The Issue Whether Petitioner's request for retirement credit should be approved.
Findings Of Fact Petitioner previously worked for the Sheriff's Office for DeSoto County, Florida. It is undisputed that the Sheriff's Office is a qualified Florida Retirement System ("FRS") employer and that Petitioner was, during all times relevant hereto, an FRS eligible employee. In the instant case, it is undisputed that in October 2006, Petitioner sustained a work-related injury while in the course and scope of her employment with the Sheriff's Office. Petitioner, from the time of her injury through approximately September 11, 2007, received temporary total disability workers' compensation benefits for her employment- related injuries. The precise dates when these benefits were received by Petitioner are not at issue in the instant dispute. On September 12, 2007, Petitioner returned to work at the Sheriff's Office with light-duty work limitations. Also on this date, Petitioner resumed receiving payroll wages from the Sheriff's Office. Petitioner continued to receive temporary partial disability wage payments through December 2008 and received workers' compensation medical benefits through October 2010. When Petitioner returned to work on September 12, 2007, she was still receiving medical treatment from the workers' compensation physician and attended regular sessions with the physician throughout the duration of her employment with the Sheriff's Office. The visits to the workers' compensation physician often occurred during times when the Sheriff's Office scheduled Petitioner to work, thus, resulting in her absence from work on these days. The Sheriff's Office terminated Petitioner's employment on December 12, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner was on the Sheriff's Office payroll and received wages as follows: For the period September 23, 2007, through October 6, 2007, she received payroll wages for 14 days; For the period October 7, 2007, through October 20, 2007, she received payroll wages for five days; and For the period October 21, 2007, through December 12, 2007, she received payroll wages for 14 days. No evidence was presented at the hearing explaining Petitioner's work schedule for the period September 13, 2007, through October 5, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner worked and received payroll wages from the Sheriff's Office for a total of 34 days. Although the 34 days that Petitioner worked were dispersed throughout the months of September, October, November, and December, Petitioner, nevertheless, received a paycheck from the Sheriff's Office for wages for each pay period following her return to work. There was no testimony offered at the hearing as to the total number of days that Petitioner was scheduled to work between September 12, 2007, and December 12, 2007. However, Petitioner testified that any scheduled work days that she missed during this period occurred as a result of her having to attend medical appointments with the workers' compensation physician. Respondent offered no evidence to the contrary as to this point. Given the severity of Petitioner's work-related injury, which apparently resulted in her being away from work for nearly a year, coupled with the fact that she continued to receive workers' compensation medical benefits through October 2010 (some four years after the date of her injury), the undersigned accepts as credible Petitioner's testimony that any scheduled work days that she missed between September 12, 2007, and December 12, 2007, resulted from her having to attend medical appointments with the workers' compensation physician. On April 4, 2008, Petitioner submitted correspondence to the Division and stated therein the following: Sir, I am writing this email in regards to my retirement. Under the florida [sic] retirement system, a member is entitled to retirement credit for periods of eligible workman [sic] comp[ensation]. The member must return to FRS covered employment for one month. Creditable workman [sic] comp[ensation] includes all periods that workman [sic] comp[ensation] are made. FRS employers are required by Section 121.125, Florida Statutes, and Section 60S-2012, Florida Administrative Code, to report the period covered by workman [sic] comp[ensation] on the monthly retirement report. D.C.S.O. stated I worked intermittently but where is it written in the Florida State Statutes or Administrative Code, how many days during the month you are allowed to miss and it would not be credible service or considered a break in service. [sic] Sir, I was still active [sic] employed with D.C.S.O. upon returning to work on Sept[ember] 12, 2007. The days I missed was [sic] due to medical appointmentts [sic] for my workman's [sic] comp[ensation] injury I sustained at D.C.S.O. I always provided documentation from the physician. I was not terminated until December 13, 2007 when Capt. McClure of D.C.S.O. called me at 8:21 A.M. [sic] on my scheduled day off. The three months I was allowed to work and the period on workman [sic] comp[ensation] should be credible service towards retirement. Sir, my question is when the other employees at D.C.S.O. take off more than a couple of days, during the month, for various reasons, without medical documentation[,] do[es] it count for credible service towards retirement or is it a break in service. [sic] On April 7, 2008, Doug Cherry, on behalf of the Division, responded to Petitioner's inquiry of April 4, 2008, and stated the following: Ms. Leonard, as I explained in our phone conversation, for periods of workers' compensation (temporary partial or temporary total) to be eligible for retirement credit there must be a return to active employment for one complete calendar month. The attached letter from the Sheriff of DeSoto County shows that from your scheduled date of return in September 2007, your employment was not active for the required month. This letter states you worked intermittently until your termination of employment in December 2007. To satisfy the one calendar month of active work, you needed to be consistently working through October 31, 2007. You indicated in our conversation that the information from the Sheriff was incorrect. If so, you would need to contact that office to resolve any discrepancy. I [have] also attached the appropriate Florida Statute (121.125) and the Florida Administrative Code (60S-2.012) which states [sic] this requirement. The law does not provide for exceptions or a combination of active and non-active employment during the one calendar month. Regarding your question about active members taking off days during the month, the requirements for earning service credit are different than the eligibility requirement for periods of workers' [sic] compensation. In your own account, you did earn credit for the months of September, October, November and December 2007 for the time you did work and earn salary. However, as stated above, for the period of workers' compensation to be creditable for retirement, the requirement is active employment for the full calendar month, not to earn service credit after such period. You also indicated that you were going to provide your attorney with this information. If your attorney would like to give me a call (850-488-9623), I will be glad to discuss this issue with him or her. I hope this information will help clarify this issue for you. On January 7, 2011, Respondent wrote Petitioner and informed her of the following: Dear Ms. Leonard: This will respond to your request for retirement credit for the period of time you received Workers' Compensation (WC), that was submitted to the State Board of Administration (SBA). Because this is an issue of creditable service, the SBA forwarded the request to the Division of Retirement since the Division is the proper agency to address such an issue. Information you and your agency provided indicates that you were out on WC October 2006 through September 2007 at which time your employer, the DeSoto County Sheriff's Office, sent you a letter dated September 6, 2007 requiring you to return to work within two weeks or be terminated from employment. The Division has not received any documentation from the Workers' Compensation carrier to substantiate the actual periods of WC or the date maximum medical improvement was reached. Therefore, this letter cannot address periods of possible eligibility for retirement credit but will address whether your employment from September 2007 met the return to work requirement for such eligibility. The Sherriff's [sic] office provided us with documentation of your time worked in September, October, November, and December 2007. During these months, you worked intermittently and did not have a full calendar month of active employment before your employment was terminated by your employer on December 12, 2007. * * * You did not consistently work during any of those calendar months until your employment was terminated by your employer on December 12, 2007. Therefore, starting in September 2007, you did not meet the return to actively performing service requirement of the above provision to establish eligibility for possible retirement credit. Petitioner's failure to return to active employment status was the only reason given by the agency when denying Petitioner's claim. Andy Snuggs has worked as a benefits administrator for the Division for approximately the last 20 years. The Division offered, and the undersigned accepted, Mr. Snuggs as an expert in matters related to the Act. Mr. Snuggs testified that in the exercise of the agency's discretion, the agency defines the phrase "active employment," as it relates to section 121.125, to mean that an employee must work each scheduled work day in a regularly established position for at least one calendar month following the employee's return to work and that no allowances are made for any absences, excused or otherwise. Mr. Snuggs did not offer any testimony explaining why the Division selected the particular definition that it did for the term "active."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order determining that Petitioner, Irene Leonard, met the return-to-work requirements necessary to receive retirement credit for workers' compensation payment periods. DONE AND ENTERED this 8th day of September, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2011.
