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
Findings Of Fact EXCEPTION: Petitioners argue that estoppel should be applicable because of the telephone call between Mrs. Martin and some employee of the Division. RESPONSE: a) This argument is also rejected by the Division. The substance of what Mrs. Martin recalled was so speculative so as to be of no use. This has been discussed infra. In fact, the Division receives dozens of calls a day about membership of agencies and individual members. It is not physically possible and the law does not require that the Division do any more than answer the inquiry as given. It is entirely up to the agency or the person to follow up in writing if they believe that they have been denied or are eligible for some benefit. Findings of Fact No. 25, et seq., of the Hearing Officer were supported by competent, substantial evidence and are adopted by the Division. b) The Findings of Fact No. 25 et seq., are supported by competent, substantial evidence and are adopted by the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Respondent which changes the retirement status of Commissioner Marinelli from the regular class to ESCOC, which permits Commissioner Marinelli and the individual commissioners in CATEGORY 1 to upgrade their service by purchasing additional credit pursuant to Section 121.052(5), Florida Statutes (1991), and which denies the remaining Petitioners eligibility for membership or benefits under the ESCOC. DONE AND ORDERED this 22nd day of December, 1992, 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 22nd day of December, 1992.
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
Findings Of Fact The ultimate issue to be decided is whether the Petitioner is eligible to transfer from Florida Teacher Retirement Plan A to Florida Teacher Retirement Plan E and if so, whether he should be allowed to do so at this time. Robert L. Wonsick, the Petitioner, served as a classroom teacher in the Pinellas County School System for approximately 19 years. He resigned from his employment as a school teacher on approximately June 14, 1972 which resignation was accepted by his employer. At that time, Petitioner advised duly the employer through its agent, Jerry J. Switts, Director of Elementary Placement and Retirement, that he was unable to return too work the 72-73 school year due to illness; therefore he opted to, void his Florida Retirement System Transfer Ballot which would have been effective July 1, 1972, and requested disability retirement under the Teacher's Retirement System Plan. Petitioner was advised by Switt's to submit a written request for final decision on his application filed for disability retirement. As indicated by his petition filed on or about March 5, 1976, Petitioner takes the position that he should be entitled to transfer from Teachers Retirement System (hereinafter referred to as TRS) Plan A to TRS Plan E. Petitioner attempted to elect to transfer to the Florida Retirement System (hereinafter sometimes referred to as FRS) in 1972, the effective date to be July 1, 1972. This was denied inasmuch as Petitioner had already resigned his employment and never worked under or contributed to FRS, since by his own testimony he resigned in August, 1972, on or about the second day of pre-school. Respondent therefore denied the application for transfer based on Section 121.051(2)(a) 3(a), Florida Statutes. Petitioner submitted his transfer ballot which was received by Respondent along with numerous other employees in 1972. By letter dated September 8, 1972, Petitioner requested that his transfer ballot be cancelled. Upon learning that Petitioner had in fact not worked after July 1, 1972, the transfer ballot was forwarded for reasons previously stated by way of "Application for Retirement Acknowledgement Form" dated September 11, 1972. Petitioner was requested to supply certain information to Respondent and by that same form was advised that he might wish to transfer from TRS Plan A to TRS Plan B. By letter dated December 12, 1972, Petitioner was supplied with estimates of retirement benefits showing that his monthly benefits under Plan A would be approximately $129.00 per month and the benefits under Plan E would be approximately $260.00 per month with the caveat that in order to effectuate the transfer to Plan E (an option open to him at that time) it would be necessary for him to pay in approximately $2,550 in contributions. Said contributions were necessary to meet the statutory contribution rates for Plan E if Petitioner desired to become a member of said plan. Section 238.09, Florida Statutes. Petitioner was also notified that he would have to remit $228.47 if he wished to receive retirement credit for a leave of absence utilized by him during school year 1970-1971. Within the next few days i.e., December 15, 1972, Petitioner indicated without question that he intended to remain a member of Plan A and remitted the requested $228.47 in required contributions to receive retirement credit for the above mentioned leave of absence. During a hiatus of a considerable period, adequate medical