The Issue Whether the Petitioner, Glen L. Hessler (Petitioner) is entitled to participate in the Deferred Retirement Option Program (DROP).
Findings Of Fact The Petitioner is employed by the Indian River County Property Appraiser and is entitled by virtue of such employment to membership in the Florida Retirement System (FRS). For all purposes material to this case, it is undisputed the Petitioner began such employment (and thereby participated in the FRS) on November 9, 1992. The Petitioner was born on August 9, 1938. For purposes of this case, the Department has not disputed the accuracy of such date. In July 2000 an amendment to Section 121.021 took effect whereby employees within the FRS were "vested" after six years of service. This change in the law reduced the time to vest for retirement purposes from the 10 years previously set forth in the statute. As a result of the change, the Petitioner, who immediately became vested with the change, was eligible to apply for DROP on August 1, 2001. It is undisputed the Petitioner did not apply for DROP within 12 months of such date. The Petitioner maintains he was not given notice of the need to apply for DROP. The Petitioner maintains he was not timely notified of the change in the law affecting the time of his vesting. Finally, the Petitioner maintains he applied for DROP after 10 years of service. The Petitioner maintains that such application was timely filed as it was filed when he would have been eligible to apply but for the change in the statute. The Department disputes all assertions raised by the Petitioner.
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 the Petitioner's request for participation in DROP. DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2003. COPIES FURNISHED: Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Eric Barkett, Esquire 2165 15th Avenue Vero Beach, Florida 32960 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 15th day of July, 2003.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to participation in the State University Optional Retirement Program for the period August 1997 through December 1998.
Findings Of Fact Petitioner Jeffrey Bradshaw (Bradshaw) was employed by UWF as a Research Assistant from August 8, 1997, until December 1998. This position was eligible to participate in the ORP for the State University System as described in Section 112.35, Florida Statutes (1997). On August 18, 1997, Bradshaw signed a Form ORP-16, indicating his election to be a member of the ORP and indicating that he had signed the necessary contract with TIAA-CREF, an approved annuity provider. Bradshaw returned this form to UWF. Below Bradshaw's signature is a portion of the Form ORP-16 which is entitled, "To be completed by employer." Within that portion of the form, a signature appears in the signature line designated "Signature of University" beneath the following certification: "I certify that since their employment with the university, this employee has signed a contract(s) with the ORP carrier(s) as shown and is filling an eligible position." Following this certification and above the signature of the university representative appears the following in handwriting, "verbal by employee." This portion of the form indicates that it was signed by a representative of UWF on October 6, 1997. The fully executed form ORP-16 was forwarded to Respondent on or about October 6, 1997. Bradshaw recalls that he sent a copy of the executed contract directly to TIAA-CREF. UWF paid the employer's statutory portion of Bradshaw's salary to Respondent to participate in the ORP for the entire period from August 8, 1997 to December 31, 1998, for a total of $11,494.88. Respondent forwarded that money to TIAA-CREF. On June 2, 1998, Respondent sent a letter to Bradshaw in care of UWF which read in pertinent part as follows: Effective July 1, 1997, Section 121.35, F.S. was amended and now requires ORP participants that fail to select a provider company and execute an annuity contract within 90 days of eligibility, must be enrolled in the Florida Retirement System (FRS). Even though you selected a provider company within 90 days of becoming eligible for ORP, you have not completed the other required step in the process. According to the company, you do not have a contract with them. The Division will be forced to transfer your contributions from the company account to the FRS Trust Fund unless you act immediately. You will then be credited with the appropriate service credit under the FRS and your employer will be requested to begin reporting you under the FRS. In order that you may continue in the ORP, you must complete the establishment of your ORP Account. We therefore request that you provide the critical information requested by the company to establish a contract using their application form (enclosed). If you have any questions about this process, please call the special toll free number for the Service Plus Office, 800 842-7715. This should be done as soon as possible, but no later than 15 days from the date of this letter. Please send a copy of this letter along with your form. Otherwise, to revert your retirement membership to the regular class of the Florida Retirement System, please complete the enclosed Form FRS-M10, Personal History Record and return it to your employer within the next 15 days. Should you have any questions concerning enrollment in the