The Issue The issue presented is whether Petitioners are entitled to Option 2 continuing retirement benefits following the death of Linda Prince, a Florida Retirement System member.
Findings Of Fact Linda J. Prince was employed by the Florida Department of Law Enforcement (hereinafter "FDLE") and was a vested, regular class member of the Florida Retirement System (hereinafter "FRS"). After she was diagnosed with a serious health condition, she was able to continue as a full-time employee by participating in the Department's sick leave pool. By November 2008 her family understood that she was terminally ill. About that time, she began alternating staying at the home of her son Brian Prince and at the home of her daughter and son-in- law Wendy and Harrison T. Rivers. During the first week of November 2008, her son, daughter, and son-in-law began discussing whether she should retire rather than remaining in full-pay status. Harrison T. Rivers asked his father Harrison W. Rivers for advice since his father was a retired member of FRS. His father told him that Linda Prince should retire right away under Option 2 since that would guarantee a 10-year payout. One of the persons that Harrison T. Rivers contacted for advice referred him to Annie Lamb, a Personnel Services Specialist at FDLE. He remembers asking her about Option 2 and understood her to tell him that Option 2 required having a spouse or other dependents. She does not recall the conversation. When Harrison T. Rivers conveyed his understanding to Brian Prince, Brian requested that a meeting be set up at FDLE's Personnel Office. The two men met with Samantha Andrews, a different FDLE Personnel Services Specialist, near the end of 2008. All three persons attending the meeting recall that they discussed the sick leave pool, and the two men were assured that there were enough donations to the sick leave pool to cover Linda Prince's continuing need. The attendees at the meeting have different recollections of the other matters discussed. The two men believe they discussed Option 2 and that Samantha Andrews called across the hall to Annie Lamb who confirmed that Option 2 required a spouse. Lamb recalls Andrews asking her a question but does not remember what the question was. Andrews does not recall asking Lamb a question and further does not recall discussing the retirement options at the meeting. At the final hearing, Andrews admitted that she did not understand the differences among the four retirement options until after Linda Prince's death and that before then she thought that one had to be a spouse or a dependent child to be a beneficiary. Andrews' impression of the meeting is that Linda Prince's children wanted to be sure she remained in full- pay status through the sick leave pool to increase her income and keep her benefits available and at a reasonable cost. After this meeting, Linda Prince remained on full-pay employment status. As a result, she received (1) her full salary rather than a reduced retirement amount, (2) health insurance at a cost of $25 bi-weekly, and (3) a $44,000 life insurance policy at the cost of $2 bi-weekly. If she had retired, she would have had to pay nearly $500 a month for the health insurance and would have lost her $44,000 life insurance policy. Instead, she would have had the option of purchasing either a $10,000 or $2,500 life insurance policy for $29.65 or $7.41 a pay period, respectively. On January 10, 2009, Harrison W. Rivers was visiting at his son's home while Linda Prince was staying there. In a conversation with her, he was surprised to learn that she had not retired as he had strongly advised two months earlier. When he later questioned his son as to why she had not retired, his son told him because she did not have a spouse. Harrison W. Rivers told his son that that information was not correct. On January 20, 2009, Harrison W. Rivers met with his own financial advisor David A. Wengert and relayed the information his son had given him. Wengert agreed with Rivers that the information about a spouse or dependent child was not correct but checked with a contact he had at the Department of Corrections. That person confirmed that the spouse or dependent child requirement did not apply to Option 2 and faxed the necessary forms for retiring under Option 2 to Wengert who gave them to Rivers. Harrison W. Rivers gave the folder from Wengert containing the correct information and required forms to his son and told his son to retire Linda Prince immediately. His son subsequently called Brian Prince, gave him the correct information, and told him that Linda Prince should retire. Brian Prince agreed but was out of town at the time. On February 11, 2009, Harrison T. Rivers drove Annie Lamb from FDLE to where Linda Prince was staying. The forms were completed and signed, and Lamb notarized Linda Prince's signature. The forms provided for Linda Prince to take early retirement under Option 2 with Brian Prince and Wendy Rivers as her equal beneficiaries. The forms were filed with Respondent, the Department of Management Services, Division of Retirement, the same day. The forms she signed selected February 28, 2009, as Linda Prince's termination of employment date. A termination date of February 28, 2009, resulted in a March 1, 2009, retirement date. Linda Prince died on February 14, 2009. On that date, she was still in full-pay status since she had not terminated her employment and retired. Option 2 under the FRS system provides a reduced monthly benefit payable for the member's lifetime, but if the member dies within ten years after his or her retirement date, the designated beneficiary receives a monthly benefit in the same amount for the balance of the ten-year period, and then no further benefits are payable. Option 1 provides for monthly payments for the member's lifetime, and upon the member's death, no further monthly benefits are payable. It, therefore, pays no continuing benefits to a beneficiary. Options 3 and 4 provide for joint annuitants and reduced monthly benefits. Under Option 3, upon the member's death, the joint annuitant, who must be a spouse or a financial dependent, will receive a lifetime monthly benefit payment in the same amount, but there are limitations on the amount and length of those payments for a joint annuitant under 25 who is not a spouse. Option 4 provides an adjusted monthly benefit while the member and the joint annuitant are living, a further reduced monthly benefit after the death of either the member or the joint annuitant, with adjustments if the joint annuitant is under the age of 25 and not a spouse. No benefits are payable after both the member and the joint annuitant are deceased. Thus, only Options 3 and 4 require a spouse or financial dependent in order for continuing benefits to be paid after the member's death. Upon learning of her death, the Division of Retirement researched whether any benefits were due to Linda Prince or her beneficiaries. Since she had paid nothing into the FRS, there were no contributions to refund. Further, since she had not retired, no retirement benefits were payable to her or her beneficiaries. The Division also looked at the dates of birth of her beneficiaries to determine if a beneficiary would qualify as a joint annuitant, but both of her beneficiaries were over the age of 25. The