evidence was provided to Respondent to demonstrate Petitioner's disability and he began receiving monthly benefits under his monthly benefit i.e., Plan A. Thereafter on September 12, 1973, Petitioner inquired of Respondent concerning difference in benefits available under Plan A and Plan E, and possibility of changing from one plan to the other. Respondent answered Petitioner's inquiry by letter dated January 4, 1974, informing him of his previous choice to remain in Plan A. In addition, Respondent informed him that inasmuch as he had chosen not to remit the additional $2,550 necessary to transfer to Plan E in 1972, there were no provisions under the law allowing a change in retirement plans to be made after an employee had elected to retire under another plan. It should be noted that Petitioner had been advised in December of 1972 of all options available to him prior to the time of his retirement and his subsequent choice of Retirement Plan was unequivocally made by him. Again, on May 9, 1974, Petitioner requested that his claim be reevaluated whereupon Respondent replied by letter dated May 20, 1974, advising that Respondent had followed his (Petitioner's) written instructions and had taken the action permitting him to retire under plan A per his request. He was again reminded of the status of the law which did not permit a change in retirement plans. He was reminded that assuming for the sake of argument that his account could be reopened and benefits be computed under the Florida Retirement System, it would be necessary for him too contribute more than $2,200.00 to his account which he had previously elected not to do when given the option. Accordingly, his request for reevaluation was denied by Respondent. Again, by letter dated June 5, 1974, Petitioner requested that he be credited with approximately $2,250.00 that he would have been eligible to receive had he retired under Plan E and requested that said amount be credited to his account in order to facilitate his transfer into Plan E. These requests were denied by Respondent by letter dated June 13, 1974. Thereafter, Petitioner wrote a series of letters to various state officials and agencies including federal agencies requesting reconsideration of Respondent's decision to decline his request to reevaluate his claim that he had not been afforded ample information to assist him in making an informed choice concerning his retirement benefits. Petitioner appeared and testified at the hearing and recalled the series of transactions entered into by him in transferring from the various plans. He testified that he was aware of the difference in benefits or that he became aware of the difference in benefits after he had made the decision to transfer from Plan E to Plan A. He voiced the opinion that he probably could not raise the additional $2,500.00 that would be required assuming that he was given the option of now transferring to Plan E. He indicated that he had received no public assistance and that his large family and the mental problems prevented him from making an intelligent choice at the time he made the election to retire under Plan A. During the hearing, he admitted that he had received full cooperation and assistance from Respondent but that it was his mental condition and other financial problems which hampered his ability to make an intelligent choice based on psychological problems, etc. Based on all the evidence presented in this case, it is clear that the Respondent afforded Petitioner all of the information requested and explained all the options available to him including the differences in the benefits of the various plans and his contributions for retirement in such plans. It is further clear that at each juncture, he was permitted to change his mind about enrolling in various plans when the change could be effectuated within the permissible guidelines under the law. With these facts in mind and inasmuch as there is no provisions in the law which permits a retiree from changing plans after his effective date of retirement, Petitioner's claim that he was wrongfully denied the opportunity to retire or to change his retirement plan to Plan E must fall as being unsubstantiated by the record evidence. I shall therefore recommend that his petition requesting permission to allow him to change from Plan A to Plan E be denied.
Recommendation Based on the above facts and conclusions of law, I recommend than the Petition filed herein requesting permission to retire from Plan A to Plan E be disallowed. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Lawrence L. Black, Esquire 152 8th Avenue, Southwest Largo, Florida 33540 Robert L. Wonsick 6260 Second Avenue, South St. Petersburg, Florida 33707
The Issue The basic issue in this case is whether the Petitioner, Mr. Joseph M. Lesko, violated the provisions of Section 238.181(2)(a), Florida Statutes, by being reemployed within twelve (12) months of retirement by an agency participating in the Florida Retirement System, and, if so, whether his retirement benefits were overpaid and need to be refunded to the Florida Retirement System.
