitioner. All notices went to the Petitioner's address of record where she has continuously resided since the outset of this issue. The Department maintains copies of the certified mail receipts indicating the Petitioner signed for the notices requesting additional information. The Petitioner does not dispute that the Department sent the notices. Moreover, the Petitioner does not dispute that she received such notices although she may not remember them. The Petitioner maintains that her mental state during the period of time the notices were provided was such that she was not functioning properly to adequately protect her interests in this matter. Why family members or others were unable to address this matter is unknown. The Department is required by law to follow specific guidelines in the processing of claims for disability retirement. It has followed all such procedures in this cause. The Petitioner submitted a second application for disability retirement on September 30, 1998. Thereafter the Petitioner was approved for benefits and such payments began in October 1998. In conjunction with the second application, the Petitioner submitted all forms required by the Department to process and approve the request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the Petitioner's request to backdate the application for benefits. DONE AND ENTERED this 18th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 18th day of September, 2002. COPIES FURNISHED: Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-1560 Annie L. Gibbs 10351 Quito Street Cooper City, Florida 33026-4519 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner's application for disability retirement benefits should be reinstated.
Findings Of Fact Petitioner Edna Shepherd is a member of the Florida Retirement System. In September 2001, Ms. Shepherd submitted an application for disability retirement benefits to the Division of Retirement. The application was not complete and several documents were needed to process the application. By letter dated September 27, 2001, the Division wrote Ms. Shepherd acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application. Petitioner did not respond to the September 27, 2001, letter, so the Division mailed another request on October 29, 2001. Again two blank FR-13bs were included with the letter. On November 29, 2001, the Division mailed a third request for information to Petitioner. Blank forms were also included with this letter. By letter dated January 3, 2002, the Division mailed a fourth request to Ms. Shepherd again requesting information necessary to complete her application for disability retirement benefits. After the Division did not receive a response to its previous letters mailed to Petitioner, it sent a letter dated February 4, 2002, by certified mail to Ms. Shepherd advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Finally, after more than six months since submission of her application, the Division sent a letter dated March 25, 2002, by certified mail to Ms. Shepherd notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter and this timely appeal followed. Petitioner's attorney made two submissions to the Division dated September 14, 2001, and February 22, 2002; however, they did not contain the requested physician statements. As of the hearing, the requested physician statements still had not been supplied to the Division. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement issue a Final Order denying the request of Petitioner Edna M. Shepherd to reinstate her disability retirement application. DONE AND ENTERED this 18th day of September, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of September, 2002. COPIES FURNISHED: Leon M. Boyajan, II, Esquire 2303 West Highway 44 Inverness, Florida 34453-3809 Thomas E. Wright, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issue for determination is whether Petitioner's rights and benefits under the Florida Retirement System should be terminated, per Respondent's Notice of Termination dated November 19, 2004.
Findings Of Fact No dispute exists that Ms. Page was employed with DLES. Furthermore, no dispute exists that, because of her employment with DLES, Ms. Page is a member of FRS. No evidence was presented as to Ms. Page's duties at DLES. In September 1999, Ms. Page was charged by an information in the Eleventh Judicial Circuit, In and For Dade County, in The State of Florida v. Ismael Page aka May Washington aka Ismay Washington, Case No. 99-27532, with one count of filing a false and fraudulent insurance claim in violation of Section 817.234(1), Florida Statutes, a third degree felony; and one count of grand theft in violation of Section 812.014(2)(c)1, Florida Statutes, a the third degree felony. Additionally, in September 1999, Ms. Page was charged by an information in the Eleventh Judicial Circuit, In and For Dade County, in The State of Florida v. Ismael Page aka May Washington aka Ismay Washington, Case No. 99-27533, with one count of filing a false and fraudulent insurance claim in violation of Section 817.234(1), Florida Statutes, a third degree felony; one count