The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Albert F. Cook, had a relationship with the Department of Corrections (DOC) at any time during the month of April, 1993, and if so, whether he was eligible to receive a retirement benefit for that month, as well.
Findings Of Fact The Petitioner was employed at times pertinent hereto by the Department of Corrections (DOC) at its Baker Correctional Institution facility. On February 19, 1993, he was notified of his transfer to the Florida State Prison, purportedly for disciplinary reasons. Upon learning of this eventuality, the Petitioner immediately went on sick leave. He maintains that it was duly- approved sick leave. No medical evidence to that effect was presented, but the Petitioner suggested that his illness might be of a psychiatric nature. He clearly was disgusted with the action taken by the DOC to transfer him. Subsequently thereto, he decided to apply for retirement, effective March 31, 1993. Shortly thereafter, he sought to have his retirement request rescinded or withdrawn; however, that request was denied. He was thereupon removed from the DOC payroll, effective March 31, 1993, essentially as a termination action. He received a retirement benefit check for the period of April 1-30, 1993 in the amount of $2,324.53 from the Division of Retirement. The Petitioner appealed the DOC employment action to the Public Employees Relations Commission and an administrative proceeding ensued. Ultimately, a settlement agreement was reached in that case which resulted in the Petitioner being allowed to resign, effective April 16, 1993, rather than suffer termination effective March 31, 1993. That agreement entered into by the parties in that case specifically stated that "the agency [DOC] will take whatever action is necessary to return the employee [Cook] to the payroll for the period between March 31, 1993 and April 16, 1993". The Division of Retirement was, of course, not a party to that agreement since it was not a party to the litigation involved. The agreement was incorporated into a Final Order issued by the Public Employees Relations Commission in Case No. CF-93-196, entered June 7, 1993. The Petitioner sent a letter to E.I. Perrin, the Superintendent of Florida State Prison, dated April 12, 1993, in which he stated "that if I am still on the payroll, I hereby resign my position with the Florida Department of Corrections effective April 16, 1993 . . .". According to attendance and leave reports signed by both the Petitioner and Marion Bronson, the Personnel Director of Florida State Prison, the Petitioner was on sick leave for the payroll period of March 26, 1993 through April 8, 1993. While the date of the Petitioner's signature on the relevant time sheet was April 8, 1993, the end of the pay period, the Petitioner testified that the time sheets had actually been submitted earlier. Attendance and leave reports for the following pay period indicated that the Petitioner continued on sick leave status through April 16, 1993. The time sheets for the latter period were not signed by the Petitioner but were signed by Marion Bronson. DOC ordered a manual payroll made up to record payment and to pay the Petitioner through April 16, 1993. He received a salary warrant for $1,234.43 for that period from April 1-16, 1993. That salary check and warrant reflects that retirement contributions were paid as to that April payroll period salary. Because he received additional retirement service credit and a new average final compensation as a result of being in a payroll status and being paid for the period of time in April 1993, the Petitioner's monthly retirement benefits actually now exceed what he would receive as retirement benefit payments had he not been compensated as an employee for his service through April 16, 1993. The Petitioner testified at hearing that he was terminated on March 31, 1993 and not re-hired. He further testified that he neither wanted nor expected payment from DOC for the period of March 31, 1993 through April 16, 1993 and that he "merely wanted to clear his name". Nevertheless, he entered into the settlement agreement which provided for him to be compensated and on payroll status through April 16, 1993, when he entered into the settlement with DOC in the proceeding before the Public Employees Relations Commission. He is presumed to have full knowledge of the content of that settlement agreement, and it reflects that he freely and voluntarily entered into it, as does his testimony. According to Mr. Bronson's testimony, during the relevant period from March 31, 1993 through April 16, 1993, the Petitioner was occupying an authorized and established employment position with DOC. His employment relationship continued with the Department, as a result of the settlement agreement, until April 16, 1993. Because Mr. Bronson and DOC are not parties to the present proceeding and have no financial interest in the outcome of this litigation, Mr. Bronson's testimony is deemed credible and is accepted insofar as it may differ from that of the Petitioner. The Respondent agency learned that a payroll had been prepared for the period of time in April of 1993 in question and that a salary warrant was issued on the basis of the settlement agreement extending the Petitioner's employment with DOC through April 16, 1993. The Division of Retirement thus temporarily reduced the Petitioner's retirement benefits to recover the amount of the resulting, unauthorized April retirement check. It was unauthorized because he remained employed for the period of time in April and was paid as though he were employed, as a result of the settlement agreement. Consequently, he was not entitled to retirement benefits for that period of time in April 1993 ending on April 16, 1993. Mr. Snuggs testified that every retirement applicant, such as the Petitioner, receives a form FRS-TAR, entitled "Retirement System Termination and Re-Employment". The Petitioner did not deny receiving that form (Respondent's Exhibit 4) which advises prospective retirees of their rights and obligations in terms of retirement and retirement benefits as it relates to re- employment.
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 RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Retirement, temporarily reducing the Petitioner's retirement benefits, in the manner already proposed by that agency, until such time as his April 1993 retirement benefit, paid to him previously, has been reimbursed to the agency. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2292 Respondent's Proposed Findings of Fact 1-11. Accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Albert F. Cook Post Office Box 782 Sneads, Florida 32460 Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 A.J. McMullian, III, Director Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Petitioner receive a retirement benefit based upon the computations as outlined in the Conclusions of Law above. DONE and ORDERED this 13th day of July, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Richard A. Sicking, Esquire 1951 NW 17th Avenue Post Office Drawer 520337 Miami, Florida 33152
The Issue Whether the Division properly denied Petitioner's request to change Petitioner's retirement in the Florida Retirement System from an early retirement service benefit to disability retirement.
Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System ("FRS"). Royal worked for the Florida Department of Transportation ("DOT") over 28 years. As a prior employee of DOT, Royal is a member of the FRS. Royal was injured on his job on July 16, 2002. After being informed by the Social Security Administration that he was disabled, Royal started applying for line-of-duty disability retirement with the FRS. Since Royal's injury, Royal has gotten his neighbor, Levern Speights, to prepare his retirement applications and write letters to the Division on his behalf. Royal signs every submission. Royal first applied for disability retirement on December 19, 2003. About three months later, Royal applied for early service retirement benefits on or about March 9, 2004. Directly above Royal's signature, the application stated: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. While the two applications were pending, Royal contacted the Division to check on the status of his disability retirement application. During the call, Royal found out that he could obtain retirement monies immediately if he wrote a letter requesting early retirement. On or about April 12, 2004, Royal submitted a letter to the Division that stated he "wish[ed] to apply for early service retirement." Upon receipt of the April 12, 2004, letter, the Division switched Royal's application from a disability application to early retirement application and Royal went on the Florida Retirement System payroll effective March 1, 2004. Royal has been receiving early service retirement checks and cashing or depositing them since March 2004. However, Royal still believes he is entitled to disability retirement benefits since he is disabled. Throughout the years, Royal has continuously contacted the Division periodically in an effort to still try and get disability retirement benefits. In January, April, and May 2006, the Division received three letters from Royal questioning his receipt of early service retirement benefits and requesting to apply for in-line- of-duty disability retirement benefits. On May 16, 2006, Royal applied for disability benefits again. On June 3, 2006, the Division responded to Royal's request by letter stating: The Division of Retirement has received your letter requesting that you receive disability benefits. Our records indicated you are receiving a service retirement benefit. According to Chapter 60S-4.002(4), Florida Administrative Code, you cannot change your option selection, purchase additional service, or change your type of retirement after you have cashed or deposited any benefit payment. Therefore the Division is unable to honor your request.[2] On December 24, 2008, Royal wrote the Division and requested that his "retirement be changed to disability retirement to reflect my current condition."3 On January 21, 2009, the Division informed Royal again by letter that "Florida law does not have provisions that allow the Division of Retirement to change a member's retirement type from service retirement to disability retirement. Therefore, your service retirement benefit is final and cannot be changed to disability retirement." Royal contacted the Division on several more occasions trying to get disability benefits. On or about June 25, 2011, Royal requested a hearing regarding the issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying Petitioner's request to change his early service retirement benefit to disability retirement. DONE AND ENTERED this 22nd day of December 2011, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 22nd day of December, 2011.
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System ("FRS"). Petitioner worked for Miami Dade Transit from August 1990 to March 2004, and was a member of FRS while employed there. Afterwards, Petitioner went to work as an auditor with a private employer, Robert Half, in New York. In 2007, Petitioner sustained an injury while working for Robert Half. In 2008, the Division generated an Estimate of Retirement Benefits for Petitioner detailing what her benefit amounts would be if she decided to retire. In February or March 2009, Petitioner informed the Division by telephone that she could no longer work and wanted to retire. Subsequently, the Division mailed Petitioner a retirement application. On April 13, 2009, the Division received Petitioner's filled-out application for service retirement. Directly above Petitioner's signature, the application stated: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. Petitioner's application was incomplete and could not be processed upon receipt. On or about April 17, 2009, the Division sent Petitioner an Acknowledgment of Service Retirement Application requesting that Petitioner send "birth date verification of your joint annuitant" if she chose Option 3 or 4 and "The Option Selection for FRS Members, Form FRS-11o" to finalize the application. The acknowledgment stated at the bottom: ONCE YOU RETIRE, YOU CANNOT ADD SERVICE CHANGE OPTIONS, CHANGE YOUR RETIREMENT DATE, CHANGE YOUR TYPE OF RETIREMENT OR ELECT THE INVESTMENT PLAN. RETIRMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED. In April 2009, the Division generated a second Estimate of Benefits for Petitioner, which she received. On or about May 8, 2009, Petitioner completed her retirement application by providing the Division the option selection form, which notified the Division that she selected Option 2. Directly above Petitioner's signature, the selection form FRS-11o stated: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. When Petitioner received the estimate and saw the early retirement benefit amount, she called the Division to question what she considered a small amount. It was explained to Petitioner that she lost a certain percentage because she was retiring early and that her retirement was either "being processed, or it was processed." Petitioner's application for retirement was approved by the Division and Petitioner was awarded the Option 2 retirement benefit she requested with the effective date of May 1, 2009. Petitioner's first retirement check was dated April 23, 2010, and was cashed by Petitioner on July 28, 2010. Petitioner's retirement status was final when she cashed her benefit payment. On June 6, 2011, Petitioner contacted the Secretary of Division of Management Services by email and requested that she receive disability retirement for the first time.1 On, June 23, 2011, the Division informed Petitioner by letter that her retirement status was final when she cashed or deposited a benefit payment and that the request to change her retirement from regular service retirement to disability retirement could not be honored. On or about July 19, 2011, Petitioner requested a hearing regarding the issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying Petitioner's request to change her early service retirement benefit to disability retirement. DONE AND ENTERED this 9th day of February, 2012, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of February, 2012.
The Issue Whether Petitioner is entitled to purchase leave of absence retirement credit on behalf of James Gapinski, Petitioner's ex- husband and a deceased member of the Florida Retirement System.
