The Issue Whether Petitioner is entitled to purchase leave of absence retirement credit on behalf of James Gapinski, Petitioner's ex- husband and a deceased member of the Florida Retirement System.
Findings Of Fact Petitioner, Geraldine Gapinski, is the former spouse of James Gapinski, deceased. At the time of his death, Mr. Gapinski was an employee of Florida State University and a "vested" Florida Retirement Service (FRS) member. Petitioner is an employee of the Florida Department of Law Enforcement (FDLE) and an active member of FRS. Mr. Gapinski was continuously employed by Florida's Univeristy System from approximately 1970, until his death on November 20, 2000, with the exception of a period from September 10, 1976 to June 9, 1977, during which period he took an approved leave of absence. During the period September 10, 1976 to June 9, 1977, no contributions were made by Mr. Gapinski or on Mr. Gapinski's behalf to FRS toward his accruing retirement benefits and he earned no creditable service in FRS for this eight month period he was on his leave of absence. On May 4, 2000, Mr. Gapinski requested an audit and estimate of retirement benefits from Respondent. At the time of his request for an audit and estimate, Mr. Gapinski and Petitioner had begun a dissolution of marriage proceeding (divorce). At all times material, each litigant had independent legal counsel, and each lawyer was aware that Mr. Gapinski's FRS benefits were "on the table" for division of the marital estate in the course of the divorce proceedings. At all times material, Mr. Gapinski was terminally ill with cancer. On September 14, 2000, Mr. Gapinski applied for participation in the Deferred Retirement Option Program (DROP). His application (DROP Form DP11) requested a DROP "begin date" of September 1, 2000, and designated each of Mr. Gapinski's two adult daughters as 50 percent primary beneficiaries. Petitioner, who at that time was still married to Mr. Gapinski, was not even designated a secondary beneficiary. The application, which Mr. Gapinski signed, stated in pertinent part, I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law . . . I cannot add additional service, change options, or change my type of retirement after my DROP begin date (emphasis in original). The application also specified eight required acts before Mr. Gapinski could retire and become a DROP participant, including, but not limited to, 4. A check payable to FRS for any amount you owe, or a written statement that you do not wish to claim the service . . . . On September 15, 2000, Respondent provided James Gapinski with two estimates of benefits. Estimate No. 1 showed the benefit Mr. Gapinski would be entitled to if he chose to purchase the one year leave of absence for $6,820.52, providing for a DROP beginning date of September 1, 2000. This estimate further advised that 6.5 percent per annum would be posted on June 30, 2001. It also stated, Comments: The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. This amount must be paid for a DROP begin date of September 1, 2000. Mr. Gapinski was also notified of the need to purchase his leave of absence credit in a letter from Respondent dated September 15, 2001, stating, in pertinent part, as follows: The following items are pending. The amount due is to purchase service for your leave of absence from September 10, 1976 to June 9, 1977. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. * * * Completion of the Option Selection for FRS members, . . . AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. * * * Estimate No. 2 sent to Mr. Gapinski on September 15, 2000, showed the benefit Mr. Gapinski would be entitled to if he chose not to purchase his leave of absence and waited until March 1, 2001, to participate in DROP, when he would accrue 30 years of service without counting the gap left by his 1976-1977 leave of absence. This estimate also stated: Comments: This estimate does not include the purchase of your leave of absence and is provided for comparison purposes. It is provided for DROP purposes with a March 1, 2001, DROP begin date (see the enclosed DROP brochure). If you do not elect to pay the amount due and purchase the service it represents, we must have written notice of your intent. Apparently, neither attorney ever saw any of the foregoing papers. The thrust of Petitioner's attorney's actions and advice was to obtain survivorship retirement benefits, not necessarily DROP benefits, for Petitioner. On October 23, 2000, Petitioner's attorney was told by telephone by Ms. Ferguson, a representative of Respondent, that Petitioner must make a non-party request to release Mr. Gapinski's retirement information to her. So far as this record shows, no third party request was ever made, but that day, Petitioner's attorney and Ferguson also generally discussed retirement pay-out options that Mr. Gapinski could elect, and Petitioner's attorney was generally aware that the DROP process was not complete. On October 24, 2000, Petitioner's attorney discussed by telephone, retirement, divorce, and survivorship benefit issues and life insurance payment options with Ms. Hudson, a representative of Respondent. On October 26, 2000, Petitioner's attorney discussed, by telephone, retirement options and steps to be taken, with both Ms. Ferguson and Mr. Helms, another of Respondent's representatives. Mr. Helms told her the DROP application was not complete but if the couple were still married, Option No. 3 would give the most benefit for survivorship benefits. During the October 2000, conversations, Petitioner's attorney made each of Respondent's representatives aware of the impending divorce and of Mr. Gapinski's impending death, but the attorney did not specifically inquire how soon the lapsed time payment must be made and none of Respondent's representatives volunteered information on that issue. At Mr. Gapinski's request, the divorce proceeding was bifurcated. Prior to the divorce, Petitioner's attorney had done independent research and was aware that Mr. Gapinski had to pay the $6,820.52, in order to perfect the DROP program and in order to complete 30 years of creditable service in order to be eligible for survivorship benefits on his retirement. This information was communicated to Petitioner by her attorney and whether or not Petitioner would be willing to pay half the amount was discussed. Petitioner stated she would