The Issue Whether the Petitioner is entitled to participate in the Deferred Retirement Option Plan ("DROP") for 60 months.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with providing retirement services to members of the Florida Retirement System ("FRS"). Section 121.1905, Florida Statutes (2002).1 Ms. Johns was born on May 15, 1942. On October 1, 1971, Ms. Johns began working for the Broward County School Board as a part-time teacher in the adult education program. She taught two nights per week during the 1971-1972 school year and was paid a total salary of $1545.63. She was not under contract with the Broward County School Board, nor did she receive any benefits associated with her employment. The Broward County School Board does not have records documenting the type of salary account from which Ms. Johns was paid for her part-time employment during this period. On February 5, 1972, Ms. Johns completed an FRS Florida Teachers' Retirement System enrollment card showing that October 1, 1971, was the date her service with the Broward County School Board began. The Broward County School Board made contributions to the FRS on Ms. Johns' behalf during the 1971- 1972 school year in the amount of $61.83. Ms. Johns was hired as a full-time teacher by the Broward County School Board in August 1972, and she is currently employed with the Broward County School Board under the DROP as an assistant principal. Ms. Johns was not given any credit by the Broward County School Board for her previous part-time teaching experience, and she began her full-time teaching career in August 1972 as a beginning teacher. In 1997, Ms. Johns requested that the Division send her an estimate of her retirement benefit if she were to retire effective July 1, 1999. The Division prepared an Estimate of Retirement Benefit, Form FRS-40, which showed that, if Ms. Johns were to retire effective July 1, 1999, she would have 27.90 years of service for purposes of calculating her retirement benefits under the FRS. This estimate included 0.9 years of service attributed to Ms. Johns for the 1971-1972 school year.2 A Summary of the Florida Retirement System Deferred Retirement Option Program was enclosed with the December 29, 1997, Form FRS-40, which included the following information: "Participation Limit: Maximum of 60 months following the date on which the member first reaches normal retirement age or date." The Form FRS-40 was mailed to Ms. Johns on February 3, 1998, at "1131 SW 72nd Ave., Plantation, Florida 33317," which was, and still is, her correct address. The Form FRS-40 was not returned to the Division as undeliverable or undelivered. In 2000, Ms. Johns requested that the Division send her an estimate of her retirement benefit if she were to retire effective July 1, 2002. Two Estimate of Retirement Benefit forms were prepared by the Division pursuant to this request: Estimate #1 was based on the assumption that Ms. Johns would retire on October 1, 2001, which was identified in the comments included on the Estimate of Retirement Benefit form as her earliest date of eligibility for normal retirement and for participation in the DROP; it was noted on the form that the estimate of benefits as of October 1, 2001, was based on 30.08 years of service. Estimate #2 assumed the July 1, 2002, retirement date specified in Ms. Johns' request for an estimate; it was noted on the form that the estimate of benefits as of July 1, 2002, was based on 30.90 years of service. The two Estimate of Retirement Benefit forms were mailed to Ms. Johns at "1131 SW 72nd Ave., Plantation, Florida 33317." Although the exact date the estimates were sent is not shown on the documents, the Division keeps a computer log which shows that Ms. Johns' file was archived on January 1, 2001, and that the two estimates were included in her file when it was archived. The estimates were not returned to the Division as undeliverable or undelivered. Ms. Johns received a Member Annual Statement as of June 30, 2001 from the Division showing that she had 29.90 years of service in the FRS as of that date. The statement included an alternative estimate based on Ms. Johns' continuing her employment until July 1, 2002, and it was noted on the statement that, should she retire on July 1, 2002, her monthly benefit would be based on 30.9 years of creditable service. This annual statement was mailed in the fall of 2001 to Ms. Johns at "1131 SW 72nd Ave., Plantation, Florida 33317." Ms. Johns' Application for Service Retirement and the Deferred Retirement Option Program was received by the Division on May 14, 2002. In her application, Ms. Johns identified her DROP "begin date" as July 1, 2002, and her DROP "termination and resignation date" as June 30, 2007. She acknowledged by signing the form that her "DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement." Ms. Johns planned her DROP "begin date" based on the information provided by the Broward County School Board that, according to its records, Ms. Johns' first day of employment was August 17, 2002. The Division acknowledged receipt of Ms. Johns' DROP application by letter dated May 17, 2002, confirming that her DROP "begin date" was July 2002 and that her DROP "end date" was June 30, 2007. An Estimate of Retirement Benefit form was enclosed, which showed 30.90 years of service as of July 1, 2002. A DROP Estimated Benefit Accrual Calculation was also enclosed, which showed the monthly-benefit accrual from July 2002 through June 2007. A revised Estimate of Retirement Benefit form was prepared by the Division and mailed to Ms. Johns in August 2002. Ms. Johns was advised in the comments on the revised form that she would be eligible to participate in the DROP for a maximum of 50 months because her normal retirement date was September 1, 2001, and she had not entered the DROP until July 1, 2002. Ms. Johns wrote a letter to the Division questioning the accuracy of the information contained in the revised Estimate of Benefit form. Doug Cherry, the Benefits Administrator for the Division's Bureau of Retirement Calculations, advised Ms. Johns in a letter dated October 9, 2002, that, according to the Division's records, the date on which she first became eligible for normal retirement and the DROP was October 1, 2001. Mr. Cherry also stated in his letter that, because her application for the DROP had been received in May 2002, she would be eligible for the DROP effective May 1, 2002, rather than July 1, 2002, as she had specified in her application. When determining a person's membership in the FRS, the Division looks to the law in effect at the time the service was rendered. When Ms. Johns began her service with the Broward County School Board in October 1971, Section 121.051, Florida Statutes (1971), provided: COMPULSORY PARTICIPATION.