Findings Of Fact Petitioner, Geraldine Gapinski, is the former spouse of James Gapinski, deceased. At the time of his death, Mr. Gapinski was an employee of Florida State University and a "vested" Florida Retirement Service (FRS) member. Petitioner is an employee of the Florida Department of Law Enforcement (FDLE) and an active member of FRS. Mr. Gapinski was continuously employed by Florida's Univeristy System from approximately 1970, until his death on November 20, 2000, with the exception of a period from September 10, 1976 to June 9, 1977, during which period he took an approved leave of absence. During the period September 10, 1976 to June 9, 1977, no contributions were made by Mr. Gapinski or on Mr. Gapinski's behalf to FRS toward his accruing retirement benefits and he earned no creditable service in FRS for this eight month period he was on his leave of absence. On May 4, 2000, Mr. Gapinski requested an audit and estimate of retirement benefits from Respondent. At the time of his request for an audit and estimate, Mr. Gapinski and Petitioner had begun a dissolution of marriage proceeding (divorce). At all times material, each litigant had independent legal counsel, and each lawyer was aware that Mr. Gapinski's FRS benefits were "on the table" for division of the marital estate in the course of the divorce proceedings. At all times material, Mr. Gapinski was terminally ill with cancer. On September 14, 2000, Mr. Gapinski applied for participation in the Deferred Retirement Option Program (DROP). His application (DROP Form DP11) requested a DROP "begin date" of September 1, 2000, and designated each of Mr. Gapinski's two adult daughters as 50 percent primary beneficiaries. Petitioner, who at that time was still married to Mr. Gapinski, was not even designated a secondary beneficiary. The application, which Mr. Gapinski signed, stated in pertinent part, I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law . . . I cannot add additional service, change options, or change my type of retirement after my DROP begin date (emphasis in original). The application also specified eight required acts before Mr. Gapinski could retire and become a DROP participant, including, but not limited to, 4. A check payable to FRS for any amount you owe, or a written statement that you do not wish to claim the service . . . . On September 15, 2000, Respondent provided James Gapinski with two estimates of benefits. Estimate No. 1 showed the benefit Mr. Gapinski would be entitled to if he chose to purchase the one year leave of absence for $6,820.52, providing for a DROP beginning date of September 1, 2000. This estimate further advised that 6.5 percent per annum would be posted on June 30, 2001. It also stated, Comments: The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. This amount must be paid for a DROP begin date of September 1, 2000. Mr. Gapinski was also notified of the need to purchase his leave of absence credit in a letter from Respondent dated September 15, 2001, stating, in pertinent part, as follows: The following items are pending. The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. * * * Completion of the Option Selection for FRS members, . . . AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. * * * Estimate No. 2 sent to Mr. Gapinski on September 15, 2000, showed the benefit Mr. Gapinski would be entitled to if he chose not to purchase his leave of absence and waited until March 1, 2001, to participate in DROP, when he would accrue 30 years of service without counting the gap left by his 1976-1977 leave of absence. This estimate also stated: Comments: This estimate does not include the purchase of your leave of absence and is provided for comparison purposes. It is provided for DROP purposes with a March 1, 2001, DROP begin date (see the enclosed DROP brochure). If you do not elect to pay the amount due and purchase the service it represents, we must have written notice of your intent. Apparently, neither attorney ever saw any of the foregoing papers. The thrust of Petitioner's attorney's actions and advice was to obtain survivorship retirement benefits, not necessarily DROP benefits, for Petitioner. On October 23, 2000, Petitioner's attorney was told by telephone by Ms. Ferguson, a representative of Respondent, that Petitioner must make a non-party request to release Mr. Gapinski's retirement information to her. So far as this record shows, no third party request was ever made, but that day, Petitioner's attorney and Ferguson also generally discussed retirement pay-out options that Mr. Gapinski could elect, and Petitioner's attorney was generally aware that the DROP process was not complete. On October 24, 2000, Petitioner's attorney discussed by telephone, retirement, divorce, and survivorship benefit issues and life insurance payment options with Ms. Hudson, a representative of Respondent. On October 26, 2000, Petitioner's attorney discussed, by telephone, retirement options and steps to be taken, with both Ms. Ferguson and Mr. Helms, another of Respondent's representatives. Mr. Helms told her the DROP application was not complete but if the couple were still married, Option No. 3 would give the most benefit for survivorship benefits. During the October 2000, conversations, Petitioner's attorney made each of Respondent's representatives aware of the impending divorce and of Mr. Gapinski's impending death, but the attorney did not specifically inquire how soon the lapsed time payment must be made and none of Respondent's representatives volunteered information on that issue. At Mr. Gapinski's request, the divorce proceeding was bifurcated. Prior to the divorce, Petitioner's attorney had done independent research and was aware that Mr. Gapinski had to pay the $6,820.52, in order to perfect the DROP program and in order to complete 30 years of creditable service in order to be eligible for survivorship benefits on his retirement. This information was communicated to Petitioner by her attorney and whether or not Petitioner would be willing to pay half the amount was discussed. Petitioner stated she would be willing to pay half the amount owed. As a condition to her agreement to bifurcate the divorce proceeding, that is, as a condition to letting Mr. Gapinski out of the marriage but reserving jurisdiction in the Circuit Court to resolve certain disputes concerning assets and entitlements, Petitioner required that the couple enter into an "Agreement" on October 27, 2000, which provided, in pertinent part, as follows: BIFURCATION: The Husband shall be entitled to bifurcation of the dissolution action. The marriage of the parties shall be dissolved with the Court reserving on all remaining unresolved issues not addressed in this agreement. In light of the Husband's health, the Wife shall schedule and appear at an ex parte hearing to dissolve the marriage, to obtain Court-ordered approval of this agreement, and to ensure the Court's reservation of jurisdiction to hear any and all issues pertinent to support and the division of property not yet settled by the parties. * * * B. The Wife further agrees that all marital assets awarded to her in this cause (including proceeds from the Husband's retirement and life insurance in the event the Husband predeceases her), shall be placed in an inter vivos trust, from which she may draw living, personal, and medical expenses, during her life, with the parties' adult daughters named as the irrevocable beneficiaries of the remainder of such trust. C. The Husband agrees to bequeath sufficient marital assets, awarded to him in this cause, to the parties' adult daughters to aid in their comfort and support. HUSBAND'S RETIREMENT: The Husband shall elect an option on his retirement with the State of Florida that provides for survivorship benefits for the benefit of the Wife. The wife shall be entitled to all such retirement survivorship benefits which, like the other assets she receives in this bifurcated action, shall be placed in an inter vivos trust for her living, personal and medical expenses, during her life, with the adult daughters as irrevocable beneficiaries of the remainder of the trust. The Husband shall, simultaneously with the signing of the agreement, execute such documents as are necessary to create retirement survivorship benefits in accordance with this term. Should the Husband fail to execute the survivorship option on his retirement or should he ever change such option in contravention of this term, the Husband agrees that the obligation of this term is binding upon his estate, which estate shall be responsible for paying such retirement survivorship benefits to the Wife. The Agreement could have, but did not, specifically require that the leave of absence be purchased by either Mr. Gapinski or Petitioner. Petitioner's and Mr. Gapinski's Agreement does not bind the Respondent, which was in no way privy to that Agreement. Petitioner and Mr. Gapinski's marriage was dissolved on November 1, 2000. Petitioner's attorney provided Mr. Gapinski, through his counsel, with DROP forms (FST-12 