of uttering a forged instrument in violation of Section 831.02, Florida Statutes, a third degree felony; and one count of grand theft in violation of Section 812.014(2)(c)1, Florida Statutes, a the third degree felony. The count of uttering a forged instrument involved a forged letter by Ms. Page from a person, who was employed at DLES and who was alleged in the letter to be her supervisor at DLES, showing that Ms. Page had incurred lost wages as the result of an injury in an accident. The forged letter was submitted by Ms. Page to an insurance company in support of her claim for disability benefits. The person who was alleged to have written the letter and to be Ms. Page's supervisor at DLES did not write the letter. Ms. Page received disability payments from the insurance company. On or about September 13, 1999, Ms. Page pled guilty to and was adjudicated guilty of the one count of filing a false and fraudulent insurance claim and the one count of grand theft in Case No. 99-27532. On or about September 13, 1999, Ms. Page pled guilty to and was adjudicated guilty of the one count of filing a false and fraudulent insurance claim, the one count of uttering a forged instrument, and the one count of grand theft in Case No. 99-27533. By Notice of Termination of All Rights and Benefits Under the Florida Retirement System (Notice), dated November 19, 2004, Retirement notified Ms. Page that all of her rights and benefits under FRS were terminated. Retirement claimed in the Notice that Ms. Page, while employed at DLES, had pled guilty to one count of fraudulent insurance claims in violation of Section 817.234(1), Florida Statutes; one count of uttering a forged instrument in violation of Section 831.02, Florida Statutes; and one count of grand theft in the third degree in violation of Section 812.014(2)(c), Florida Statutes. Further, Retirement asserted in the Notice that, based on the criminal violations and pursuant to Article II, Section 8(d) of the Florida Constitution, Section 121.091(5)(f), Florida Statutes (2000), and Section 112.3173, Florida Statutes, she had no further rights under FRS, that she would not be permitted to repurchase, as prior service, the years of creditable service she earned prior to the convictions, and that her accumulated contributions on deposit in the FRS Trust Fund, if any, would not be affected. Ms. Page challenged Retirement's action and requested a hearing. In her challenge to Retirement's action, Ms. Page made an allegation of dismissal of charges and of being presently disabled. Ms. Page failed to appear at the hearing. Because of her failure to appear, her allegation remains nothing more than an allegation without support for which no finding of fact can be made.
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 reinstating the rights and benefits of Ismael Page under the Florida Retirement System. DONE AND ENTERED this 2nd day of September 2005, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2005.
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
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 request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S 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 July, 2003.
The Issue Whether Petitioner is entitled to in line of duty disability retirement as defined in Section 121.021(13), Florida Statutes. Whether the Petitioner's retirement date should be established immediately following her termination of service as a full time employee of the State of Florida. The parties had no motions or other preliminary matters to be considered prior to the presentation of evidence. Both parties stipulated that the Petitioner is entitled to disability retirement benefits as a result of total and permanent disability within the meaning of Section 121.091(4)(b), Florida Statutes. The Respondent introduced into evidence Respondent's Exhibits 1 - 4 which consisted of medical reports and other documents filed by the Petitioner pursuant to her application for retirement which are a part of her official records in the Division of Retirement. The exhibits also include copies of correspondence concerning her application with the Division of Retirement. Exhibit 24, a medical report of Dr. Jaime M. Benavides, dated August 26, 1975, was placed in the record for the first time by the Petitioner at the hearing. Neither of the parties objected to the admission of Exhibits 1 - 24. Counsel for Petitioner and Respondent made opening statements, and closing arguments. The Petitioner presented the testimony of four witnesses, including herself, at the hearing. Respondent had no witnesses. The parties stipulated that: Petitioner became an employee of Monroe County in March, 1956 and remained in that status until 1962 and also from 1963 until October 1, 1971 when she commenced employment for the State of Florida. She transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System on December 1, 1970. She remained a member of the Florida Retirement System until her termination of employment on September 28, 1973, at which time she had 16.5 years creditable service under the Florida Retirement System.