-- The provisions of this law [the Florida retirement system act] shall be compulsory as to all officers and employees who are employed on or after December 1, 1970, of an employer other than those referred to in paragraph (2)(b),[3] and each officer or employee, as a condition of employment, shall become a member of the system as of his date of employment. Section 121.021(11), Florida Statutes (1971), defined "officer or employee" in pertinent part as "any person receiving salary payments for work performed in a regularly established position." Section 121.021(12), Florida Statutes (1971), defined "member" in pertinent part as "any officer or employee who is covered or who becomes covered under this system in accordance with this chapter." "Regularly established position" was defined in the 1971 version of Florida Administrative Code Rule 22B-6(36) as "any position authorized in an employer's approved budget or amendments thereto for which salary funds are specifically appropriated to pay the salary of that position." Summary The evidence presented is sufficient to establish that Ms. Johns became a member of the FRS effective October 1, 1971, and that her normal retirement date was October 1, 2001, at which time her age was 59 years, five months. The evidence presented is sufficient to establish that, in choosing the date on which she would enter the DROP, Ms. Johns relied on the information received from the Broward County School Board and not on the information provided by the Division. The evidence presented is sufficient to establish that the Estimate of Benefits forms sent to Ms. Johns by the Division in February 1998 and in late December 2000, and the Member Annual Statement as of June 30, 2001, each included a statement of the exact number of years of service calculated by the Division for various dates of retirement. Ms. Johns was on notice, therefore, of an inconsistency between the Division's calculations of her years of service in the FRS and the information provided by the Broward County School Board setting her first date of employment as August 17, 1972.4
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 finding that Carol Johns is entitled to participate in the DROP for the period extending from May 1, 2002, through September 30, 2006. DONE AND ENTERED this 25th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 25th day of September, 2003.
The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
The Issue Whether Petitioner Deborah Barrington, the surviving spouse of Ronald Mitchell Barrington, is entitled to a monthly benefit from Mr. Barrington’s Florida Retirement System (FRS) pension plan.
Findings Of Fact Respondent is the state agency charged under chapter 121, Florida Statutes, with administering the FRS. In 1986, Mr. Barrington began employment with the Department of Revenue (DOR). Mr. Barrington was a member of the FRS pension plan based on his employment with DOR. Ms. Barrington was the spouse of Mr. Barrington. Ms. Barrington testified that she was married to Mr. Barrington for 43 years. On June 6, 2007, Mr. Barrington contacted Respondent, via email, to inquire as to when he could enter the Deferred Retirement Option Program (DROP) administered by Respondent. Respondent requested some additional information from Mr. Barrington, which he provided, including the identity of his spouse, Ms. Barrington. Respondent received, on January 11, 2011, a form entitled “Florida Retirement System Pension Plan, Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment,” from Mr. Barrington. This form shows that Mr. Barrington intended to enter the DROP program on April 1, 2011, and that his termination and resignation date would be March 31, 2016. Mr. Barrington also completed a “Florida Retirement System Pension Plan, Application for Service Retirement and the Deferred Retirement Option Program (DROP)” form, which Respondent also received on January 11, 2011. This form, similar to the form described in paragraph 5 above, listed Mr. Barrington’s intended dates to enter the DROP program, and his intended termination and resignation dates, but also listed Ms. Barrington as his primary beneficiary. Respondent also received Form FRS-11o, entitled “Florida Retirement System Pension Plan Option Selection for FRS Members” (Option Selection Form), on January 14, 2011 (according to the facsimile header on this form). The Option Selection Form required Mr. Barrington to select one of four retirement benefit payment options. The Option Selection Form provided an explanation for each of the four options. The Option Selection Form reflects that Mr. Barrington initially selected to receive an Option 3 retirement benefit by checking the line next to the Option 3 benefit payment option. However, the Option Selection Form also reflects that Mr. Barrington struck through the checkmark next to the Option 3 benefit payment option, wrote his initials “RB,” and then checked the line next to the Option 1 benefit payment option, indicating he selected to receive the Option 1 retirement benefit. A significant difference exists between Options 1 and 3: Option 3 provides for a “reduced monthly benefit” during the member’s lifetime, and after death, the member’s joint annuitant would receive a lifetime monthly benefit in that same amount; while under Option 1, the member would receive the maximum benefit for the member’s