Findings Of Fact Mr. Joseph M. Lesko was employed as an instructor with the Palm Beach Community College (hereinafter "the College") and retired under the provisions of the Teachers' Retirement System (hereinafter "TRS"), Chapter 238, Florida Statutes, on July 1, 1986. In October of 1986 a science instructor at the College suffered a stroke and was unable to continue working. Dr. Paul Dasher, then the Chairman of the College's Science Department, called Mr. Lesko and asked him to be a substitute instructor for some of the classes of the instructor who had suffered the stroke. Mr. Lesko, a former Senior instructor in Chemistry, was the only qualified candidate who was known to be available on short notice. Although Mr. Lesko had not intended to teach at that point in his retirement, he agreed to teach for the balance of the semester to help the College during the incapacity of the stricken instructor. When the stricken instructor was unable to return during the next semester, Mr. Lesko also agreed to substitute in Chemistry for the following semester. The incapacitated instructor died in March of 1987, and Mr. Lesko finished substitute teaching for the balance of the semester. At the time Mr. Lesko was reemployed as described above, the College's Director of Human Resources, Mr. Schneider, was not aware that Mr. Lesko had retired under the TRS, because the vast majority of the College's instructors retire under the Florida Retirement System. Mr. Schneider believed that Mr. Lesko was covered by certain amendments to the Florida Retirement System that became effective in July of 1986. Those amendments allowed retired instructors who retired under the Florida Retirement System to be reemployed by community colleges on a noncontractual and part time basis after one month of retirement without loss of retirement benefits. Mr. Schneider was under the erroneous impression that those amendments applied to all retired instructors, because he did not recall receiving any information from the Division of Retirement indicating that retirees under TRS were to be treated differently from retirees under the Florida Retirement System for purposes of eligibility for reemployment. Three other instructors who retired at the same time as Mr. Lesko, and who were rehired during the same time period as Mr. Lesko, have not been required to repay any retirement benefits because they all retired under the Florida Retirement System. Neither Mr. Schneider nor Mr. Lesko were aware that Mr. Lesko's retirement benefit would be jeopardized by his returning to work for the College in October of 1986. Both believe that the information regarding TRS retirees provided by the Division of Retirement is at least unclear, if not misleading. Mr. Lesko would not have returned to teach at the College during the first year of his retirement if he had been aware that doing so would require him to lose his retirement benefits during that period. During the period from October 1986 through May 1987, Mr. Lesko earned $4,460.60 for the services he provided to the College. During that same period he received retirement benefits of $6,506.72.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be issued in this case requiring Mr. Lesko to repay retirement benefits to the Division of Retirement in the amount of $6,506.72. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2 day of April, 1990. MICHAEL M. PARRISH 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 Administrative Hearings this 2 day of April, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5717 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: First page, First unnumbered paragraph: All covered in the Preliminary statement portion of this Recommended Order. First Page, Second unnumbered paragraph: Accepted in substance. Second Page, Paragraph No. 1: Accepted in substance. Second Page, Paragraph No. 2: Accepted in substance. Second Page, Paragraph No. 3: Accepted in part and rejected in part; rejected portion is portion following the comma. The rejected portion is contrary to the greater weight of the evidence. Second Page, paragraph No. 4: Accepted in substance. Third Page, Paragraph No. 5: Rejected as irrelevant to the disposition of this case. Third Page, Paragraph No. 6: Rejected as constituting subordinate and unnecessary details. Third Page, Paragraph No. 7: First sentence accepted in substance. Second sentence rejected as constituting argument, rather than findings of fact. Third Page, Last paragraph of Findings: Rejected as constituting commentary about the proceedings, rather than proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with certain unnecessary details omitted. Paragraphs 3 and 4: Rejected as subordinate and unnecessary procedural details. Paragraphs 5 and 6: Accepted in substance. Paragraph 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Mr. Joseph M. Lesko 184 Meadows Drive Boynton Beach, Florida 33462 Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether the Department of Management Services, Division of Retirement, correctly excluded Petitioner from participation in the Florida Retirement System from August 18, 1995, through November 17, 1996.
