The Issue Whether Petitioners are entitled to, and should receive, survivor retirement benefits from the Florida Retirement System account of their deceased mother, Adrianna Davis, which are presently being paid to their sister, Earnese Davis?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Adrianna Davis was a public school teacher in Broward County for more than 35 years before her retirement in or about the end of January of 1991. She enrolled in the Teacher's Retirement System of Florida in 1955, when she started her teaching career. On the enrollment form that she filled out, she designated her father, Charles Williams, who is now deceased, as her beneficiary. Adrianna subsequently became a member of the Florida Retirement System. At the time of her death, Adrianna had two adult sons, Kevin and Eddie Davis, (the Petitioners in this case) and one adult daughter, Earnese Davis, (the Intervenor in this case), all three of whom lived with her in the house she and the children's aunt co-owned. Adrianna was the undisputed head of the household and its primary decision maker. Although Earnese lived under the same roof as her brothers, she did not have a good relationship with them. Shortly after the beginning of the 1990-91 school year, Adrianna was told by a physician that he suspected that she had cancer. In October or November, she underwent exploratory surgery. The surgery confirmed that she had cancer, which was determined to be inoperable. Following the exploratory surgery, Adrianna received chemotherapy and radiation treatment. Adrianna was admitted to Humana Hospital Bennett (now Westside Regional Medical Center and hereinafter referred to as "Humana") on December 6, 1990. She was brought to Humana by Earnese, who remained with her in the hospital during the entire period of her hospitalization. 1/ After a medical history was taken and a physical examination was conducted, the following initial "assessment" was made of Adrianna's condition by the admitting physician: "Lung carcinoma with dehydration post chemotherapy." Approximately two days prior to her December 6, 1990, hospitalization, Adrianna had asked Earnese to go to the Broward County School Board (hereinafter referred to as the "School Board") offices to obtain a Florida Retirement System Application for Service Retirement form (hereinafter referred to as a "Form 11). Form 11 has four sections that need to be filled out. In the first section of Form 11 (hereinafter referred to as "Section 1"), the following information has to be provided: the applicant's name; the applicant's social security number; the applicant's job title; the applicant's birth date; the applicant's present or last employer; the applicant's home address and home and work phone numbers; and the date of termination of applicant's employment. In the second section of Form 11 (hereinafter referred to as "Section 2"), the following information has to be provided: the name of the beneficiary designated by the applicant; the beneficiary's social security number; the relationship of the beneficiary to the applicant; the beneficiary's home mailing address; and the "option" selected by the applicant. 2/ The following advisement is printed at the top of Section 2: "All previous beneficiary designations are null and void." The third section of Form 11 (hereinafter referred to as "Section 3") contains the following statement, underneath which the applicant has to place his or her signature "in [the] presence of [a] notary:" "I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES." It also has a certificate that has to be completed and signed by the notary public in whose presence the applicant signs this section of the form. The fourth and last section of Form 11 (hereinafter referred to as "Section 4") contains the following certification that has to be completed, signed and dated by an authorized representative of the applicant's employer, "if termination was within the last 2 years:" "This is to certify that was employed by this agency and will terminate or has terminated on / / , with the last day worked on / / ." As her mother had asked her to do, Earnese went to the to the School Board offices at 1320 Southwest 4th Street in Fort Lauderdale to pick up a Form There she met with Victoria Moten, a School Board retirement specialist. 3/ Earnese told Moten about her mother's situation. She explained that her mother was ill and it looked like she was "not going to make it." 4/ Moten obtained a blank Form 11. After typing in the information that needed to be provided in Section 1 of the form, Moten handed the partially completed form to Earnese and indicated what further steps needed to be taken in order to complete the application process. After her visit with Moten, Earnese returned home and gave her mother the partially completed Form 11 (with only Section 1 filled in) that Moten had provided Earnese with earlier that day (hereinafter referred to as the "Designation Form"). Adrianna kept the Designation Form in her possession and took it with her (in a knapsack, along with other papers) to the hospital on December 6, 1990. She explained to Earnese that she wanted to have the Designation Form filled out while she was in the hospital. It was Adrianna, not Earnese, who brought up the subject. On the morning of December 10, 1990, while Adrianna was still in the hospital, she told Earnese that she wanted to designate Earnese as the sole beneficiary of her retirement benefits so that Earnese would be able to get her "life together" and she asked Earnese to fill out Section 2 of the Designation Form accordingly. 