only time that Linda Prince contacted the Division of Retirement was in 2002 when she sent an e-mail asking that her benefits be calculated as to what she would receive if she retired at age 62. The Division performed the calculations and sent her the information as to what her benefits would be under Options 1 and 2. Her file contains her e-mail, the benefits estimates sent to her, and a copy of an informational retirement brochure. Information on the FRS, including descriptions of the Options, has been available on the Division's website, in employee handbooks available from the Division, and was available in written form in FDLE's Personnel Office on the day that Brian Prince and Harrison T. Rivers met with Samantha Andrews. During that meeting, neither Brian Prince nor Harrison T. Rivers requested a copy of the employee handbook or any written materials describing the Options for retirement. Because of Petitioners' estoppel argument, the chronology in this case must be closely reviewed. At least until early November 2008, Linda Prince had made her decision to stay on full-pay status to receive her full salary and benefits rather than take early retirement. In early November, her son, daughter, and son-in-law became involved in that decision. In early November, her son-in-law understood an FDLE employee to say that Linda Prince needed a spouse or financial dependent to qualify for continuing retirement benefits, but his father, who was a retired member of FRS, told him that information was wrong and that Option 2 would provide a ten-year continuing benefit for her beneficiaries. No contact was made on her behalf with the Division of Retirement to ascertain which information was correct. On January 10, 2009, Harrison W. Rivers, upon learning that Linda Prince was still not retired, again told his son that she should be retired under Option 2 and that his son's understanding that she needed a spouse or financial dependent was wrong. Again, no contact was made with the Division of Retirement. On January 20, 2009, Harrison W. Rivers obtained the written information and required forms. Within a few days he gave the information and forms to his son and told him again to see to it that Linda Prince was retired immediately. Yet, the forms were not executed and filed with the Division of Retirement until February 11, 2009. Had Linda Prince or anyone on her behalf contacted the Division of Retirement to clarify which information was correct once they had conflicting information the first week of November 2008, she could have retired starting December 1. Had Linda Prince or anyone on her behalf submitted her application for retirement when Harrison W. Rivers provided the correct information and forms to use in January 2009, she could have retired then with a February 1 retirement date. Even though Petitioners offered evidence to show that they relied upon erroneous information conveyed by Harrison T. Rivers and even though they offered evidence that they received erroneous information from Samantha Andrews, it would have been clear to a reasonable person that such information conflicted with the information given by Harrison W. Rivers, who had gone through the process. Further, in January when Rivers gave them the correct written information and the forms to use, there was no basis for relying upon the erroneous information. If Petitioners had acted to clarify the previous conflicting information or had not delayed in having Linda Prince execute the forms when Rivers provided them, they would have retired her before her death and would have been entitled to continuing benefits. Whatever circumstances caused the further delay in the filing of Linda Prince's application for retirement and supporting documentation, the delay was not caused by the information, erroneous or not, provided by the FDLE employees. Accordingly, Linda Prince was still a full-time employee at the time of her death not as a result of erroneous information provided by FDLE employees as alleged by Petitioners, but as a result of delay in obtaining the easily- accessible correct information from the Division of Retirement and as a result of delay in acting on the correct information when it was provided to them. There are over 960 agencies, including state departments and local governments and school boards, which participate in the FRS. The employer and employee handbooks distributed to those agencies and their employees by the Division of Retirement clearly state that representatives of participating agencies are not the agents of the Division of Retirement but rather only act as a link between employees and the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioners ineligible for an Option 2 benefit from the FRS retirement account of Linda Prince. DONE AND ENTERED this 10th day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 10th day of August, 2009. COPIES FURNISHED: Brian Prince 1063 Walden Road Tallahassee, Florida 32317 Harrison Rivers 4211 Camden Road Tallahassee, Florida 32303 Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner was eligible to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS) when he applied on October 4, 2002.
Findings Of Fact Petitioner is employed by the Department of Business and Professional Regulation as a law enforcement officer, and has been since October 17, 1977 (Testimony of Petitioner). Petitioner was considered "vested" in the special risk class of the FRS when he reached ten years of service in 1987 (Testimony of Ira Gaines). On January 15, 2001, Petitioner reached 55 years of age. On October 4, 2002, Respondent received Petitioner's application to participate in the DROP. The Department of Management Services, Division of Retirement (Division), denied Petitioner's application for DROP participation because more than 12 months had passed since he first became eligible, and his opportunity to enter the program had lapsed. Petitioner testified that he was confused by the language of the educational materials on the Division's web site and thought he could defer DROP participation until he reached 25 years of service. The Division's web site stated the following regarding DROP eligibility when Petitioner became eligible: Eligibility - You are eligible to participate in the DROP when you are a participant of the Pension Plan, are vested and have reached your normal retirement date. Your "normal retirement date" is the earliest date at which you are eligible for full, unreduced benefits based upon your age and service. In most cases, you reach your normal retirement date when you are vested and reach age 62, or when you complete 30 years of service, regardless of your age (age 55 or 25 years of service for special risk members). You may make your election to participate in DROP up to 6 months before the date you plan to begin participation, and you must elect DROP participation within 12 months after you first reach your normal retirement date . . . . (Emphasis added) Petitioner admitted he never sought advice either from his personnel office or from the Division. Petitioner filed a timely request for a review of the Division's denial of his DROP application and this hearing followed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request to participate in the DROP. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2003.