Findings Of Fact Petitioner was born April 20, 1916. She began work for Monroe County in March of 1956 as a Counselor for the County Juvenile Court. Her area of responsibility was from ten miles north of Marathon, Florida, to the Dade County line encompassing the upper Florida Keys. She traveled constantly in performance of her duties which consisted of handling juvenile probationers, child abuse cases, dependency cases, and the like. In the course of her employment, she traveled constantly over an area of approximately 70 miles in length making visits to homes, talking to parents and the troubled children, evaluating them and reporting back to the Court as to whether or not they were complying with the terms of their probation. In 1962, her husband was transferred to the lower Keys and, for a brief period, she had to wait for a job opening in Key West. In 1963, she again was employed by the Juvenile Court in the same capacity that she had held previously. During this period of time, she additionally had to handle court cases and prepare various reports to be furnished to State agencies. She had no secretary to assist her in these matters and consequently was quite busy with field work and administrative duties. At this time, she was living in Big Pine Key which is approximately 37 miles north of Key West, and her territory was from South of Marathon to Key West, a distance of approximately 31 miles. In the course of her employment, she traveled an average of about 100 miles a day. In 1970, she was also obliged to work from Key West to the Dade County line for a period of a year because the Juvenile Court Judge had discharged the counselor who had had that additional area of responsibility. During this period, Petitioner was responsible for all of the delinquencies and dependent female children for the entire area and, although her hours of employment were supposed to be 40 hours a week, it turned out that she was on call 24 hours a day as a practical matter. She was frequently called at home at dinner time or in the middle of the night to pick up an abused child. She would normally receive several calls a night dealing with her duties. In October, 1971, she began employment with the State of Florida, Division of Youth Services, Bureau of Field Services, as a Youth Counselor II, performing essentially the same duties as she had previously performed for the County. On March 30, 1972, while in the office doing a report, her mind went blank and she was unable to function or remember anything. She felt like her whole body had fallen apart. A doctor was called and she was hospitalized for about 10 days at which time she was released on the condition that she remove herself from her current environment. She thereupon went to Virginia and stayed approximately six weeks with her son and then continued a five month leave of absence from her employment. She had been under the care of Dr. H. T. Rowland since February 17, 1971 suffering from headaches, dizziness, anxiety, and depression which had increased severely over the years. Her hospitalization in March of 1972 was for a severe depressed anxiety reaction and her history at that time revealed extreme fatigue and inability to execute the usual task performance required in her work. She also sought the assistance of a psychiatrist in Miami, Dr. Walter White. (Respondent's Exhibits 1,13a) After this nervous breakdown, her supervisors asked her to come back to work and indicated that if she did, her area of responsibility would be reduced. Inasmuch as she felt able to come back after her leave of absence, she returned to her former employment in August of 1972. At this time, her area was reduced by eliminating the Key West area and limiting her territory to a 40 mile radius. She had an office at Marathon with a secretary to assist her. Although she had less probations to handle than she had previously, there was more written work to perform and she was still constantly on the road making home visits to parents and children. The driving which she was obliged to perform including driving to and from work, resulted in her having headaches of a severe nature. A typical aspect of her work was to receive a complaint concerning an abused or delinquent child from a neighbor or the Sheriff's office, at which time she would call on the parents and the child to determine what disposition should be made. As a result of her interview, she would fill out various forms and forward them with her recommendations to the State Attorney in Key West. If the child were processed in the court and put on probation, she would then become the probation officer. It was difficult for her to then gain the child's confidence because she was the one who had originally processed the youth through the court system. She had approximately 35 children on probation at all times. Her workload and responsibilities were the same as those which were performed by three state employees in the Key West area. Her job was quite frustrating in that she had to act more or less as a substitute parent on many occasions to see that the children were in school or had a job, to transport them to mental health facilities, to counsel parents, to try and bring about reconciliations between parents and their children, and find homes for those girls who had been ejected from their homes by their parents. Since the State's policy was to minimize detention, Petitioner was obliged to try and find private citizens who would take, them in. At times she spent her own money on food and clothing for these wayward or abused girls. On September 28, 1973, Petitioner suffered a second nervous breakdown from which she lost approximately fifteen pounds and became unable to work thereafter. She was medically examined on August 23, 1973, complaining of a feeling of fullness and stuffiness in the ears together with some discomfort in swallowing. Examination by the physician at that time led to his