be willing to pay half the amount owed. As a condition to her agreement to bifurcate the divorce proceeding, that is, as a condition to letting Mr. Gapinski out of the marriage but reserving jurisdiction in the Circuit Court to resolve certain disputes concerning assets and entitlements, Petitioner required that the couple enter into an "Agreement" on October 27, 2000, which provided, in pertinent part, as follows: BIFURCATION: The Husband shall be entitled to bifurcation of the dissolution action. The marriage of the parties shall be dissolved with the Court reserving on all remaining unresolved issues not addressed in this agreement. In light of the Husband's health, the Wife shall schedule and appear at an ex parte hearing to dissolve the marriage, to obtain Court-ordered approval of this agreement, and to ensure the Court's reservation of jurisdiction to hear any and all issues pertinent to support and the division of property not yet settled by the parties. * * * B. The Wife further agrees that all marital assets awarded to her in this cause (including proceeds from the Husband's retirement and life insurance in the event the Husband predeceases her), shall be placed in an inter vivos trust, from which she may draw living, personal, and medical expenses, during her life, with the parties' adult daughters named as the irrevocable beneficiaries of the remainder of such trust. C. The Husband agrees to bequeath sufficient marital assets, awarded to him in this cause, to the parties' adult daughters to aid in their comfort and support. HUSBAND'S RETIREMENT: The Husband shall elect an option on his retirement with the State of Florida that provides for survivorship benefits for the benefit of the Wife. The wife shall be entitled to all such retirement survivorship benefits which, like the other assets she receives in this bifurcated action, shall be placed in an inter vivos trust for her living, personal and medical expenses, during her life, with the adult daughters as irrevocable beneficiaries of the remainder of the trust. The Husband shall, simultaneously with the signing of the agreement, execute such documents as are necessary to create retirement survivorship benefits in accordance with this term. Should the Husband fail to execute the survivorship option on his retirement or should he ever change such option in contravention of this term, the Husband agrees that the obligation of this term is binding upon his estate, which estate shall be responsible for paying such retirement survivorship benefits to the Wife. The Agreement could have, but did not, specifically require that the leave of absence be purchased by either Mr. Gapinski or Petitioner. Petitioner's and Mr. Gapinski's Agreement does not bind the Respondent, which was in no way privy to that Agreement. Petitioner and Mr. Gapinski's marriage was dissolved on November 1, 2000. Petitioner's attorney provided Mr. Gapinski, through his counsel, with DROP forms (FST-12 and FRS-11o). On November 1, 2000, Mr. Gapinski executed Option 2 for his DROP retirement on these forms, naming Petitioner as his sole primary beneficiary and negating his prior designation of his adult daughters as beneficiaries. Option No. 2 provides for a reduced monthly benefit payable for the FRS member's (Mr. Gapinski's) lifetime. If the member dies before receiving 120 monthly payments, his designated beneficiary (Petitioner) would receive a monthly benefit in the same amount until the monthly benefit payments to both of them equaled 120 monthly payments, when payments would terminate. Option No. 2 is available for regular service retirements as well as DROP retirements. Option No. 3 is also available for regular service retirements and DROP retirements. Option No. 3 would have provided a reduced monthly benefit payable for Mr. Gapinski's lifetime, and upon his death, his joint annuitant, if living, would receive a lifetime monthly benefit payment in the same amount as Mr. Gapinski was receiving. Then, no further benefits would be payable after both he and his joint annuitant were deceased. There are exceptions to the foregoing general description, none of which matter to the case at bar. Option No. 3 would clearly provide more money to Petitioner if she were eligible. On November 2, 2000, Petitioner's attorney had three short telephone conversations with Mr. Helms, who opined that since Mr. Gapinski had signed up for DROP while the couple were still married, Petitioner could still get Option No. 3, with DROP retroactive to September 1, 2000, but that the leave of absence must be paid for. Apparently, Petitioner's attorney did not ask what would happen if the gap was not paid for before Mr. Gapinski died and no representative of Respondent volunteered that information. The thrust of Petitioner's case continued to be to persuade Mr. Gapinski to pay the whole amount due and to change his Option election to No. 3. On or about November 3, 2000, Mr. Helms sent an estimate letter based on selecting a September 1, 2000, retirement date with Option No. 1, to Mr. Gapinski. This estimate letter stated Mr. Gapinski had 30.11 years of creditable service. It did not mention DROP or any pay back. It did state that no lump sum retirement or cash value payments were available. (Second page of attachment to Exhibit P-11). On November 3, 2000, Petitioner's attorney wrote Mr. Gapinski's attorney that Mr. Gapinski was considered by Respondent to be in the DROP program as of September 1, 2000, not March 1, 2001, as supposed before the divorce, but he had not bought back his leave by paying $6,820.52, and requested that Mr. Gapinski change his Option Election Form to Option No. 3 and authorize the payment of the $6,820.52 to Respondent. On or about November 9, 2000, Petitioner's attorney sent the already-executed FST-12 (Beneficiary Designation Form) and FRS-11o (Option Selection for FRS Members) showing Option No. 2 to Respondent. Mr. Helms acknowledged receipt. On or about November 9, 2000, Mr. Helms told Petitioner's attorney that the forms were correct and anyone could pay the $6,820.52. The attorney felt Mr. Gapinski was enrolled in DROP but that the $6,820.52 was still needed. On November 15, 2000, Petitioner's attorney sent Mr. Helms a letter memorializing their conversation, in which Mr. Helms had indicated it was not necessary for Petitioner to sign below the Option No. 2 selection paragraph on FRS 