life, with no continuing benefit to a joint annuitant after the member’s death. The Option Selection Form reflects that Deborah Holley notarized the signature of Mr. Barrington. Along with the Option Selection Form, Respondent received a form entitled “Florida Retirement System Pension Plan Spousal Acknowledgement Form,” (Spousal Acknowledgment Form) on January 14, 2011 (according to the facsimile header on this form). The Spousal Acknowledgment Form provides that if the member is married and has selected Option 1 or 2 on the Option Selection Form, the member’s spouse must complete “Box 2” on the Spousal Acknowledgment Form. The Spousal Acknowledgment Form reflects that Ms. Barrington completed “Box 2,” but in the portion that states that she “acknowledge[s] that the member has selected Option 1 or 2[,]” the Spousal Acknowledgment Form reflects that “1 or 2” is stricken through, and instead, the number “3” is hand written nearby. The Spousal Acknowledgment Form further reflects the signature of Ms. Barrington, dated September 10, 2010, and that Deborah Holley notarized the signatures of both Mr. and Ms. Barrington. Respondent introduced into evidence Ms. Holley’s public commission as a notary in the State of Florida, indicating that Ms. Holley was a duly licensed notary, and which was effective when Mr. and Ms. Barrington executed the Spousal Acknowledgment Form. On February 1, 2011, Respondent mailed Mr. Barrington an “Acknowledgment of DROP Application,” acknowledging: (a) receipt of Mr. Barrington’s Application for Service Retirement and the Deferred Retirement Option Program (DROP); (b) his selection of Option 1 as the benefit payment option; and (c) his DROP begin date of April 1, 2011, and this DROP end date of March 31, 2016. The Acknowledgment of DROP application expressly states, in bold, all-caps letters, the following: AFTER YOUR FIRST MONTH OF DROP PARTICIPATION (OR 30 DAYS FROM THE DATE OF THIS LETTER IS MAILED, IF LATER) RETIREMENT IS FINAL. YOU CANNOT ADD SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE, CHANGE YOUR TYPE OF RETIREMENT OR ELECT THE INVESTMENT PLAN. On May 10, 2011, Respondent mailed Mr. Barrington a “Final Notice of DROP Benefit,” which included his final benefit accrual calculation based on Option 1. Respondent received (according to the facsimile header on this form) on December 14, 2015, a “Florida Retirement System Pension Plan Deferred Retirement Option Program (DROP) Termination Notification,” from Mr. Barrington, which reflected that he would terminate his employment with an FRS employer on March 31, 2016. On January 11, 2017, Mr. Barrington passed away. On February 23, 2017, Respondent sent a survivor letter to Ms. Barrington informing her that “[t]he option selected by the member does not provide a continuing benefit beyond the month of death.” After Ms. Barrington contacted Respondent to inquire about receiving a monthly benefit, Respondent sent Ms. Barrington a letter, dated November 30, 2020, which constituted final agency action, and which informed Ms. Barrington that Respondent paid Mr. Barrington’s retirement benefits according to his retirement option selection—Option 1—and that denied Ms. Barrington’s request to receive a monthly benefit. Testimony of Ms. Barrington and Mr. Halley Ms. Barrington testified that she never signed the Spousal Acknowledgment Form, that Mr. Barrington mistakenly selected Option 1 on the Option Selection Form, and that Ms. Holley failed to properly notarize these documents. Ms. Barrington further testified that Mr. Barrington was ill and, according to her, must have been confused when he selected Option 1. Ms. Barrington testified that she was not with Mr. Barrington when he completed the Option Selection Form. Ms. Barrington did not present any medical or other evidence to establish that Mr. Barrington lacked mental capacity at the time he executed the Option Selection Form or the Spousal Acknowledgment Form. Ms. Barrington did not present any additional evidence, other than her own testimony, to establish that Ms. Holley failed to properly notarize the Option Selection Form or the Spousal Acknowledgment Form. Mr. Halley testified that when Respondent receives the forms for processing a FRS member’s application to enter the DROP program, it reviews the forms “to make sure they are not blank or any information that is necessary is not omitted[,]” and “for any irregularities on the forms and things of that nature[.]” He testified that at any given time, there are more than one million members in FRS. He testified that it is an “impossibility” for Respondent to reach out to each FRS member to confirm that their signature is authentic, or to call and confirm with each FRS member that they intended the particular option that they selected. Based on the persuasive and credible evidence adduced at the final hearing, Ms. Barrington failed to establish that Mr. Barrington lacked the mental capacity to select a retirement option at the time he completed the Option Selection Form. Based on the persuasive and credible evidence adduced at the final hearing, Ms. Barrington failed to establish that Ms. Holley improperly notarized the Option Section Form or the Spousal Acknowledgment Form.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that Respondent, Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request for a continuing monthly benefit from Mr. Barrington’s FRS pension plan. DONE AND ENTERED this 3rd day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S ROBERT J. TELFER III 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 3rd day of June, 2021. Deborah Barrington 44 Parkside Circle Crawfordville, Florida 32327-7413 William Chorba, General Counsel Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399-0950 Gayla Grant, Esquire Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000
Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether the Department of Management Services, Division of Retirement (“the Department”) should be equitably estopped from requiring Michael A. Fewless to return $541,780.03 of retirement benefits.