5/ Adrianna also requested Earnese to obtain the services of a notary public to assist in filling out Section 3 of the Designation Form. Earnese thereupon left her mother's hospital room (without the Designation Form, which remained with Adrianna) to find a Florida notary public in the hospital. Her search was successful. She made contact with Elizabeth Sarkissian (now Gassew), a registered nurse and a Florida notary public, 6/ who agreed to help in filling out Section 3 of the Designation Form. Earnese returned to her mother's room with Sarkissian. Earnese filled out Section 2 of the Designation Form in accordance with her mother's previous instructions. Sarkissian, upon entering the room, engaged in conversation with Adrianna, who was sitting up in her hospital bed. Adrianna was alert and oriented. She spoke clearly and responded appropriately to questions Sarkissian asked her. By all appearances, she was in no way mentally incapacitated. After Earnese had finished filling out Section 2 of the Designation Form, Adrianna signed Section 3 of the form in Sarkissian's and Earnese's presence. 7/ Sarkissian then completed and signed the notary certificate underneath Adrianna's signature (in Section 3 of the Designation Form), 8/ after which the form (now with Sections 1, 2 and 3 filled in) was returned to the knapsack in which Adrianna kept the papers she had brought with her to the hospital. Her presence no longer needed, Sarkissian left Adrianna's hospital room. Sarkissian's visit lasted approximately five or ten minutes. Later that day (December 10, 1990), in the evening, Adrianna underwent a surgical procedure involving the insertion of a vascular access port. Adrianna was discharged from the hospital on December 12, 1991. She took the knapsack which contained the Designation Form home with her. Adrianna kept the Designation Form in her possession until January 3, 1991, when she gave it to Earnese, with instructions that Earnese deliver it to Moten for filing. Earnese followed her mother's instructions. Later that same day (January 3, 1991), she went to Moten's office (without her mother) and handed Moten the Designation Form. Moten thereupon completed Section 4 of the form. The now fully completed form was then filed for processing. In June of 1991, Adrianna went into a coma and eventually died. At the time of her death, the Designation Form (which, in Section 2, designated Earnese as the sole Option 2 beneficiary of Adrianna's retirement benefits) was the most recent designation of beneficiary form executed by Adrianna. At no time subsequent to signing the Designation Form did she express to Earnese a desire to make any changes to Section 2 of the form, nor were any such changes made. It has not been shown that Adrianna's designation of Earnese as the sole beneficiary of her retirement benefits was the product of any fraud, misrepresentation, trickery, coercion, undue influence, active procurement, or suggestion on Earnese's part or that it was anything other than a decision made freely, voluntarily and knowingly by a woman who, although terminally ill, was in all respects capable of making such a decision 9/ and fully understood the consequences her decision. On or about July 18, 1991, through the submission of a completed Application of Beneficiary for Retirement Benefits form, Earnese requested that the Division begin to pay her Adrianna's retirement benefits. On the form, Earnese designated her brothers, Eddie and Kevin, as the first and second contingent beneficiaries, respectively, of these benefits in the event of her death. Earnese has received monthly payments from her mother's retirement account since July of 1991. 10/ She currently receives a monthly payment of $1,986.30.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division enter a final order refusing to grant Petitioners' request that it treat as a nullity Adrianna Davis' written designation of Earnese Davis as her sole beneficiary and, based upon such nullification, discontinue paying Adrianna's retirement benefits to Earnese Davis and instead pay them to Petitioners. 13/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of February, 1996. STUART M. LERNER, 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 8th day of February, 1996.
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2001
The Issue Whether Petitioner should be allowed to withdraw from the Deferred Retirement Option Program (DROP) of the Florida Retirement System.
