Findings Of Fact There are no disputed issues of material fact which would preclude entry of this summary recommended order of dismissal based on the undisputed facts and law involved. Petitioner was dismissed from his career service position with Respondent state agency. On appeal, the dismissal was reversed. Petitioner was off the state agency payroll and did not work for seven months. In backpay proceedings before the Public Employees Relations Commission (PERC), Petitioner was awarded backpay for only one month. Petitioner was paid for the one month that pay was awarded, but not for the other six months. Petitioner received retirement credit, annual leave credit, and sick leave credit for that one month awarded and paid, but not for the other six months.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services enter a final order denying all claims of Petitioner and dismissing the Petition. RECOMMENDED this 12th day of April, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of April, 1993.
Findings Of Fact Petitioner, Marshall T. Hazlewood, was an employee of respondent, Department of Transportation (DOT), from April 12, 1972 until July 14, 1983 at the Pinetta Toll Plaza in Satellite Beach, Florida. He served in the positions of toll collector, shift supervisor and manager I at that facility. In April, 1983 Hazlewood advised his supervisor that he would retire in July, 1983. By this time, Hazlewood had accumulated annual leave in excess of 240 hours, as well as an undisclosed amount of compensatory time and sick leave. His supervisor asked him not to use his annual leave in excess of 240 hours until July, or just prior to his retirement, because of a shortage of other personnel services (OPS) money for that fiscal year. In other words, if Hazlewood used his leave in April, May or June, the supervisor would necessarily have to use current fiscal year OPS funds to hire a temporary replacement. Hazlewood acquiesced and continued to work until June without taking annual leave. On June 16, 1983 Hazlewood put in an annual leave slip requesting annual leave (except for July 4, a holiday, and his personal holiday) from June 27 through July 14, 1983, his retirement date. This brought his total annual leave down to 238.50 hours as of the close of July 14, his date of retirement. The leave slip was approved by his supervisor and forwarded to the bureau chief in Tallahassee. He also spoke by telephone with the coordinator for the Tampa section and the assistant bureau chief in Tallahassee concerning his retirement. Whether he told them of his plans to use annual leave the last few weeks of employment was not disclosed. In any event, no one questioned his leave slip. When he retired on July 14, 1983 Hazlewood received his normal pay plus compensation for unused sick leave. He also received a warrant in the amount of $1,005.68 which represented compensation for 238.50 hours of unused annual leave. Because the pay system at DOT is computerized, and not manually checked until several weeks later, Hazlewood received his final pay without a hitch. Later on, after a manual review of his file was made, it was learned that Hazlewood's final pay had been improperly computed. DOT requested a return of the warrant, and apparently reissued a second warrant which was $324 less than the first. That prompted the instant proceeding. According to Rule 22A-8.10(4)(c), Florida Administrative Code, promulgated by the Department of Administration (DOA), and which must be adhered to by DOT, an employee cannot be paid for leave after his "last official day of employment." An employee's last official day of employment is interpreted to mean when he is physically present on the job. The parties have stipulated that Hazlewood's last official day of employment was June 26, 1983, when he actually reported to work. The DOA also interprets the rule to prohibit the taking of annual leave in conjunction with an employee's separation from service. This includes the taking of such leave merely to use up sick leave or to bring one's total annual leave down to the maximum reimbursable amount of 240 hours. These interpretations were disseminated by DOT to all of its field offices, including the chief of toll facilities, as early as October, 1981, and are generally described on page 21 of the DOT Employee Handbook which Hazlewood had. They are also expressed in "Interpretation of Attendance and Leave Rules" issued by the DOA. After determining Hazlewood's last date of employment to be June 26, his balance of annual leave was properly reduced to 176 hours rather than 238.50 hours. This balance was arrived at by deducting those hours of leave improperly used during the pay period ending July 14, 1983, and for which he had already been paid, from the 240 maximum hours one can accumulate at date of retirement. The DOT accordingly reissued Hazlewood a check for 176 hours of unused leave, which was $324 less than the amount previously given to him. This was actually less than the amount DOT should have deducted, for it did not seek to recover excess payments during the two-week pay period ending June 30, 1983. Petitioner contends that because no one advised him that taking leave in the manner he did was improper, it is unfair to now penalize him for doing so. He also points out that his supervisor approved the leave slip and was the one who suggested he delay taking leave until July because of budgetary problems. He