Findings Of Fact Respectively on September 20 and September 9, 1988, the Petitioner and the Respondent submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix To Recommended Order the Hearing Officer submitted recommending rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The petitioner's proposed Findings of Fact numbers 1 and 5 are hereby accepted and adopted in that they are supported by competent substantial, evidence. The petitioner's proposed Finding of Fact No. 2 is hereby rejected in that the petitioner did not terminate her position on August 17, 1987, and she was not reemployed on September 29, 1987, for the reasons stated above in paragraphs numbers 1 through 12. The Petitioner's proposed Finding of Fact No. 3 is hereby rejected upon the grounds and for the reasons stated in paragraphs No. 7 and 8 above. The Petitioner's proposed Finding of Fact No. 4 is rejected as phrased, for the reasons and upon the grounds set forth in paragraph No. 4 above. The Respondent's Proposed Findings of Fact numbers (1) through (7) are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner became a member of the Florida Retirement System in September 1987 and allowing Petitioner to transfer her previously-earned Teachers' Retirement System credits to the Florida Retirement System. DONE and RECOMMENDED this 1st day of November, 1988, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0673 Petitioner's proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6 and 7 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Patricia Ann Ash, Esquire Harold N. Braxton, Esquire One Datran Center, Suite 406 9100 South Dadeland Boulevard Miami, Florida 33156 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issue in this proceeding is whether Petitioner, as a surviving spouse, is entitled to the monthly benefits of his deceased wife pursuant to Chapter 121, Florida Statutes (1995). (All chapter and section references are to Florida Statutes (1995) unless otherwise stated.)
Findings Of Fact Mrs. Betty Thomas began participation in the Florida Retirement System ("FRS") on December 19, 1970, when the public school system that employed her as a teacher converted its retirement program from the Florida Teachers Retirement Program to the FRS. At the time, Mrs. Thomas had approximately six years of previous service for which she received credit in the FRS. The designated beneficiaries of Mrs. Thomas in 1970 were Mr. Johnny Brown, her husband at the time, and the couple's dependent children, Shauna Jackson, Peguena Brown, and Romina Brown. The three daughters were born, respectively, in 1961, 1962, and 1969. The FRS did not become noncontributory until 1975. By 1972, Mrs. Thomas had received $2,322.75 in three separate refunds representing part of the personal contributions and accrued interest that she made prior to 1975. Mrs. Thomas and Mr. Brown divorced in 1972. Mrs. Thomas met Petitioner sometime in 1975, and the two married in 1990. They remained together until Mrs. Thomas died on September 21, 1996. At the time of her death, Mrs. Thomas was actively employed as an assistant principal with 28.2 years of creditable service in the FRS. If her creditable service had not been reduced by previous refunds of personal contributions, Mrs. Thomas would have held 31.8 years of creditable service. On May 31, 1992, Mrs. Thomas changed her designated beneficiary. She deleted Mr. Johnny Brown, her former husband, and designated her three adult daughters as her beneficiaries using the From M-10 (the "M-10") required by Respondent for such purposes. Mrs. Thomas did not designate Petitioner as a beneficiary. From the time Mrs. Thomas executed the M-10 on May 31, 1992, and thereafter, none of the daughters of Mrs. Thomas qualified as a "joint annuitant" or a "dependent beneficiary" within the meaning of Section 121.021(28). None of the daughters was under age 25, physically or mentally disabled or incapable of self-support, or otherwise financially dependent on Mrs. Thomas for at least one-half of their support. From the time Petitioner married Mrs. Thomas in 1990, Petitioner qualified as a "joint annuitant" within the meaning of Section 121.021(28)(a). He was the spouse of a member of the FRS and is now the surviving spouse. Shortly after the death of Mrs. Thomas on September 21, 1996, Petitioner requested the monthly benefits of his deceased wife. By letter dated November 1, 1996, Respondent advised Petitioner that the "only benefit" available was a refund of personal contributions. In relevant part, the letter stated: Unless one of the beneficiaries qualified as a joint annuitant of the member at the time of death . . ., a refund of retirement contributions is the only benefit payable from this account. (emphasis supplied) Each beneficiary is entitled to an equal portion of the $2,354.05 on deposit and should complete Form FST-11g, APPLICATION OF BENEFICIARY FOR REFUND. (emphasis not supplied) If all the designated beneficiaries wish to disclaim interest in this account, you, as the surviving spouse would qualify as a joint annuitant. You would be eligible to receive the Option 3 monthly retirement benefit. The monthly benefit would be payable for your lifetime and is estimated to be $1,617.95 effective October 1, 1996. (emphasis supplied) For you to receive this benefit, we need the following (emphasis supplied): Forms DIS-1 completed by Shauna