11o as long as she was aware of the option Mr. Gapinski had selected. On November 20, 2000, Mr. Gapinski passed away without anyone having purchased his leave of absence credit. Mr. Gapinski was only 57 years of age when he died. DROP retirement or regular service retirement with full benefits is possible at 62 years of age or upon attaining 30 years of creditable service. Mr. Gapinski remained in regular employment until his death. Because he had not purchased the leave of absence credit, Mr. Gapinski died with only 29 years and 9 months of creditable service for purposes of retirement. In other words, he was 3 months and ten days short of the 30-year retirement mark necessary to activate DROP or regular service retirement. Petitioner never communicated directly with Respondent until after Mr. Gapinski's death. Mr. Gapinski's will provided for the effective disinheritance of Petitioner to the extent provided by law. On December 14, 2000, Petitioner's attorney spoke by telephone with Mr. Helms, who told her he thought Petitioner could still pay the leave of absence money but he would call her back. On December 15, 2000, Stanley Colvin, another of Respondent's representatives, telephoned Petitioner's attorney to say Petitioner could not pay the amount after Mr. Gapinski's death. At no time prior to Mr. Gapinski's death did any representative of Respondent affirmatively represent to anyone that Petitioner could pay the money after Mr. Gapinski's death or the conditions under which no benefits would be paid or specifically what would happen if Mr. Gapinski died before the money was paid by someone. By a December 15, 2000, letter, Respondent notified Petitioner that since Mr. Gapinski had elected not to purchase the leave of absence, he could not have reached the required 30 years of service necessary to participate in the DROP program until March 1, 2001. It further stated that since Mr. Gapinski's death occurred before completion of the required months necessary to participate in DROP, his DROP application was cancelled and his choice of Option No. 2 was nullified. Moreover, Mr. Gapinski was viewed as an active FRS member on the date of his death, and because Petitioner, though designated as his beneficiary was not also a joint annuitant, she could only receive a refund of Mr. Gapinski's retirement contributions in the amount of $4,719.19,and was not eligible to receive Option No. 3. Respondent did not send a similar letter to prior beneficiaries, the decedent, or his estate/personal representatives. Petitioner requested a review, and on February 2, 2001, Respondent issued its proposed final agency action letter, to the same effect as the December 15, 2000, letter. Respondent did not send a similar proposed final agency action letter to prior beneficiaries, the decedent, or his estate/personal representatives. However, the undersigned notes that Mr. Gapinski's adult daughters, who also were his joint personal representatives, were present in the courtroom on September 24, 2001, the first day of hearing. As of the second day of hearing on October 21, 2001, the estate had been closed and the personal representatives had been discharged. Mr. Larry Hunnicutt, Benefits Administrator for the Bureau of Retirement Calculations, Division of Retirement, testified by deposition. He indicated that Respondent Division of Retirement has no rules in place specifically addressing DROP. Therefore, in DROP cases, Respondent interprets and applies Chapter 121, Florida Statutes, and the existing rules addressing regular service retirement. In practice, Respondent gives DROP applicants a 90-day grace period from the date of application in which to finalize all the outstanding documents or other requirements for DROP eligibility, including payments of amounts due, even though there are no provisions in place authorizing a grace period for DROP applicants. If there are money amounts due, the member must pay up during this period. If the member fails to pay up during this period, the DROP application and the option selected for DROP is cancelled by a certified letter, but the designated beneficiary remains intact. Herein, because the amounts were not paid before Mr. Gapinski died, and because it would serve no purpose to notify the decedent, who could no longer complete his DROP requirements, Respondent did not send the deceased member a cancellation of his DROP application and Option No. 2 selection. Rather, it treated the DROP application and option selection as null and void and notified his ex-wife, the designated beneficiary, of what Respondent understood to be her rights. In this notification, Respondent applied the statutes as its personnel understood them to apply to a member who dies in active service prior to reaching either 62 years of age or 30 years of creditable service. Respondent would have permitted Petitioner to pay the money on Mr. Gapinski's behalf only during his lifetime. If the amount due had been paid, and Petitioner were qualified for Option No. 2, she would receive approximately $500,000 plus cost of living increases as opposed to $4,719.19. She would receive considerably more if she qualified for Option No. 3.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to purchase leave of absence credit on the account of James Gapinski. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
Findings Of Fact The Division of Retirement will make no Findings of Fact relating to whether Petitioner's disability was in-line-of-duty. Accordingly, for the reasons mentioned previously, all findings contained in paragraphs 5, 6, 7, and 8, of the recommended order are rejected. However, the Division accepts the remaining Findings of Fact contained in the recommended order. As taken from the order these findings are: Herman Williams was an employee of the Department of Transportation and a member of the Florida Retirement System. The Division of Retirement approved payment of regular disability benefits to Herman Williams. Herman Williams is currently receiving and accepting these benefits. Herman Williams is an illiterate Seminole Indian, 62 years of age. Williams' duties with the Department of Transportation were driving a mowing tractor and cleaning out roadside ditches. Williams worked for the Department of Transportation approximately 21 years 11 months prior to being placed on the retired roles [sic]. On May 1, 1975, Williams was