conclusion that her symptoms were those of stress and not due to physical disease. (Respondent's Exhibit 3) On September 18, 1973, Petitioner had shown symptoms of depression which were most likely due to her occupation. (Respondent's Exhibit 2) She had also been seen by an Orthopedic Surgeon in Key West on July 30th, 1973, complaining of headaches, loss of balance and diminished hearing and eyesight. She was seen again by him on September 10th complaining of continuing neck pain aggravated by flexion and extension and that she had become progressively more nervous, depressed and had loss of appetite and difficulty in swallowing. The physician stated his opinion that the stresses of her work were more than she could handle and it was believed that she should retire. (Respondent's Exhibit 4) On October 18, 1973, Petitioner applied to the Division of Retirement for disability retirement. (Respondent's Exhibit 7) Her application was accompanied by a Statement of Disability in which she attributed her incapacitation for further service to the mental stress caused by her employment and wherein she asserted that she was unable to cope with her job problems anymore. In this form, she stated that her disability was in line of duty. (Respondent's Exhibit 8) Her application was accompanied by statement of two physicians. Dr. Miguel Eisen of Key West diagnosed her condition as occupational depression of continuing nature and stated that her treatment was retirement from her present occupation and that she should refrain from driving to and from work. (Respondent's Exhibit 5) Dr. H.T. Rowland of Marathon diagnosed her condition as anxiety and depression with treatment of psychotrophic drugs and prognosis poor. (Respondent's Exhibit 6) In a statement accompanying his report, Dr. Rowland found that, in addition to her subjective emotional problems, Petitioner had severe hypertrophic degeneration of the cervical vertebrae which he believed to be greatly aggravated by her work. She also had a metabolic condition requiring thyroid medication. In his opinion, she was physically and emotionally unable to perform her job of counseling delinquent juveniles. (Respondent's Exhibit 1). On November 21, 1973, the Director of the Division of Retirement disapproved her application for disability retirement with the comments "apparently unable to handle her present job but records do not indicate that she cannot perform satisfactorily in another position." (Respondent's Exhibit 9) She was informed of this decision by letter of the Division, dated December 4, 1973. (Respondent's Exhibit 10) On December 11, 1973, Petitioner was examined by Dr. M.L. Escoto, a Psychiatrist in Key West Florida. In a report which he rendered to Dr. Rowland, dated December 20, 1973, he stated as his impression that Petitioner was suffering from an acute anxiety neurosis with depression. He stated that the precipitating factor had been the tremendous amount of pressure she had had in the past because of her work and while her sons were in Vietnam. He concluded that she was unfit for continuation of her work and that there was enough basis to grant her benefits of retirement under medical disability. He further stated that return to work would undoubtedly result in an exacerbation of emotional conflicts and/or psychiatric hospitalization. (Respondent's Exhibit 11A, Ex.12) In a report to Petitioner's attorney, dated April 22, 1974, Dr. Rowland clarified his prior opinion to state that Petitioner is incapacitated permanently, that the disability was sustained in the line of duty and that he did not believe the patient would ever be able to work effectively in any capacity. (Respondent's Exhibit 14) On May 20, 1974, Dr. Benavides supplemented his October 8, 1973, report with a letter to Petitioner's attorney, stating that he did not feel that she was able to work and therefore could be considered totally and permanently disabled from rendering useful and efficient services as an officer or an employee. (Respondent's Exhibit 15) By letter of June 5, 1975, Petitioner was advised by the Division of Retirement that although her application and supporting documents did not establish line of duty disability retirement, it did establish regular disability retirement as described in Section 121.091(4)(b), Florida Statutes. This letter indicated that Petitioner had been notified that she had been approved for regular disability retirement benefits on February 14, 1975. (Respondent's Exhibit 20)(However, this letter of notification was not offered into evidence.) Petitioner was advised that her retirement date was established as February 1, 1975, according to Section 121.091(4)(a), Florida Statutes, because the Division did not receive "medical documentation which indicated your total and permanent disability until January of 1975." A physician's report of disability, dated August 26, 1975, from Dr. Benavides was presented at the hearing which diagnosed petitioner's condition as headaches, loss of balance, hearing and eyesight, aggravated by certain motions and by driving a car and sitting at a desk doing paper work; neck pain, nervousness, depression, loss of appetite and difficulty in swallowing. His prognosis in this report was that the stresses of the Petitioner's work were more than she could handle; that she is not able to work and therefore would be considered totally and permanently disabled in line of duty. (Respondent's Exhibit 24) Petitioner had two sons serving in the armed forces in Vietnam, one from January, 1970 to March 1971, and one from June 10, 1971, to March 23, 1972. Neither of their assignments involved direct combat duty and Petitioner stated that she was not unduly concerned as to their safety. Petitioner's secretary and a friend both testified that they had seen her problems mounting over the years and that she had progressively become very nervous. Petitioner has not been employed since, September 28, 1973.