and FRS-11o). On November 1, 2000, Mr. Gapinski executed Option 2 for his DROP retirement on these forms, naming Petitioner as his sole primary beneficiary and negating his prior designation of his adult daughters as beneficiaries. Option No. 2 provides for a reduced monthly benefit payable for the FRS member's (Mr. Gapinski's) lifetime. If the member dies before receiving 120 monthly payments, his designated beneficiary (Petitioner) would receive a monthly benefit in the same amount until the monthly benefit payments to both of them equaled 120 monthly payments, when payments would terminate. Option No. 2 is available for regular service retirements as well as DROP retirements. Option No. 3 is also available for regular service retirements and DROP retirements. Option No. 3 would have provided a reduced monthly benefit payable for Mr. Gapinski's lifetime, and upon his death, his joint annuitant, if living, would receive a lifetime monthly benefit payment in the same amount as Mr. Gapinski was receiving. Then, no further benefits would be payable after both he and his joint annuitant were deceased. There are exceptions to the foregoing general description, none of which matter to the case at bar. Option No. 3 would clearly provide more money to Petitioner if she were eligible. On November 2, 2000, Petitioner's attorney had three short telephone conversations with Mr. Helms, who opined that since Mr. Gapinski had signed up for DROP while the couple were still married, Petitioner could still get Option No. 3, with DROP retroactive to September 1, 2000, but that the leave of absence must be paid for. Apparently, Petitioner's attorney did not ask what would happen if the gap was not paid for before Mr. Gapinski died and no representative of Respondent volunteered that information. The thrust of Petitioner's case continued to be to persuade Mr. Gapinski to pay the whole amount due and to change his Option election to No. 3. On or about November 3, 2000, Mr. Helms sent an estimate letter based on selecting a September 1, 2000, retirement date with Option No. 1, to Mr. Gapinski. This estimate letter stated Mr. Gapinski had 30.11 years of creditable service. It did not mention DROP or any pay back. It did state that no lump sum retirement or cash value payments were available. (Second page of attachment to Exhibit P-11). On November 3, 2000, Petitioner's attorney wrote Mr. Gapinski's attorney that Mr. Gapinski was considered by Respondent to be in the DROP program as of September 1, 2000, not March 1, 2001, as supposed before the divorce, but he had not bought back his leave by paying $6,820.52, and requested that Mr. Gapinski change his Option Election Form to Option No. 3 and authorize the payment of the $6,820.52 to Respondent. On or about November 9, 2000, Petitioner's attorney sent the already-executed FST-12 (Beneficiary Designation Form) and FRS-11o (Option Selection for FRS Members) showing Option No. 2 to Respondent. Mr. Helms acknowledged receipt. On or about November 9, 2000, Mr. Helms told Petitioner's attorney that the forms were correct and anyone could pay the $6,820.52. The attorney felt Mr. Gapinski was enrolled in DROP but that the $6,820.52 was still needed. On November 15, 2000, Petitioner's attorney sent Mr. Helms a letter memorializing their conversation, in which Mr. Helms had indicated it was not necessary for Petitioner to sign below the Option No. 2 selection paragraph on FRS 11o as long as she was aware of the option Mr. Gapinski had selected. On November 20, 2000, Mr. Gapinski passed away without anyone having purchased his leave of absence credit. Mr. Gapinski was only 57 years of age when he died. DROP retirement or regular service retirement with full benefits is possible at 62 years of age or upon attaining 30 years of creditable service. Mr. Gapinski remained in regular employment until his death. Because he had not purchased the leave of absence credit, Mr. Gapinski died with only 29 years and 9 months of creditable service for purposes of retirement. In other words, he was 3 months and ten days short of the 30-year retirement mark necessary to activate DROP or regular service retirement. Petitioner never communicated directly with Respondent until after Mr. Gapinski's death. Mr. Gapinski's will provided for the effective disinheritance of Petitioner to the extent provided by law. On December 14, 2000, Petitioner's attorney spoke by telephone with Mr. Helms, who told her he thought Petitioner could still pay the leave of absence money but he would call her back. On December 15, 2000, Stanley Colvin, another of Respondent's representatives, telephoned Petitioner's attorney to say Petitioner could not pay the amount after Mr. Gapinski's death. At no time prior to Mr. Gapinski's death did any representative of Respondent affirmatively represent to anyone that Petitioner could pay the money after Mr. Gapinski's death or the conditions under which no benefits would be paid or specifically what would happen if Mr. Gapinski died before the money was paid by someone. By a December 15, 2000, letter, Respondent notified Petitioner that since Mr. Gapinski had elected not to purchase the leave of absence, he could not have reached the required 30 years of service necessary to participate in the DROP program until March 1, 2001. It further stated that since Mr. Gapinski's death occurred before completion of the required months necessary to participate in DROP, his DROP application was cancelled and his choice of Option No. 2 was nullified. Moreover, Mr. Gapinski was viewed as an active FRS member on the date of his death, and because Petitioner, though designated as his beneficiary was not also a joint annuitant, she could only receive a refund of Mr. Gapinski's retirement contributions in the amount of $4,719.19,and was not eligible to receive Option No. 3. Respondent did not send a similar letter to prior beneficiaries, the decedent, or his estate/personal representatives. Petitioner requested a review, and on February 2, 2001, Respondent issued its proposed final agency action letter, to the same effect as the December 15, 2000, letter. Respondent did not send a similar proposed final agency action letter to prior beneficiaries, the decedent, or his estate/personal representatives. However, the undersigned notes that Mr. Gapinski's adult daughters, who also were his joint personal representatives, were present in the courtroom on September 24, 2001, the first day of hearing. As of the second day of hearing on October 21, 2001, the estate had been closed and the personal representatives had been discharged. Mr. Larry Hunnicutt, Benefits Administrator for the Bureau of Retirement Calculations, Division of Retirement, testified by deposition. He indicated that Respondent Division of Retirement has no rules in place specifically addressing DROP. Therefore, in DROP cases, Respondent interprets and applies Chapter 121, Florida Statutes, and the existing rules addressing regular service retirement. In practice, Respondent gives DROP applicants a 90-day grace period from the date of application in which to finalize all the outstanding documents or other requirements for DROP eligibility, including payments of amounts due, even though there are no provisions in place authorizing a grace period for DROP applicants. If there are money amounts due, the member must pay up during this period. If the member fails to pay up during this period, the DROP application and the option selected for DROP is cancelled by a certified letter, but the designated beneficiary remains intact. Herein, because the amounts were not paid before Mr. Gapinski died, and because it would serve no purpose to notify the decedent, who could no longer complete his DROP requirements, Respondent did not send the deceased member a cancellation of his DROP application and Option No. 2 selection. Rather, it treated the DROP application and option selection as null and void and notified his ex-wife, the designated beneficiary, of what Respondent understood to be her rights. In this notification, Respondent applied the statutes as its personnel understood them to apply to a member who dies in active service prior to reaching either 62 years of age or 30 years of creditable service. Respondent would have permitted Petitioner to pay the money on Mr. Gapinski's behalf only during his lifetime. If the amount due had been paid, and Petitioner were qualified for Option No. 2, she would receive approximately $500,000 plus cost of living increases as opposed to $4,719.19. She would receive considerably more if she qualified for Option No. 3.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to purchase leave of absence credit on the account of James Gapinski. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
The Issue Whether deceased retiree's prior selection of Option One retirement benefit pay-out and his receipt and negotiation of retirement several checks should now be set aside, due to his wife's alleged forgery of her signature on the Spousal Acknowledgement (Form FR-11).