FRS, please call our Enrollment Section at SUNCOM 278-8837 or (850) 488-8837. Please send a copy of this letter along with the form. (emphasis in original) Faye Borders is a Senior Personnel Representative with UWF. According to her files, UWF contacted Bradshaw by telephone when UWF received the June 2, 1998, letter and Bradshaw indicated that he sent the application directly to TIAA-CREF. It is not clear from the record the scope of the telephone conversation between the UWF representative and Bradshaw. The evidence of record does not establish that Bradshaw was sufficiently informed of the content of the June 2, 1998, letter, or of its consequences. Bradshaw does not recall that the telephone conversation took place. He believed he had done everything he needed to do and did not became aware that there was a question about his earlier membership in the ORP until he signed a new contract in October of 2000. What is clear is that Bradshaw did not receive a copy of the letter and never received any written correspondence from anyone inquiring as to his status in the ORP. As far as Bradshaw was concerned, he completed all forms necessary at the appropriate times. Bradshaw left employment with UWF in December 1998 and moved out of state. He returned to employment at UWF in 2000 and signed a new ORP-16 and a new contract with TIAA-CREF in October 2000, and is currently actively enrolled in the ORP with TIAA-CREF as his annuity provider. He became aware that there was an issue about his former membership in the ORP in a telephone call he placed to TIAA-CREF and when he received a letter informing him that the money from the time period of his earlier employment had been returned to UWF. At this point, he sought advice from UWF's office of human relations. Bradshaw and UWF sent letters to Respondent to clarify this issue. A letter dated November 17, 2000, from Faye Borders to Respondent reads in pertinent part as follows: Dear Hobe, Please see (attached) Mr. Jeffrey Bradshaw's letter regarding his status in the Optional Retirement Program during his prior employment with the University of West Florida. I am also attaching information from our files pertaining to Mr. Bradshaw's efforts to enroll in the Optional Retirement Program. Mr. Bradshaw is certain he sent the application directly to TIAA-CREF and has repeated that on several occasions. He has moved several times since his prior employment, thus the address we provided to TIAA-CREF on our attached copy of the fax sent to them may not have been current. TIAA-CREF's letter to Mr. Bradshaw states that the University of West Florida requested the institutional premiums be removed from the contract and placed in their Repurchase account at TIAA-CREF. I am unclear on this and as far as I know the University does not handle such transactions. Anything you can do to assist Mr. Bradshaw with his request will be greatly appreciated. Respondent responded directly to Bradshaw, again in care of UWF, with a letter dated March 30, 2001. The letter was written by David Ragsdale, Benefits Administrator, and reads in pertinent part as follows: Dear Mr. Bradshaw: This is in reference to your October 20, 2000 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires SUSORP participants that fail to select a provider company within 90 days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete and submit the ballot, Form ORP-16, within the ninety days window of eligibility in compliance with the law. As such, you will be a compulsory member of the FRS. Mr. Ragsdale acknowledges that the March 30, 2001, letter to Bradshaw was in error in that the Division had received the ORP-16 signed by Bradshaw in 1997. Mr. Ragsdale also explained that letters to Bradshaw were addressed to UWF because in 1997, and until sometime in 2001, Respondent did not maintain personal addresses for participants, but relied on the employing agencies to maintain addresses for their employees. On April 26, 2001, Sherell Hendrickson, Director of Human Resources at UWF, sent a letter addressed to Mr. Ragsdale which stated as follows: Dear Mr. Ragsdale: This is in reference to your March 30, 2001 letter denying Jeffrey Bradshaw's enrollment in the ORP in 1997. A copy of your letter is attached. This denial is based on Mr. Bradshaw's failure to complete and submit the ballot, Form ORP-16, within the ninety-day window of eligibility in compliance with the law. Mr. Bradshaw did complete and return his Form ORP-16. He was hired on August 8, 1997; the form ORP-16 was sent to the Division of Retirement on October 6, 1997, less than 60 days after his initial employment with UWF. On this form, he designated TIAA-CREF as his retirement annuity company and certified that he had signed a Florida ORP contract. Mr. Bradshaw sent his enrollment forms directly to TIAA- CREF. HR Benefits Clerk, Valerie Comparetta, notes that he sent the annuity contract to TIAA-CREF on the form ORP-16. Unfortunately, TIAA-CREF alleges that they did not receive his contract application and that after attempting to get in touch with him, they contacted UWF's Human Resources Department. He gave TIAA-CREF an address that may not have been current to contact Mr. Bradshaw. However, Mr. Bradshaw confirmed with us that he had completed and mailed the contract to TIAA-CREF. The University's institutional premiums of $11,496.88 were sent to TIAA-CREF during 1997-98. Mr. Bradshaw moved and did not hear anything else from either us or TIAA- CREF. He returned to employment at UWF on May 6, 2000. When he called TIAA-CREF, he was surprised to find out that his initial paperwork had never been located by TIAA- CREF and that UWF had requested that the institutional premiums "be removed from the contract and placed in their Repurchase account at TIAA-CREF." To my knowledge, and that of the Benefits Section in HR, no one in this office asked for this to be handled. We do not handle such transactions. I am requesting that you reconsider this issue. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, did not receive the notices sent to him by TIAA- CREF, and has stated on more than one occasion that he sent in his enrollment application to TIAA-CREF. The institutional funds were held by TIAA-CREF for two years. We believe that the institutional funds of $11,496.88 should be sent back to TIAA-CREF and into Mr. Bradshaw's ORP account. According to Ms. Hendrickson, her office has had problems in the past with TIAA-CREF losing documents or correspondence. Unlike other annuity providers, TIAA-CREF does not have a local representative at UWF. UWF deals directly with the TIAA-CREF office in Atlanta. Also according to Ms. Hendrickson, UWF's file indicates two instances when Bradshaw informed UWF that he provided a contract directly to TIAA-CREF. These are further explained in a June 13, 2001, memorandum from Hendrickson to Respondent which also references that UWF confirmed with TIAA- CREF in 1999 that the company had a completed application: Thank you for any additional consideration you might give to my April 26, 2001 letter to Mr. David W. Ragsdale concerning the ORP account of Mr. Jeffrey Bradshaw. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, and did not receive the notices sent to him by TIAA- CREF. He has stated to the University of West Florida Office of Human Resources personnel on two (2) separate occasions that he sent in his enrollment application to TIAA-CREF. Our first contact with him about the TIAA-CREF application was in October 6, 1997. When we contacted him about the TIAA- CREF application, he stated that he had signed and sent in his TIAA-CREF application to the company. This is noted on our ORP-16 enrollment form for him. On our second contact with him on June 23, 1998, our notes reveal that he verified to our office that he had sent in his forms directly to TIAA- CREFF[sic]. In January 1999, we have a note in our files that we again confirmed with TIAA-CREF that he completed his TIAA-CREF application and sent it directly to the company. We also have a completed ORP-16 Form from him dated August 18, 1997 after his initial employment on August 8, 1997. Copies of these documents may be provided, if necessary. They were included in my April 26, 2001 letter. Based on the above information, we have every reason to believe that Mr. Jeffrey Bradshaw completed his TIAA-CREF application and mailed it to TIAA-CREF. Respondent responded to Ms. Hendrickson's April 26, 2001, letter on September 4, 2001, in a letter addressed to Bradshaw in care of UWF. This letter gave a different reason for rejecting Bradshaw's membership in the ORP for the period of his earlier employment: Dean Mr. Bradshaw: This is reference to your June 13, 2001 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety-day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires ORP participants that fail to select a provider company within ninety days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete an annuity contract with a provider company within the ninety-day window of eligibility. Therefore, you are not eligible for the SUSORP and you will be a compulsory member of the FRS. Should you have any questions, or need additional information, please contact David Ragsdale or Hobart Lawrance at SUNCOM 278- 8837 or (850) 488-8837. According to Mr. Ragsdale, Respondent does not get a copy of the contracts entered into between individuals and annuity providers. Respondent made the payments to TIAA-CREF on behalf of Bradshaw based on the ORP-16 that indicated on its face that a contract existed. No one involved in this proceeding appears to have a copy of the contract signed by Bradshaw in 1997. At that time, it was not unusual for UWF or Respondent to not have a copy of contracts between individual employees and annuity providers. On or about June 24, 1999, TIAA-CREF credited the $11,494.88 to a repurchase fund maintained on behalf of Respondent. Respondent transferred these contributions to the Florida Retirement Trust Fund. As a consequence, Bradshaw has received service credit for the number of months of his earlier employment period with UWF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letter of September 4, 2001, and sending Petitioner Bradshaw's contribution of $11,494.88 to TIAA-CREF, requesting that it be deposited into Bradshaw's ORP account or, in the alternative, refunding the $11,494.88 directly to Bradshaw. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002. COPIES FURNISHED: Julie L. Sheppard, Esquire Patricia D. Lott, Esquire University of West Florida 11000 University Parkway Building 10 Pensacola, Florida 32514-5750 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether the Petitioner is entitled to receive benefits pursuant to Option 3 as retirement earned by his deceased wife, Susana T. Fabian.