Findings Of Fact The following findings are based on witness testimony, exhibits, and information subject to official recognition. FRS and the Termination Requirement FRS is a qualified plan under section 401(a) of the Internal Revenue Code and has over 500,000 active pension plan members. The Department administers FRS so that it will maintain its status as a qualified pension plan under the Internal Revenue Code. Section 121.091(13), Florida Statutes (2018),1/ describes the benefits available to FRS members through the “Deferred Retirement Option Program (“DROP”): In general, and subject to this section, the Deferred Retirement Option Program, hereinafter referred to as DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the Florida Retirement System on behalf of the member, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the member shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Section 121.091 specifies that “[b]enefits may not be paid under this section unless the member has terminated employment as provided in s. 121.021(39)(a). ” Section 121.021(39)(a) generally provides that “termination” occurs when a member ceases all employment relationships with participating employers. However, “if a member is employed by any such employer within the next 6 calendar months, termination shall be deemed not to have occurred.” § 121.021(39)(a)2., Fla. Stat. Moreover, the employee and the re-employing FRS agency will be jointly and severally liable for reimbursing any retirement benefits paid to the employee. § 121.091(9)(c)3., Fla. Stat.2/ The termination requirement is essential to the FRS maintaining its status as a qualified plan under IRS regulations. As a qualified plan, taxes on FRS benefits are deferred.3/ The Department’s position is that after an entity becomes a participating employer, all new hires within covered categories are “compulsory members” of the FRS. If an entity has a local pension plan, then that entity must either close the plan before joining FRS or keep the plan open for members who exercise their right to remain in that plan. However, even if the entity chooses to keep the local plan open for current members, the local plan is closed to new members. The City of Fruitland Park, Florida (“Fruitland Park”), became an FRS employer on February 1, 2015. The mayor and commissioners of Fruitland Park passed a resolution on November 20, 2014, providing in pertinent part, that: It is hereby declared to be the policy and purpose of the City Commission of Fruitland Park, Florida that all of its General Employees and police officers, except those excluded by law, shall participate in the Florida Retirement System as authorized by Chapter 121, Florida Statutes. All General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System so stated therein. (emphasis added). The Department notified Fruitland Park during its enrollment into FRS that all new hires were compulsory members of FRS for covered groups. Facts Specific to the Instant Case After graduating from the Central Florida Police Academy in 1985, Mr. Fewless began working for the Orange County Sheriff’s Office (“OCSO”) as a deputy sheriff and patrolled what he describes as “the worst area of Orange County.”4/ After five years, Mr. Fewless transferred into the detective bureau in OCSO’s criminal investigations division. Mr. Fewless received a promotion to corporal two years later and returned to patrolling.5/ Mr. Fewless soon received a transfer to OCSO’s special investigation’s division and worked in the gang enforcement unit.6/ It was not long before he was promoted to sergeant and sent “back to the road.” After 10 months, OCSO asked Mr. Fewless to take over the gang enforcement unit where he was promoted to lieutenant and ultimately to captain.7/ During his tenure as a captain, Mr. Fewless was in charge of OCSO’s internal affairs unit for five or six years. Mr. Fewless concluded his nearly 30-year tenure with OCSO as the director of the Fusion Center and the Captain of the criminal intelligence section.8/ In sum, Mr. Fewless’s service with OCSO was exemplary, and he was never the subject of any disciplinary actions. Mr. Fewless entered the DROP program on June 1, 2011. As a result, he was scheduled to complete his DROP tenure and retire on May 31, 2016. On June 1, 2011, Mr. Fewless signed a standardized FRS document entitled “Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment.” That document contained the following provisions: I elect to participate in the DROP in accordance with s. 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. Termination requirements for elected officers are different as specified in s. 121.091(13)(b)(4), F.S. I cannot add service, change options, change my type of retirement or elect the Investment Plan after my DROP begin date. I have read and understand the DROP Accrual and Distribution information provided with this form. Mr. Fewless realized by 2015 that he was not ready to leave law enforcement. However, he was scheduled to retire from OCSO by May 31, 2016. Mr. Fewless had several friends who left OCSO as captains and took police chief positions with municipalities in Florida. Therefore, in anticipation of a lengthy job search, he began looking for such a position in approximately March of 2015. Mr. Fewless applied to become Fruitland Park’s police chief on March 26, 2015, and was offered the job in June of 2015 by Fruitland Park’s city manager, Gary LaVenia. Mr. Fewless learned from Mr. LaVenia that Fruitland Park had joined FRS and told him that he could not work within the FRS system. Mr. LaVenia then erroneously told Mr. Fewless that he would not be violating any FRS conditions (and thus forfeiting his DROP payout) because Fruitland Park had a separate city pension plan into which Mr. Fewless could be enrolled. As noted above, Fruitland Park had passed a resolution mandating that “[a]ll General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System. ” While Mr. Fewless was pleased with what Mr. LaVenia told him, he called an FRS hotline on July 9, 2015, in order to verify that he would not be endangering his retirement benefits by accepting the police chief position with Fruitland Park. Mr. Fewless’s question was routed to David Kent, and Mr. Fewless described how he was going to work for Fruitland Park and that Fruitland Park was an FRS employer. Mr. Kent told Mr. Fewless that he could go to work for Fruitland Park immediately without violating any FRS requirements so long as he was not enrolled into the FRS system. Instead of being an FRS enrollee, Mr. Kent stated that Mr. Fewless could enroll into Fruitland Park’s pension plan or enter a third-party contract.9/ Mr. Fewless assumed that Mr. Kent was an FRS expert and remembers that Mr. Kent sounded very confident in the information he relayed over the telephone. On July 14, 2015, Mr. Fewless filled out and signed a form entitled “Florida Retirement Systems Pension Plan Deferred Retirement Option Program (DROP) Termination Notification.” The form indicates that Mr. Fewless would be ending his employment with OCSO on August 1, 2015. In addition, the form notified Mr. Fewless of the requirements associated with receiving his accumulated DROP and monthly benefits: According to our records, your DROP termination date is 08/01/2015. You must terminate all Florida Retirement System (FRS) employment to receive your accumulated DROP benefits and begin your monthly retirement benefits. You and your employer’s authorized representative must complete this form certifying your DROP employment termination. Termination Requirement: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or noncovered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. Reemployment Limitation: You may return to work for a participating FRS employer during the 7th – 12th calendar months following your DROP termination date, but your monthly retirement benefit will be suspended for those months you are employed. There are no reemployment limitations after the 12th calendar month following your DROP termination date. If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). If you void your retirement, your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new employment termination date. You must apply to establish a future retirement date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP.[10/] (emphasis in original). Mr. Fewless’s Reliance on the Representations Made to Him Mr. Fewless placed complete trust in the representations made during his July 9, 2015, phone call to the FRS hotline and during his discussions with Fruitland Park’s city manager. When he left OCSO and accepted the police chief position with Fruitland Park, Mr. Fewless took a $33,000.00 annual pay cut and stood to receive $70,000.00 less from his DROP payout. It is highly unlikely he would have accepted those circumstances if he did not have a good faith basis for believing he was utilizing an exception to the termination requirement. In the months preceding his departure from OCSO, Mr. Fewless’s wife was being treated for a brain tumor. Following her surgery in May of 2015 and subsequent radiation treatment, Ms. Fewless returned to work for a month or two. However, given that the retirement checks Mr. Fewless had begun to receive were roughly equivalent to what Ms. Fewless had been earning, she decided to retire in order to spend more time with their grandchildren. During this timeframe, Mr. and Ms. Fewless decided to build their “dream home,” and Ms. Fewless designed it. They used a $318,000.00 lump sum payment from FRS to significantly lower their monthly house payment. Those actions would not have been taken if Mr. Fewless had suspected that there was any uncertainty pertaining to his retirement benefits. The Department Discovers the Termination Violation In November of 2017, the Department’s Office of the Inspector General conducted an audit to assess Fruitland Park’s compliance with FRS requirements. This audit was conducted in the regular course of the Department’s business and was not initiated because of any suspicion of noncompliance. The resulting audit report contained the following findings: (a) Fruitland Park had failed to report part-time employees since joining FRS; (b) Fruitland Park had failed to report Mr. Fewless as an employee covered by FRS; (c) Mr. Fewless’s employment with Fruitland Park amounted to a violation of FRS’s reemployment provisions; and (d) Fruitland Park failed to correctly report retirees filling regularly established positions. Because he had failed to satisfy the termination requirement, the Department notified Mr. Fewless via a letter issued on August 15, 2018, that: (a) his DROP retirement had been voided; (b) his membership in FRS would be retroactively reestablished11/; and (c) he was required to repay $541,780.03 of benefits. Mr. Fewless’s Reaction to Learning That He Had Violated the Termination Requirement Mr. Fewless learned on June 25, 2018, of the Department’s determination that he was in violation of the termination requirement. He responded on July 5, 2018, by writing the following letter to the Department: On the evening of, June 25, 2018, I was notified by Mr. Gary LaVenia, the City Manager for Fruitland Park, that he was contacted by members of the State of Florida’s DMS Inspector General’s office regarding a problem with my current retirement plan. No additional information was shared during this initial telephone conversation and we scheduled a meeting for the following day. On June 26, 2018, I met with Mr. Gary LaVenia, Ms. Diane Kolcan, Human Resource Director and Ms. Jeannine Racine, the Finance Director regarding this matter. I was advised that members of the Department of the Florida Retirement System told them that I was in violation of receiving my current retirement benefits because I failed to take a six month break between my retirement with the Orange County Sheriff’s Office and joining the City of Fruitland Park. I explained to them that there must be some mistake because I am not currently enrolled in the Florida Retirement System through the City of Fruitland Park. The City enrolled me in their “City” pension plan. Mr. LaVenia agreed with me and we closed the meeting with me advising them I would do some additional research on the matter. * * * I then reached out to Mr. Chris Carmody, an attorney with the Gray/Robinson Firm, whom I worked with on legislative issues in the past. . . . I explained to him that according to the Inspector General’s report, I needed to have a six month separation between the Orange County Sheriff’s Office and the City of Fruitland Park, because both agencies participated in the Florida Retirement System. Mr. Carmody still did not feel that was a violation because I was not enrolled in the FRS Plan with the City of Fruitland Park, but rather their independent City pension plan. I felt the same way; however he wanted to continue to research the issue. A few hours later I received a telephone call from Mr. Carmody indicating the problem appears to be that the “City” participates in the FRS Pension Plan and even though I do not, I would be prohibited from working there for the six month period. After hearing this news, I immediately contacted Ms. Amy Mercer, the Executive Director of the Florida Police Chief’s Association. I explained the dilemma to her and just like the previously mentioned individuals she said “so what did you do wrong, that sounds ok to me. ” Ms. Mercer said she would reach out to the two attorneys that support the Florida Police Chief’s Association to get their opinion of the situation. The following morning, Ms. Mercer advised me that according to Attorney Leonard Dietzen my actions were in violation of the Florida Retirement Pension Plan Rules. Mr. Dietzen explained to her that I needed a six month separation from my employment with the Florida Retirement System and the City of Fruitland Park, because the City participated in the FRS Pension plan. Therefore, based on the above information [and] the realization that an innocent mistake had been made, please let me explain my actions: * * * In either June or July of 2015, I officially interviewed for the position of Police Chief for the City of Fruitland Park. . . . Approximately one week after the interviews, I was offered the position of Police Chief for the City of Fruitland Park. In July of 2015, I contacted the official FRS Hotline regarding my potential decision to join the Fruitland Park Police Department. I informed them that I was currently employed with the Orange County Sheriff’s Office and enrolled in DROP. I advised them that I was considering accepting the position of police chief with the City of Fruitland Park; however I wanted to confirm with them that I would have no issues with my retirement. I explained that the City of Fruitland Park was currently an FRS department; however they also had a separate “City” pension plan which I was going to be placed in. I wanted to confirm that this would not negatively impact my retirement benefits. I was advised that as long as I was enrolled in the “City” pension plan, I would be fine. The FRS employee also added that he heard other “new chiefs” were doing an “independent contract” with