Findings Of Fact 1. Irvin M. Carpenter was born November 16, 1934, and died of cancer on November 18, 1997. Mr. Carpenter was employed by the Hillsborough County Aviation Authority as a police officer on September 10, 1984, and attained the rank of police sergeant at the time of his retirement. Mr. Carpenter was a member of the Florida Retirement System. 2. On January 20, 1991, Irvin M. Carpenter and Susan Ann Prescott were married. Susan Ann Carpenter is now, and has been at all time pertinent to these proceeding, employed by the Hillsborough County Aviation Authority as a police officer. Susan Carpenter is a member of the Florida Retirement System. 3. In October of 1996, Irvin Carpenter and Susan Carpenter separated and continued to live separately. Dissolution of marriage proceedings were initiated but was not finalized at the time of Irvin Carpenter's death in November 1997. At all times pertinent to these proceedings, Irvin Carpenter and Susan Ann Carpenter were husband and wife. 4. On July 8, 1997, Irvin Carpenter executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. One full page of the form provides an explanation of each option. By use of this form, Irvin Carpenter selected Option One retirement benefit payout plan. The explanation of Option One on Form FR-11 is as follows: Option 1: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. 5. The FR-11 also contained the following information in bold lettering: THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2 MARRIED YES[ ] NO [ ] IF YES, YOUR SPOUSE MUST SIGN BELOW: SPOUSAL ACKNOWLEDGEMENT : I, (Signature) Susan A. Carpenter,’ being the spouse of the above named member, acknowledges that the member has elected either Option 1 or 2. (Signature Irvin Carpenter 11-27-96 Signature of Spouse Date If your spouse does not sign, you must attach a signed statement explaining why your spouse did not acknowledge your selection. 6. The "yes" or "no" blocks requesting marriage status were blank on the FR-11 submitted by the retiree to the Agency. The Spousal Acknowledgement block contained the signature of "Susan Ann Carpenter." Susan Carpenter alleged this signature to be a forgery. 7. The form FPR-11 also contained the following statement in capital letters: I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES. I ALSO UNDERSTAND THAT I CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, OR CHANGE MY TYPE OF RETIREMENT (REGULAR, DISABILITY AND EARLY) ONCE MY RETIREMENT BECOMES FINAL. MY RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED. 8. Between the date of his retirement and the date of his death, Irvin Carpenter received, cashed, or deposited a minimum of three retirement checks from the Florida Retirement System, pursuant to his selection of Option One benefit payout plan. 9. After the death of Mr. Carpenter, the Agency, by letter dated November 24, 1997, addressed to: FAMILY OF IRVIN M. CARPENTER, 3602 W. Tampa Circle, Tampa, Florida 33629, informed the family of the retirement benefit due beneficiaries for November and the income tax deduction therefrom. 10. By letter to the Agency dated July 13, 2000, Susan Carpenter stated: My Husband, Irvin M. Carpenter, DOB 11/16/34, SSN 263-42-0146, retired from the Tampa International Airport Police Department on 07/31/1997. At the time of his retirement, we were separated but still Married. He passed away less than three months later in November 1997. I inquired as to any benefits and informed by the Hillsborough County Aviation Authority, the parent organization of the Tampa International Airport Police Department, that he had changed his beneficiary to his daughter, Anita Carpenter. Just recently, I became aware of the Florida Retirement System provisions concerning retirement options. I ama police officer with the Tampa International Airport Police Department and these matters were covered in a pre-retirement briefing conducted by Human Resources. It is my understanding that if you are married and select option 1 or 2, the spouse must acknowledge that selection in writing. Since I had not signed any such acknowledgement, it occurred to me that my deceased husband's remaining options both provide for the joint annuitant. I posed this question to the HCAA Human Resources and was informed that my deceased husband did not retire. The Department announced his retirement, his name was added to the plaque listing retired officers and Department personnel files indicate a retirement date of 07/31/1999. I questioned my police captain and Chief of Police and both of them were emphatic that my husband retired on 07/31/1999. With my superiors providing information contrary to Human Resources, I have some doubt as to the status of my deceased husband with regards to the Florida Retirement System. Please confirm the status of Irvin M. Carpenter. Did he retire from FRS? If not, what was his status at the time he passed away? I am sure you understand the significance of my determining the correct status. Thank you for any assistance you can provide. 11. The Agency denied Susan Carpenter's request to void Irvin Carpenter's selection of Option One retirement pay-out. The Agency's letter of November 15, 2000, asserted the position that the selection cannot be changed since the retirement checks were cashed or deposited and cited the following portions of Section 121.091(6) (a), Florida Statutes: "The spouse of any member who elects to receive the benefit provided under subparagraph 1. or subparagraph 2. shall be notified of and shall acknowledge any such election." The law does not require the spouse to agree with the members' retirement option selection. The Form FR-11, Application for Service Retirement, submitted by Irvin Carpenter included Susan Carpenter's signature acknowledging that she was aware of the Option 1 selection. We receive numerous applications monthly and we do not investigate to determine if each signature is authentic. Although Mrs. Carpenter contends that her signature was forged, once a member cashes or deposits a check the option selection cannot be changed. The statutes do not require the spouse to agree with the members option selection, only to be made aware. Your request to void the Option 1 selection is denied. 12. Susan Carpenter denies having signed the Form FR-11, Application for Service Retirement submitted by Irvin Carpenter. Susan Carpenter alleges that the signature, "Susan Ann Carpenter," appearing on the Form FR-11 is a forgery. 13. During the final hearing and in the presence of the undersigned, Susan Carpenter signed "Susan A. Carpenter" three times, Petitioner's Exhibit F. At the request of the undersigned Susan Carpenter signed "Susan Ann Carpenter" once. A review of the four signature samples provided by Susan Carpenter, the sample signature, "Susan Ann Carpenter," proved to the satisfaction of the undersigned evidence of the genuineness of the written signature in dispute. Accordingly, and as a finding of fact, the Form FR-11 signature "Susan Ann Carpenter" is not a forgery. 14. Susan Carpenter's assertion that the Agency is under legal obligation to contact each spouse or otherwise verify the signature of each spouse on the Form FR-11ls received in the Agency's normal course of business is without foundation in law and in fact. 15. Only the circuit court has jurisdiction and authority in dissolution of marriage cases to enter final orders determining property rights of marital assets. Petitioner proffered no such order as evidence. Accordingly, all testimony and evidence based on alleged spousal rights and entitlements pursuant to Chapter 61, Florida Statutes, are not considered
Conclusions For Petitioner: Scott W. Fitzpatrick, Esquire Southeast Building, Suite 1500 St. Petersburg, Florida 33703 For Respondent: Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building Cc 2639 North Monroe Street Tallahassee, Florida 32399-1560
Recommendation Based on the foregoing Findings of Fact an Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Susan Carpenter's request to change the retirement option 13 selected by Mr. Irvin Carpenter, including benefits due, and denying all such other relief. lo& DONE AND ENTERED this = day of July, 2001, in Tallahassee, Leon County, Florida. 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 J2% day of July, 2001.