Findings Of Fact Petitioner was hired by Dixie County on August 18, 1995, to work the roll-off site in Jena, Dixie County, Florida. At the time of his hiring, Petitioner's position was described as "Temporary Roll-Off Site Fill In." A roll-off site is where people take their garbage which is then transferred to the main facility for disposal. A "Temporary Roll-Off Site Fill In" is defined as someone who is called to work as needed. According to the Dixie County Payroll Records, Petitioner was employed as a "Temporary Roll-Off Site Fill In" from August 19, 1995, until November 18, 1996, when he became a "Part-Time Fill In Roll-Off" with an 80-hour biweekly schedule, until a permanent position could be filled. In July 1998, Petitioner's position became classified as permanent and his position description was changed to "Full Time Roll-Off Site." Testimony from Howard Reid, the road superintendent who was Petitioner's supervisor at the Jena roll-off site during the time period of August 18, 1995, to November 17, 1996, was that Petitioner was employed to fill the full-time position of Houston O. ("Hugh") Markham who had been fired from his employment with Dixie County in August 1995. Mr. Reid testified that Petitioner was employed in a regularly established position during this time period. No documentation was produced to substantiate the claim that Petitioner worked in a regularly established position from August 18, 1995, to November 17, 1996. Respondent's records show that Houston O. Markham was employed by Dixie County during the period of August 18, 1995, to November 17, 1996. Houston Markham was paid by Dixie County until December 1, 1996. December 1, 1996 is the pay date for the period beginning November 18, 1996. Based upon the payroll records, Petitioner began working 80 hours, biweekly, on November 18, 1996. This date coincides with Respondent's records for the last pay date of Houston Markham. The only time records in evidence for Petitioner are for the time period of November 3, 1996, to July 26, 1998. For the pay date of November 3, 1996, Petitioner was paid for 42 hours of work. For the pay date of November 17, 1996, Petitioner was paid for 53 hours of work. Thereafter, for the next 43 pay periods, Petitioner was paid for 80 hours of work biweekly (with one exception, the pay date of July 13, 1997, for which he was paid 76 hours). Petitioner's other witnesses, Joseph Ruth and Arthur Bellot, were not in a supervisory position over Petitioner from August 18, 1995, to November 17, 1996, and could not attest to Petitioner's employment during that time. Membership in the Florida Retirement System is compulsory for any person who fills a regularly established position, as defined by statute. A person filling a temporary position, as defined by statute, is not eligible to participate in the FRS. The agency would not report the temporary employee's work to Respondent. The first time Dixie County ever reported Petitioner for retirement purposes was in January 1998. After review, Respondent found that Petitioner was eligible to participate in the FRS effective November 18, 1996, based upon a Payroll Change Notice from Dixie County. The number of hours a state employee works is not dispositive of the issue of whether he or she is an employee in a regularly established position. An employee who works only two days a week, for example, would be a participant in the FRS if employed in a regularly established position. Based upon the documentation in its possession, Respondent enrolled Petitioner in the FRS effective November 18, 1996. Respondent requested that Petitioner submit tax documentation to demonstrate that he had worked full-time for Dixie County during the August 18, 1995, to November 17, 1996, period, as he claimed. Respondent submitted no documentation to support his claim to have been either a full-time employee or an employee in a regularly established position.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioner's request for participation in the Florida Retirement System for the period of August 18, 1995, through November 17, 1996. DONE AND ENTERED this 30th day of November, 2004, 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 30th day of November, 2004. COPIES FURNISHED: Spencer Kraemer, Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Joseph Lander, Esquire Lander & Lander, Attorneys at Law Post Office Box 2007 Cross City, Florida 32628 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 1999 until 2017, Bautista was an employee of the Miami-Dade County Public Schools (“MDPS”). On August 24, 2017, Bautista resigned from his position as principal