The Issue Whether Petitioner's request for retirement credit should be approved.
Findings Of Fact Petitioner previously worked for the Sheriff's Office for DeSoto County, Florida. It is undisputed that the Sheriff's Office is a qualified Florida Retirement System ("FRS") employer and that Petitioner was, during all times relevant hereto, an FRS eligible employee. In the instant case, it is undisputed that in October 2006, Petitioner sustained a work-related injury while in the course and scope of her employment with the Sheriff's Office. Petitioner, from the time of her injury through approximately September 11, 2007, received temporary total disability workers' compensation benefits for her employment- related injuries. The precise dates when these benefits were received by Petitioner are not at issue in the instant dispute. On September 12, 2007, Petitioner returned to work at the Sheriff's Office with light-duty work limitations. Also on this date, Petitioner resumed receiving payroll wages from the Sheriff's Office. Petitioner continued to receive temporary partial disability wage payments through December 2008 and received workers' compensation medical benefits through October 2010. When Petitioner returned to work on September 12, 2007, she was still receiving medical treatment from the workers' compensation physician and attended regular sessions with the physician throughout the duration of her employment with the Sheriff's Office. The visits to the workers' compensation physician often occurred during times when the Sheriff's Office scheduled Petitioner to work, thus, resulting in her absence from work on these days. The Sheriff's Office terminated Petitioner's employment on December 12, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner was on the Sheriff's Office payroll and received wages as follows: For the period September 23, 2007, through October 6, 2007, she received payroll wages for 14 days; For the period October 7, 2007, through October 20, 2007, she received payroll wages for five days; and For the period October 21, 2007, through December 12, 2007, she received payroll wages for 14 days. No evidence was presented at the hearing explaining Petitioner's work schedule for the period September 13, 2007, through October 5, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner worked and received payroll wages from the Sheriff's Office for a total of 34 days. Although the 34 days that Petitioner worked were dispersed throughout the months of September, October, November, and December, Petitioner, nevertheless, received a paycheck from the Sheriff's Office for wages for each pay period following her return to work. There was no testimony offered at the hearing as to the total number of days that Petitioner was scheduled to work between September 12, 2007, and December 12, 2007. However, Petitioner testified that any scheduled work days that she missed during this period occurred as a result of her having to attend medical appointments with the workers' compensation physician. Respondent offered no evidence to the contrary as to this point. Given the severity of Petitioner's work-related injury, which apparently resulted in her being away from work for nearly a year, coupled with the fact that she continued to receive workers' compensation medical benefits through October 2010 (some four years after the date of her injury), the undersigned accepts as credible Petitioner's testimony that any scheduled work days that she missed between September 12, 2007, and December 12, 2007, resulted from her having to attend medical appointments with the workers' compensation physician. On April 4, 2008, Petitioner submitted correspondence to the Division and stated therein the following: Sir, I am writing this email in regards to my retirement. Under the florida [sic] retirement system, a member is entitled to retirement credit for periods of eligible workman [sic] comp[ensation]. The member must return to FRS covered employment for one month. Creditable workman [sic] comp[ensation] includes all periods that workman [sic] comp[ensation] are made. FRS employers are required by Section 121.125, Florida Statutes, and Section 60S-2012, Florida Administrative Code, to report the period covered by workman [sic] comp[ensation] on the monthly retirement report. D.C.S.O. stated I worked intermittently but where is it written in the Florida State Statutes or Administrative Code, how many days during the month you are allowed to miss and it would not be credible service or considered a break in service. [sic] Sir, I was still active [sic] employed with D.C.S.O. upon returning to work on Sept[ember] 12, 2007. The days I missed was [sic] due to medical appointmentts [sic] for my workman's [sic] comp[ensation] injury I sustained at D.C.S.O. I always provided documentation from the physician. I was not terminated until December 13, 2007 when Capt. McClure of D.C.S.O. called me at 8:21 A.M. [sic] on my scheduled day off. The three months I was allowed to work and the period on workman [sic] comp[ensation] should be credible service towards retirement. Sir, my question is when the other employees at D.C.S.O. take off more than a