driving his tractor in the course of his regular employment at the Department of Transportation when the power steering of the tractor malfunctioned causing the front wheels to swerve violently, wrenching the steering wheel in Williams' hands and nearly throwing him from the tractor. Repairs had to be made to Williams' tractor by a Department of Transportation mechanic because the tractor was inoperative. The mechanic discovered a loose nut in the power steering assembly when he exchanged the power steering unit in Williams' tractor with another from the maintenance yard. When the new unit was installed in Williams's tractor it functioned normally. When the power steering from Williams' tractor was installed in the other tractor, it also functioned normally. The mechanic stated that the loose nut which he had discovered could cause the tractor to swerve violently in the manner Williams' had described. On the afternoon of May 1, 1975, Williams reported this instant [sic] to his supervisor, David McQuaig. Mr. McQuaig inquired as to any injuries to Williams and the tractor. Williams reported to McQuaig that the tractor had not been harmed and that he was only sore and stiff. No report of injury was prepared by McQuaig whose duty it was to file such reports. Williams' condition did not materially improve after seeking medical treatment by Dr. Albritton. Williams remained on sick leave until August 11, 1975, when it was exhausted. Williams then took annual leave from August 12, 1975 until September 23, 19975, when his retirement became effective. When the Petitioner's sick leave was exhausted, he was contacted by his supervisor in the Department of Transportation. He suggested that Williams could retire on disability if two physicians would state that he was disabled. This letter was read to Williams by his son, Eddie, because Williams is illiterate. Retirement application forms were provided Williams by the Department of Transportation. The physician report forms were completed by Dr. Albritton and Dr. Wilkerson. The statement of disability by employer form was completed by Williams' supervisor, David A. Young, Maintenance Engineer, for the Department of Transportation. Young stated that he completed the Statement of Disability by Employer, indicating that the application was for regular disability benefits because he had determined that no workman's compensation claim had been made by Williams and because Dr. Wilkerson's medical report had stated that the injuries occurred at Williams's home. The determination that the application was for regular disability benefits was solely Young's. The Application for Disability Retirement signed by Williams was prepared by personnel at the Department of Transportation District Office. This form was signed by Herman Williams; however, this form does not make provision for the member to state the nature of the disability benefits sought. Eddie Williams, son of Herman Williams, took his father to sign the forms at the Department of Transportation office. These forms were not explained to Williams, nor did Eddie Williams read them. Herman Williams was also unaware that such a benefit existed. Herman Williams stated he sought disability benefits based upon his injury on the job. Disability retirement was not discussed between Herman Williams and David Young. Based upon the application submitted in his behalf, the Division of Retirement made a determination that Williams was entitled to regular disability benefits. Williams was unaware that he was not receiving the in-line-of-duty benefits until his son inquired as to how much money he was receiving. When he was advised, he told his father that it appeared to be too little money. At this point Eddie Williams discovered that the application had been for regular disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the administrator permit the applicant to file an amended application for disability in-line-of-duty retirement, and, further, that said application be approved. DONE and ENTERED this 8th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. W. Chalkley, III, Esquire Post Office Box 1793 Ocala, Florida 32670 Douglas Spangler, Jr., Esquire Asst. Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT DEPARTMENT OF ADMINISTRATION HERMAN H. WILLIAMS, Petitioner, vs. CASE NO. 77-982 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. / FINAL AGENCY ORDER A petition for formal proceedings having been duly filed, and a request for hearing officer having been duly made, a hearing was held in the above-styled cause pursuant to the provisions of Section 120.57(1), Florida Statutes, before the Honorable Stephen F. Dean, Hearing Officer, in Ocala, Florida, on September 15, 1977. The Petitioner requested relief from the Division's determination that Petitioner was not entitled to resubmit an application for disability retirement requesting in-line-of-duty disability retirement benefits because he had previously applied for and accepted regular disability retirement. The purpose of the hearing was to determine the factual basis for Petitioner's claim that he should be allowed to apply for in-line-of-duty disability retirement benefits. APPEARANCES AT THE HEARING: Eric E. Wagner, Esquire J. W. Chalkey, III, Esquire Law Offices of Eric E. Wagner, P.A. Post Office Box 1763 Ocala, Florida 32670 For the Petitioner E. Douglas Spangler, Jr., Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 For the Respondent The Hearing Officer entered his Recommended Order on December 8, 1977, in which he sustained Petitioner's assertion and concluded, on the basis of the findings made as a result of the hearing, that Petitioner should be entitled to resubmit his application and request in-line-of-duty disability benefits. In addition to this determination, the Hearing Officer found that Petitioner was in fact entitled to in-line-of-duty disability retirement benefits. In making this latter conclusion, both as a matter of fact and of law, the Hearing Officer went beyond his scope of authority. As will be developed more fully herein, the Hearing Officer was without jurisdiction to consider the issue of whether Petitioner was in fact entitled to the in-line-of-duty benefits. Therefore, so much of the recommended order as purports to address this issue is of no effect, being the result of a hearing that did not comply with the essential requirements of law.