of the Miami Jackson Adult Education Center, an office he had held since 2011. Bautista departed shortly after being arrested on charges of organized fraud, official misconduct, and grand theft. In the criminal Information leading to Bautista’s arrest, the State Attorney of the Eleventh Judicial Circuit alleged, in summary, that Bautista had used his position as principal to misappropriate between $20,000.00 and $50,000.00 of MDPS’s funds for personal expenses, and had destroyed official payroll records to cover his tracks. On or about July 10, 2019, Bautista pleaded nolo contendere in the Eleventh Judicial Circuit Court to one count of official misconduct, a felony of the third degree pursuant to section 838.022, Florida Statutes, and to one count of grand theft under section 812.014, Florida Statutes, also a third- degree felony. The court withheld adjudication of guilt and placed Bautista on community control, to be followed by probation. In addition, Bautista was ordered to pay restitution to MDPS in the amount of $41,798.22. SBA is an agency of the state of Florida whose jurisdiction includes the administration of the Florida Retirement System Investment Plan (the “Plan”). By letter dated August 14, 2019, SBA notified Bautista that his rights and benefits under the Plan are forfeit as a result of his pleas of no contest to the aforementioned criminal charges, which had arisen from acts allegedly committed by Bautista as an MDPS employee. SBA offered Bautista an opportunity to request a formal administrative proceeding to contest the determination, and Bautista timely requested a hearing. As grounds for opposing the forfeiture, Bautista claims that his former employer, MDPS, failed to provide him due process of law during the run-up to his forced resignation. He complains, as well, that “procedural irregularities” in the criminal prosecution likewise deprived him of due process. Next, Bautista notes that he never admitted guilt and insists that he is, in fact, innocent of the charges to which he pleaded no contest. Finally, Bautista argues that he was not “convicted” for purposes of forfeiture of retirement benefits, because the court withheld adjudication of guilt on the criminal charges against him. To be sure, if Bautista was not afforded due process or was otherwise victimized by prosecutorial abuse or inadequate legal representation, as he alleges, then Bautista might have suffered an injury for which the law affords redress. But this proceeding is not the vehicle, and DOAH is not the forum, for hearing such disputes. It does not minimize the seriousness of Bautista’s allegations to recognize that, even if true, none of them changes the undisputed facts that he pleaded nolo contendere to the crimes of official misconduct and grand theft, each of which is a “specified offense” under section 112.3173(2)(e), Florida Statutes. Conviction of a specified offense results in the forfeiture of retirement benefits pursuant to the plain language of section 112.3173(3).1 Thus, the MDPS investigation and any “irregularities” in the criminal prosecution are irrelevant to the issues at hand, and the undersigned declines to make findings of fact concerning Bautista’s allegations in this regard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order determining that Joey Bautista forfeited all his rights and benefits under the Plan, except for the return of any accumulated contributions, when he pleaded nolo contendere to “specified offenses” committed prior to his retirement from public service. DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 7th day of December, 2020. COPIES FURNISHED: Soeurette Michel, Esquire The Michel Law Firm, LLC Post Office Box 245131 Pembroke Pines, Florida 33024 (eServed) Rex D. Ware, Esquire Moffa, Sutton & Donnini, P.A. 3500 Financial Plaza, Suite 330 Tallahassee, Florida 32312 (eServed) Jonathon W. Taylor, Esquire Moffa, Sutton & Donnini, P.A. Trade Center South, Suite 930 100 West Cypress Creek Road Fort Lauderdale, Florida 33309 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue The issue in this case is whether or not the position Petitioner held with Brevard County, Florida, from December 5, 2005, to October 31, 2006, entitled him to service credit in the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a member of the FRS. He first worked for the Florida Department of Transportation in October 1976 and remained with the Department of Transportation until January 1980, when he began working for Osceola County, Florida. He worked for Osceola County until May 1990, when he began working for Brevard County, Florida. He worked for Brevard