the City for a one year period, but he assured me either way would be fine. I concluded my telephone conversation and proceeded forward. I then began the employee benefits negotiations process with Mr. LaVenia. At the time of the negotiations, I realized I would be receiving my Florida Retirement check on a monthly basis and my wife was also employed as the vice-president of the Orlando Union Rescue Mission in Orlando, Florida. Therefore money was not my primary concern for this position and I surrendered my much larger salary with the Orange County Sheriff’s Office to become the Chief of Police for Fruitland Park for $70,000 per year. I officially accepted the position with the City of Fruitland Park, and informed Mr. LaVenia that I could not participate in the Florida Retirement System; however according to the FRS Hotline employee I could be placed in the city pension plan or sign a contract for a one year period. Mr. LaVenia recommended that I be placed in the city pension plan and had the appropriate paperwork completed. * * * It is important to recognize that I felt I took all the necessary steps to act within the guidelines of the Florida Retirement System. After all, I had worked for over thirty years with the Orange County Sheriff’s Office with an impeccable record and with the intent of securing a retirement package that would protect my wife and family for life. In conclusion, I feel I have been let down by the system in two very key areas regarding this matter: In July 2015, not only was I preparing for retirement and a new job; but my wife was experiencing serious medical issues that required surgery and radiation treatments for months at Shands Hospital. Although my mind was focused on her condition, I still felt it was extremely important to contact the FRS Hotline regarding my potential new position. My desire was to make sure I did not do anything that would jeopardize the retirement plan I worked for my entire career. The advice I was given by the FRS Hotline employee/professional apparently was terrible. Not only did he indicate I could go under the “City” pension plan, he further recommended that other chiefs have decided to do a “contract” with the city for a one year period to account for the separation from the FRS system. Clearly had this employee indicated by any means that the position with Fruitland Park would or possibly could jeopardize my retirement, I would have run away from this opportunity . . . * * * In July and August of 2015, while I was completing the hiring process with the City of Fruitland Park, management and/or staff should have cautioned me about the potential risk to my Florida Retirement Pension if I proceeded with the process. * * * Clearly, whoever made the decision to proceed with processing me was unaware of two things. (1) I would be violating the six month separation rule if I stopped my employment with the Orange County Sheriff’s Office on August 1, 2015 and began employment with Fruitland Park one day later on August 2, 2015. (2) The only pension plan available to new employees with the City of Fruitland Park had to be the Florida Retirement System. * * * I now understand from going through this procedure that there [was] an unintended error in how I officially retired from the Orange County Sheriff’s Office and began my employment with the Fruitland Park Police Department. It is important to mention that Sheriff Kevin Beary and Sheriff Jerry Demings chose me to command their Professional Standards Division on two separate occasions because they knew I was a man of integrity and would always “do the right thing.” I had no intent to skirt the system and/or do anything unethical. I can assure you nobody raised a red flag over this position prior to this incident; and I would have immediately stopped my efforts had I been aware of this rule. Mr. Fewless’s Current Situation While working as Fruitland Park’s police chief, Mr. Fewless’s salary and retirement benefits totaled $12,000.00 a month. In order to avoid accumulating more penalties, Mr. Fewless retired from his police chief position with Fruitland Park on August 31, 2018. Mr. Fewless has not received any FRS benefits since September 1, 2018. There was a three-month period when he was receiving no money. Mr. Fewless has been employed by the Groveland Police Department since March 4, 2019. Mr. Fewless describes his current financial situation as “dire” and says he and his wife are “wiped out.” They may need to sell their “dream house,” and they borrowed $30,000.00 from their daughter in order to litigate the instant case. In addition, the contractor who built the Fewless’s dream home failed to pay subcontractors for $93,000.00 of work. While the Department notes that Mr. Fewless stands to receive a higher monthly benefit, he disputes that he is somehow in a better position: No, I am not in a better position. The $542,000 that will be taken away from me because of what clearly could have been handled with one phone call from a representative of FRS – the difference in pay between my former retirement salary and my new retirement salary based on the recalculations will go from $6,000 to $7,000 a month. That means in order for me to recoup the $542,000 that the state was referring to, I would have to work 542 months. I don’t think I’ll live that much longer, No. 1. And No. 2, that doesn’t take into consideration interest and everything else that was part of that, if that makes sense. Mr. Fewless has filed a lawsuit against Fruitland Park. Ultimate Findings of Fact12/ Mr. Fewless’s testimony about his July 9, 2015, phone call to the FRS hotline is more credible than Mr. Kent’s. Mr. Fewless’s descriptions of that phone call are very consistent, and the Department has not directed the undersigned to any instances in which an account of that phone call by Mr. Fewless differed from his testimony or his July 5, 2018, letter to the Department.13/ This finding is also based on Mr. Fewless’s demeanor during the final hearing. Moreover, Mr. Fewless was not attempting to “game the system.” Given Mr. Fewless’s exceptional record of public service, it is very unlikely that he would knowingly and intentionally attempt to engage in “double dipping” by violating the termination requirement. It is equally unlikely that Mr. Kent can accurately remember what he told Mr. Fewless during a single phone call on July 9, 2015. Rather than questioning Mr. Kent’s veracity, the undersigned is simply questioning his ability to recall the content of a single phone call that appears to have been unremarkable.14/ It is also difficult to believe that Mr. Fewless would accept the police chief position with Fruitland Park and build an expensive “dream house” after being told by Mr. Kent that he would be violating the termination requirement.15/ Mr. Fewless’s reliance on Mr. Kent’s statement was entirely reasonable given that the arrangement described by Mr. LaVenia sounded like an imminently plausible exception to the termination requirement. Mr. Fewless’s subsequent actions in reliance of that statement were extremely detrimental to himself and his family. Finally, the circumstances of the instant case are analogous to other cases in which appellate courts have held that the enhanced requirements for estopping the government had been satisfied. In other words, Mr. Kent’s misrepresentation amounted to more than mere negligence, the Department’s proposed action would result in a serious injustice, and the public interest would not be unduly harmed by Mr. Fewless retaining the retirement benefits he earned through his public service with OCSO.