Findings Of Fact The Petitioner, Robert Gilmour, was employed by the Dade County School Board until July 2, 1984, when he terminated his employment effective June 15, 1984. Mr. Gilmour terminated his employment by placing a telephone call to his supervisor. At the time of the telephone call, Mr. Gilmour was out of the Miami area on vacation. Mr. Gilmour did not return from vacation until August 8, 1984. On August 9, 1984, Mr. Gilmour went to the Office of Personnel Retirement Section, of the Dade County School Board, where he executed an application for early retirement. Mr. Gilmour's application for retirement was received by the Benefits Calculation Section of the Division of Retirement on August 15, 1984, in Tallahassee, Florida. The Division of Retirement assigned to Mr. Gilmour an effective date of retirement of September 1, 1984, the first day of the month following the date on which the Division of Retirement received his application for retirement. In May, 1984, Mr. Gilmour, placed a telephone call to Louise Syrcle, an employee of the School Board in the Office of Personnel, Retirement Section. Mr. Gilmour was considering retirement and wanted to discuss the matter with Ms. Syrcle. At the time of the telephone call, Ms. Syrcle was on her vacation and then was subsequently on sick leave because of a broken back. Ms. Syrcle was absent from employment from April 23, 1984 until June 25, 1984. In the course of the telephone call, Mr. Gilmour was told of Ms. Syrcle's broken back and was told that appointments were being made only for those teachers who had already decided to retire. Because he had not yet made that decision, he did not make an appointment. Further Mr. Gilmour did not seek to speak with any other personnel in that office. Art Miles Ms. Syrcle's supervisor, and other personnel were available in the Dade County School Board's Office of Personnel to respond to retirement requests and they did process numerous retirement requests during Ms. Syrcle's absence. At no time did Mr. Gilmour seek, read or receive a copy of the Summary Plan Description brochure which was admitted as Respondent's Exhibit C. Additionally, at no time did Mr. Gilmour make inquiry of anyone at the Division of Retirement regarding his retirement options. Instead, Mr. Gilmour relied on information gleaned from casual conversations with colleagues, which information was not correct. At all time relevant hereto, the Division of Retirement has maintained a staff of counselors who are available to consult with members and agencies on matters concerning retirement, including deadlines for filing applications. As a result of Mr. Gilmour's July 2, 1984, telephone call, in which he terminated his employment, the Dade County School Board sent a certification of service and earnings, Form FT4A, on July 2, 1984. This form was received by the Division of Retirement on July 9, 1984. While this form may have indicated that Mr. Gilmour had terminated his employment with the Dade County School Board, no information contained in that form indicated his intent to retire. When Mr. Gilmour went to the Office of Personnel, Retirement Section, of the Dade County School Board on August 9, 1984, he first learned that the rules of the Division of Retirement required that the application for retirement be filed within 30 days of the termination date in order for the retiree to receive retirement benefits retroactive to the date of termination. Because Mr. Gilmour failed to file his application for retirement until August 15, 1984, he did not receive retirement benefits for the months of July and August, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement enter a Final Order denying Robert Gilmour retirement benefits for the months of July and August, 1984, and establishing Mr. Gilmour's effective date of retirement to be September 1, 1984, the first day of the month following his application for retirement. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of May, 1985.
Findings Of Fact The Petitioner is the surviving spouse of Huldah C. Roach. At the time of her death, Mrs. Roach was a retired member of the Florida Retirement System, and was receiving retirement benefits pursuant to Chapter 121, Florida Statutes. The Respondent, Division of Retirement, sent Mrs. Roach her retirement benefits for the month of June, 1977, at the end of that month. The warrant for the retirement benefit was received by the Petitioner on or about June 30, 1977, and was deposited by him in the joint account which he had shared with Mrs. Roach. On June 8, 1977, Mrs. Roach died. By letter dated July 4, 1977, the Petitioner advised the Respondent of his wife's death. He also advised the Respondent that he was holding the benefit warrant, but in a telephone conversation on August 22, 1977, he advised the Respondent that the warrant had been deposited in the joint account. By letter dated August 24, 1977, the Respondent advised the Petitioner that Mrs. Roach was entitled to retirement benefits only up to the date of her death, and that $330.81 of the June payment thus represented an overpayment. The letter included a demand for repayment of the asserted overpayment. The Respondent made no effort to collect the asserted overpayment between August 24, 1977, and December 5, 1979, when the Respondent, through counsel, forwarded a demand letter to the Petitioner. The petitioner was not able to identify what expenses he paid from the June, 1977, retirement benefit. Mrs. Roach received retirement benefits in excess of her total contributions to the Florida Retirement System, and under the retirement option that she selected, she was entitled to no additional benefits after the day of her death. The Respondent has consistently interpreted provisions of the Florida Retirement Law as allowing payment of retirement benefits only through the date of a retiree's death.