B. Jackson, Peguena Brown, and Romina Brown. Disclaimer forms must be filed and recorded in Circuit Court within two years of the member's date of death. . . . The daughters of Mrs. Thomas did not disclaim their interest in the personal contributions that remained in the FRS account of their deceased mother. Rather, they applied for a refund. On December 9, 1997, Respondent refunded the remaining personal contributions of Mrs. Thomas to her three daughters. Petitioner continued his attempts to obtain the monthly benefits of his deceased wife. By letters dated January 30 and May 2, 1997, Respondent provided Petitioner with responses substantially the same as the response contained in the letter dated November 1, 1996. On July 17, 1998, Petitioner filed an Application of Beneficiary for Retirement Benefits. Respondent advised Petitioner that the "benefits" had already been paid to the three daughters of Mrs. Thomas, and Respondent requested an administrative hearing. The purpose of the M-10 signed by Mrs. Thomas was to designate beneficiaries of the retirement benefits earned by Mrs. Thomas during her years of service. The M-10 executed by Mrs. Thomas on May 31, 1992, stated, in relevant part: . . . I CHOOSE TO HAVE BENEFITS PAID . . . AS FOLLOWS . . . 3. . . . JOINTLY . . . BENEFITS SHALL BE DIVIDED AND PAYABLE AS INDICATED BELOW. . . . Shauna Brown Jackson Daughter 11/15/61 F Peguena Brown Daughter 12/10/61 F Romina Brown Daughter 3/9/69 F The term "benefits" is not defined in Section 121.021. However, Respondent's own rule, in relevant part, defines the term to mean a "monthly payment." Florida Administrative Code Rule 60S-6.001(10). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) After Mrs. Thomas died on September 21, 1996, Respondent did not pay "benefits" to anyone, as Respondent defines the term "benefit" in Rule 60S-6.001(10). On December 9, 1997, Respondent distributed three lump sum payments totaling $2,354.05, to the designated beneficiaries who were entitled to the personal contributions of Mrs. Thomas pursuant to Section 121.091(7)(b)2. Respondent distributed one lump sum payment of $784.69 to Ms. Romina Brown and two equal lump sum payments of $784.68 to Ms. Peguena Brown and Ms. Shauna Brown. Section 121.091(7)(b)2 authorizes Respondent to pay only the personal contributions of Mrs. Thomas to her designated beneficiaries who do not qualify as joint annuitants within the meaning of Section 121.021(28). However, nothing in Chapter 121 or the evidence of record requires Respondent to withhold monthly benefits from a surviving spouse who is entitled in Section 121.091(8) to receive retirement benefits. The attempt by Mrs. Thomas to designate beneficiaries on the M-10 was, in part, effective and, in part, ineffective. It was an effective attempt to designate the beneficiaries entitled to a refund of her personal contributions. However, it was an ineffective attempt to name a beneficiary entitled to the monthly benefits that accrued independently of any personal contributions. An ineffective attempt to designate a beneficiary who is entitled to monthly benefits fails to name a beneficiary entitled to those benefits. When no beneficiary is named, Petitioner, as the surviving spouse, is the beneficiary designated in Section 121.091(8) who is entitled to the monthly benefits. When Respondent refunded $2,322.75 in personal contributions to Mrs. Thomas in 1972, the refund reduced the monthly benefit from $1,617.95 to $1,279.54. The refund resulted in a reduction in monthly benefit of approximately $338.41. There is no evidence that a $2,354.05 refund of the remaining contributions in 1997 should have any different effect on the monthly benefit. In the absence of some legal reason not to do so, a refund of $2,354.05 in 1997 should reduce the monthly benefit in the same proportion that the previous refunds in 1972 reduced the monthly benefit. The $2,354.05 refund in 1997 should reduce the monthly benefit of $1,279.54, by $341.79, to $937.75. Sections 121.091(7)(e) and (f) authorize a surviving spouse to modify monthly benefits by repaying contributions refunded to the member. Petitioner can restore the monthly benefit either to $1,279.54 or to $1,617.95 by electing to pay either $2,354.05 or $4,676.05 in personal contributions previously refunded plus accrued interest at the statutorily prescribed rate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order awarding to Petitioner, for the remainder of his life, the monthly benefits earned by Mrs. Thomas during 31.8 years of service in an amount that may range from $937.75 to $1,617.95, depending on the amount of personal contributions repaid by Petitioner, and shall include a lump sum payment of all monthly benefits plus accrued interest from October 1, 1996, to the date of the first payment. DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 29th day of April, 1999. COPIES FURNISHED: Robert B. Button, Senior Attorney Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Granville E. Petrie, Esquire 1105 North Duval Street Tallahassee, Florida 32303 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
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 is whether Mary B. Fischer (Petitioner) is obligated to repay retirement and health insurance subsidy benefits paid in October and November 2006 by the Department of Management Services, Division of Retirement (Respondent).