The Issue The issue is whether payment of Petitioner's retirement benefits should have commenced after the filing of an application to retire with the Division of Retirement, with an effective date of April 1, 2004, or be retroactively changed to the date of his termination of employment, July 1, 2003.
Findings Of Fact On July 19, 1995, Petitioner applied for membership in the Special Risk Division of the Elected Officers' Class of the Florida Retirement System ("FRS"). On August 14, 1995, Respondent sent Petitioner a letter admitting him into FRS. On September 6, 1995, Sarabeth Snuggs, Chief of the Bureau of Enrollment and Contributions for Respondent, sent Petitioner a letter revoking his membership in FRS. On December 17, 1996, Petitioner wrote to Sarabeth Snuggs responding to Respondent's decision to revoke his membership in FRS. Petitioner cited Section 121.052(2)(d), Florida Statutes, which provides that membership in FRS includes "any constitutional county elected officer assuming office after July 1, 1981, including any sheriff." The Consolidated City of Jacksonville was created by the Florida Legislature with the enactment of Chapter 67-1320, Laws of Florida. Section 1.01 of the Jacksonville Charter provides that the county government of Duval County and the municipal government of the City of Jacksonville are consolidated into a single body politic. The Charter further provides that the consolidated government succeeds to and possesses all of the properties of the former government. After being denied membership in FRS, Petitioner and other members of the consolidated government and its instrumentalities worked diligently to convince Respondent to admit Petitioner into FRS. During Petitioner's attempts to be included in FRS, Respondent repeatedly took the position that Duval County did not exist as a county agency. In a letter to Petitioner dated January 15, 1997, Ms. Snuggs wrote that the consolidated Duval County government "chose to consolidate as a 'city' government." Mr. Keane worked with the Duval County Legislative Delegation to amend Chapter 121 to specifically clarify the fact that the Duval County Sheriff and Clerk of Court are constitutional officers entitled to participate in FRS. In 2002, the Florida Legislature adopted language to clarify the Duval County Sheriff and Clerk of Court's status with respect to FRS. In a letter dated June 24, 2002, Petitioner thanked Ms. Snuggs for recognizing his right to elect membership in FRS. Petitioner observed that, since he was in the last year of his second term as Sheriff (Duval County allows only two consecutive terms), he wanted confirmation of his "right to connect the previous seven (7) years of service as Sheriff." The June 24, 2002, letter also asked for "guidance" from Respondent. The purpose of the June 24, 2002, letter was for Petitioner to learn how Respondent intended to treat his first six years of service. Petitioner sought to avoid any problems since his retirement date was rapidly approaching. On October 10, 2002, Petitioner and Mr. George Dandelake, the Chief of the Budget and Management Division of the Sheriff's Office, wrote to Ms. Snuggs requesting a calculation of the amount of employer contributions required on Petitioner's behalf. The October 10 letter also requested that Respondent "identify what documents are required, in addition to the contribution amount which will be paid by the City, that must be supplied to the Florida Retirement System." Petitioner re-applied for membership in FRS, which was granted on June 1, 2002, after the effective date of the legislation designed to specifically admit the Duval County Sheriff and Clerk of Court into FRS. On June 18, 2003, twelve days before the expiration of his term of office, still not having received confirmation of the status of his prior service, Petitioner sent a letter to Ms. Snuggs advising that FRS had not recognized his service from 1995 through 2002. Petitioner again stated in the letter that he was terminating his position as Sheriff on June 30, 2003. Less than a week prior to the termination of his term, Petitioner received two "Statement[s] of Account" dated June 24, 2003, indicating that "you have until retirement to pay the amount due on your account." The statements further indicated that "when you become vested for monthly benefits, we will provide you an estimate of benefits with and without this service." According to the first Statement of Account, Petitioner was entitled to purchase prior service at the 1.6 percent multiplier rate for the FRS regular class. According to the second Statement of Account, Petitioner was entitled to purchase prior service at the 2.0 percent multiplier rate for the FRS special risk class. Neither Statement of Account was correct, as both failed to permit Petitioner to purchase service at the 3.0 percent rate for special risk, despite the fact that Petitioner had served a continuous and uninterrupted term as Sheriff. The Statement of Account did not advise Petitioner that he must submit a separate retirement application, Form FR-11, in order to preserve his retirement date. The statement did advise Petitioner that interest would be assessed at a rate of 6.5 percent. This warning appeared in bold face on the Statement of Account. The June 24, 2003, statements were the first time that Petitioner was supplied with the amount due to purchase service credit. Since neither statement applied the correct multiplier rate (3.0 percent) for all eight years of Petitioner's service as Sheriff, neither statement was correct. Recognizing that only six days remained prior to the expiration of Petitioner's term as Sheriff, Mr. Keane advised Petitioner to submit payment to Respondent on an expedited basis. After receiving the June 24, 2003, Statements of Account, Petitioner prepared a letter dated June 26, 2003, to Cal Ray, the Director of the Department of Administration and Finance for the Consolidated City of Jacksonville. In this letter, Petitioner requested an employer contribution in the amount of $163,554.32 to purchase his prior service. Petitioner further requested an expedited preparation of the check to ensure delivery to Respondent by July 1, 2003. The letter to Mr. Ray requested payment of the amounts that would have been periodically contributed by the City of Jacksonville if Respondent had been acknowledged as a participant in FRS in 1995. On June 27, 2003, three days prior to the expiration of his term of office, Petitioner drove from Jacksonville to Tallahassee to meet with Respondent's representatives, including Ms. Snuggs, regarding Petitioner's retirement. Mr. Dandelake accompanied