Findings Of Fact Petitioner is a member of FRS. Petitioner is part of the "Regular" class for FRS retirement purposes. In April 2001, and until late August 2001, Petitioner understood the law to require that if he wanted to participate in DROP he must elect to do so within 12 months of his 30-year anniversary of employment or within 12 months of attaining 62 years of age, whichever date came first. This was, in fact, the law until July 1, 2001. (See Findings of Fact 11 and 25-27). In July of 2001, Petitioner would become eligible to participate in DROP by virtue of reaching thirty years of service teaching at the University of Florida (UF).1 Petitioner would become 62 years old on July 2, 2001. In preparation for entry into DROP, Petitioner requested, and in April 2001 received, from the Division, an Estimate of Benefits. In bold capital print the acknowledgement stated: 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. (P-2) Petitioner filed his application for DROP participation on April 12, 2001. His application selected payout Option 2 to provide benefits to his wife and specified a "begin date" of July 1, 2001, his normal retirement date. Respondent Division, by date of April 16, 2001, acknowledged receipt of Petitioner's DROP application, but required that he provide additional materials, stating: The following items must be received: Properly completed DROP application, DP-11. The notary public's stamp and/or commission expiration date was not shown. A notary public may not amend a notarial certification after the notarization is complete. Enclosed is another Form DP-11, Application for Service Retirement and the Deferred Retirement Option Program (DROP) for you to complete and have properly notarized. Return the completed application to this office immediately. The Hospital Record you submitted as birthdate verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age. 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. 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. (R-1) Petitioner provided the additional information, and on April 30, 2001, the Division notified Petitioner that the apparent birth certificate he had supplied did not constitute acceptable proof of age and that additional proof was required. That item stated: The following items must be received: The Medical Center record you submitted as birth date verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age. If you have a copy of your birth certificate that is registered with the State of New York, please send it to us. The document you submitted was not registered with the vital statistics office for New York. 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. (R-2) The Division's April 30, 2001, request for a valid birth certificate was the parties' last correspondence before August 22, 2001. (See Finding of Fact 25). Shortly after April 30, 2001, Petitioner caused the Federal Social Security Administration to send verification of his birthdate to the Division. The Division received this item but did not acknowledge to Petitioner that it had been received. During the 2001 session, the Florida Legislature amended Section 121.091(13)(a)5., Florida Statutes, to allow "instructional personnel" to participate in DROP at any time after they reach their normal retirement date. In other words, the option for instructional personnel to elect DROP was no longer limited to a 12-month period after their 30 years' creditable service retirement date or attainment of age 62. The parties stipulated that the foregoing amendment "became law" on May 16, 2001. However, Chapter 2001-47, Laws of Florida, Section 2., clearly specifies that the amendment "shall take effect July 1, 2001." Respondent Division never individually sought out and notified Petitioner, any other DROP applicant, or any FRS retiree of the legislative change. According to Mr. Hunnicutt, on behalf of the Division, the Division has no way to single out all the people (such as DROP applicants) who might be affected by a specific legislative amendment. However, the Division does try, on a yearly basis, each autumn, to notify all retirees and all employees in FRS and other state retirement programs of the current year's legislative changes. The Division also answers specific questions about such legislative amendments if retirees or employees take the initiative to ask the Division about them. Since Petitioner did not know about the amendment until after August 22, 2001, he did not ask about it or otherwise contact the Division until August 30, 2001. (See Finding of Fact 27.) On June 21, 2001, the Division sent Information Release 2001-73, to all FRS employers, including the UF Retirement Office. This Information Release noted the changes to DROP eligibility for instructional personnel. (R-6) The Division's June 21, 2001, Information Release addressed many types of retirement information that could be obtained at the Division's web site, but did not specifically link the web site and the new legislation. Petitioner's testimony that the Division's web site never announced the amendment effective July 1, 2001, is unrefuted. At no time did UF affirmatively and individually seek out Petitioner and notify him concerning the new legislation. UF also did not do a blanket notification of the new legislation to all FRS members working for UF until November 19, 2001. (P-2) Effective July 2001, Petitioner was honored by a special merit salary increase of $10,000.00 per year that would significantly raise his retirement benefits if he were not considered to have entered DROP, effective July 1, 2001. This award was not reasonably foreseeable at the time he applied for DROP on April 12, 2001. The