Findings Of Fact The Petitioner, Howard Fabian, is the spouse of the late Susana T. Fabian. Mrs. Fabian was a member of the Florida Retirement System (FRS). The Fabians were married for approximately 14 years and have two children from their union. The girls, now teenagers, reside with Mr. Fabian and depend on him for their financial support. The Respondent, DMS, is the state agency charged with the responsibility of administering the FRS. Benefits payable to FRS participants are tendered pursuant to the provisions of Chapter 121, Florida Statutes, and DMS rules. Mrs. Fabian was employed as a teacher in the Miami- Dade County Public Schools on or about December 17, 1984. As such, she was eligible to participate in the FRS. In fact, Mrs. Fabian's employer made contributions to the FRS for her benefit throughout her employment with the school system. Such contributions continued for over 13 years. It is undisputed that Mrs. Fabian was "vested" and was, therefore, entitled to receive retirement benefits from the FRS. Unfortunately, Mrs. Fabian became ill in 1997 and was unable to teach. She requested an extended sick leave for the period August 31, 1997 through May 31, 1998, which her employer granted. Mrs. Fabian returned to teaching the following year and was able to perform her duties until January 2000. At that time her medical condition worsened. Her request for unpaid leave through June 2000 was granted. Despite her best efforts to regain her health, Mrs. Fabian did not improve. Each time her employer asked whether she would return to work, forms were returned seeking an extension of leave. The employer continued to grant the extension requests and approved sick leave without pay for the period through June 14, 2002. Mr. Fabian filled out a leave form seeking leave on his wife's behalf through June 2003. By letter dated May 14, 2002, the school system denied that request. Whether or not the employer correctly calculated the time Mrs. Fabian received unpaid leave is unknown. The Petitioner asserts that had Mrs. Fabian received credit for "hardship leave and dire emergency leave" in 1997 and 2000 (for which the union contract provided), the leave request in June 2002 would or could have been granted. The record is clear that the Respondent did not have any part in the internal workings of the Miami-Dade County School District and did not have knowledge as to whether Mrs. Fabian could have been granted additional unpaid leave. The employer's decisions regarding this employee were unknown to the Respondent until the instant action. However, about the time the employer denied the last leave extension request, Mr. Fabian received a FRS application for disability retirement. The application was completed on or about June 2002. The form signed by Mrs. Fabian was out- of-date and did not have a designation of beneficiary space. Pursuant to its policy, DMS accepted the out of date form and sent Mrs. Fabian a form for designating a beneficiary. The form for designating a beneficiary listed four options: Option 1, Option 2, Option 3 and Option 4. All (Options 1-4) were clearly and unambiguously described. However, only two of the options had estimates included on the form sent to Mrs. Fabian. Estimates for Options 3 and 4 were not noted. Under Option 1 the form indicated a monthly benefit of $895.28. Option 2 indicated a monthly payment of $824.89. At that point in time DMS did not have sufficient information to calculate Options 3 and 4. To calculate Options 3 and 4 DMS must have information regarding a "Joint Annuitant." Had Mr. Fabian included information for Options 3 and 4 those amounts would have been calculated. In this case, the Respondent could not know Mrs. Fabian was married, as the initial (outdated) form did not provide that information. The Respondent could have become aware of Mrs. Fabian's marital status as a result of a telephone call from Mr. Fabian to DMS in August of 2002. At that time DMS still needed information to put Mrs. Fabian on the retirement payroll. The request for information unambiguously listed information needed for a "joint annuitant." The first notice to Mrs. Fabian, dated July 11, 2002, asked for the proof of birth for the joint annuitant. Similarly, the SECOND REQUEST-RETURN WITHIN 30 DAYS (Respondent's Ex. 12) dated September 4, 2002, indicated the following: Your name cannot be placed on the retired payroll for the reason(s) indicated below: BIRTH VERIFICATION Please see the enclosed memo outlining the acceptable means of proving your birth date. BIRTH VERIFICATION OF BENEFICIARY If you elect Option 3 or 4, we will need proof of birth for your joint annuitant. FRS-11o, OPTION SELECTION FORM The enclosed Option Selection Form is needed. If you elect option 3 or 4, we will need proof of birth for your joint annuitant. You may wait until an estimate of benefits is provided before selecting your option. FORM FST-12, BENEFICIARY DESIGNATION This form must be completed to designate a beneficiary. You must designate a beneficiary to receive any benefits due at your date of death. [Emphasis in original] Nevertheless, when the Option Selection form was submitted to DMS, Mr. Fabian, exercising a power of attorney provided by his wife, chose Option 1. Mr. Fabian claims he did not know Option 3 was available. The Option Selection form clearly and unambiguously listed all four options available to Mrs. Fabian. Mr. Fabian is an educated professional. He has taught school for the Miami-Dade County School District and has operated a real estate office for approximately 20 years. The Option Selection form signed by Mr. Fabian for himself and for his wife on September 3, 2002 (Petitioner's Exhibit. 7) required the Petitioner to complete a "Spousal Acknowledgement," recognizing that the member had chosen Option 1. The section must be completed if the FRS member is married and if Option 1 or 2 is elected. Clearly, the Petitioner knew or should have known that the form contemplated a permanent decision. In fact, the Petitioner acknowledged by signing beneath the section that stated: . . . 