The Issue The issue in the case is as set forth in the Notice of Forfeiture of Retirement Benefits dated November 10, 2005, and issued by the Department of Management Services, Division of Retirement (Respondent), to Richard Brandenberger (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Orange County Board of County Commissioners as a correctional officer at the county jail and participated in the Florida Retirement System (FRS). The Respondent is the state agency charged with administering the FRS. The applicable position description for employment by Orange County as a correctional officer included, in relevant part, the following description of the job duties: Supervises inmates to prevent altercations, intimidation, undesirable or illegal acts, intercedes when necessary, and to ensure the safety of the facility, other Correctional staff and the inmates. On or about October 29, 2003, a grand jury issued a one-count indictment against the Petitioner as follows: On or about July 3, 2003, in Orange County, Florida, defendant knowingly and intentionally possessed with intent to distribute and distributed Methylenedioxymethamphetamine ("MDMA") commonly known as "ecstasy", and marihuana, controlled substances listed in Schedule I of 21 U.S.C. Section 812, all in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D). The Petitioner was subsequently arrested. He then retired from employment in December 2003 and began receiving benefits from the FRS the following January. On or about January 29, 2004, the Petitioner, represented by legal counsel, entered a plea of guilty to the indictment and executed a written plea agreement that stated in material part as follows: Count Pleading To The defendant shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with possession with intent to distribute and distribution of MDMA and marihuana, in violation of 21 U.S.C. Sections 841(a)(1). * * * Elements of the Offense The defendant acknowledges understanding the nature and elements with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: That defendant knowingly possessed or distributed MDMA or marihuana as charged; and Second: That defendant possessed the substance with the intent to distribute it. * * * Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order stating that the Petitioner has forfeited his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 7th day of February, 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 7th day of February, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 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 issue for determination is whether Section 121.091, Florida Statutes (2001), authorizes Petitioner to participate in the Florida Retirement System (FRS) beginning on February 1, 2001, or precludes Petitioner from receiving retirement benefits prior to April 1, 2001. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is a retired member of the FRS. Petitioner resigned from the Florida Department of Revenue (the Department) on January 19, 2001. On January 12, 2001, Petitioner made her first inquiries regarding her retirement. Between January 12, 2001, and the first week in February 2001, Petitioner made approximately six telephone calls to a Ms. Sherrie Ferrell, the retirement coordinator for the Department. Sometime during the first week in February 2001, Ms. Ferrell promised to mail the documents needed by Petitioner to apply for retirement benefits. Petitioner received the documents sometime during the last week of February 2001. On February 28, 2001, Petitioner mailed an Option Selection Form and application for retirement benefits to the Department at its main office in Tallahassee, Florida. The Department received the documents on March 6, 2001, but lost the documents. Petitioner filed a second application for retirement benefits with the Department at its main office in Tallahassee. The Department forwarded the second application to Respondent on April 10, 2001. Florida Administrative Code Rule 60S-4.0035(3)(a), in relevant part, provides that the effective retirement date is the first day of the month following the month in which Respondent receives the member's application. Pursuant to Rule 60S-4.0035(3)(a), Respondent established May 1, 2001, as Petitioner's effective date of retirement. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order). The Department eventually found the first application that the Department received on March 6, 2001. By letter dated May 2, 2001, the Department requested that Respondent establish the effective retirement date as April 1, 2001. Pursuant to Rule 60S-4.0035(3)(a), Respondent correctly changed the effective retirement date to April 1, 2001. April 1, 2001, was the first day of the month following March 6, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for retirement benefits that begin on February 1, 2001. DONE AND ENTERED this 11th day of April, 2002, 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 11th day of April, 2002. COPIES FURNISHED: Mary Claire Janszen 360 Killarney Bay Court Winter Park, Florida 32789-2996 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin B. Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief General Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue for consideration in this hearing is whether the decedent, Samuel Burns, was competent to elect a survivor's benefit option upon execution of retirement papers on October 4, 1990.