only document Respondent Division sent Petitioner after April 30, 2001, was a "Final Notification of DROP Benefit," dated July 19, 2001, but post-marked August 20, 2001. It included the following: You should call the Retired Payroll Section at (850) 487-4856, immediately if you: Extend your DROP participation date (approval of employer required). Your participation in the DROP cannot exceed the 5 years (3 years for Special Risk members) which is the maximum allowed by law; (P-1) According to Mr. Hunnicutt, the Division cannot do the final benefit calculations for a DROP or regular retirement applicant until the Division receives all of the information from the employee (Petitioner) and direct employer (UF) because final retirement calculations use the final salary information. The July 19, 2001, date of the foregoing "Final Notification" would have been the date the Division's Benefits Specialist prepared the final calculations and falls within the 30 days the Division usually needs to make and mail the final benefit calculations. Mr. Hunnicutt's only explanation for the month's delay in mailing the foregoing "Final Notification" was that it takes approximately a month for the verification process to be completed and the calculations mailed out. He testified that, regardless of its content, the Final Notification would not have been sent to Petitioner unless the Division had considered Petitioner's DROP application to be complete. Mr. Hunnicutt testified that it is not Agency practice to send an "acceptance into DROP letter." In his opinion, an FRS member is supposed to know he is in DROP unless he is advised that he is not in DROP. The Division viewed Petitioner as automatically having entered DROP on his request date of July 1, 2001. The Division considered Petitioner's begin date of DROP participation to be July 1, 2001, as Petitioner had requested on April 12, 2001. Accordingly, the Division also considered Petitioner's first month of DROP participation to have ended on July 31, 2001. By "DROP participation date" the Agency means "begin DROP participation date." The Division allows members to change or amend their DROP applications during the first month of retirement or DROP participation because it takes approximately a month to make final benefit calculations, and the Division's aspirational goal is to provide the final calculations before the 30 days are up. Therefore, in the Division's view and practice, Petitioner's right to alter any of his retirement selections would have been July 31, 2001. On August 22, 2001, Petitioner received the "Final Notification," dated July 19, 2001, but mailed August 20, 2001. (P-1). It showed a final retirement calculation of benefits for Petitioner which was $6.15 less per month than the original estimate he had received in April 2001. Immediately thereafter, Petitioner went to the UF Retirement Office and discovered the opportunity afforded by the 2001 legislation. By an August 30, 2001, letter, Petitioner wrote Mr. Hunnicutt, requesting to make a change in his DROP participation begin date to either January 2002 or July 2002, dependent upon receiving and reviewing new estimated calculations of benefits based on each of those dates (P-2.) On September 13, 2001, the Division denied Petitioner's request, citing Subsections 121.091(13)(b)3. and (13)(c)1. and 3., Florida Statutes, and advised that: After your DROP begin date, you cannot cancel your DROP participation, change your DROP begin date, change your option selection, or claim additional creditable service period. The letter did not mention the 30 days' grace period for changes which previous correspondence had and which is the Division's acknowledged practice. It stated that it constituted final agency action. Petitioner continued to argue his case by correspondence, seeking an administrative hearing if necessary. Apparently, it was not clear to many members of the academic community that university instructional personnel, as well as K-9 teachers, were eligible under the 2001 extended DROP sign-up amendment. However, as of October 2001, the Division had accepted DROP applications for instructional personnel who previously had not joined DROP during their initial DROP window period and who, as a result, and but for the new statutory amendment, would never have been eligible for DROP. As of October 2001, the Division also had advised other instructional personnel, that due to the new amendment, they were newly exempt from the 12-month window and could apply for DROP at any time. 2 On October 5, 2001, the Division again denied Petitioner's request to withdraw from DROP. In this letter, the Division also provided greater detail as to the reasons for its denial, stated it was final agency action, and included more details advising Petitioner of his right to request a disputed- fact hearing. The 2001 legislative session enacted, in addition to the amendment affecting Petitioner, a number of other amendments which affected retirement benefits, The Division made no blanket mailing to all members of FRS concerning any 2001 retirement law amendments until its annual bulletin, discussing all of the amendments, was mailed for the Division to all FRS members on December 28, 2001, by a private company in New York.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Retirement enter a final order deeming Petitioner timely withdrawn from DROP in the month of July 2001, returning him to an FRS status of regular employment, earning regular retirement serviceable credit, and providing for a recalculation of his retirement credits as appropriate to his altered status. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 16th day of May, 2002.