couple of days, during the month, for various reasons, without medical documentation[,] do[es] it count for credible service towards retirement or is it a break in service. [sic] On April 7, 2008, Doug Cherry, on behalf of the Division, responded to Petitioner's inquiry of April 4, 2008, and stated the following: Ms. Leonard, as I explained in our phone conversation, for periods of workers' compensation (temporary partial or temporary total) to be eligible for retirement credit there must be a return to active employment for one complete calendar month. The attached letter from the Sheriff of DeSoto County shows that from your scheduled date of return in September 2007, your employment was not active for the required month. This letter states you worked intermittently until your termination of employment in December 2007. To satisfy the one calendar month of active work, you needed to be consistently working through October 31, 2007. You indicated in our conversation that the information from the Sheriff was incorrect. If so, you would need to contact that office to resolve any discrepancy. I [have] also attached the appropriate Florida Statute (121.125) and the Florida Administrative Code (60S-2.012) which states [sic] this requirement. The law does not provide for exceptions or a combination of active and non-active employment during the one calendar month. Regarding your question about active members taking off days during the month, the requirements for earning service credit are different than the eligibility requirement for periods of workers' [sic] compensation. In your own account, you did earn credit for the months of September, October, November and December 2007 for the time you did work and earn salary. However, as stated above, for the period of workers' compensation to be creditable for retirement, the requirement is active employment for the full calendar month, not to earn service credit after such period. You also indicated that you were going to provide your attorney with this information. If your attorney would like to give me a call (850-488-9623), I will be glad to discuss this issue with him or her. I hope this information will help clarify this issue for you. On January 7, 2011, Respondent wrote Petitioner and informed her of the following: Dear Ms. Leonard: This will respond to your request for retirement credit for the period of time you received Workers' Compensation (WC), that was submitted to the State Board of Administration (SBA). Because this is an issue of creditable service, the SBA forwarded the request to the Division of Retirement since the Division is the proper agency to address such an issue. Information you and your agency provided indicates that you were out on WC October 2006 through September 2007 at which time your employer, the DeSoto County Sheriff's Office, sent you a letter dated September 6, 2007 requiring you to return to work within two weeks or be terminated from employment. The Division has not received any documentation from the Workers' Compensation carrier to substantiate the actual periods of WC or the date maximum medical improvement was reached. Therefore, this letter cannot address periods of possible eligibility for retirement credit but will address whether your employment from September 2007 met the return to work requirement for such eligibility. The Sherriff's [sic] office provided us with documentation of your time worked in September, October, November, and December 2007. During these months, you worked intermittently and did not have a full calendar month of active employment before your employment was terminated by your employer on December 12, 2007. * * * You did not consistently work during any of those calendar months until your employment was terminated by your employer on December 12, 2007. Therefore, starting in September 2007, you did not meet the return to actively performing service requirement of the above provision to establish eligibility for possible retirement credit. Petitioner's failure to return to active employment status was the only reason given by the agency when denying Petitioner's claim. Andy Snuggs has worked as a benefits administrator for the Division for approximately the last 20 years. The Division offered, and the undersigned accepted, Mr. Snuggs as an expert in matters related to the Act. Mr. Snuggs testified that in the exercise of the agency's discretion, the agency defines the phrase "active employment," as it relates to section 121.125, to mean that an employee must work each scheduled work day in a regularly established position for at least one calendar month following the employee's return to work and that no allowances are made for any absences, excused or otherwise. Mr. Snuggs did not offer any testimony explaining why the Division selected the particular definition that it did for the term "active."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order determining that Petitioner, Irene Leonard, met the return-to-work requirements necessary to receive retirement credit for workers' compensation payment periods. DONE AND ENTERED this 8th day of September, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2011.