considers it morally wrong for DOT to treat him in the manner that it has. The DOT acknowledged that the leave slip was approved, but stated the supervisor was apparently unaware of existing Department policy. It contends that all non Tallahassee offices are periodically advised of personnel rules, and that the Hazlewood case was one of a few that sometimes occurs. After the Hazlewood error came to light, DOT issued another memorandum on September 1, 1983 to all personnel explaining the policy for leave time upon separation from service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Marshall T. Hazlewood to have reinstated $324 in payments for unused annual leave be DENIED. DONE and ENTERED this 8th day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984. COPIES FURNISHED: Mr. Marshall T. Hazlewood 333 McLeod Drive Cocoa, Florida 32922 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The central issue is whether the Petitioner is entitled to modify her deceased husband's retirement benefit option.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact. Petitioner is the surviving spouse of Lamar W. Whaley, Jr., deceased. From 1972 to 1990, Mr. Whaley was employed by the Hillsborough County Board of County Commissioners (Board) and as such was a member of the Florida Retirement System. Mr. Whaley retired from his position as a minibus driver with the Board on June 29, 1990. In anticipation of his retirement, Mr. Whaley filed an FR-9 Form with the Division of Retirement (Division). The FR-9 Form, entitled "Request for Audit," was signed by Mr. Whaley and dated November 6, 1989. The FR-9 Form is used by members of the Florida Retirement System who want estimates of the monthly payments which they will receive after they retire. The FR-9 Form provided a space where Mr. Whaley could list the name and birthdate of a joint annuitant. On the FR-9 Form, Mr. Whaley named the Petitioner and the Petitioner's birthdate in these spaces. On the line immediately after the spaces provided for name and birthdate of the joint annuitant, the FR-9 expressly states that "This is not an official beneficiary designation." By listing a joint annuitant and that individual's birthday on the FR-9 Form, the Division is able to calculate the monthly benefits that would be payable to a member under each of the four retirement options available. In response to Mr. Whaley's audit request, the Division calculated the amount of the monthly payments he and/or his survivor would receive under the four retirement options available. On or about November 22, 1989, the Division sent Mr. Whaley information which reflected an estimate of the monthly benefits he and/or his survivor would receive under each of the four retirement options from which he was eligible to select. Included with the estimate of retirement benefits sent to Mr. Whaley, was a document entitled, "What Retirement Option Should I Choose?". This information sheet listed sent to Mr. Whaley listed and described the four different options. In 1990, members of the Retirement System contemplating retirement were provided a Division Form FR-11, Florida Retirement System Application for Service Retirement (Application). The application listed the four different options and provided a brief description of each. Next to Option 1 was the following: "Benefit for the Member Only." A further notation on the application read, "SEE THE REVERSE SIDE FOR AN EXPLANATION OF THESE OPTIONS." The Application adequately described the consequences of the election of each option. The explanation read as follows: Option 1: A monthly benefit payable to you for your lifetime. This option does not provide continuing benefit to a beneficiary. Upon your death, the monthly benefit will stop and you beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. If you wish to provide a beneficiary with a continued monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial factors to the option 1 benefit. Option 2: A reduced monthly benefit payable to you for your lifetime. If you die before receiving 120 monthly benefit payments, your designated beneficiary will receive a monthly benefit payment in the same amount as you were receiving until the total monthly benefit payments to both you and your beneficiary equal 120 monthly payments. No further benefits are then payable. Option 3: A reduced monthly benefit payable to you for your lifetime. Upon your death, your joint annuitant (spouse or financial dependent), if living, will receive a lifetime monthly benefit payment in the same amount as you were receiving. No further benefits are payable after both you and your joint annuitant are deceased. Option 4: An adjusted monthly benefit payable to you while both you and your joint annuitant (spouse or financial dependent) are living. Upon the death of either you or your joint annuitant, the monthly benefit payable to the survivor is reduced to two- thirds of the monthly benefit you were receiving when both were living. No further benefits are payable after both you and your joint annuitant are deceased. (Emphasis in original text.) On January 12, 1990, Mr. Whaley executed an Application. The Application listed the Petitioner as beneficiary and indicated that the retirement option selected was Option 1. In selecting Option 1, Mr. Whaley rejected all other options. The fact that Petitioner was listed on the application as a beneficiary is of no consequence given that Mr. Whaley chose