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System Deferred Retirement Option Program (DROP) when she submitted the DROP paperwork to her employer, but that paperwork was not submitted to Respondent within the timeframe set forth by statute or administrative rule. PROCEDURAL HISTORY On March 10, 2021, Respondent, the Department of Management Services, Division of Retirement (the Division), issued a letter to Petitioner, Celeste Lyons (Ms. Lyons or Petitioner), denying her application to participate in DROP because the Division did not receive her application to participate within the required time, pursuant to section 121.091(13)(a)2., Florida Statutes (2020), and no provision in Florida law would allow the Division to approve her for participation in DROP after the eligibility period.1 On April 7, 2021, Ms. Lyons filed an Amended Request for Formal Administrative Hearing with the Division. The Division transferred the matter to DOAH, where it was assigned and set for hearing. On June 28, 2021, Petitioner moved to amend her Request after discovering the Division was also relying on Florida Administrative Code Rule 60S-11.002(2) and (3)(a) to deny her participation in DROP. Petitioner was granted leave to amend her Petition for Formal Administrative Hearing, and this matter proceeded on the Second Amended Request for Formal Hearing submitted July 13, 2021 (Second Am. Req.). After three continuances, the final hearing was held on September 16, 2021. Petitioner presented her own testimony and the testimony of Kathy Gould, Bureau Chief of Retirement Calculations for the Division. Petitioner's Exhibits P1 through P34 and P36 were admitted into evidence. 1 All references to the Florida Administrative Code Rules and Florida Statutes are to the 2020 codifications. The Division presented the testimony of Garry Green, Policy Administrator for the Division. Respondent's Exhibits R2 through R5, R6-1, R6-2, R7, R10 through R13, R15, and R16 were admitted into evidence. At the outset of the hearing, the parties agreed to submit a joint stipulation of facts regarding the timeline of events. The Stipulation of Facts was filed on October 4, 2021, and is incorporated into this Recommended Order when appropriate. The Transcript of the hearing was filed on October 4, 2021. Both parties timely filed proposed recommended orders, which have been considered in the preparation of this Recommended Order.
Findings Of Fact Petitioner, Ms. Lyons, is a Fiscal Administrator for the Office of the State Attorney, Twentieth Judicial Circuit (SAO-20). Respondent, the Division, is a part of the Department of Management Services (Department). The Division is responsible for administering the retirement plans and programs under the Florida Retirement System (FRS). DROP is a retirement benefits program that entitles an eligible member of FRS to defer receipt of retirement benefits while continuing employment with the employer. § 121.091(13), Fla. Stat. The deferred benefits accrue with FRS on behalf of the member, with interest compounded monthly, for the specified period of DROP participation. Id. After the member terminates employment with the employer, the member receives the total DROP benefits and begins to receive the previously determined normal retirement benefits. Id. SAO-20 has been Ms. Lyons' employer for more than thirty years. Employees of SAO-20 participate in FRS and, if eligible, can choose to participate in DROP. SAO-20 obtained administrative services through the Justice Administrative Commission (JAC). JAC is a statutorily created "central state office" that provides "administrative services and assistance when possible to and on behalf of the state attorneys and public defenders of Florida, the capital collateral regional counsel of Florida, the criminal conflict and civil regional counsel, and the Guardian Ad Litem Program." § 43.16(5), Fla. Stat. These services include accounting, payroll, benefits, and retirement assistance to the above cited entities that participate in FRS. Although JAC was not Ms. Lyons' employer, it did have access to employees' personnel files. Moreover, the Division had trained JAC personnel on FRS and DROP, and the Division authorized JAC to accept DROP paperwork from various employers and submit it to the Division. JAC, however, was not part of the Department or the Division. Rather, JAC served as a conduit between SAO-20's human resources office and the Division for the processing of all the retirement benefit paperwork. MS. LYONS' DROP ELIGIBILITY AND PAPERWORK Ms. Lyons' normal retirement date was January 1, 2020. Ms. Lyons' 12-month eligibility window to elect to participate in DROP was between January 1 and December 31, 2020. § 121.091(13)(a)2., Fla. Stat. Before this date, in February and August 2019, Ms. Lyons requested estimates of her retirement benefits from the Division. These estimates were generated by the Division