Findings Of Fact At all times pertinent to the matters involved herein, the Petitioner, Lori M. Burns, was the surviving spouse of Samuel A. Burns who, prior to his death, was a member of the Florida Retirement System, (FRS). Respondent, Division of Retirement, (Division), is the state agency charged with the responsibility of administering said retirement system. Prior to his retirement on December 1, 1990, Samuel A. Burns was employed by the Indian River District School Board as a high school humanities teacher, and at the time of his retirement had 26.3 years of creditable service in the FRS. In early March or April, 1990, Mr. Burns was diagnosed as having cancer of the esophagus by his attending physician, Dr. Lui. Sometime thereafter, he became the patient of Dr. Michaela Scott, an oncologist, and was later treated by Dr. Nava, a surgeon with the Roswell Park Cancer Institute, (Roswell), in Buffalo, New York. When Dr. Scott first saw Mr. Burns on April 16, 1990, her opinion was that his prognosis was poor, and she felt he would be best served by treatment at Roswell. Surgery was done there after which Mr. Burns was able to eat. Initial radiation treatment and chemotherapy was administered and Mr. Burns was returned to Vero Beach for follow-up radiation treatment and chemotherapy. According to Dr. Scott's office notes, he resumed this treatment on May 29, 1990. Though he seemed to improve somewhat for a while, his condition subsequently deteriorated and in August, 1990, Mr. Burns returned to Roswell for further evaluation. The radiation therapy and chemotherapy he had received in the prior months had reduced the size of the tumor and this now permitted surgery. On August 13, 1990, Dr. Nava at Roswell again operated on Mr. Burns to remove more of the cancerous area and the indications at that time were that it all had been excised. The doctor told him that with proper diet and exercise, he should be able to regain his strength and continue to lead a productive life. However, according to the medical records, Mr. Burns suffered a heart attack during the operation, and from that point on was required to take heart medication. Mr. Burns returned to Vero Beach after the second surgery but the surgeon's prognosis did not materialize and in the opinion of Dr. Scott, his condition was poor. During this period of presumed recovery, Mr. Burns became depressed and nervous and Dr. Scott prescribed tranquilizers for him which, in her opinion, he abused. The drugs he was taking at the time included halcyon, a sleeping pill; prozac, an anti-depressive; procardia, a beta blocker for his heart condition; tylenol #3 for pain; and xanax, an anti-anxiety medication. During this period, Mr. Burns continued to experience great difficulty in eating and was unable to regain any of the weight he had lost as a result of his inability to eat because of the cancer. Dr. Scott felt his depression was a result of a combination of his condition and the fact he was abusing some of his medications. Dr. Scott also believed that as a result of his depression, Mr. Burns was indirectly suicidal. By that she meant he would refuse some medications felt necessary for his condition. He also started drinking. She felt this was enough for her to refer him to a psychologist for help with the depression. Mr. Burns first went to see Dr. Charles J. Ahr, a clinical psychologist, upon the referral of Dr. Scott, on November 7, 1990. At that first visit, Dr. Ahr took a patient history during which Mr. Burns indicated that a doctor had told him he would not survive for more than a couple of months. Mr. Burns traced the course of his illness and treatment up to that time, indicating to Dr. Ahr that after the surgery he had been told all the cancer had been removed and he could resume a normal life if he could get his strength back. Mr. Burns claimed he came to Dr. Ahr because he could not do that, and in the doctor's opinion, he appeared preoccupied with his inability to eat. It became very clear right away to Dr. Ahr that Mr. Burns was very depressed. In fact, Burns stated to him, "I'm alive only because Lori wants me to be." This indicated to Dr. Ahr there was a deep depression, and he noted Mr. Burns was taking psycho- active medications at the same time he continued to use alcohol, an inappropriate behavior. Dr. Ahr felt Mr. Burns was an alcoholic. Dr. Ahr's clinical diagnosis at the time was that Mr. Burns was suffering an adjustment reaction with depression which was related to a severe medical condition. In his opinion, Mr. Burns consciously felt he was free of the cancer, but subconsciously knew he was in a death struggle with it. Mr. Burns was an intellectual and rationalized his situation. He was in what is psychologically known as massive denial which is the psychological process of not accepting the truth in favor of a preferred position. Dr. Ahr believed that at some level of his psyche, Mr. Burns knew he was not doing well. His weight stayed constant and he was not able to eat. His strength fluctuated and he showed continuing evidence of a terminal illness but continuously denied it. This was a distortion of the reality that the cancer of the esophagus had a very low cure rate. He had been told he was cured, but apparently no one had ever told him of the small chance that the cure was permanent. Denial and depression is a serious psychological problem. Denial is normal with a terminal illness, but the depression may lead to suicidal thoughts. Having reviewed the retirement application form and being advised of the terms of the four retirement options thereon, Dr. Ahr believes that based upon his diagnosis of denial and depression, Mr.Burns could not have knowing acted rationally and reasonably on these choices. When Dr. Ahr saw Mr. Burns, Mr. Burns was not doing well. This was in November of 1990, some one month after Mr. Burns had already signed the retirement papers indicating his selection of Option 1. Nonetheless, Dr. Ahr believes that because of the fact that Mr. Burns was not doing well, was continuing to have eating problems, and was under a great deal of stress and depression, he was not competent to make an option decision at the time he did. Simply put, Mr. Burns would, in the doctor's opinion, have chose an option predicated on his mistaken belief of long life rather than on reality. His desire to elect a member only benefit is irrational and he was a rational man. Dr. Ahr found Mr. Burns to be a man very devoted to his wife and all he cared about was her. Therefore, the election of an option which cut her out of any support or protection was, in the doctor's opinion, irrational. He contends Mr. Burns believed he would live a long time but that belief was irrational based upon denial and depression within the realm of reasonable psychological probability and certainty. On October 4, 1990, Mr. Burns signed the application for retirement which he had had his wife pick up from the school board office sometime previously. Dr. Scott saw him on that day. Her notes show he was shaky and tremulous, and felt so poorly she considered sending him back to Buffalo for additional treatment. In her opinion, his condition was so evident, even one not a medical professional could tell it. As she saw it, Mr. Burns had a difficult time initially coping with his terminal illness. The knowledge he was to die put him into a state of shock, and he thereafter went into depression which continued on a regular basis. She felt his depression was so deep as to put him into a fog bank situation in which he could comprehend very little of what was going on. Dr. Scott also reviewed the option form that Mr. Burns executed on October 4, 1990 and feels that given his state of mind and physical condition at the time, with the drugs he was taking, he would not have been capable of understanding the retirement options available to him. Though he was a bright man, she would not have wanted him to sign any legal document at that time. With the clouded emotions he was experiencing, plus the drugs he was taking, plus the anger he had, he should not have done anything so important. In fact, Dr. Scott didn't even want Mr. Burns to retire. She had discussed retirement with him but she felt continuing to work, or the potential therefor, would have helped his condition. Mr. and Mrs. Burns were married for 23 years during all of which time he was a teacher in Indian River County. Prior to developing his cancer, Mr. Burns took care of all the financial matters for the family. He and his wife executed mutual wills in 1986 which was the last time they did that. They owned all their assets jointly. Mr. Burns had life insurance of about $31,000.00 with Mrs. Burns as his beneficiary. This preexisted the inception of his illness and no change was made subsequent to his diagnosis. The parties owned no certificates of deposit, no savings accounts, no stocks, and merely a small checking account. He was a school teacher and due to the minimal salary earned, and the fact that they put three children through college, they had very little in the way of assets. They own a house in the Bahamas which was purchased with money he inherited from him family. Mrs. Burns works for the Center for Arts in Vero Beach and takes home