Petitioner on this trip. At the June 27, 2003, meeting, Petitioner personally delivered a check to Respondent in the amount of $163,554.32. Respondent accepted the check and issued a written receipt signed by Sarabeth Snuggs. Petitioner was never told during the June 27, 2003, meeting with Respondent that he would forfeit benefits if he failed to complete an application. Respondent knew that Petitioner was leaving office on June 30, 2003. Respondent never discussed the filing of an application for retirement benefits at any time during the course of its conversations and correspondence with Petitioner. Petitioner was never told by Respondent to complete any forms to protect his rights to the 2.0 percent multiplier during the pendency of his dispute with Respondent. Petitioner was never provided any handbook, notice, statutes, or rules indicating he would forfeit benefits under any circumstances. When Petitioner left the June 27, 2003, meeting, both he and Mr. Dandelake understood that he was still engaged in a dispute with Respondent over his entitlement to the 3.0 percent multiplier. Petitioner knew that he was required to file an application in order to receive retirement benefits. Petitioner testified that if he had left the June 27 meeting with any indication that he would forfeit benefits by not filing an application, he would have filed something, with advice of counsel, to preserve his rights. Petitioner received an Estimate of Benefits via fax from Respondent on June 27, 2003, reflecting an annual benefit of $23,105.90. This statement valued 6.92 years of Petitioner's uninterrupted special risk service as Sheriff using the 2.0 percent multiplier, and 1.08 years of service as Sheriff using the 3.0 percent multiplier. The June 27, 2003, statement lists Petitioner's retirement date as July 1, 2003. The estimate does not warn Petitioner that he must do anything in order to preserve his July 2003 retirement date. The estimate states only that it is subject to "final verification of all factors." Petitioner's term of office as elected Sheriff ended on June 30, 2003. Petitioner's employment terminated when his term expired on that date. Respondent was aware of the dates of the expiration of Petitioner's term of office as well as his employment termination date. When Petitioner's employment terminated on June 30, 2003, it was unclear whether he would be credited with the 3.0 percent multiplier for his eight years of special risk service. Petitioner was not notified by Respondent prior to the expiration of his term as Sheriff on June 30, 2003, that he needed to submit a retirement application. The first time Petitioner was advised by Respondent of the need to file an application for retirement benefits was in the comment section of the Estimate of Retirement Benefits provided to him by letter dated March 4, 2004. The warning was printed in bold face type. The Estimate of Retirement Benefits dated June 27, 2003, did not include the bold face warning to file an application. Respondent was not provided with a Division of Retirement publication entitled "Preparing to Retire" prior to his leaving service on June 30, 2003. In fact, the copy of the publication offered into evidence by Respondent is dated "July 2003," subsequent to Petitioner's retirement. As the only member of FRS in his office in Jacksonville, Petitioner had no staff or employees trained in FRS or Florida retirement benefits. Petitioner was provided with a "Preparing to Retire" booklet in March 2004. On November 3, 2003, Florida Attorney General Opinion 2003-46 confirmed that Petitioner, as the elected Sheriff, was eligible for membership in the Elected Officer's Class of the Florida Retirement System. On December 31, 2003, and on January 16, 2004, Petitioner's counsel attempted to obtain clarification from Respondent regarding Petitioner's retirement benefits. The December 31, 2003, letter noted that the "extraordinary delay" in resolving the issue of Petitioner's benefits was at no time due to fault on the part of Petitioner. Respondent never refuted or disputed this statement. By letter dated March 4, 2004, Petitioner was finally advised by Respondent that he was entitled to be credited with the higher 3.0 percent multiplier for all eight years of his service as Sheriff. Petitioner noted that the March 4, 2004, Statement of Account, while properly applying the 3.0 percent multiplier, now had changed Petitioner's retirement date to April 2004 from the previous estimates showing a retirement date of July 2003. The March 4, 2004, statement included the bold face notice to Petitioner that he must file an application for retirement benefits. No prior notices or correspondence from Respondent had informed Petitioner that he must file Form FR-11 in order to retain his retirement date of July 1, 2003. After formally being notified that he would receive the 3.0 percent multiplier for all eight of his years of service as Sheriff, and after having received the notice that he must file Form FR-11, Petitioner submitted the form in April 2004. Respondent is a fiduciary charged with acting in the best interest of participants in FRS. Andy Snuggs, who travels around the state educating employers and employees in FRS, acknowledged that Petitioner was not responsible for the delay by Respondent in recognizing Petitioner's entitlement to the 3.0 percent multiplier. Mr. Snuggs acknowledged that he does not tell employees that they will forfeit benefits if they delay the filing of their applications. Petitioner received his first retirement check in May 2004 which was based upon the benefit established in March 2004 of $32,624.58 annually, not the $23,105.90 previously established by Respondent in June 2003. Petitioner has received no retroactive benefits for the period of July 1, 2003, through April 30, 2004. In a letter dated May 6, 2004, Petitioner stated that his acceptance of the first retirement check was not to be construed by Respondent of a waiver of his rights to retroactive benefits from July 1, 2003, forward.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be awarded retirement benefits at the rate of 3.0 percent per year for his eight years of Elected Officer's Class of service, retroactive to July 1, 2003. DONE AND ENTERED this 21st day of July, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 21st day of July, 2005. COPIES FURNISHED: Robert D. Klausner, Esquire Klausner & Kaufman, P.A. 10059 Northwest 1st Court Plantation, Florida 33324 Robert B. Button, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
The Issue Whether Petitioner's application for disability retirement benefits should be reinstated.