Option 1. An explanation on the back of the retirement application expressly states, "This option does not provide continuing benefit to a beneficiary." Because Mr. Whaley chose Option 1, Petitioner, as his beneficiary, would have been entitled only to a refund of Mr. Whaley's contributions in the event that Mr. Whaley's contribution exceeded the amount of monthly benefits paid to him before prior to his death. Petitioner did not assert, nor did the evidence establish that the refund provision in Option 1 applies in the instant case. Petitioner stated that Mr. Whaley could read and was not mentally impaired at the time he completed the retirement application, yet Petitioner testified that the agency did not explain to Mr. Whaley the benefits of the plan which he selected. According to the testimony of Stanley Colvin, administrator and supervisor of the Division's Survivor Benefits Section, staff members are available to provide counseling to members who come in or call with questions relative to their retirement. There is no record that Mr. Whaley ever contacted the Division with questions regarding the various options. The pastor of the church which Petitioner is a member testified that Mr. Whaley may have needed help to understand the ramifications of legal documents. Mr. Whaley's daughter also testified that her father may not have understood the retirement option he chose. Both the pastor and Mr. Whaley's daughter testified further that in conversations with Mr. Whaley, he had indicated to them that he had taken care of the legal work necessary to ensure that his was family was taken care of in the event of his death. Notwithstanding the testimony of Petitioner and others, there is no evidence that at the time Mr. Whaley selected Option 1 he did not fully understand the nature and effect of his selection. Neither does the evidence support the claim that the selection of Option 1 by Mr. Whaley was inconsistent with his desire or intention at the time the choice was made. At the time of Mr. Whaley's retirement, he was in good health. Given this fact it is not unusual that he selected the option that would provide him with the maximum monthly benefit. Statements by Mr. Whaley that he had taken care of matters and that "things were in order" do not provide substantial evidence that the selection of Option 1 by Mr. Whaley was made only because he did not fully understand the consequences of his choice. The testimony revealed that upon Mr. Whaley's death, the Petitioner was the beneficiary of his life insurance policy and also the recipient of benefits under his social security. Under these circumstances, Mr. Whaley's selection of Option 1 was not necessarily inconsistent with his statement that things "were in order" or his listing Petitioner as beneficiary on the Application. On several documents provided to and/or completed by Mr. Whaley, it was clearly stated that once a member begins to receive his benefit, the option selection cannot be changed. The information sheet, "What Retirement Option Should You Choose?," mailed to Mr. Whaley on or about November 22, 1989, contained the following provision: Option Choice Cannot Be Changed Once you begin to receive your benefit your option selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before making your decision . . . . The Application submitted to the Division by Mr. Whaley on or about January 25, 1990, contained a statement that "[o]nce you retire, you cannot add additional service nor change options." Finally, the Acknowledgment of Retirement Application sent to Mr. Whaley by the Division on or about February 8, 1990, provided in relevant part the following: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT CHECK IS CASHED OR DEPOSITED! Mr. Whaley received his first retirement check on or about the last working day in July 1990. Petitioner testified that Mr. Whaley cashed this check in July or August of that same year. By cashing that check, Mr. Whaley was precluded from thereafter changing his retirement option. By selecting Option 1, Mr. Whaley received the maximum benefits payable to him during his lifetime. However, under the provisions of retirement Option 1, upon Mr. Whaley's death, his beneficiary, the Petitioner is not entitled to receive any benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order denying the request of Petitioner to modify the retirement benefits elected by Mr. Whaley, the deceased husband of Petitioner. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 1st day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0059 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1a-1c. Rejected as not being supported by competent and substantial evidence. Respondent's Proposed Findings of Fact. 1-6. Accepted and incorporated herein. 7-8. Accepted. 9-11. Accepted and incorporated herein. COPIES FURNISHED: Gladys Whaley 3807 East Norfolk Street Tampa, Florida 33604 Robert B.Button, Esquire Division of Retirement Legal Office Cedars Executive Center-Building C 2639 North Monroe Street Tallahassee Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, Esquire General Counsel Department of Management Services 4050 Esplanade Way, Suite 265 Tallahassee, Florida 32399-0950
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 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 is whether the retirement date for Petitioner's late husband should be back-dated from August 1, 2004, to September 6, 1999.