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue for consideration in this matter is whether Peter McRedmond, the deceased, should have been permitted to change the beneficiary on his state retirement plan to elect an annuity for the benefit of his estate and the Intervenor, Martin Horton.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Division of Retirement, was the state agency responsible for the control, operation and monitoring of the State Retirement System. Petitioner, Eugene McRedmond, is the surviving brother of Peter McRedmond, deceased, a former member of the Florida Retirement System. Intervenor, Martin V. Horton, is the former live-in friend and companion to Peter McRedmond and the individual who claims an interest in Peter's retirements benefits. For some period prior to 1988, Peter McRedmond was employed at Manatee Community College as a psychology professor and as such was a member of the Florida Retirement System, (FRS). He was so employed until he retired for disability in early 1990. Before that time, however, in August or September, 1988, he was diagnosed as having AIDS by Dr. Warren D. Kuippers, a physician with the Community Migrant Health Center. Tests taken at or around that time indicated he was suffering from toxoplasmosis, a disease of the brain in which significant portions of that organ are eaten by parasites, resulting in intermittent periods of impaired judgement and reasoning ability. He also suffered numerous other medical problems including weight loss, a wasting syndrome, general weakness and fatigue. Notwithstanding the seriousness of his illness, because Mr. McRedmond wanted to qualify for retirement under the FRS system, he continued to work for another year to meet the minimum requirements for retirement. On April 27, 1990, he made application for disability retirement to be effective July 1, 1990. As a part of that application, Mr. McRedmond selected Option 1 under the FRS as the method under which he desired his benefits be paid and named the Intervenor, Mr. Horton, as his designated beneficiary to receive any benefits legally due after his death. Mr. McRedmond could have elected to receive benefits under either Option 1 or Option 2 of the plan. Option 3 was not available to him because of his marital status. Under Option 1, he would receive payments of $639.33 per month for the remainder of his life, regardless of how long he lived. Under Option 2, he would have been paid a slightly lesser monthly sum, $587.51, for the rest of his life, but not less than 10 calendar years, and if he were to die before 10 years were up, the payments would go to his designated beneficiary. In May, 1990, consistent with the procedure then in effect within the Division, Mr. McRedmond was sent a second Option selection form to give him as much information as was possib1e and to make sure he understood what he was doing as it related to his option selection. Mr. McRedmond again selected Option 1, had his signature notarized, and returned the executed form to the Division. The individual who performed the notary service did not recall the transaction but indicated her routine practice was not to notarize a document for anyone who did not appear to know what he was doing. Peter McRedmond died on August 23, 1990 from the disease with which he was afflicted. Several months before his death, in mid June, 1990, Mr. McRedmond and Mr. Horton discussed finances and what Horton could expect after McRedmond's death. It is clear that Mr. McRedmond wanted to make arrangements for Mr. Horton to finish his education without having to work while doing so. At that time, McRedmond's life insurance policy, in the face amount of $60,000.00, had Horton as the beneficiary. Shortly before his death, however, upon the prompting of his brother, Eugene, Petitioner herein, Peter McRedmond directed the policy be changed to make his estate the beneficiary. This was done by Eugene through a power of attorney. There was also some discussion of an additional $500.00 per month which was to go to Mr. Horton, but no one, other than Mr. Horton, recalls this. Also shortly before his death, Mr. McRedmond and Mr. Horton travelled to the family home in Connecticut for several weeks. During that time, Mr. McRedmond had at least one major seizure and family members noticed that while he was sometimes forgetful, for the most part his thinking was rational and normal. There can be little doubt that Mr. McRedmond had deep feelings for Mr. Horton and wanted the latter to be provided for after his death. Friends of both relate the numerous comments McRedmond made to that effect and are convinced that at the time he made the contested election, Mr. McRedmond was not of sound mind sufficient to knowingly make the choice he made. To be sure, the ravages of his disease had taken its toll and there were numerous occasions on which he was not lucid or competent to determine issues such as here. On the other hand, the benefits administrator with whom McRedmond talked at the time he selected his retirement plan option was totally satisfied that at that time, he fully understood the nature and effect of the option he selected and was choosing that which was consistent with his desires at the time. By the same token, the notary, whose testimony was noted previously herein, also was satisfied he knew what he was doing at the time of the second election. In its final configuration, Mr. McRedmond's estate includes all his assets, including the proceeds of the insurance policy previously designated to go to Mr. Horton, for a total of approximately $120,000.00. According to the terms of the will, the estate is to be put into a trust from which Mr. Norton is to receive $1,000.00 per month for his lifetime, as well as all his medical expenses. Since Mr. Horton has tested HIV positive, these can be expected to be extensive. Eugene McRedmond is the executor of the estate. Petitioner and Mr. Horton claim that since the trust contains all of Peter's assets existing at his death, the only other source of the additional $500.00 per month would be the benefits from the FRS. Both cite this as evidence of Mr. McRedmond's intent that the option selection providing for payment after death was his intention. This does not necessarily