Findings Of Fact Petitioner Joyce Layton is a member of the Florida Retirement System. In November 2002, Ms. Layton submitted an application for disability retirement benefits to the Division. The application was not notarized and was incomplete. Several documents were needed to process the application. By letter dated December 10, 2002, the Division wrote Ms. Layton acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application. Ms. Layton did not respond to the December 10, 2002, letter. The Division mailed another request on January 13, 2003, again, including two blank FR-13b forms with the letter. Ms. Layton did not respond to the January 13, 2003, letter. On February 17, 2003, the Division mailed a third request for information to Ms. Layton. Blank FR-13b forms were also included with this letter. Ms. Layton did not respond to the February 17, 2003, letter. The Division mailed a fourth request to Ms. Layton on March 24, 2003, again, requesting information necessary to complete her application for disability retirement benefits. After the Division did not receive a response to its previous letters, it sent a letter dated April 15, 2003, by certified mail, to Ms. Layton advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Ms. Layton did not respond to this letter. Finally, the Division sent a letter dated June 3, 2003, by certified mail, to Ms. Layton notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter, and this timely appeal followed. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits. Ms. Layton did not provide the necessary information.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, issue a final order denying the request of Petitioner, Joyce E. Layton, to reinstate her disability retirement application. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2004. COPIES FURNISHED: Thomas E. Wright, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Joyce E. Layton 5980 Boyette Road Wesley Chapel, Florida 33544 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominquez, General Counsel Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner is entitled to the retirement benefits of her late husband, Frederick Griffith.
Findings Of Fact Frederick Griffith was employed with the Broward County School System from January 4, 1971, until his death on June 9, 1996. Frederick Griffith was enrolled with the State of Florida Retirement System at the time of his death. Frederick Griffith separated from his first wife, Ruth Griffith, in 1976, and they were divorced on October 25, 1989. Frederick Griffith and Petitioner, Joyce Griffith, were married on November 25, 1989, after having been together for approximately 12 years. Joyce and Frederick Griffith were married at the time of his death. Joyce Griffith applied for her husband's benefits as the surviving spouse. The Respondent, Division of Retirement (Division), denied Joyce Griffith benefits as surviving spouse, stating that the beneficiary of record was Ruth Griffith. The Division advised Joyce Griffith that they would recognize her as surviving spouse and pay her a monthly benefit if Ruth Griffith would disclaim her rights as the designated beneficiary. Ruth Griffith refused to disclaim her rights and applied for the benefits as the designated beneficiary. The Division paid her $4,373.94. Because Ruth Griffith was not dependent on Frederick Griffith at the time of his death, she was entitled only to the lump sum amount that Mr. Griffith had paid into the retirement system. On February 2, 1992, Mr. Griffith submitted Retirement Information Request, Form FR-9, to the Division for a calculation of total years of creditable service and the amount due to purchase his creditable military service. On June 15, 1995, the Division replied to the FR-9 request by issuing Form FRS-40, Estimate of Retirement Benefits. The information provided to Mr. Griffith was calculated based on the assumption that Mr. Griffith would retire with a retirement effective date of February, 1997. The Estimate of Retirement Benefits advised Mr. Griffith that there was an apparent discrepancy with the beneficiary listed on his FR-9 and his named beneficiary listed in the Division's official records. Specifically, Mr. Griffith was advised: The spouse listed on the Retirement Information Request, FR-9, and used for this estimate is not your primary beneficiary. If you intend to change your beneficiary designation, please complete a personal history record, FRS-M10, in your personnel office. Mr. Griffith did not file a revised FRS-M10 in response to the advice given by the Division in the June 15, 1995, FRS-40. After Mr. Griffith received the FRS-40, Joyce Griffith insisted that he call the Broward County School Board to verify that she was the designated beneficiary. Joyce Griffith gave her husband the number to call. The school board personnel assured Mr. Griffith that Joyce Griffith was his beneficiary. Apparently, Mr. Griffith called the department which dealt with life insurance benefits and not retirement benefits. Joyce Griffith was the beneficiary of her husband's employer-provided life insurance policy for $150,000. Mr. Griffith had designated her as his beneficiary on a change of beneficiary form dated August, 1990. Mr. Griffith had completed a form entitled Application for Service Retirement designating Joyce Griffith as his primary beneficiary. The form was notarized on November 25, 1995. Mr. Griffith did not indicate a retirement date on the form and never filed the form with either the Division or his employer. After Mr. Griffith's death, Joyce Griffith found an employee copy of a FRS-10 form among Mr. Griffith's military papers. The form was dated November 19, 1991, and signed by Mr. Griffith. The form was not filed with either the School Board of Broward County or the Division. Neither the school board nor the Division have any record of the form being filed. The form was not correctly completed. In the area of the form entitled Designation of Beneficiaries, the employee is supposed to complete only one of three sections. On the form signed by Mr. Griffith, the first section was checked, and the other two sections were filled out with the names of Joyce Griffith and the children of Mr. Griffith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for the retirement benefits of Frederick T. Griffith. DONE AND ORDERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Connie L. Hiaasen, Esquire Regina S. Bushkin, Esquire SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997. 707 Southeast Third Avenue, Suite 101 Fort Lauderdale, Florida 33316 Augustus D. Aikens, Jr., Esquire Department of Management Services Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue is whether the retirement date for Petitioner's late husband should be back-dated from August 1, 2004, to September 6, 1999.