Findings Of Fact Petitioner's late husband, Edward Imbertson, was employed as a HVAC technician by the School District. As such, he participated in the Florida Retirement System (FRS). Respondent, the Division, is responsible for administering the FRS program for approximately 900 employers and 600,000 members. Mr. Imbertson suffered a heart attack on September 6, 1999. An order, entered by a judge of compensation claims on October 3, 2002, determined that he was entitled to workers' compensation because his condition was work-related, and that he had become totally and permanently disabled on the day of his heart attack. Mr. Imbertson's medical condition continued to deteriorate. He had a heart transplant in 2002, suffered renal failure, and became diabetic and legally blind. Mrs. Imbertson stopped working to care for her husband full time. They spent substantial time away from their home in Jupiter seeking medical care for her husband that included over 75 invasive procedures, many at Jackson Memorial Hospital in Miami. At the same time, Mrs. Imbertson was trying to get benefits for her husband, but primarily she focused on his deteriorating health. Following numerous requests for information and forms from multiple sources, Mrs. Imbertson filed an application dated July 1, 2004, for her husband to receive in-the-line-of-duty disability benefits. On the application form, she reported that the last day he actually worked was 9/3/99, his last day in pay status was 3/21/00, but she left his termination date blank. When she listed the last pay status date as March 21, 2000, Mrs. Imbertson was using the date that her husband received a check for unused leave. She believed, apparently correctly based on subsequent notice from the District, that he was still employed and that his pay status changed because he began receiving workers' compensation benefits. In a letter dated July 14, 2004, the Division requested additional information in support of the application. The information requested included an explanation of the delay in applying for disability retirement, physicians' reports attesting to total and permanent disability, proof of total and permanent disability when employment terminated or of a Social Security Disability Award notice, and workers' compensation documentation that the injury is compensable and benefits have been approved. Mrs. Imbertson provided some of the additional information. On August 6, 2004, the Division again sent a letter asking for more information, noting that it needed reports from two physicians, and proof of total and permanent disability on the termination date. Mrs. Imbertson sent the second doctor's report on August 7, 2004. Both the July 14, 2004, and August 6, 2004, letters included the following language: If you are no longer employed and your disability application was not received within thirty days of your termination date, provided you are not due to receive any salary payments or credible service after your application has been received, your effective retirement date will be the first day of the month following the date we received your application. When Mrs. Imbertson responded to those letters, she was focused on providing the additional personal and medical information for her husband, not on challenging the effective retirement date. By certified mail from the Division dated September 17, 2004, Mr. Imbertson was notified that he was approved to receive regular disability retirement benefits, but that his application for in-line-of-duty disability benefits was denied. Mr. Imbertson died on January 10, 2006. After an appeal to the State Retirement Commission, on June 6, 2006, Mr. Imbertson was found eligible for in-line-of-duty-retirement benefits from the retroactive effective retirement date of August 1, 2004. Mrs. Imbertson requested that the Division determine that her late husband's effective retirement date was September 6, 1999. On January 6, 2009, the Division denied the request, relying on Florida Administrative Code Rule 60S-4.0035, that sets the date as the first day of the month following the month in which the application was received. At the hearing, the Division also relied on essentially the same language that was included in the July 14, 2004, and August 6, 2004, letters sent to Mr. Imbertson. It also relied on a letter dated November 10, 2004, in which the District notified the Division that Mr. Imbertson's employment was terminated on September 7, 2000. Mr. Imbertson was not copied on the letter and Mrs. Imbertson did not know the official date of termination, as indicated by her having left the date blank on the application for disability retirement. Based on the lack of notice from the District of her husband's termination date, his inability to handle his personal matters, and her difficulty in getting benefits while taking care of him, Mrs. Imbertson believes she is entitled to have her husband's effective retirement date back-dated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order affirming the establishment of August 1, 2004, as the effective retirement date for Edward Imbertson. DONE AND ENTERED this 29th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2009. COPIES FURNISHED: Alan M. Aronson, Esquire Rosenthal & Levy, P.A. 1645 Palm Beach Lakes Boulevard, Suite 350 West Palm Beach, Florida 33401 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner should be allowed to withdraw from the Deferred Retirement Option Program (DROP) of the Florida Retirement System.