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, deposited, or when my Deferred Retirement Option Program participation begins. DMS received the Beneficiary Designation Form and Option Selection forms on September 12, 2002. The completed file was referred to payroll and Mrs. Fabian then received monthly retirement benefits under Option 1 (the option selected by her husband pursuant to his power of attorney). It is undisputed the first payment was negotiated upon its receipt. Prior to cashing the first payment Mrs. Fabian could have changed her option selection. On December 24, 2002, Mrs. Fabian passed away. The Respondent then notified Mr. Fabian that the option he had selected did not provide for continuing benefits beyond the month of Mrs. Fabian's death. Additionally, Mr. Fabian was advised that he was not entitled to a refund of any contribution Mrs. Fabian paid to FRS as she had not made any. The employer paid 100 percent of the contributions to Mrs. Fabian's account. Retirement benefits under the FRS are not equivalent to life insurance. That is, the retirement payments are payable to the employee who "earned" benefits or to those who may be "joint annuitants" as defined by law. At all times material to this case, the employer paid the full amount credited to Mrs. Fabian's retirement account, approximately $84,046.51. Obviously, Mrs. Fabian sought the benefits from her account prior to her anticipated retirement date. DMS allows disability retirement under such circumstances. Therefore, Mrs. Fabian's eligibility to claim her disability retirement is not disputed. The deposition testimony of Nina Barron was admitted into evidence as Respondent's Exhibit 5. Ms. Barron reviewed the retirement options with the Petitioner prior to the time the form was submitted to FRS. Ms. Barron also calculated the amounts payable to Mrs. Fabian pursuant to each option. Ms. Barron also believes she spoke to Mrs. Fabian regarding the options. Ms. Barron mailed the calculated estimates for each option to the Petitioner. The Petitioner's allegation that he was confused regarding the options and which election would best protect his family's interests has not been deemed persuasive in light of the testimony of Ms. Barron. The witness provided an unofficial estimate to Mrs. Fabian that included all 4 options.
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 the Petitioner's request. S DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 15th day of June, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplande Way Tallahassee, Florida 32399-1560 Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32302-0551 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issues are: (1) whether Petitioner may retire and begin receiving retirement benefits at age 60 instead of age 62; (2) whether Petitioner may claim maternity leave in the 1962-1963 and 1965-1966 school years as creditable service; (3) whether Petitioner is entitled to a refund of her retirement contributions for the 1967-1968 and 1968-1969 school years; and (4) whether Petitioner may transfer her membership from the Teachers’ Retirement System (TRS) to the Florida Retirement System (FRS).
Findings Of Fact Petitioner became a member of TRS when the Dade County School Board employed her for the 1960-1961 school year. In 1961, Petitioner began teaching in the public schools of Hillsborough County. Petitioner taught school in Hillsborough County until she took a maternity leave of absence in 1963. Her son was born on April 12, 1963. On September 4, 1963, Petitioner requested and subsequently received a return of her retirement contributions from TRS. From 1964 through 1966, Petitioner was employed by the Pinellas County School Board, the St. John’s County School Board, and the Duval County School Board. She was a member of TRS during this period of time. On October 28, 1966, Petitioner left her full-time position with the Duval County School Board to begin a maternity leave of absence. Her daughter was born on February 9, 1967. On January 20, 1967, Petitioner requested and subsequently received a return of her retirement contributions from TRS. On March 1, 1968, the University of Florida employed Petitioner. She again became a member of TRS. The University of Florida granted Petitioner a nine- month sabbatical to teach and study as a visiting scholar at Stanford University from September 9, 1979, until June 13, 1980. Petitioner took a professional educational leave of absence from August 10, 1984, through June 6, 1985. She took another professional educational leave of absence from August 9, 1985, through June 6, 1986. On December 5, 1985, Petitioner repaid the personal retirement contributions that she had withdrawn in 1963 and 1967. (See paragraphs three and six above.) She repaid these funds with interest as calculated by TRS. The amount repaid is currently on deposit with TRS. The University of Florida employed Petitioner continuously from 1968 through 1987. During this time, Petitioner was the major wage earner in her family. She had three young children who were eligible for greater benefits under TRS than FRS. Therefore, Petitioner elected not to transfer her membership to FRS on any of the six occasions that the Florida Legislature made available for such a transfer. Petitioner moved to Georgia when her husband took a job in Atlanta. She worked 9.87 years as a public school administrator in Georgia. During this period, Petitioner was a member of the Georgia Teachers’ Retirement System (GTRS). Respondent sent Petitioner a letter dated April 17, 1995, advising her that the first date she would be eligible for monthly retirement benefits from TRS would be March 1, 1993. Petitioner became 55 years old in March of 1993. The letter was incorrect because Petitioner’s normal retirement age is age 