Findings Of Fact Petitioner's late husband, Edward Imbertson, was employed as a HVAC technician by the School District. As such, he participated in the Florida Retirement System (FRS). Respondent, the Division, is responsible for administering the FRS program for approximately 900 employers and 600,000 members. Mr. Imbertson suffered a heart attack on September 6, 1999. An order, entered by a judge of compensation claims on October 3, 2002, determined that he was entitled to workers' compensation because his condition was work-related, and that he had become totally and permanently disabled on the day of his heart attack. Mr. Imbertson's medical condition continued to deteriorate. He had a heart transplant in 2002, suffered renal failure, and became diabetic and legally blind. Mrs. Imbertson stopped working to care for her husband full time. They spent substantial time away from their home in Jupiter seeking medical care for her husband that included over 75 invasive procedures, many at Jackson Memorial Hospital in Miami. At the same time, Mrs. Imbertson was trying to get benefits for her husband, but primarily she focused on his deteriorating health. Following numerous requests for information and forms from multiple sources, Mrs. Imbertson filed an application dated July 1, 2004, for her husband to receive in-the-line-of-duty disability benefits. On the application form, she reported that the last day he actually worked was 9/3/99, his last day in pay status was 3/21/00, but she left his termination date blank. When she listed the last pay status date as March 21, 2000, Mrs. Imbertson was using the date that her husband received a check for unused leave. She believed, apparently correctly based on subsequent notice from the District, that he was still employed and that his pay status changed because he began receiving workers' compensation benefits. In a letter dated July 14, 2004, the Division requested additional information in support of the application. The information requested included an explanation of the delay in applying for disability retirement, physicians' reports attesting to total and permanent disability, proof of total and permanent disability when employment terminated or of a Social Security Disability Award notice, and workers' compensation documentation that the injury is compensable and benefits have been approved. Mrs. Imbertson provided some of the additional information. On August 6, 2004, the Division again sent a letter asking for more information, noting that it needed reports from two physicians, and proof of total and permanent disability on the termination date. Mrs. Imbertson sent the second doctor's report on August 7, 2004. Both the July 14, 2004, and August 6, 2004, letters included the following language: If you are no longer employed and your disability application was not received within thirty days of your termination date, provided you are not due to receive any salary payments or credible service after your application has been received, your effective retirement date will be the first day of the month following the date we received your application. When Mrs. Imbertson responded to those letters, she was focused on providing the additional personal and medical information for her husband, not on challenging the effective retirement date. By certified mail from the Division dated September 17, 2004, Mr. Imbertson was notified that he was approved to receive regular disability retirement benefits, but that his application for in-line-of-duty disability benefits was denied. Mr. Imbertson died on January 10, 2006. After an appeal to the State Retirement Commission, on June 6, 2006, Mr. Imbertson was found eligible for in-line-of-duty-retirement benefits from the retroactive effective retirement date of August 1, 2004. Mrs. Imbertson requested that the Division determine that her late husband's effective retirement date was September 6, 1999. On January 6, 2009, the Division denied the request, relying on Florida Administrative Code Rule 60S-4.0035, that sets the date as the first day of the month following the month in which the application was received. At the hearing, the Division also relied on essentially the same language that was included in the July 14, 2004, and August 6, 2004, letters sent to Mr. Imbertson. It also relied on a letter dated November 10, 2004, in which the District notified the Division that Mr. Imbertson's employment was terminated on September 7, 2000. Mr. Imbertson was not copied on the letter and Mrs. Imbertson did not know the official date of termination, as indicated by her having left the date blank on the application for disability retirement. Based on the lack of notice from the District of her husband's termination date, his inability to handle his personal matters, and her difficulty in getting benefits while taking care of him, Mrs. Imbertson believes she is entitled to have her husband's effective retirement date back-dated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order affirming the establishment of August 1, 2004, as the effective retirement date for Edward Imbertson. DONE AND ENTERED this 29th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 29th day of December, 2009. COPIES FURNISHED: Alan M. Aronson, Esquire Rosenthal & Levy, P.A. 1645 Palm Beach Lakes Boulevard, Suite 350 West Palm Beach, Florida 33401 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue presented in this case is whether Petitioner is entitled to change his retirement to in-line-of-duty disability benefits pursuant to Florida Administrative Code Rule 60S- 4.002(4).
Findings Of Fact The Department's Division of Retirement is charged with managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department. The FRS is a public retirement system as defined by Florida law. On or about January 3, 1983, Gordon B. Williams began his employment as a Vocational Instructor III for the Florida Department of Corrections. By reason of his employment, Mr. Williams became a member of FRS. Over the course of his career, Mr. Williams suffered a number of on-the-job accidents which resulted in various bodily injuries. On or about February 4, 1998, a Form FR-13a, signed by Sherry Rogers, Personnel Technician I, at Lake Correctional Institution was completed on behalf of Mr. Williams. The form indicated "regular" disability. By letter dated August 27, 1998, Mr. Williams tendered his resignation from his employment. His employment with the State of Florida terminated effective on or about September 23, 1998. Mr. Williams resigned because he was unable to continue performing his duties in light of his physical disabilities. Mr. Williams earned approximately 15.75 years of service credit in the FRS. Mr. Williams called the Division of Retirement to discuss his retirement twice: on or about October 22, 1998, and November 4, 1998. On or about December 14, 1999, Mr. Williams completed and filed with the Division an application for FRS early service retirement. His effective retirement date was November 1, 1998. However, the application received by the Department was not signed. On the unsigned form, immediately above where Petitioner should have signed the application, was the following statement: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. (Bold in original.) On January 8, 1999, the Division of Retirement notified Petitioner that his application was not signed in the presence of a notary public, and provided another application for him to complete and have properly notarized. This letter also indicated, in all-cap, bold-face type, "Once you retire, you cannot add additional service or change options. Retirement becomes final when any benefit payment is cashed or deposited!" On January 29, 1999, a second Application for Service Retirement was filed with the Division of Retirement, signed by Mr. Williams and notarized on January 18, 1999. This application bore the same statement regarding the applicant's understanding of the inability to change retirement options or type as that quoted in Finding of Fact 9. A third application was submitted in approximately February 1999, to correct a problem related to the notarization of Petitioner's signature. This third application also contained the same statement identified in Finding of Fact 9. On or about March 24, 1999, Mr. Williams completed and filed with the Department a Health Insurance Subsidy Certificate and a withholding certificate for pension payments. Petitioner began receiving benefit payments in March 1999 and these payments were direct deposited to Petitioner's bank account. Petitioner did not apply for disability retirement prior to applying for service retirement. On or about December 28, 2007, a new Form FR-13a, signed by Luz Veintidos, Personnel Specialist, at the Department of Corrections Region III Personnel Office, was completed on behalf of Mr. Williams. This new Form FR-13a indicated "in-line- of-duty" disability. Attached to the new Form FR-13a was the original Form FR-13a completed in February 1998. On or about January 22, 2008, Mr. Williams completed and filed with the Department an application for in-line-of-duty disability retirement, along with a letter requesting that his type of retirement be changed from service retirement to disability retirement. Respondent's records do not indicate and no competent testimony indicates that Respondent received any documents related to Petitioner's claim for disability retirement prior to January 2008. While Petitioner inquired about disability retirement, no application was filed requesting it until 2008. By letter dated February 8, 2008, the Division of Retirement advised Mr. Williams that a retired member could not change his type of retirement after a benefit payment has been cashed or deposited and therefore the Division of Retirement could not honor his request. By letter dated February 25, 2008, Mr. Williams contended that he was "following Division of Retirement instructions when he applied for early service retirement instead of disability retirement" and that his October 1998 telephone conversation with the Division "was, in effect, a denial of application for benefits." He could not, however, identify who he talked to at the Division of Retirement that instructed him regarding his choice to file for early retirement. Nor did he indicate that at any time he understood that an application for retirement could be processed by an individual agency as opposed to the Division of Retirement, or processed by telephone without a written application. By letter dated April 11, 2008, the Division advised Mr. Williams of its final decision to deny his request to change his type of retirement from service retirement to disability retirement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request to change his retirement status to in-line-of-duty disability retirement. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of October, 2008. COPIES FURNISHED: Gordon B. Williams 19607 North Highway 27 Clermont, Florida 34715 Geoffrey Christian, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories: that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.