County until 2004. At the time he was laid off by Brevard County, Petitioner had 25.5 years of credible service in the FRS. Petitioner's expressed desire was to complete 30 years of credible service in the FRS. To that end, he met with Brevard County officials seeking re-employment in a position that would qualify him for additional credible service. In October 2005, Petitioner met with several Brevard County employees, including the county manager and Human Resource director, seeking a job that would enable him to get 4.5 more years of credible FRS service. As a result of his meetings and efforts, on October 28, 2005, Petitioner was offered a part-time position as a park ranger with duties that included "monitoring any scheduled activities at Rodes [sic] Park on Friday and Saturday evenings from approximately 9:00 p.m. to 1:00 a.m., to ensure orderly behavior of park patrons." Accepting the offered position, Petitioner was employed as a Park Ranger I, with the stated job description. The following information appears on a Brevard County document titled "Authorization to Place Special Services Employee on Payroll" which memorialized his employment: Working Title: Park Ranger I, Part Time (less than 40 hrs per week); Hire Date: 12/03/05; and How many pay periods do you anticipate this job will last? 19 (PP) 38wks. Also noted on this document, "Enroll in FRS 95HA." An inter-office memorandum dated November 17, 2005, from Jeff Whitehead, south area parks operations manager to Peggy Busacca, county manager, regarding Petitioner's hiring, states in part: "This position will require an individual that has an extremely flexible schedule and that can be asked, at times, to report with very little notice. Furthermore, the majority of shifts will be on Friday and Saturday evenings, generally from 8:00 p.m. to 1:00 a.m. . . In addition, providing Mr. Bright with this opportunity will render him eligible to collect his retirement benefits." Frank Abbate, Brevard County Human Resource director, emailed Petitioner on December 19, 2005, stating, in part: "I'm glad to see that . . . you were able to get a position with Parks and Recreation that meets both[,] one of their Department's needs[,] as well as your interest in continuing to earn FRS service credits. I wish you the best and look forward to your achieving your goal of thirty years service under FRS!" Brevard County knew that Petitioner's employment was conditioned on his inclusion as a participant in the FRS, and, in fact, enrolled him in the FRS by making appropriate contributions on his behalf to FRS. At no time did Brevard County advise Petitioner that he was not participating in the FRS. Petitioner relied on Brevard County's assertion that he was an enrolled member of the FRS. Petitioner was hired with the mutual expectation that he would be available to work at Rhodes Park on any Friday and Saturday nights from 8:00 p.m. to 1:00 a.m. and that the employment would continue for 4.5 years so Petitioner would be able to obtain 30 years of credible FRS service. There was nothing "temporary" in the expectation of Petitioner and his employer regarding the duration of employment. During the period in question, December 2005 through October 2006, Petitioner worked at least one day per month. Petitioner's employment was continuing, not temporary, on-call, in that he was scheduled to be available to work at his assigned responsibility every Friday and Saturday. While Petitioner did not work every Friday and Saturday night, Petitioner did, in fact, work every Friday and Saturday night during the period in question, as requested by his employer, Brevard County. That is, he never failed to perform his assigned duties when requested. Petitioner was finally notified on November 7, 2007, that he was ineligible for participation in FRS. During this nearly two-year period of employment, Petitioner satisfactorily performed his employment responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Thomas L. Bright, is eligible for participation in the Florida Retirement System, while employed by Brevard County from December 3, 2005, through October 31, 2006. DONE AND ENTERED this 10th day of October, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Brian D. Solomon, Esquire Brian D. Solomon, P.L. 101 East 13th Street St. Cloud, Florida 34769 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues are whether Petitioner's employment as a substitute teacher is creditable service under the Florida Retirement System, entitling her to retirement benefits and whether she may purchase retirement credit for out-of-state and federal service prior to vesting.