62. However, there is no evidence that Petitioner relied on the incorrect information contained in the letter to her detriment. Petitioner sent Respondent a letter dated March 18, 1996, requesting that the agency transfer her membership in TRS to FRS. Respondent denied Petitioner’s request in a letter dated that same day. On June 1, 1996, Petitioner purchased 3.33 years of service in GTRS for the following years of service with TRS in Florida: School Year Transferred Service 1969-1961 1 year 1961-1962 1 year 1962-1963 .556 year (9/62-1/63) 1963-1964 .333 year (3/64-5/64) 1965-1966 .222 year (4/66-5/66) 1966-1967 .222 year (9/66-10/66) On June 6, 1996, Respondent received an application for service retirement, Form TRS-11, from Petitioner. Petitioner selected Option 3 on that form. On July 1, 1996, Petitioner requested Respondent not to process her retirement application until she could have an administrative hearing. Petitioner made this request over the telephone. Respondent sent Petitioner a letter dated July 9, 1996, in which Respondent made the following decisions: (a) Respondent denied Petitioner’s requests to use age 60 instead of age 62 as her normal retirement age; (b) Respondent rejected Petitioner’s request to claim maternity leave in the 1962-1963 and 1965-1966 school years as credible service; (c) Respondent refused to refund Petitioner’s retirement contributions for the 1967-1968 and 1968-1969 school years so that she could claim an additional 1.55 years of service in Georgia. Petitioner filed a written request for formal hearing by letter dated July 26, 1996. Petitioner testified that her decision to maintain her membership in TRS over the years was due to her reliance on information contained in handbooks published by Respondent in 1982 and 1993. Specifically, Petitioner claims to have relied on statements contained within these handbooks relating to normal retirement ages and the purchase of credible service after withdrawal of retirement contributions or a leave of absence. Portions of these manuals were accepted into evidence. The 1982 brochure clearly states: This brochure contains basic information on the Teachers’ Retirement System, established by Chapter 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers’ Retirement System and should not be used in place of the law on questions of interpretation and application. Any questions which are not answered by this brochure may be addressed to the Division of Retirement, Room 530, Carlton Building, Tallahassee, Florida, 32301. Petitioner could not have relied on information contained in either of the handbooks when she made the decisions to take maternity leave in 1963 and 1966 or to withdraw her retirement contributions in 1963 and 1967. Petitioner made these critical decisions before Respondent published the handbooks in 1982 and 1993. Petitioner presented no evidence that she contacted Respondent’s office before she made any decision that is material to this proceeding. Petitioner does not assert that she filed an application with Respondent to continue her TRS membership after she was granted either of her maternity leaves and before her next retirement contribution was due.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter an order denying the following: (a) Petitioner’s request to establish age 60 as her normal retirement age; (b) Petitioner’s request to purchase creditable service for maternity leave taken during the 1962-1963 and 1965-1966 school years; (c) Petitioner’s request for a refund of retirement contribution during the 1967-1968 school years; and (d) Petitioner’s request to transfer her membership in TRS to FRS. DONE AND ENTERED this 18th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Hellen Guttinger 2650 Westchester Parkway Conyers, Georgia 30208 SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997. Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Building C 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 Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner can rescind his election to join the Deferred Retirement Option Program and return to the status quo ante such election so that he can opt instead to participate in the Public Employee Optional Retirement Program.
Findings Of Fact Petitioner Dennis Valdez ("Valdez") began working for Miami-Dade County ("County") as a paramedic/firefighter in 1979. As a county employee, he became a member of the Florida Retirement System, which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). Firemen such as Valdez are assigned to the Special Risk Class, whose members are eligible for enhanced retirement benefits under the FRS. One advantage of being in the Special Risk Class is that the member's normal retirement date arrives after 25 years of service, rather than 30. Each year the County sends its employees a statement showing the value of their employment benefits, including retirement benefits. Valdez received such a statement for 2004. The statement informed him, among other things, that the County offered "pre-retirement counseling" to help "plan for those years ahead." In pertinent part the statement explained: Miami-Dade offers you assistance in applying for retirement with the Florida Retirement System, in reviewing your options and in selecting appropriate payment options for your Deferred Compensation account. Contact the Employee Benefits Unit . . . before you expect to retire to request an estimate of your FRS benefit. Early in 2004, Valdez began thinking about retirement because he would have 25 years of service at the end of July 2004. He decided to make an appointment for pre-retirement counseling through the County's Employee Benefits Unit. It was arranged for him to meet with Marti Garcia ("Garcia"), a Senior Employee Benefits Specialist, on April 15, 2004. When Valdez met with Garcia as scheduled on April 15, he was a participant in the defined benefit program ("Pension Plan") of the Florida Retirement