follow, however. Notwithstanding what Petitioner and Intervenor state were his intentions, Mr. McRedomnd took no action to make the change in option selection which would have effectuated them. Instead, he went out of town to visit family for several weeks, and even after receipt of the first retirement check, received on July 31, 1990, still took no action to make the change. During this period, after the return from Connecticut, Mr. McRedmond's condition deteriorated to the point he was often bedridden and was periodically unaware. However, there is ample evidence to indicate that he was often lucid during this period and still took no action to change his retirement option. During this time, Mr. Horton conducted come of Mr. McRedmond's business affairs for him pursuant to specific instructions. These included making bank deposits and as a part of one of these deposits, when Horton was to deposit two checks as requested by McRedmond, he also deposited the first retirement check. Horton and Eugene McRedmond both claim that at no time did Peter McRedmond ask or authorize him to do so. In a visit that Petitioner made to his brother in early August, 1990, just weeks prior to Peter's death, according to Petitioner his brother explained he had selected the wrong retirement option and requested that Eugene attempt to change the election. Peter gave Eugene a Power of Attorney with which he was to do this as well as to change the beneficiary on the life insurance policy. Consistent with those instructions, Eugene wrote a letter to the Division explaining the situation and that the check had been deposited by mistake. On August 13, 1990, Eugene telephonically contacted the Division where he spoke with Melanie White. During this conversation, in which he again spelled out the circumstances which he believed constituted the mistaken election, he was told to file a power of attorney. When he did this, the Division would not honor it claiming that since it had been executed in May, 1990, some three months earlier, it was not current. Subsequent to the death of Peter McRedmond and the filing of the claim against the Division, Eugene McRedmond and Martin Horton have entered into an agreement whereby any sums recovered from the Division will be split with 25% going to Mr. Horton and 75% going to the Trust. Upon the death of Mr. Horton, any sums remaining in the trust will be split by Eugene McRedmond and another brother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's and Intervenor's claims for retirement benefits under Option 2 of the Florida Retirement System retirement plan, on behalf of Peter McRedmond, be denied. RECOMMENDED in Tallahassee, Florida this 29th day of July, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Buildi5g 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clark of the Division of Administrative Hearings this 29th day of July, 1991 APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7104 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER AND INTERVENOR: Accepted and incorporated herein. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Third sentence not proven. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted that Peter McRedmond had numerous conversations with friends about providing for Mr. Horton, but it was not established that he mentioned using his retirement benefits for that purpose. & 9. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not necessarily following from the facts. Rejected as speculation not supported by fact, except that Petitioner claims Peter desired to change the option selection. First sentence accepted. Second sentence accepted in so far as it asserts Peter told Horton he would receive a monthly sum of $1,000.00. Balance rejected. Accepted and incorporated herein. Rejected as speculation and conclusion except for first sentence and first clause of second sentence. Accepted and incorporated herein. 17.-20. Accepted and incorporated herein. 21. First and second and last sentences accepted. 22.-24. Accepted. Accepted and incorporated herein. Accepted. & 28. Accepted. 29. Irrelevant. FOR THE RESPONDENT: 1-4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. 8.-10. Accepted. Ultimate finding accepted. On the date he filed his application, Peter McRedmond was capable of understanding what he was doing and the implications thereof. & 13. Rejected as comments of the evidence and not Findings of Fact. First four sentences accepted. Remainder rejected except that McRedmond wanted Horton to get at least $1,000.00 per month for life, and more if possible. & 16. Accepted except for last two sentences of 16. Accepted except for last sentence which is a comment on the evidence and not a Finding of Fact. Accepted. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. COPIES FURNISHED: Edward S. Stafman, Esquire Stafman & Saunders 318 North Calhoun Street Tallahassee, Florida 32301 Stanley M. Danek, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Bldg. C 1639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to receive benefits under the retirement plan of his deceased mother, Violet Portee, pursuant to the Florida Retirement System, Chapter 121, Florida Statutes. 1/
Findings Of Fact Violet Portee was employed by Jackson Memorial Hospital ("Jackson") in Dade County, Florida, as a ward clerk from 1970 through October 3, 1990. Mrs. Portee retired from her employment at Jackson effective December 1, 1990. 