and sent directly to Ms. Lyons' home address. In the "Comments" section of the estimates created by the Division, it explicitly states, "If the DP-ELE is not received in our office by 12/31/2020, your eligibility to participate in DROP is forfeited." The August 2019 estimate projected that after 60 months, Ms. Lyons would have received $113,826.03 if she entered (or began participation in) DROP during her first month of eligibility, January 2020. In January 2020, Ms. Lyons continued to work for SAO-20 but filled out the Division's paperwork for participating in DROP with the help of Rosemarie Mitchell, Director of Human Resources for SAO-20. These forms included the following: Notice of Election to Participate in [DROP] and Resignation of Employment (DP-ELE); Application for Service Retirement and [DROP] (DP-11); Option Selection for FRS Member (FRS-11o); [FRS] Pension Plan Spousal Acknowledgment Form (SA-1); and [FRS] Pension Plan Retired Member and DROP Participant Beneficiary Designation Form. (FST-12). On these forms, Ms. Lyons certified she elected to participate in DROP and would resign her employment on the date she terminated from DROP. Ms. Lyons listed "January 1, 2020," as her DROP start date and "December 31, 2024," as her DROP termination resignation date. Petitioner's employer, SAO-20, also certified that Ms. Lyons would "be enrolled as a DROP Participant" on January 1, 2020, and that Ms. Lyons would "terminate ... her employment" on December 31, 2024. All of the above forms were filled out, signed by Ms. Lyons, and notarized on January 9, 2020. On January 9, 2020, Ms. Lyons submitted the above forms to Ms. Mitchell. On that same day, Ms. Mitchell emailed Ms. Lyons' DROP paperwork to the JAC Retirement Coordinator. Jessica Estes (formerly known as Jessica Liang), a Senior Human Resources Coordinator for JAC, acknowledged JAC's receipt of Ms. Lyons' DROP paperwork and requested two new FST-12 forms and more documentation verifying Ms. Lyons' date of birth. The requested information was not required to be eligible or participate in DROP. Ms. Estes' normal procedure was to forward DROP paperwork to the Division before the end of the month in which it was received. If she had followed this practice, she should have sent in Ms. Lyons' DROP paperwork to the Division on or before January 31, 2020. She did not. In fact, no one in SAO-20 or JAC forwarded Ms. Lyons' DROP paperwork to the Division before December 31, 2020. This mistake was not discovered until more than a year later. On February 25, 2021, JAC discovered it had failed to submit the DROP paperwork for Ms. Lyons to the Division. On February 26, 2021, after JAC contacted the Division, Ms. Estes emailed Petitioner's DROP paperwork, including Forms DP-ELE and DP-11, to Kathy Gould, Chief of the Bureau of Retirement Calculations at the Division. Again, there is no dispute this was outside of Ms. Lyons' 12-month eligibility window. On March 5, 2021, SAO-20 notified Ms. Lyons of JAC's failure to submit her DROP paperwork to the Division within the eligibility period. On March 10, 2021, the Division issued an Administrative Notice to Ms. Lyons denying her participation in DROP and informing her that she was not eligible to participate in DROP because the application and election were received outside her 12-month eligibility window (and past the December 31, 2020, deadline). Relying on sections 121.091(13)(a)2. and 121.021(29)(a), the Division informed Ms. Lyons that a member must "submit a form DP-ELE ... to the Division ... within twelve months of the date you first bec[o]me eligible to participate," and because the Division "received [Ms. Lyons'] DP-ELE after the end of [her] eligibility period, [she was] not eligible to participate in DROP." The denial letter did not reference any administrative rule. The testimony established that the Division has accepted DROP paperwork after the eligibility period when there is a dispute about whether the paperwork has been received by the Division within the 12-month eligibility window. In these cases, the Division has, after an investigation, discovered that there was a technical mistake on the Division's end that prevented submission of the DROP paperwork within the statutory deadline. For example, in the past, the Division has accepted DROP paperwork as timely received when an FRS member submits DROP paperwork via facsimile, but it does not print out on the Division's end because of a technical issue; or where an email with DROP paperwork attached was sent by the member to the Division within the eligibility period, but did not upload or arrive in the Division's inbox until after the end of that period. That is not the case for Ms. Lyons. Her documentation was not sent to the Division within the statutory timeframe, and there was no technical (or human) error on the Division's end of the communication. Any error was on the part of JAC or SAO-20.