System.1 He was also eligible to participate, upon reaching his normal retirement date, in the Deferred Retirement Option Program ("DROP"). A member who elects to participate in the DROP is allowed to continue working (and drawing his salary) for up to 60 months after his retirement date, during which time the member's pension is paid into a trust fund where it earns interest at a fixed statutory rate. At the conclusion of the member's participation in the DROP, the Division distributes to him the retirement benefits that have accrued. Valdez told Garcia that he was concerned about providing for his family, including his wife, who is younger than he, and their young children. Though Valdez had just turned 53, he advised Garcia that he did not want to remain employed as a fireman for much longer. He also asked Garcia if he could control the investment of his retirement benefits. Garcia explained to Valdez that, if he entered the DROP, he would be able eventually to invest his DROP benefits, when he terminated his employment with the County, at which point the Division would distribute the funds which had accumulated for his benefit while he was in the DROP. In Garcia's presence on April 15, 2004, Valdez signed an application to participate in the DROP, using the Division's required Form DP-11. The application specified a DROP begin- date of August 1, 2004, and a DROP termination-date of July 31, 2009. At the same time, Valdez executed a notice of election to participate in the DROP, using the Division's Form DP-ELE. The notice likewise specified a DROP begin-date of August 1, 2004, and a DROP termination-date of July 31, 2009. Valdez signed the application and the notice before a notary public (Garcia). Each form required Valdez to acknowledge that he could not "add additional service, change options, or change [his] type of retirement after the DROP begin date." Garcia counter-signed both instruments and submitted them to the Division. Thereafter the Division sent Valdez an Acknowledgement of DROP Application and/or Notice of Election Form confirming the Division's receipt of his DROP application paperwork on April 21, 2004. Valdez entered the DROP in August 2004. Valdez claims that some months later, he discovered that the Florida Retirement System offers another plan that provides participants a menu of market-based investment products and options in which they can invest their retirement benefits. Valdez decided that he preferred this plan——which is called the Public Employee Optional Retirement Program ("Investment Plan")——to the Pension Plan and the DROP. Therefore, in November 2004, Valdez wrote a letter to Garcia requesting that he be allowed to quit the DROP and switch to the Investment Plan. Garcia responded in writing to Valdez's letter, telling him that what he had requested was not an available option. Valdez then took his case directly to the Division, which turned him down as well. The Division's denial of Valdez's request to rescind his decision to participate in the DROP is the preliminary agency action that opened the door to this formal administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Valdez's request to rescind his election to participate in the DROP. DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2005.
The Issue Whether Petitioner, by pleading no contest to four counts of petit theft, in violation of Section 812.014(2)(e), Florida Statutes, despite steadfastly maintaining her innocence, must forfeit her rights and benefits under the Florida Retirement System, pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Respondent Division of Retirement is charged with the responsibility of managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. (Joint Stipulation of Fact 1.) FRS is a public retirement system as defined by Florida law. As such, Respondent had deemed its action regarding the forfeiture of Petitioner's rights and benefits under FRS subject to administrative review. (Joint Stipulation of Fact 2.) Petitioner is a senior management service class member of FRS. (Joint Stipulation of Fact 3.) At all times material to the allegations of this case, Petitioner was employed by the Town of Callahan as a planning and zoning administrator. (Joint Stipulation of Fact 4.) On or about August 23, 2005, the State Attorney for the Fourth Judicial Circuit, through an assistant, filed a Third Amended Information charging Petitioner with (a) one (1) count of grand theft, contrary to the provisions of Section 812.014(2)(c), Florida Statutes; (b) two (2) counts of grand theft, contrary to the provisions of Section 812.014(2)(b)1., Florida Statutes; (c) nineteen (19) counts of official misconduct, contrary to the provisions of Section 839.25(1), Florida Statutes; and (d) one (1) count of petit theft, contrary to the provisions of Section 812.014(2)(e), Florida Statutes. (Joint Stipulation of Fact 5.) The events that formed the basis for the Third Amended Information occurred during Petitioner's tenure as an employee of the Town of Callahan. (Joint Stipulation of Fact 6.) The Third Amended Information outlines the violations to which Petitioner pled no contest and provides, in pertinent part, as follows: COUNT 1: BARBARA F. BOONE on or between May 10, 2001 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency or gasoline, the value of $300.00 or more but less than $20,000.00, the property of the TOWN OF CALLAHAN, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefits therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . COUNT 2: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than $100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with El Nino Community Development Block Grant 00DB-6M- 04-55-02-G16, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or the use of any person not entitled thereto . . . COUNT 3: BARBARA F. BOONE on or between October 1, 1999 and September 30, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use