4/ Mrs. Portee was a member of the Florida Retirement System. Petitioner is the son of Mrs. Portee and Mrs. Portee's closest surviving relative. Mrs. Portee was diagnosed with terminal, gastric cancer sometime in August, 1990. Petitioner first learned of his mother's condition from the attending physician when Petitioner visited his mother in the hospital. Mrs. Portee was admitted to the hospital for approximately one week on three separate occasions between August, 1990, and December, 1990. She began taking medications for pain in November, 1990. Her pain medication included Percodan, Tylenol 3 with codeine, Demerol, and morphine. Mrs. Portee went on sick and annual leave, and eventually went on leave without pay. Mrs. Portee executed a power of attorney in favor of her son on October 25, 1990. On November 14, 1990, Mrs. Portee met for approximately an hour and a half with Luis Gonzalez, a compensation specialist in the Jackson Human Resources Division. One of Mr. Gonzalez's primary functions is counseling employees on retirement matters. Mrs. Portee completed a request for estimate of her retirement benefits ("FRS Form FR-9") and her application for retirement ("FRS Form FR-11"). A retiree may select one of four options for retirement benefits on the FRS Form FR-11. Mrs. Portee selected Option 1 on her Application For Service Retirement, Form FR-11. Option 1, Member Benefit Only, provides maximum monthly benefits for the retiree during his or her lifetime but provides no benefit for survivors of the retiree. Option 2, Ten Years Certain, provides benefits to the retiree during the retiree's lifetime and, in the event of the retiree's death within 10 years of the date of retirement, the same monthly amount is paid to the retiree's beneficiary for the balance of the 10 year period. The monthly benefit to the retiree under Option 2 is paid at an actuarial rate that is less than that paid under Option 1. Options 3 and 4 provide benefits to joint annuitants. 5/ Sometime before November 28 or 29, 1990, Petitioner and Mr. Gonzalez discussed the retirement status of Mrs. Portee. Petitioner asked Mr. Gonzalez for instructions on how to change the option selected by Mrs. Portee on her Application For Service Retirement, Form FR-11, from Option 1 to Option 2. Mr. Gonzalez explained that Mrs. Portee's selection of options could be changed in one of two ways. First, Mrs. Portee could come into Mr. Gonzalez's office, execute a new Form FR-11, and select Option 2. Second, Mrs. Portee could return the first retirement benefit warrant uncashed to the Division of Retirement and write on the warrant that she wished to change the benefits option from Option 1 to Option 2. Mrs. Portee was too ill to return to Mr. Gonzalez's office to execute a new retirement option. Petitioner decided to wait and return the first benefit warrant uncashed and request a change in the options selected. The first benefit warrant was dated December 31, 1990, Warrant No. 0580615. Mrs. Portee died on December 6, 1990, before receiving the first benefit warrant. The first benefit warrant was neither cashed nor returned to the Division of Retirement with written instructions to change the selection of benefit from Option 1 to Option 2. During his conversations with Mr. Gonzalez, Petitioner disclosed neither the seriousness of Mrs. Portee's medical condition nor that Petitioner had power of attorney for Mrs. Portee. If Mr. Gonzalez had known either fact, he would have proceeded more expeditiously to change Mrs. Portee's selection of Option 1 to Option 2. Petitioner and Mr. Gonzalez next spoke on December 8, 1990. Petitioner had telephoned Mr. Gonzalez on December 6, 1990, but Mr. Gonzalez was not in. When Mr. Gonzalez returned Petitioner's telephone call on December 8, 1990, Petitioner informed Mr. Gonzalez that Mrs. Portee had died two days earlier. A meeting between the two men was set for December 18, 1990. At the meeting on December 18, 1990, Petitioner inquired about changing his mother's retirement benefits from Option 1 to Option 2. Mr. Gonzalez telephoned the Division of Retirement in Tallahassee, Florida, and was advised that Mrs. Portee's retirement benefits option selection could not be changed after her death. A final meeting was conducted on December 24, 1990, between Petitioner, Mr. Gonzalez, and Mr. Brian Derer, a benefits specialist with Jackson. Petitioner had come into the office to complete certain documents concerning Mrs. Portee's life insurance. During this meeting, Petitioner informed Mr. Gonzalez and Mr. Derer for the first time that Petitioner had power of attorney from Mrs. Portee. Mr. Gonzalez informed Petitioner that there was nothing he could do to change Mrs. Portee's option selection after her death. Mr. Gonzalez explained that he was an employee of Jackson and that neither he nor Jackson was an agency of the Division of Retirement or the Florida Retirement System. Petitioner contacted the Division of Retirement on January 14, 1991, for assistance. Petitioner was advised by Stanley Colvin to write to the Division of Retirement. In response to Petitioner's written request, the Division of Retirement advised Petitioner that the only benefit to be paid was a return of contributions to the retirement plan.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent should enter a final order awarding Petitioner those benefits that are most favorable to Petitioner pursuant to Sections 121.091(6), (7)(b), and (8), Florida Statutes. DONE and ENTERED this 22nd day of July, 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991.
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.
Findings Of Fact Eugene L. Borus began employment with the Department of Transportation (DOT) in February, 1962, and was enrolled in the Florida Retirement System (FRS) as a mandatory member. In April, 1976, he terminated employment and applied for retirement. He was retired effective May 1, 1976, with 12.33 years of credible service (Exhibit 2). Mr. Borus was reemployed on May 23, 1977, by DOT. During 1977 and under the provisions of the "Reemployment After Retirement" provisions of Section 121.091(9), Florida Statutes, Petitioner received both his salary and his retirement benefit up to 500 hours of employment at which point his retirement benefits ceased. Beginning January 1, 1978, and on each January 1 thereafter Petitioner was again paid his retirement benefit up to 500 hours of employment after which the retirement benefit was discontinued. In early 1984, Mr. Borus applied to the Division to have his 1976 retirement cancelled and his employment service with DOT since 1976 included in his creditable service so that at such time as he would again retire, his total creditable service would include all his employment time. If this transpired, his future retirement benefits would be greater than those currently paid. His request was denied by the Respondent by letter dated April 5, 1984 (Exhibit 1). No member of FRS who has retired and drawn retired pay, except for those excepted in Section 120.091(4)(e) and 121.091(9)(d) have ever been "unretired" and allowed to rejoin the FRS.