approximately $600.00 every two weeks. The house in which she lives, owned by them, has a $500.00 plus monthly mortgage payment. When Mr. Burns returned from his second surgery, in September, 1990, he was not doing well. He was weak and could not live as he wanted to. Nonetheless, he tried to eat; he walked the dog; he took rides; and yet, with all the effort made, he did not recover as he would have desired. Mrs. Burns, who gave him his medications, would hide them because she was afraid he would commit suicide as did a friend who had a similar condition. According to Mrs. Burns, her husband approved that friend's action. Though Mr. Burns was still drinking alcohol, his inability to swallow limited his intake. Still, because of his condition, the medications tended to aggravate his depression. Prior to going to Buffalo for surgery in August, 1990, Mr. Burns contacted the school superintendent's office to arrange for a substitute for several weeks while he was gone. When he returned after surgery, and found his recuperation would take much longer than he had anticipated, he determined he would not have the stamina to resume teaching. Though the evidence indicates she did so, Mrs. Burns does not recall picking up any retirement applications from the school board office for her husband. He never discussed any retirement options with her nor did she help him fill out the forms. Only when he said he had some papers to sign at the school board did she take him there, and even then, she did not go in with him. As a result, she was not aware of what option he chose or what options were available to him. Even after he signed the retirement papers, he did not discuss what option he had chosen. Mr. Burns' official date of retirement was November 19, 1990 with his retirement effective December 1, 1990. His first check, which he received in January, 1991 was sufficient to make up any accruals, but Mrs. Burns does not know when that check arrived. In fact, when her husband passed away, she did not know that the checks would cease. It was only when she received the letter from the Division, stating that no more would come, did she find out her true situation. At no time prior to his death did Mr. Burns tell his wife he had made a mistake regarding his retirement options, but in retrospect she claims to have serious doubts that during the October/November, 1990 period Mr. Burns had the ability to handle his financial affairs. Nonetheless, she never asked him about his retirement or any other financial arrangements made for her to take effect upon his death. At some time prior to October, 1990, Mrs. Gloria Pfund, secretary to the Assistant Superintendent for Personnel at the Indian River School District, gave retirement application forms to Mrs. Burns who came in to pick them up. On that visit, they very briefly discussed Mr. Burns' condition. Mrs. Pfund gave no instructions or any additional material concerning retirement options to Mrs. Burns, nor did she have any further discussion with either one until on October 4, 1990, when Mr. Burns came to her desk, gave her the form already filled out, and signed it in front of her. During this visit, they talked briefly about his health and school and she took him in to shake hands with her boss, Dr. Teske, the Assistant Superintendent for Personnel. Though she did not shake hands with him then, she noticed that he did not appear to be trembling nor was his voice weak. Though it was not as vibrant as it would be in the classroom, it was, nonetheless, a normal conversational voice. Based solely on the conversation she had with him that day, she would not have known he was sick. However, she knew he was ill because he was enrolled in the sick leave bank. Mrs. Pfund notarized Mr. Burns' signature on his retirement application. If the individual appearing before her for that purpose does not appear to comprehend what he or she is doing, she will inquire about it. In this case, Mr. Burns did not show any uncertainty or confusion about the form. He did not ask any questions nor did he make any comments. Had he done so, she would have referred him to Dr. Teske, but here she was satisfied Mr. Burns knew what he was doing. After signing the documents and having the brief talk with Dr. Teske, Mr. Burns left the office. When Dr. Teske spoke with Mr. Burns on that day, it was the culmination of a series of events leading up to the retirement. In August, 1990, Mr. Burns called the school board after his first operation and said he would not be back and needed a substitute teacher to be hired. He followed up this contact with a letter dated August 4, 1990 in which he also noted a potential need for enrollment in the sick leave bank. Mr. Burns had first applied for sick leave bank withdrawal in May, 1990, and his second application for withdrawal was received on August 13, 1990, after his August 4 letter. It was approved the following day. When Dr. Teske notified the school principal to hire a substitute, he indicated the period would be for up to 4 weeks based on information he had received from Mr. Burns. However, on October 1, 1990, Mr. Burns wrote to the board indicating his intention to retire as of November 20, 1990, and the board subsequently accepted that retirement. When Teske met with Mr. Burns on October 4, their discussion was very general, consisting of reminiscences and discussions of other people, as well as a very general discussion regarding Mr. Burns' condition. At that time they had no discussion of possible retirement options and though it is board policy not to suggest a particular option to a potential retiree, they can, and do when necessary, point out what the options are and explain them. In this case, Dr. Teske did not feel Mr. Burns needed that explanation. He did, however, indicate to Mr. Burns he would qualify for the 15% retirement incentive, a one time payment which is a board payment not related to the state retirement fund. Dr. Teske also believes he shook hands when Mr. Burns left the office. At no time did he notice any trembling or any other type of infirmity. In fact, Mr. Burns seemed to know what was going on though he did not specifically state he had brought his retirement papers in. His comments were appropriate, and his comments and demeanor appeared normal. Though his voice was somewhat lower, it was not a whisper. In this case, on October 4, 1990, Mr. Burns selected Option 1 with an effective retirement date of December 1, 1990. Option 1 provided full retirement benefits to the retiree to the point of death with no payment to any survivor. On October 24, 1990, as is its usual procedure, the Division sent a form to Mr. Burns showing that consistent with his option selection, he had elected Option 1 and asking him, in addition, if he wanted to add to his retirement credit by purchasing time for his military service. In response, by executing a form back to the Division on November 26, 1990, Mr. Burns indicated he did not wish to purchase his military service. That same day, the Division sent Mr. Burns an estimate of his retirement benefits which reiterated a statement made to him on a prior form that once an option selection was made, it could not be changed after a retirement benefit payment made under that option selection had been cashed or deposited. The estimate form sent out on November 26, 1990 also contained a form "OPT-FRS" which contains a detailed explanation of all retirement options. After Mr. Burns retired on December 1, 1990, the Division sent him another letter advising it was placing him on the retirement payroll effective January 1, 1991, and reaffirming that he had selected Option 1. Mr. Burns died on May 1, 1991. This information was communicated to the Division by Mrs. Pfund on May 17, 1991. Thereafter, on June 10, 1991, the Division sent a letter to Mrs. Burns advising her that her husband's retirements benefits had ceased at the time of his death because the retirement checks received by him between January 1, 1991 and his death had been cashed. Under the Division's rules, this prevented any change in the option selection.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered granting Petitioner's request to have Mr. Burn's election of retirement option declared invalid. RECOMMENDED in Tallahassee, Florida this 22nd day of January, 1992. ARNOLD H. POLLOCK 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 January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4652 The following constitutes my rulings, pursuant to Section 120.59(2), Florida Statutes, on all Proposed Findings of Fact submitted by the parties to this proceeding. FOR THE PETITIONER: No specific proposed Findings of Fact submitted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted but more a recitation of the contents of office notes than Findings of Fact. Accepted. Accepted. Rejected. Accepted. Accepted but not dispositive of the issue. & 19. Accepted. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. & 25. Accepted and incorporated herein. COPIES FURNISHED: Stanley M. Danek, Esquire Department of Administration Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ronald S. Fanaro, Esquire Post Office Box 2110 Vero Beach, Florida 32961 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