Findings Of Fact Prior to April, 1961, Mabel D. Gardner had been employed as a school teacher in the Dade County school system for approximately fourteen years. In February, 1961, Mrs. Gardner was suspended from employment. Mrs. Gardner's employment was terminated in April, 1961, after a hearing was conducted. By letter dated July 18, 1961 Mrs. Gardner was advised that an application to place her on disability retirement status with the Teachers' Retirement System of Florida had been granted. A copy of the Division of Retirement Teachers' Retirement System file for Mrs. Gardner was received in evidence as Respondent's Exhibit 1. On several occasions thereafter Mrs. Gardner sought to have her disability status changed so that she could return to employment. Most recently Mrs. Gardner made application to the Division of Retirement for a change in her status based upon an examination by Dr. Bernard Tumarkin, which was conducted on May 22, 1976. By letter dated August 25, 1976, the Division of Retirement notified Mrs. Gardner that her request to return to employment had been denied. Mrs. Gardner thereafter filed a petition for administrative hearing. The basis of Mrs. Gardner's disability status has, since July, 1961, been that she is mentally ill, and therefore unable to assume the duties of a school teacher. At the hearing Mrs. Gardner testified that her employment with the Dade County School System was improperly terminated in April, 1961; that she was improperly classified as disabled under the Teachers' Retirement System in July, 1961; and that she had never been, and was not now mentally ill, or in any way disabled. Mrs. Gardner testified at some length respecting putative injustices imposed upon her by the Dade County public school officials. She testified that an organized conspiracy had been established within the school system to fire her, and that the hearing provided her was a sham. Mrs. Gardner testified that she was diagnosed as being mentally ill by persons who never examined her, and that the original diagnosis of her being mentally ill actually pertained to a person who had a similar name, who was examined at Jackson Memorial Hospital in Miami, at approximately the same time that she was a patient at Jackson Memorial Hospital. Mrs. Gardner also testified that persons unknown to her, who she believed to be school board detectives, were focusing beams of light, which she identified as microwaves, on her and that these beams caused her to be dehydrated and on at least one occasion caused her automobile not to work. Mrs. Gardner also testified with respect to some injustices committed by police officials in Dade County upon her. Mrs. Gardner offered several exhibits in support of her testimony. Prior to her being placed on disability retirement status with the teachers' retirement system, Mrs. Gardner had been diagnosed as suffering from schizophrenic reaction, paranoid type. Expert testimony in the form of a letter from Dr. John M. Caldwell, the Chairman of the Department of Psychiatry at Jackson Memorial Hospital dated June 19, 1961, is contained in Mrs. Gardner's retirement system file. Dr. Caldwell concluded that Mrs. Gardner would not be able to enact her duties as a teacher, and that the prognosis for her recovery was poor. The only expert opinions respecting Mrs. Gardner's present condition contained in her retirement system file, or presented as evidence in any form at the hearing, is in the form of an evaluation conducted by Dr. Bernard Tumarkin, and Dr. Harry Camp, Jr. In a letter dated June 12, 1976, Dr. Tumarkin expressed his opinion that Mrs. Gardner was having a paranoid schizophrenic reaction, and that his prognosis was guarded. No expert opinion was offered in support of Mrs. Gardner's claim that she is not disabled. Insufficient evidence was offered at the hearing from which it could be concluded that Mrs. Gardner's disability status with the Teachers' Retirement System should be changed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED That a final order be entered denying the application of Mabel D. Gardner for a change in her present disability status with the Teachers' Retirement System of Florida. RECOMMENDED this 16th day of February, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Doug Spangler, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Mabel D. Gardner 6073 West Flagler Miami, Florida 33144
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