Conclusions For Petitioner: Ryan Joshua Andrews, Esquire Brian O. Finnerty, Esquire Johana E. Nieves, Esquire The Law Offices of Steven R. Andrews, P.A. 822 North Monroe Street Tallahassee, Florida 32303 For Respondent: Thomas E. Wright, Esquire Sean W. Gillis, Esquire Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
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 rescinding its proposed action that Michael A. Fewless’s FRS DROP retirement be voided and that he be required to repay all retirement benefits as provided in Florida Administrative Code Rule 60S- 4.012. DONE AND ENTERED this 18th day of July, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of July, 2019.
The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Petitioner is entitled to an award of attorney’s fees pursuant to Section 57.105(5), Florida Statutes, and, if so, what amount?
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 57.105(5), Fla. Stat.; and Order and Mandate in Case No. 1D04-4167, First District Court of Appeal. Section 57.105(5), Florida Statutes, reads as follows: (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. Subsection (5) of Section 57.105, Florida Statutes, directs the undersigned to the preceding subsections which set forth standards to be applied in the analysis of entitlement to attorney’s fees. Subsection (1) provides that reasonable attorney’s fees shall be awarded to the prevailing party to be paid by the losing party where the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the administrative tribunal or at any time before the administrative hearing, “[w]as not supported by the material facts necessary to establish the claim or defense or [w]ould not be supported by the application of then-existing law to those material facts.” The standards set forth in Subsection (1) and incorporated by reference in Subsection (5) were the result of an amendment to Section 57.105, Florida Statutes, in 1999. s. 4, Ch. 99-225, Laws of Florida. Prior to that amendment, the statute provided for the award of attorney’s fees when “there was a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party.” These new standards became applicable to administrative hearings in 2003 by s. 9, Ch. 2003-94, Laws of Florida, with an effective date of June 4, 2003. Petitioner filed his Petition for Administrative Hearing in September 2003. Accordingly, the newer standards of Section 57.105, Florida Statutes, apply to this case. In the case of Wendy’s v. Vandergriff, 865 So. 2d 520, (Fla. 1st DCA 2003), the court discussed the legislative changes to Section 57.105: [T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99- 225, s. 4, Laws of Florida. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. (Citations omitted) However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. (Citations omitted) In determining whether a party is entitled to statutory attorney's fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. (Citation omitted) In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.(Citation omitted) An award of fees is not always appropriate under section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. (Citation omitted) Wendy's v. Vandergriff, 865 So. 2d 520, 523. The court in Wendy’s recognized that the new standard is difficult to define and must be applied on a case-by-case basis: While the revised statute incorporates the ‘not supported by the material facts or would not be supported by application of then-existing law to those material facts’ standard instead of the ‘frivolous’ standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis. Wendy’s v. Vandergriff, 865 So. 2d 520, 524 citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003). More recently, the First District Court of Appeal further described the legislative change: The 1999 version lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105, Florida Statutes . . . Significantly, the 1999 version of 57.105 ‘applies to any claim or defense, and does not require that the entire action be frivolous.’ Albritton v. Ferrera, 913 So. 2d 5, 6 (Fla. 1st DCA 2005), quoting Mullins v. Kennelly, supra. The Florida Supreme Court has noted that the 1999 amendments to Section 57.105, Florida Statutes, “greatly expand the statute’s potential use.” Boca Burger, Inc. v. Richard Forum, 912 So. 2d 561, 570, (Fla. 2005). The phrase “supported by the material facts” found in Section 57.105(1)(a), Florida Statutes, was defined by the court in Albritton to mean that the “party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton, 913 So. 2d 5, at 7, n.1. Therefore, the first question is whether FAMU or its attorneys knew or should have known that its defense of Dr. Jain’s claim was not supported by the material facts necessary to establish the defense when the case was initially filed or at any time before trial. That is, did FAMU possess admissible evidence sufficient to establish its defense. The parties filed a Pretrial Stipulation the day before the hearing. The Pretrial Stipulation characterized FAMU’s position as follows: It is the position of the University that Dr. Babu Jain retired at the close of business on May 30, 2003, pursuant to the provision of the DROP retirement program. Dr. Jain did not have the right, nor the authority, to unilaterally rescind his resignation and retirement date. In a letter dated May 5, 2003, the Division of Retirement informed Dr. Jain that it was providing him with the “DROP VOID” form that had to be signed by himself and the University, for his participation in DROP to be rescinded. No University official signed that form nor agreed to rescind his retirement. On May 30, 2003, Dr. Babu Jain knew that his retirement through DROP had not been voided and that he had in-fact retired. The University included the position that Dr. Jain occupied in its vacancy announcement in the ‘Chronicle of Higher Education.’ The University, through Dr. Larry Robinson notified Dr. Jain that his retirement rescission was not accepted. Dr. Jain did not work past May 30, 2003. Finally, there was never a ‘meeting of the minds’, nor any other agreement between the University and Dr. Jain to void his retirement commitment. It [is] the University’s position that Dr. Babu Jain retired from Florida Agricultural and Mechanical University effective at the close of business on May 30, 2003. Pretrial Stipulation at 14-15. (emphasis in original) The material facts known by FAMU necessary to establish its defense against Petitioner's claim at the time the case was filed included: Petitioner’s initial Notice of Election to Participate in DROP and Resignation of Employment in which Dr. Jain resigned effective the date he terminated from DROP (designated as May 30, 2003); Dr. Robinson’s letter dated May 27, 2003, which asserted that the University was not in agreement with Dr. Jain's decision and that the decision to terminate from DROP is a mutual one; Dr. Robinson's letter of May 30, 2003, which informed Dr. Jain that the two summer semester employment contracts were issued to him in error and informing Dr. Jain that he would be paid through May 30, 2003, his designated DROP date; the refusal of anyone from FAMU to sign the DROP-VOID