Findings Of Fact Petitioner, aged 53, applied for retirement benefits from the Florida Retirement System (FRS) on October 20, 2003. Petitioner has 4.53 years of creditable service with the FRS due to her employment as a full-time teacher with the Alachua County School Board (School Board). She worked for the School Board from sometime in the early 1970s through May 1977. In May 1977, Petitioner terminated her employment with the School Board. She then joined the military, serving four years of active duty. After completing her military service in 1981, Petitioner worked out of state as a civil service employee with the Federal government. She also worked for a period of time in the private sector. In the 1990s, Petitioner returned to Alachua County, Florida. She worked as a substitute teacher for the School Board for approximately four years, from November 21, 1999 through February 14, 2002. Before beginning her employment as a substitute teacher/temporary employee in 1999, Petitioner signed a document entitled "Acknowledgement of FRS Status and Alternative Plan." This document clearly advised Petitioner that her employment as a substitute teacher was not covered under FRS. Petitioner was not employed by a participating employer in a regularly established position on July 1, 2001. She needs an additional 1.47 years of credible service in order to vest in FRS with six years of credible service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to FRS benefits. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Robert R. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Carolyn Johnson-Rollins Apartment N118 2701 Northwest 23rd Boulevard Gainesville, Florida 32605 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issue in the case is whether Eldon Sadler, Taylor County Property Appraiser, (Petitioner) is required to enroll Connie LaValle in the Florida Retirement System (FRS) for all of her employment with the Taylor County Property Appraiser's Office from June 1993 until the present.
Findings Of Fact Connie LaValle has been employed in Petitioner's office as a permanent part-time employee since September 16, 1992, as a "mapper." Pursuant to a contract, she has also been performing additional mapping services for Petitioner since June 1993, for which no contributions have been made to FRS. Contributions have been made for LaValle's other part-time employment in the office. Prior to June 2, 1993, LaValle and Petitioner spoke regarding LaValle's performing services related to implementing a Geographic Information System (GIS) in the event that Taylor County decided to obtain such a system. As a consequence, LaValle sought and obtained placement of her name on the Department of Revenue's approved bidder's list. Placement on the list is a prerequisite to entering into a contract with Petitioner's office. On June 2, 1993, Petitioner's office and LaValle entered into a contract whereby LaValle would perform "mapping services to aid in assessment." While not detailed as such in the written contract, these services were related to the GIS mapping function and were in addition to LaValle's existing part-time employment in the office. The contract was renewed on May 30, 1996. LaValle was not given any training for the tasks for which she contracted, she was not required to follow daily or weekly routines or schedules established in Petitioner's office, she was given no instructions in the way that work was to be performed, and Petitioner could not change methods used by LaValle or otherwise direct her as to how to do the work. LaValle did the contractual work at her convenience and was not required to perform that work in the office or pursuant to any schedule. She was paid for the work product as she finished it. Payment under one contract resulted in a $60 per map payment from Petitioner when the product was completed. Under the renegotiated contract, she received $3 per parcel on computerized maps. She was not guaranteed a minimum payment, nor did she receive pension benefits, bonuses, paid vacation time, or sick pay. Earnings pursuant to the contract were reported by LaValle as self-employment income on form 1099. The contract provided that neither Petitioner nor LaValle could terminate the agreement absent 30 days notice to the other party. In addition to furnishing her own work location, work equipment, tables, engineering scales, computer and other necessary equipment, LaValle also paid all related expenses. LaValle performed all contract work in her home. Although not prohibited by terms of the contract, she did not work for other entities. Respondent, pursuant to an audit of retirement records of Petitioner's office, determined that LaValle was performing additional duties for Petitioner's office and receiving salary for which no retirement contributions were paid. Petitioner was notified by Respondent by letter dated August 10, 1999, that LaValle previously filling a part-time regularly established position, was now performing additional duties for the same employer and was now considered to be filling a regularly established position for her total employment. Petitioner was informed that salary earned by LaValle for the additional duties should have been reported and contributions paid to Respondent for retirement benefits. Petitioner maintains that LaValle is an independent contractor with regard to additional duties and no retirement contributions are due and payable. Respondent has determined LaValle is not an independent contractor. Respondent asserts that the additional duties are an extension of her normal duties in her part-time position and contributions for retirement benefits are due with regard to compensation paid to her by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Division of Retirement, enter a final order finding that payments made to Connie LaValle for additional duties from Petitioner's office constitute salary for additional employment requiring payment of retirement contributions by Petitioner. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Levy E. Levy, Esquire 1828 Riggins Road Tallahassee, Florida 32308 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