Findings Of Fact Petitioner is a member of FRS. Petitioner is part of the "Regular" class for FRS retirement purposes. In April 2001, and until late August 2001, Petitioner understood the law to require that if he wanted to participate in DROP he must elect to do so within 12 months of his 30-year anniversary of employment or within 12 months of attaining 62 years of age, whichever date came first. This was, in fact, the law until July 1, 2001. (See Findings of Fact 11 and 25-27). In July of 2001, Petitioner would become eligible to participate in DROP by virtue of reaching thirty years of service teaching at the University of Florida (UF).1 Petitioner would become 62 years old on July 2, 2001. In preparation for entry into DROP, Petitioner requested, and in April 2001 received, from the Division, an Estimate of Benefits. In bold capital print the acknowledgement stated: 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. (P-2) Petitioner filed his application for DROP participation on April 12, 2001. His application selected payout Option 2 to provide benefits to his wife and specified a "begin date" of July 1, 2001, his normal retirement date. Respondent Division, by date of April 16, 2001, acknowledged receipt of Petitioner's DROP application, but required that he provide additional materials, stating: The following items must be received: Properly completed DROP application, DP-11. The notary public's stamp and/or commission expiration date was not shown. A notary public may not amend a notarial certification after the notarization is complete. Enclosed is another Form DP-11, Application for Service Retirement and the Deferred Retirement Option Program (DROP) for you to complete and have properly notarized. Return the completed application to this office immediately. The Hospital Record you submitted as birthdate verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age. 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. A Final Salary Certification, FC-1 with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. (R-1) Petitioner provided the additional information, and on April 30, 2001, the Division notified Petitioner that the apparent birth certificate he had supplied did not constitute acceptable proof of age and that additional proof was required. That item stated: The following items must be received: The Medical Center record you submitted as birth date verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age. If you have a copy of your birth certificate that is registered with the State of New York, please send it to us. The document you submitted was not registered with the vital statistics office for New York. 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. (R-2) The Division's April 30, 2001, request for a valid birth certificate was the parties' last correspondence before August 22, 2001. (See Finding of Fact 25). Shortly after April 30, 2001, Petitioner caused the Federal Social Security Administration to send verification of his birthdate to the Division. The Division received this item but did not acknowledge to Petitioner that it had been received. During the 2001 session, the Florida Legislature amended Section 121.091(13)(a)5., Florida Statutes, to allow "instructional personnel" to participate in DROP at any time after they reach their normal retirement date. In other words, the option for instructional personnel to elect DROP was no longer limited to a 12-month period after their 30 years' creditable service retirement date or attainment of age 62. The parties stipulated that the foregoing amendment "became law" on May 16, 2001. However, Chapter 2001-47, Laws of Florida, Section 2., clearly specifies that the amendment "shall take effect July 1, 2001." Respondent Division never individually sought out and notified Petitioner, any other DROP applicant, or any FRS retiree of the legislative change. According to Mr. Hunnicutt, on behalf of the Division, the Division has no way to single out all the people (such as DROP applicants) who might be affected by a specific legislative amendment. However, the Division does try, on a yearly basis, each autumn, to notify all retirees and all employees in FRS and other state retirement programs of the current year's legislative changes. The Division also answers specific questions about such legislative amendments if retirees or employees take the initiative to ask the Division about them. Since Petitioner did not know about the amendment until after August 22, 2001, he did not ask about it or otherwise contact the Division until August 30, 2001. (See Finding of Fact 27.) On June 21, 2001, the Division sent Information Release 2001-73, to all FRS employers, including the UF Retirement Office. This Information Release noted the changes to DROP eligibility for instructional personnel. (R-6) The Division's June 21, 2001, Information Release addressed many types of retirement information that could be obtained at the Division's web site, but did not specifically link the web site and the new legislation. Petitioner's testimony that the Division's web site never announced the amendment effective July 1, 2001, is unrefuted. At no time did UF affirmatively and individually seek out Petitioner and notify him concerning the new legislation. UF also did not do a blanket notification of the new legislation to all FRS members working for UF until November 19, 2001. (P-2) Effective July 2001, Petitioner was honored by a special merit salary increase of $10,000.00 per year that would significantly raise his retirement benefits if he were not considered to have entered DROP, effective July 1, 2001. This award was not reasonably foreseeable at the time he applied for DROP on April 12, 2001. The only