Conclusions For Petitioner: George T. Levesque, Esquire James Timothy Moore, Esquire Patrick Hagen, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 For Respondent: Gayla Grant, Esquire Thomas E. Wright, Esquire Whitney Rebecca Hays, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
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 Celeste Lyons from participation in DROP. DONE AND ENTERED this 2nd day of November, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2021. COPIES FURNISHED: George T. Levesque, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Patrick Hagen, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Thomas E. Wright, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 James Timothy Moore, Esquire GrayRobinson, P.A 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Whitney Rebecca Hays, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Kristen Larson, Interim General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue presented is whether Petitioner's application for retroactive retirement benefits should be granted.
Findings Of Fact Petitioner was employed by the Palm Beach County Sheriff's Office for approximately twelve years, working in a special risk capacity. As a result of that employment, he was a member of the Florida Retirement System. In 1972 Petitioner completed Respondent's form FRS-M10 setting forth his membership as a special risk member of the Florida Retirement System as of November 1, 1970. Petitioner resigned his position on March 15, 1982, when he was 47 years of age and had more than ten years of creditable service. At the time of his resignation, he was employed in the position of Inspector, Director of Law Enforcement, the third in command at the Sheriff's Office. There are approximately 550,000 active members in the Florida Retirement System. Many members choose not to submit an application for retirement benefits on their normal retirement date for a variety of reasons. An application for retirement benefits is a prerequisite for the establishment of an effective retirement date for a member of the Florida Retirement System. In September of 1991, Petitioner applied for retirement benefits. At the time of his application, he was 57 years of age. Petitioner never contacted Respondent to request information or advice regarding his retirement benefits prior to filing his retirement application in September of 1991. Based upon receipt of Petitioner's application for retirement benefits in September of 1991, Respondent established October 1, 1991, as Petitioner's effective retirement date. In October of 1986 Petitioner received from the Palm Beach County Sheriff's Office a copy of some of Respondent's forms which are utilized by persons filing applications for retirement benefits. Some of the information included in that package relates to persons who are regular members of the Florida Retirement System, not special risk members.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to change his effective retirement date and denying Petitioner's request for retroactive retirement benefits. DONE and ENTERED this 1st day of September, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0849 Petitioner's proposed findings of fact numbered 1 and 3-5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being contrary to the evidence in this cause. Petitioner's proposed findings of fact numbered 6-13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Mary Alice Gwynn, Esquire Suite 302 215 Fifth Street West Palm Beach, Florida 33401 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee FL 32399-1560 A. J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
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 The central issue in this case is whether Petitioner is entitled to benefits for a deceased Florida Retirement System member.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: William H. Schlussler, Jr. was employed with the police department for Metro-Dade County beginning in June, 1970. On December 1, 1970, Mr. Schlussler became a member of the Florida Retirement System. Mr. Schlussler remained continuously employed and a member of the System until his death on September 30, 1986. On July 13, 1970, Mr. Schlussler designated his father, William H. Schlussler, Sr., as the sole beneficiary of benefits under the retirement system. On July 14, 1972, Mr. Schlussler married Mirta Schlussler, Petitioner herein. The couple remained continuously married until the time of Mr. Schlussler's death. Throughout the course of their marriage, the Schlusslers acquired property in their joint names. Property which Mr. Schlussler had owned prior to his marriage was transferred to include Mirta Schlussler. In connection with his work, Mr. Schlussler participated in a group life insurance program. After his marriage, Mr. Schlussler amended the beneficiary forms to provide Mirta Schlussler as his sole beneficiary for life insurance proceeds. At his death, Mirta Schlussler received those benefits. Mr. Schlussler intended to designate Mirta Schlussler as his beneficiary for benefits under the Florida Retirement System. And although he stated this intention to several co-workers/friends, documentary evidence to establish that he completed and filed a change of beneficiary form does not exist. Moreover, no one witnessed Mr. Schlussler execute and file a change of beneficiary form for the Florida Retirement System (FRS). The only form on file with the FRS was the one executed on July 13, 1970, which designated William H. Schlussler, Sr. the sole beneficiary. William H. Schlussler, Sr. survived William H. Schlussler, Jr.