form provided to Dr. Jain by the Division of Retirement; the reassignment of another instructor to take over Dr. Jain’s classes the first Monday following the designated DROP termination date; and the Refund of Overpayment of Salary Form and resulting salary deduction from Dr. Jain’s sick leave payout. It is difficult to determine what, if any, additional facts FAMU learned through discovery. That is, whether deposition testimony of FAMU officials enlightened FAMU or its attorneys as to material facts not known at the time the case was filed by Dr. Jain, is not readily apparent. However, a review of the pre-trial depositions reveals material facts which supported FAMU’s defense that the summer contracts were issued in error and that there was no meeting of the minds between the parties regarding voiding Dr. Jain’s DROP participation. In particular, Dr. Robinson, Provost and Vice- President for Academic Affairs, testified in deposition that when he signed Dr. Jain’s summer employment contracts on May 20, 2003, he had no knowledge of Dr. Jain’s participation in the DROP program; that he first became aware that Dr. Jain was in DROP with a DROP termination date of May 30, 2003, upon receiving a May 21, 2003, memorandum from Nellie Woodruff, Director of the FAMU Personnel Office; and that Dean Larry Rivers did not have the authority to issue work assignments for any of his faculty beyond their DROP dates. Additionally, Dr. Henry Williams, Assistant Dean for Science and Technology, testified in deposition that when he signed the Recommendation for Summer Employment on May 5, 2003, which recommended Dr. Jain for teaching summer courses beginning May 12, 2003, he was unaware that there was a 30-day window during which a DROP participant could not be employed. Obviously, when the undersigned weighed all of the evidence, including evidence presented at hearing which is not part of this analysis, it was determined that the preponderance of the evidence was in favor of Dr. Jain’s position. However, that is not the standard to be applied here. The undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU possessed admissible evidence sufficient to establish the fact that it did not give written agreement to his decision to abandon DROP and resume employment if accepted by the finder of fact. While the finder of fact ultimately did not agree with FAMU, FAMU possessed the material facts necessary to establish the defense, i.e., admissible evidence sufficient to establish the fact if accepted by the trier of fact, when the case was filed and prior to the final hearing. The second question is whether FAMU’s defense would not be supported by the application of then existing law to those material facts, when the case was initially filed or at any time before the final hearing. In the Pretrial Stipulation, the parties referenced Sections 121.091(13) and 121.021(39), Florida Statutes, as provisions of law relevant to the determination of the issues in the case.2/ These statutory provisions were also referenced by the undersigned in the Recommended Order as “two competing statutory provisions.” Recommended Order at 15. Subsection 121.091(13), Florida Statutes, establishing the DROP program, was created by s. 8, Ch. 97-180, Laws of Florida, with an effective date of January 1, 1999.3/ Section 121.091(13), Florida Statutes (2003), read as follows: DEFERRED RETIREMENT OPTION PROGRAM.--In general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation in the DROP does not guarantee employment for the specified period of DROP. Participation in the DROP by an eligible member beyond the initial 60-month period as authorized in this subsection shall be on an annual contractual basis for all participants. Section 121.021(39)(b), Florida Statutes (2003), read as follows: 'Termination' for a member electing to participate under the Deferred Retirement Option Program occurs when the Deferred Retirement Option Program participant ceases all employment relationships with employers under this system in accordance with s. 121.091(13), but in the event the Deferred Retirement Option Program participant should be employed by any such employer within the next calendar month, termination will be deemed not to have occurred, except as provided in s. 121.091(13)(b)4.c. A leave of absence shall constitute a continuation of the employment relationship. Unlike the situation in Albritton, supra, the DROP program was relatively new and the statutes creating the same were not well established provisions of law. Dr. Jain was in the first “class” of DROP for FAMU. FAMU and its lawyers did not have the benefit of established case law that discussed DROP and its provisions when this case was filed or at any time before the hearing. While general contract law also came into play, it had to be considered in the context of the DROP program, which had no precedent of case law. FAMU argues in its Response to the Motion for Attorney's Fees that it interpreted the provision in Section 121.091(13), Florida Statutes, that requires written approval of the employer to be either the DROP VOID form provided by the Division of Retirement or a written document, executed by the designated University official, specifically approving Petitioner's decision. "The University did not believe the employment contracts that were issued to Petitioner in error, would constitute written approval." FAMU's Response at 5. This argument is consistent with the position FAMU took in the Pretrial Statement quoted above, that there was never a meeting of the minds "or any other agreement" that Dr. Jain's retirement rescission was accepted. A critical conclusion in the Recommended Order is found in paragraph 38: "Moreover, while the FAMU administration did not sign the DROP-VOID form, the contracts issued to Dr. Jain constitute written approval of Dr. Jain's employer regarding modification of his termination date." FAMU also took the position in the Pretrial Stipulation that Dr. Jain did not work past May 30, 2003, based upon the material facts recited above. Under that reading of the facts, Dr. Jain did not work during the next calendar month after DROP, and, therefore terminated employment consistent with the definition of "termination" in Section 121.021(39)(b), Florida Statutes. Again, while the undersigned did not agree with FAMU's application of the material facts to the then-existing law, FAMU's interpretation was not completely without merit. See Mullins v. Kennerly, 847 So. 2d 1151, 1155. (Case completely without merit in law and cannot be supported by reasonable argument for extension, modification or reversal of existing law is a guideline for determining if an action is frivolous.) Accordingly, the undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU did not know and could not be expected to know that its defense would not be supported by the application of then-existing law to the material facts necessary to establish the defense. Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is ORDERED: Petitioner’s Motion for Attorney’s Fees is denied. DONE AND ORDERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2006.
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