document Respondent Division sent Petitioner after April 30, 2001, was a "Final Notification of DROP Benefit," dated July 19, 2001, but post-marked August 20, 2001. It included the following: You should call the Retired Payroll Section at (850) 487-4856, immediately if you: Extend your DROP participation date (approval of employer required). Your participation in the DROP cannot exceed the 5 years (3 years for Special Risk members) which is the maximum allowed by law; (P-1) According to Mr. Hunnicutt, the Division cannot do the final benefit calculations for a DROP or regular retirement applicant until the Division receives all of the information from the employee (Petitioner) and direct employer (UF) because final retirement calculations use the final salary information. The July 19, 2001, date of the foregoing "Final Notification" would have been the date the Division's Benefits Specialist prepared the final calculations and falls within the 30 days the Division usually needs to make and mail the final benefit calculations. Mr. Hunnicutt's only explanation for the month's delay in mailing the foregoing "Final Notification" was that it takes approximately a month for the verification process to be completed and the calculations mailed out. He testified that, regardless of its content, the Final Notification would not have been sent to Petitioner unless the Division had considered Petitioner's DROP application to be complete. Mr. Hunnicutt testified that it is not Agency practice to send an "acceptance into DROP letter." In his opinion, an FRS member is supposed to know he is in DROP unless he is advised that he is not in DROP. The Division viewed Petitioner as automatically having entered DROP on his request date of July 1, 2001. The Division considered Petitioner's begin date of DROP participation to be July 1, 2001, as Petitioner had requested on April 12, 2001. Accordingly, the Division also considered Petitioner's first month of DROP participation to have ended on July 31, 2001. By "DROP participation date" the Agency means "begin DROP participation date." The Division allows members to change or amend their DROP applications during the first month of retirement or DROP participation because it takes approximately a month to make final benefit calculations, and the Division's aspirational goal is to provide the final calculations before the 30 days are up. Therefore, in the Division's view and practice, Petitioner's right to alter any of his retirement selections would have been July 31, 2001. On August 22, 2001, Petitioner received the "Final Notification," dated July 19, 2001, but mailed August 20, 2001. (P-1). It showed a final retirement calculation of benefits for Petitioner which was $6.15 less per month than the original estimate he had received in April 2001. Immediately thereafter, Petitioner went to the UF Retirement Office and discovered the opportunity afforded by the 2001 legislation. By an August 30, 2001, letter, Petitioner wrote Mr. Hunnicutt, requesting to make a change in his DROP participation begin date to either January 2002 or July 2002, dependent upon receiving and reviewing new estimated calculations of benefits based on each of those dates (P-2.) On September 13, 2001, the Division denied Petitioner's request, citing Subsections 121.091(13)(b)3. and (13)(c)1. and 3., Florida Statutes, and advised that: After your DROP begin date, you cannot cancel your DROP participation, change your DROP begin date, change your option selection, or claim additional creditable service period. The letter did not mention the 30 days' grace period for changes which previous correspondence had and which is the Division's acknowledged practice. It stated that it constituted final agency action. Petitioner continued to argue his case by correspondence, seeking an administrative hearing if necessary. Apparently, it was not clear to many members of the academic community that university instructional personnel, as well as K-9 teachers, were eligible under the 2001 extended DROP sign-up amendment. However, as of October 2001, the Division had accepted DROP applications for instructional personnel who previously had not joined DROP during their initial DROP window period and who, as a result, and but for the new statutory amendment, would never have been eligible for DROP. As of October 2001, the Division also had advised other instructional personnel, that due to the new amendment, they were newly exempt from the 12-month window and could apply for DROP at any time. 2 On October 5, 2001, the Division again denied Petitioner's request to withdraw from DROP. In this letter, the Division also provided greater detail as to the reasons for its denial, stated it was final agency action, and included more details advising Petitioner of his right to request a disputed- fact hearing. The 2001 legislative session enacted, in addition to the amendment affecting Petitioner, a number of other amendments which affected retirement benefits, The Division made no blanket mailing to all members of FRS concerning any 2001 retirement law amendments until its annual bulletin, discussing all of the amendments, was mailed for the Division to all FRS members on December 28, 2001, by a private company in New York.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Retirement enter a final order deeming Petitioner timely withdrawn from DROP in the month of July 2001, returning him to an FRS status of regular employment, earning regular retirement serviceable credit, and providing for a recalculation of his retirement credits as appropriate to his altered status. DONE AND ENTERED this 16th day of May, 2002, 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 16th day of May, 2002.