Findings Of Fact Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers. During his employment with the two school boards, Mr. Carruthers earned 8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely. Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day. The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits. DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989. COPIES FURNISHED: Joy R. Carruthers Post Office Box 680-151 Orlando, Florida 32858 Stanley M. Danek, Esquire Office of General Counsel 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner is entitled to continue to receive benefits under the Florida Teachers' Retirement System.
Findings Of Fact Petitioner was employed as a school teacher in the public school system of Broward County, Florida, prior to October 1, 1989. Petitioner had been so employed for approximately 28 years and he was a member of the Florida Teachers' Retirement System. Petitioner was born January 1939 and was, at the time of the formal hearing, 52 years of age. In addition to his employment as a school teacher, Petitioner worked part-time, on weekends, holidays, and during vacations as a longshoreman at Port Everglades. On August 21, 1988, the Petitioner suffered an injury to his left ankle and leg while working as a longshoreman on the docks at Port Everglades. This accident occurred when a piece of equipment backed over Petitioner, breaking his ankle and leg. Two operations by a Dr. Smith followed the accident. Thereafter, Petitioner was treated by Dr. William A. Morris, III, M.D., a family practitioner. Petitioner applied for disability retirement benefits under the Florida Teachers' Retirement System and asserted that the injuries he suffered on the docks rendered him unable to teach. Respondent thereafter received a certification from Dr. Morris expressing the opinion that Petitioner was disabled as a result of his injuries and unable to teach school. Respondent granted Petitioner's application for disability retirement benefits in partial reliance on Dr. Morris's certification of disability. Petitioner's official retirement date was October 1, 1989, and he thereafter began to receive disability retirement benefits from the Florida Teachers' Retirement System. As part of its operations, Respondent receives computer reports from the Florida Auditor General's Office which provides information as to income earned by retirees who receive benefits under the Florida Teachers' Retirement System. From the Auditor General's report, it became apparent to Respondent that Petitioner continued to work as a longshoreman at Port Everglades. The report reflected that Petitioner was receiving income from several shipping companies at the same time he was receiving disability retirement benefits. Mark Sadler, one of Respondent's Retirement Administrators, thereafter requested that Petitioner complete FRS Form FR-13e, entitled "Retirees' Report of Continuing Disability", so that a determination could be made as to Petitioner's continued entitlement to disability retirement benefits. Petitioner gave a negative response to the following question on Form FR13-e: "Since the date of your disability retirement, or the date you last completed a Disability Evaluation Statement, have you ever been employed in any capacity?" This response was not truthful. Respondent also requested that Dr. Morris complete Form FR-13f, entitled "Physician's Report of Re-Examination" to ascertain his opinion as to Petitioner's continued disability. Dr. Morris returned the form, dated May 7, 1991, and expressed the opinion that Petitioner was still totally and permanently disabled. Dr. Morris also wrote Mr. Sadler a letter, dated June 16, 1992, expressing his opinion that Petitioner's condition was essentially unchanged from his previous indications. On July 7, 1992, Mr. Sadler informed Dr. Morris by telephone that it appeared that Petitioner had been gainfully employed as a longshoreman. Dr. Morris had not been aware of that employment and expressed the opinion to Mr. Sadler by telephone that Petitioner could teach if he could perform the duties of a longshoreman. On August 4, 1992, Respondent advised Petitioner in writing that it had determined that Petitioner was no longer entitled to disability retirement benefits. Petitioner contested that decision and requested a formal administrative hearing. This proceeding followed. Respondent thereafter took Petitioner's deposition to determine the extent of his employment as a longshoreman. In that deposition, Petitioner described his job activities and the hours he worked. Petitioner worked as a longshoreman on the docks throughout the time he was receiving disability retirement benefits. He was employed by different shipping companies in several different capacities. He worked as a porter handling luggage, he worked with a crew loading and unloading scrap iron, he worked with a crew loading foodstuffs on passenger ships, and he worked with a crew directing the operator of a gantry crane. He drove a fork lift and served as a supervisor of various crews, a position known as a "header." Prior to his own deposition, Dr. Morris reviewed Petitioner's deposition and became familiar with Petitioner's employment history since his disability retirement. Dr. Morris expressed the opinion that Petitioner was physically capable of performing the tasks required of a school teacher. Petitioner testified that he suffered from pain in his left ankle and leg as a result of the accident and that he has difficulty at times walking or standing. Petitioner was also concerned that he would be inattentive to his students at times because of his discomfort and because of the medication he takes to alleviate that discomfort and to control his diabetes, gout, and arthritis. Petitioner argues that his employment as a longshoreman does not establish that he is able to return to teaching and that he remains disabled. Petitioner presented no medical testimony to support his arguments. Based on Dr. Morris's testimony, Petitioner's arguments are rejected, and it is found that Petitioner is capable of returning to his employment as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of facts contained herein and which terminates Petitioner's disability retirement benefits. DONE AND ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-5434 The only post-hearing submittal filed by Petitioner was a letter and attachment thereto that contains argument, but not proposed factual findings. Those arguments are contrary to the conclusions reached herein and are rejected. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Lewis B. Tunnage 450 North West 20th Avenue Fort Lauderdale, Florida 33311 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong, Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