Findings Of Fact The Petitioner is a retired member of the Florida Retirement System (FRS). Prior to her retirement, the Petitioner was employed as a guidance counselor with the Lee County School Board (LCSB). The Respondent is the state agency charged under Chapter 121, Florida Statutes (2006),1 with administration of the FRS. The Petitioner retired in May 2006 after completing her participation in the Deferred Retirement Option Program (DROP). The Petitioner received monthly retirement benefits of $1,194.32 and monthly health insurance subsidy benefits of $93.35 per month. The Petitioner was re-employed as a guidance counselor on October 16, 2006, by the LCSB. The LCSB participates in the FRS. The contract under which the Petitioner was employed and re-employed indicated that the Petitioner was a "teacher" serving in an instructional position as defined in Subsection 1012.01(2), Florida Statutes. Prior to her re-employment, the Petitioner had been advised by Betsy Garlock (a personnel manager with the LCSB) that the Petitioner could return to work after one month of retirement because her position as a guidance counselor was classified as "instructional personnel." Ms. Garlock's erroneous advice was apparently based on her understanding of information provided to her by the "Retirement Calculations" office within the Division of Retirement. The information included a document identifying various exclusions and exemptions to the state law regarding re- employment of retired FRS members. The document had a handwritten notation indicating that guidance counselors could be re-employed under the same rules as contract teachers, non-contract hourly and substitute teachers, non-contract paraprofessionals, non-contract transportation assistants and bus drivers, and non-contract food service workers. The evidence fails to establish the source of the handwritten notation. Prior to retirement, the Petitioner received various materials related to retirement, which included information related to restrictions on post-retirement employment. In late November 2006, the Respondent became aware that the Petitioner had been re-employed by the LCSB and informally notified the employer by telephone call that the Petitioner was in violation of the FRS re-employment rules and would have to repay benefits paid for October and November. The telephone call was an attempt to avoid payment of another month's benefits, which would have to be repaid by the Petitioner. The Petitioner's retirement benefits were inactivated in December 2006. The total of the October and November benefits paid to the Petitioner is $2,575.34, which includes two months' retirement benefits of $1,194.32 and two months' health insurance subsidy benefits of $93.35 per month. By letter dated December 6, 2006, Ms. Garlock acknowledged that she had provided incorrect information to the Petitioner and requested that the Petitioner be exempted from repaying the $2,575.34 sought by the Respondent.
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 requiring that the Petitioner and the Lee County School Board must repay a total of $2,575.34 for retirement and health insurance subsidy benefits erroneously paid to the Petitioner. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2007.
The Issue Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account of her late husband for the period September 1999 through February 28, 2003.
Findings Of Fact Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of Commissioners and had approximately 25 years of creditable FRS service at the time of his death. Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made. Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner. According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death. After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567. However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband. Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death. On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows: We are sorry to learn of the death of Robert Roberts on August 20, 1999. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received. If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207. At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter. In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not. Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court. The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed. On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows: This is in reference to the retirement account of Robert R. Roberts. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate. If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999. To receive the Option 3 benefit, the following documents are needed: Copy of member’s death certificate. Proof of member’s date of birth. Proof of your date of birth. Completed application, Form FST-11B. Copy of your marriage certificate. The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter. No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division. The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits: If you will furnish this information within 30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999. Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information. Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts. Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation. Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records. Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003. Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given. Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing. The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected. A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate. On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document. Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits. On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts. On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following: As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $561.35 effective March 1, 2003. To receive the Option 3 benefit, we need the following: Completed application, Form FST-11b. (Emphasis supplied) A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003. Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin, Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date. Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred. Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999. DONE AND ENTERED this 27th day of April, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2004. COPIES FURNISHED: James C. Campbell, Esquire James C. Campbell, P.A. 4 Eleventh Avenue, Suite 2 Shalimar, Florida 32579 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Petitioners, as named beneficiaries of William Wenz, deceased, are entitled to a refund of the Teachers Retirement System account balance of Mr. Wenz, or whether the widow, Joanne Metzler Wenz, is entitled to receive a monthly retirement.