The Issue The issue in this case is whether Daniel Maddox, a deceased retiree in the Florida Retirement System Pension Plan, selected Option 1 (maximum retiree’s monthly benefit without any spousal benefit after death of the retiree) or Option 2 (a reduced retiree’s monthly benefit with continued spousal benefit after death of the retiree, if within a period of ten years after retirement for the balance of the ten-year period).
Findings Of Fact Daniel Maddox was an employee of Pinellas County and a vested member of FRS. Petitioner is Mr. Maddox’s wife. Mr. Maddox retired under the early retirement provisions of FRS in June 2015, and received benefits until his death in December 2016. When Mr. Maddox applied to retire, he submitted an application that included an unexecuted option selection form that had a mark by Option 2. After being notified of the deficiency on two occasions by Respondent, Mr. Maddox submitted an executed option selection form on July 30, 2015, on which he selected Option 1. Option 1 provides the maximum benefit for the life of the member of FRS with no continuing benefit after the member’s death. Option 2 provides a reduced benefit for the lifetime of the member of FRS, but should the member die before 120 payments have been made, the remainder of the first 120 payments will be made to the member’s designated beneficiary. Petitioner signed a Spousal Acknowledgement Form acknowledging that Mr. Maddox selected either Option 1 or 2, rather than an Option 3 benefit, which would have provided a lifetime reduced benefit for her. Mr. Maddox’s signature on the Option Selection for FRS Members form selecting Option 1 was properly notarized. The purpose of the Spousal Acknowledgement Form is to inform the spouse that he/she will not be receiving a lifetime benefit. It does not give control over which option the FRS member selects. That decision is the sole choice of the member. Petitioner testified that she and her husband completed the forms together, with Mr. Maddox selecting Option 2 since he was disabled at the time and on medication. Mr. Maddox took the forms to their bank to have them notarized, but returned without the Option Selection for FRS Members form notarized. While Mr. Maddox was taking his forms to the bank for execution, Petitioner executed the Spousal Acknowledgement Form in the presence of a notary and submitted it to Respondent. She believed her husband had executed the required forms and selected Option 2. Her testimony concerning this sequence of events is credible. Mr. Maddox received a letter entitled “Acknowledgement of Service Retirement Application” from Respondent dated May 15, 2014. That letter confirmed that Option 2 had been selected and included an Estimate of Retirement Benefits spreadsheet. Based upon this letter, Petitioner believed that her husband had selected Option 2 and that the selection was in force. The Acknowledgement of Service Retirement Application, stating that Option 2 had been selected, required two additional pieces of information from Mr. Maddox: verification of his birthdate; and a notarized Option Selection for FRS Members form, since the one that was submitted (selecting Option 2) had not been executed. When Mr. Maddox submitted the notarized Option Selection form, he had selected Option 1. Respondent relied upon the executed selection in making its determination that Option 1, not Option 2, had been selected by Mr. Maddox. Respondent did not provide an additional Spousal Acknowledgement Form to Petitioner when it received the notarized form selecting Option 1 since its processing people deemed the file complete once all the required forms for retirement had been received. Petitioner testified that she believed she should have been provided a new Spousal Acknowledgement Form when Mr. Maddox selected Option 1 since her acknowledgement signed previously had been executed under the impression her husband had selected Option 2 in her presence and was taking that election to the bank to be notarized. She believes that a Spousal Acknowledgement Form signed several months before and based upon her husband’s election of Option 2 should have been re-sent to her since a different selection was made by Mr. Maddox. She further testified that her husband was disabled and on heavy medication and may have gotten confused when he went to the bank a second time to sign the selection form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner’s request for Option 2 retirement benefits on behalf of Daniel Maddox. DONE AND ENTERED this 25th day of August, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2017. COPIES FURNISHED: Anne L. Maddox 1579 Jeffords Street Clearwater, Florida 33756-4408 (eServed) Thomas E. Wright, Esquire Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) Elizabeth Stevens, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.
Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. 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, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was as follows: 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. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.
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 granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2006.
The Issue Whether the Petitioner may withdraw from participation in the Deferred Retirement Option Plan (DROP)?
Findings Of Fact The Petitioner, Henry Gohlke, is a member of the Florida Retirement System (FRS), which is governed by Chapter 121, Florida Statutes (2003). The Petitioner is employed by the Department of Agriculture and Consumer Services. The Petitioner divorced his former spouse, Joanne Marie Gohlke, on October 29, 1997, and a Qualified Domestic Relations Order (QDRO) was entered which provided that Joanne Marie Gohlke was the alternate payee of the Petitioner's retirement benefits. See Exhibit J-10. Under the terms of the QDRO, when the Petitioner retired, his future retirement benefits would be incorporated into alimony payable to Joanne Marie Gohlke, beginning with the first monthly retirement benefit payment made to the Petitioner. The payment was fixed based upon the value of the Petitioner's pension at the time, and Joanne Marie Gohlke would receive $552.05 per month. DROP is a program which permits an employee, who has qualified for retirement, to retire; draw his retirement benefit based upon the retirement option he selected; and have the money paid into a non-taxed, interest-drawing account for up to five years while the employee continues to work. At the end of the five years or such other shorter time the employee elects, the employee may cease working and receive all or a part of the money in a lump payment paying the income taxes due on the amount, or roll the money over into an Individual Retirement Account (IRA) or similar program without paying income taxes until the money is withdrawn from that account. The Petitioner testified that he queried Eddie Tanner, who at that time was a paralegal working with the Division of Retirement, about the effect of the QDRO on his DROP deposits. There is conflicting testimony about what the Petitioner was told; however, Tanner testified concerning his customary advice to persons subject to QDROs. The Petitioner was advised to seek clarification from the domestic relations court to be certain. The Petitioner elected to participate in the DROP program in March of 2003. He may continue to participate in DROP until March 28, 2008. See Exhibit J-7. When he began to receive retirement benefits, a letter was sent to him on June 25, 1998, advising him that Joanne Marie Gohlke would qualify for a $552.05 per month share of the Petitioner's accrued DROP benefit as provided in the QDRO. The letter also advised that, upon the Petitioner's ceasing to work, the moneys due Joanne Marie Gohlke would be paid to her together with the accrued interest. This letter was sent to the Petitioner's old address, and he did not receive the letter. Eventually, the Petitioner learned that his DROP payments would be subject to the allocation of $552.05 each month to his ex-wife pursuant to the QDRO. This money would be payable to his ex-wife at the same time the Petitioner accessed his DROP money. The Petitioner questioned this payment to his ex-wife. The status of DROP benefits has been litigated, and the courts have determined that DROP benefits are retirement benefits and subject to QDROs. See Ganzel v. Ganzel, 770 So. 2d 304, 306 (Fla 4th DCA 2000). Based upon this precedent, the Respondent denied the Petitioner's request not to pay the proceeds from DROP to Joanne Marie Gohlke. Upon learning that his ex-wife would receive a portion of his DROP account, the Petitioner sought to withdraw from his participation in the DROP. Although an employee may elect to continue to work at the end of five years with the permission and written concurrence of his employer, he or she would automatically lose his or her DROP moneys by continuing to work past the five-year mark.1/ There is no administrative mechanism for withdrawing from DROP which would be analogous to "un-retiring." The Respondent properly denied the Petitioner's request to withdraw from DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition be dismissed. DONE AND ENTERED this 27th day of January, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2004.