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration, Division of Retirement enter a Final Order denying benefits to Petitioner. DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2472 Rulings on Proposed Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted but is unnecessary to the determination made herein. Paragraph 5 is accepted but is irrelevant, immaterial, and unnecessary to the determination made herein. With regard to paragraph 6 and its subparts, the first two sentences are rejected as contrary to the weight of the evidence presented. However, subparts a., b., c., d., e., and f. are accepted. There is no doubt William H. Schlussler, Jr. intended his wife to receive all benefits available. Subpart g. is rejected to the extent it suggests Mr. Schlussler did, in fact, execute the required form. There was no direct evidence that this deceased completed the form required to change the beneficiary designation. Subparts h. & i. are accepted but cannot constitute proof of this deceased having executed the required form. Paragraph 7 is accepted but is unnecessary to the resolution of the issue herein. Paragraph 8 is rejected as irrelevant, immaterial and unnecessary. Paragraph 9 is accepted but is irrelevant, immaterial and unnecessary. The file destroyed was a duplicate not the sole file. Paragraph 10 is accepted. Paragraph 11 is rejected. Mr. Schlussler's file did not contain the form in issue. The absence of it does not prove its existence. Moreover, the file required, by statute, would be maintained by the Division. That the local government might also have the form would be a sound argument of its execution. Of course then the argument would be as to filing. In this case, the proof failed as to both execution and filing. The proof offered established only intent. COPIES FURNISHED: Donald D. Slesnick, II, Esquire 2285 Southwest 17th Avenue Miami, Florida 33145 William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32399-1560 Adis Vila, Secretary Department of Administration Division of Retirement 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Erin R. McGuire, is entitled to purchase retirement service credit for the 1980-1981 school year based upon the determination of whether she was on a properly authorized leave of absence for that school year or, conversely, had actually resigned for that year before returning as a full- time employee of the Bay County School System the following year.
Findings Of Fact The Petitioner is a regular class member of the FRS, with some 28 years of service credit. Her entire FRS career has been with the Bay County School District. On October 8, 1980, the Petitioner resigned her employment with the Bay County School System to re-locate her residence to Alabama. She wanted to be closer to her family in Alabama and at the time did not intend to return to Bay County. She changed her mind, however, and on September 9, 1981, was re-hired by the Bay County School System. She has continued her employment with Bay County schools from that time until the present. The Petitioner maintains that she spoke to her school principal after tendering her resignation in 1980, and he persuaded her to rescind her resignation and instead take a leave of absence. No school board record of such a decision or denomination of her absence from employment as a leave of absence, was produced at hearing. The Petitioner did admit that when she left her employment with Bay County in 1980, she had no intention of ever returning at that point. She did, however, return for the following school year and has been employed by Bay County Schools ever since. When a member, such as the Petitioner, seeks to purchase a leave of absence from the FRS, they, and their employer, must verify the leave of absence on the FRS form FR That form is provided by the Division and must be executed by both the employer and the employee. The leave of absence must have been approved by the employer, the school board, either prior to or during the time period of the leave of absence, according to the rule cited herein. When Ms. McGuire submitted her form FR 28 to the school board, the board completed the form indicating that she had resigned on October 8, 1980 (not a leave of absence), and was re-hired as a "new hire" on September 9, 1981. It is also the case that the school board approved amending her record to show the time period in question as a leave of absence. That amendment of her record was approved by the school board on January 14, 2004, however, long after the time period of the purported leave of absence itself.
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, denying the Petitioner's request to purchase leave of absence credit for the period October 1980 through September 1981. DONE AND ENTERED this 1st day of September, 2004, 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 1st day of September, 2004. COPIES FURNISHED: Sarabeth Snuggs, 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 Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Erin McGuire 1507 Rhode Island Avenue Lynn Haven, Florida 32444