Findings Of Fact William Wenz was an active member of the Teachers Retirement System (TRS) when he passed away on March 27, 2002, having become a member in 1964 when he was employed as a teacher. William Wenz had approximately 35 years of creditable service in the TRS at the time of his death. Throughout his more than 30 years as a teacher, William Wenz made contributions to the TRS. When William Wenz died, his TRS account consisted of $166,285.44 in contributions and interest. William Wenz and Joanne Metzler were married on August 14, 1998. On November 9, 1998, William Wenz filed a personal history and beneficiary designation with the Division of Retirement. On that form, William Wenz designated Joanne Metzler Wenz as primary beneficiary and their children as contingent beneficiaries. On May 4, 2000, William Wenz filed a new beneficiary designation with the Division of Retirement and named his brother, Henry Wenz; his daughter, Wendy Gasior; and his son, William Kurt Wenz, as his beneficiaries. Henry Wenz and Wendy Gasior are Petitioners in this proceeding. Petitioners contend that by virtue of his executing the May 4, 2000, beneficiary form described above, William Wenz clearly intended that his retirement benefits or TRS accumulated contributions would go to his children and brother and not to his wife. In March of 2002, Joanne Metzler Wenz filed for a divorce from William Wenz. Shortly thereafter, on March 27, 2002, William Wenz died. At the time of his death, the divorce action was still pending and had not been finalized. After the death of William Wenz, Petitioner Wendy Gasior sought a refund of William Wenz's TRS accumulated contributions. The Division denied this request by letter dated June 26, 2002. In the denial letter, the Division of Retirement stated that, "under TRS law, the right of a spouse to the lifetime Option 3 benefit supercedes the beneficiary's right to a refund of contributions."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that (1) Petitioners are ineligible for a refund of accumulated contributions on the account of William Wenz; and (2) Intervenor Joanne Metzler Wenz is eligible for a monthly retirement benefit. DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 7th day of August, 2003. COPIES FURNISHED: Derek F. Johnson, Esquire 1970 Michigan Avenue, Building D Cocoa, Florida 32922 Henry A. Wenz 658 Whitemarsh Avenue Deltona, Florida 32725 Allan P. Whitehead, Esquire Frese, Nash & Hansen, P.A. 930 South Harbor City Boulevard Suite 505 Melbourne, Florida 32901 Thomas E. Wright, Esquire Division of Retirement Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether the Petitioner's rights and benefits under the Florida Retirement System ("FRS") have been forfeited as set forth in the Notice of Forfeiture of Retirement Benefits dated August 26, 2004.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, on the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system as defined by Florida law. It provides benefits to local and state employees, including teachers, state legislators, and local public officials. Mr. Childers was employed as a school teacher in Escambia County from 1955 to 1957, and this employment continued for approximately two and one-half years. During this time, Mr. Childers was a member of the Teacher Retirement System, which later became part of the FRS. His two and one-half years of service as a teacher is credited service under the FRS. In November 1970, Mr. Childers was elected to serve as a member of the Florida Legislature, and he continued to serve as a state legislator until November 2000, when he left office as a result of term limits. As a state legislator, Mr. Childers was a member of the FRS class of State Elected Officials, and his 30 years of service is credited service under the FRS. In November 2000, Mr. Childers was elected to serve as a member of the Escambia County Board of County Commissioners. In this position, Mr. Childers was a member of the FRS class of County Elected Officials, and his years of service as a County Commissioner is credited service under the FRS. On or about June 17, 2002, Mr. Childers was charged by indictment with one count of money laundering, a second-degree felony pursuant to Section 896.101(3)(a)1. and 2.a. and (5)(b), Florida Statutes (2002)1; one count of bribery, a third degree felony pursuant to Section 838.015, Florida Statutes2; and one count of receipt of unlawful compensation or reward for official behavior, a third degree felony pursuant to Section 838.016(1), Florida Statutes.3 The charges in the June 17, 2002, indictment were based solely on activities allegedly occurring subsequent to November 2000 and arising out of Mr. Childers's service as a member of the Escambia County Board of Commissioners. Mr. Childers was tried and found guilty by a jury of two counts in the indictment, bribery and unlawful compensation or reward for official behavior.4 On or about May 16, 2003, Mr. Childers was adjudicated guilty of these two crimes and was sentenced to 42 months in prison, to be followed by 18 months probation. Mr. Childers has not, to date, applied for retirement benefits under the FRS. Mr. Childers was a public officer who was adjudicated guilty of two offenses specified in Chapter 838, Florida Statutes, which arose out of his service as a member of the Escambia County Board of Commissioners. None of the actions related to his service as a state legislator or as a teacher in Escambia County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that W.D. Childers committed specified offenses, as defined in Section 112.3173(2)(e), Florida Statutes, prior to his retirement from public service and ordering that, pursuant to Section 112.3173(3), Florida Statutes, W.D. Childers forfeit all his rights and benefits under the Florida Retirement System, except for the return of any accumulated contributions. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of August, 2007.
The Issue Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes. Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.
Findings Of Fact Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2) Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties) Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)
Recommendation That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Theron J. Owen 818 San Juan Boulevard Orlando, Florida 32807 L. Keith Pafford, Esquire Division Attorney Division of Retirement Department of Administration Cedars Executive Center2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302
The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