or endeavor to obtain or use U.S. currency, the value of $20,000.00 or more but less than $100,000.00, the property of THE TOWN OF CALLAHAN received in accordance with Housing Rehabilitation Community Development Block Grant 00DB-6B-04-055-02-H09, with intent to either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . * * * COUNT 23: BARBARA F. BOONE on or between October 1, 2000 and January 31, 2002, in the County of Nassau and the State of Florida, did knowingly obtain or use, or endeavor to obtain or use U.S. currency or cellular phone service, valued at One-Hundred Dollars ($100.00) or more but less than Three- Hundred Dollars ($300.00), the property of THE TOWN OF CALLAHAN, with intent to, either temporarily or permanently deprive THE TOWN OF CALLAHAN of a right to the property or benefit therefrom, or with the intent to appropriate the property to her own use or to the use of any person not entitled thereto . . . (Joint Stipulation of Fact 9.) Count 1 related to alleged misuse of a City gasoline credit card. Count 2 related to alleged dual billing of hours for the El Nino Block Grant. Count 3 related to alleged dual billing of hours for the HUD Block Grant. Count 23 related to alleged misuse of a City cell phone. (Exhibit 4: Circuit Court Hearing Transcript, pages 10-12.) Petitioner had filed a civil action against the City concerning all these issues before she was charged with them as crimes. (Exhibit 9: Informal Hearing Transcript, page 13.) On or about March 7, 2006, Petitioner entered a plea agreement with the State of Florida, wherein she acknowledged she would plead no contest (nolo contendere), while maintaining her innocence, to the "lesser included" offense of petit theft contained in Counts 1, 2, 3 and 23 of the Third Amended Information. The agreement provided, however, that Counts 1, 2, and 3 would be reduced to the lesser-included misdemeanor counts of petit theft, in violation of the provisions of Section 812.014(2)(e), Florida Statutes, and Counts 4 through 22 would be dismissed. (Joint Stipulation of Fact 7.) The first sentence of the plea agreement reads as follows: I hereby enter my plea of no contest for the reason it is in my best interest although I maintain my innocence. (Joint Stipulation of Fact 8.) On or about March 7, 2006, Petitioner pled no contest in accordance with the terms of the plea agreement. (Joint Stipulation of Fact 10.) During the plea dialogue, which included inquiry by the circuit judge taking the plea to ascertain if the accused understood the charges and was entering the plea voluntarily, Petitioner articulated that she was innocent of all charges. (Exhibit 4: Circuit Court Hearing Transcript, pages 5-13.) In accepting a nolo contendere plea and its concomitant plea agreement, a circuit judge is required to inquire and determine if there is a "factual basis" for the charges. To those types of questions at Petitioner’s plea dialogue Petitioner's counsel replied: . . . just for our purposes we do not agree that any of those facts are true, but we do agree, if they were true they would constitute a sufficient factual basis. (Exhibit 4: Circuit Court Hearing Transcript, pages 12-13.) The circuit judge then stated on the record: The Court finds that there is sufficient factual basis to support the pleas, and that the pleas have been entered into freely, willingly, and voluntarily. (Exhibit 4: Circuit Court Transcript, page 13.) Judge Robert Foster, Circuit Court Judge in the Circuit Court of the Fourth Judicial Circuit, in and for Nassau County, Florida, ordered that adjudication of guilt be withheld for good cause shown. Petitioner was ordered to pay $8,260 in restitution to the Town of Callahan and $386.00 in court costs. (Joint Stipulation of Fact 11.) The state attorney then entered a Code 30 nolle prosequi in accordance with the plea agreement. (Exhibit 4: Circuit Court Hearing Transcript, page 13.) On or about August 17, 2006, Respondent received from its legal counsel a report recommending that Petitioner's FRS rights and benefits be forfeited pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 12.) On August 21, 2006, Respondent approved the forfeiture of Petitioner's FRS rights and benefits pursuant to Section 112.3173, Florida Statutes. (Joint Stipulation of Fact 13.) On August 28, 2006, Respondent notified Petitioner, by agency action letter, of the forfeiture of her FRS rights and benefits and afforded Petitioner a point of entry to challenge its decision and to request an administrative review of the issues. (Joint Stipulation of Fact 14.) The Agency conducted an informal proceeding on or about February 19, 2007. At that hearing, Petitioner maintained, under oath, her innocence with regard to all criminal charges that had been alleged against her, including those to which she had pled "no contest." She further testified that she was not guilty on all counts and had pled "no contest" to some of the criminal charges because the stress of the criminal process had been taking a toll on her and her family. The stress on Petitioner was exacerbated by a mastectomy and her subsequent treatment for breast cancer conducted during the pendency of the criminal proceeding, the plea bargaining, and the plea itself. (Exhibit 9: Informal Hearing Transcript, pages 10-14.) After the informal proceeding, the cause was referred to the Division of Administrative Hearings for proceedings consistent with Section 120.57(1), Florida Statutes. Herein, Respondent presented no evidence refuting Petitioner's testimony and no evidence of her guilt in relation to the charges to which she had pled nolo contendere.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order determining that Petitioner’s rights and benefits under the Florida Retirement System have not been forfeited and reinstituting those benefits. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S 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 31st day of July, 2007.
