The Issue Whether or not Petitioner is indebted to the State of Florida in the amount of $897.01 arising out of his receipt of overtime pay while in an "excluded position" with the Department of State.
Findings Of Fact Petitioner is currently an employee of the State of Florida, Department of State ("State"). He has been continuously employed by "State" from March 1991 to date. Petitioner has consistently received his regular salary, annual leave, sick leave, special holidays, and retirement contributions as part of his employment package as a state government employee. Petitioner was employed by the Division of Elections of "State" as an Administrative Assistant II until April 1, 1991, at which time, he was promoted to an Administrative Assistant III. Petitioner went from an "included position" to an "excluded position" upon his promotion on April 1, 1991. Employees filling "included positions" may receive overtime compensation. Employees filling "excluded positions" may only receive compensatory leave on an hour-for-hour basis for those hours worked in excess of 40 hours per week. "Compensatory leave" may be withdrawn from an employee's leave accumulation amount and utilized in the same way as annual leave for the employee's rest and relaxation or other personal purposes. Prior to Petitioner's promotion, "State's" Division of Elections had never had an employee move from an Administrative II, included position, to an Administrative III, excluded position. Neither "State's" administrative personnel nor Petitioner had any prior knowledge that upon his promotion Petitioner would/was no longer entitled to be paid money for the overtime he worked in the new position. "State's" March 27, 1991 appointment letter to Petitioner advising him of his promotion did not advise him that the promotion had the effect of moving him from an included to an excluded position for purposes of overtime pay. The April 10, 1991 Report of Personnel Action regarding Petitioner's promotion incorrectly indicated that he had moved from an Administrative II, "excluded," to an Administrative III, "excluded" position. The Department of Management Services (Management Services) is solely responsible for the designation of whether an employee is in an included or excluded position as it relates to a Report of Personnel Action. That agency's personnel were unable to explain why the April 10, 1991 Report of Personnel Action was incorrect. Due to the erroneous Report of Personnel Action, neither "State" nor Petitioner were on actual notice that Petitioner had moved from an included to an excluded position for purposes of overtime pay and that he was no longer entitled to be paid money for the overtime he worked in the excluded promotional position of Administrative Assistant III. However, all concerned had constructive notice by prior documents and designations that the Administrative Assistant II position was an "included" position. No agency deliberately misled the Petitioner concerning his promotion, and there is no evidence that he would have refused the promotion had he known of the change of status from "included" to "excluded." Petitioner's "State" supervisor who had authorized his April 1, 1991 promotion was without actual knowledge at the time of Petitioner's promotion that Petitioner had moved from an included to an excluded position for purposes of receiving overtime pay and did not advise him of his ineligibility for overtime pay after his promotion. Petitioner was paid $897.01 in overtime payments for overtime worked during April through July 1991, while in an excluded position, despite not being entitled to overtime pay after May 31, 1991 for hours worked in excess of 40 hours per week. (The May 31, 1991 date was stipulated by the parties, see appendix.) Petitioner's "State" supervisor erroneously authorized the overtime payments Petitioner received while in his excluded promotional position. The Respondent, Department of Banking and Finance's (Banking and Finance's) payroll system that is designed to detect errors such as occurred here upon receipt of an employee's authorized request for pay did not detect this error because the system was not on-line during the four months Petitioner worked and submitted authorized requests for overtime pay in the excluded promotional position. The fact that Petitioner had received overtime pay while in an excluded position was neither discovered nor conveyed to him until six months after his April 1, 1991 promotion. Banking and Finance initiated an investigation concerning the overtime payments received by Petitioner while in an excluded position after receiving an anonymous complaint on October 28, 1991. In a March 10, 1993 letter, Banking and Finance asserted that the overtime payments Petitioner received while in an excluded position constituted a monetary debt to the State of Florida which Petitioner must repay in money. Petitioner spent the $897.01 to pay bills associated with the vacation he had taken prior to his promotion. Petitioner would have been able to repay the overpayment in cash had the error been discovered after the first or second erroneous monthly overtime payments, but he was not able to repay that large an amount in cash after the third request was submitted. Petitioner's request for authorization for overtime pay after his promotion was not submitted fraudulently or mendaciously, but was submitted because neither Petitioner nor anyone in his agency ("State") understood that he was not legally entitled to overtime pay. After determining that Petitioner had received overpayments, "State" took steps to recoup the overpayments. "State" sought to work with Petitioner to alleviate this problem for which its personnel felt partially responsible. In fact, "State" permitted him to utilize one of its agency attorneys for purposes of the instant formal proceeding. Petitioner and "State", without consulting Banking and Finance, entered into a negotiated agreement by which Petitioner would remit the $897.01 in overpayments in the form of 78 annual leave hours, and on December 31, 1991, 78 hours were deducted from Petitioner's accrued annual leave balance. In calculating the repayment of the deducted 78 annual leave hours from Petitioner's annual leave balance, "State" multiplied his rate of pay at that time, with the number of annual leave hours necessary to equal the amount of the overpayments, equaling $897.01. Neither Petitioner nor any agency received a cash payment from the deduction of the 78 annual leave hours. "State" merely deducted the hours from Petitioner's annual leave balance. "State" represented to Petitioner that the deduction of an amount of annual leave hours equivalent to the overpayments would satisfy his debt to the State of Florida. However, "State" neither requested nor received written permission from the Department of Banking and Finance to enter into an agreement by which "State" could accept a non-monetary "repayment" from Petitioner. Charlene Wilson, Personnel Services Specialist, Benefits Division of Administrative Services, Department of State, testified that accrued paid leave is a dollar-for-dollar payment since each hour of annual leave represents an hour of active employment and, therefore, are equal. William J. Schmitt, Chief, Bureau of Payrolls, Department of Banking and Finance, testified that an employee is paid for annual leave when authorized by an agency. However, these isolated pieces of evidence are not controlling. Further testimony was provided as to the historical application of the rules of the Department of Banking and Finance and the Department of Management Services. Robert W. Henley, Labor Specialist for Management Services, and William J. Schmitt each testified to the historical application and interpretation of their respective agency rules. Each testified that, as their agencies had interpreted and applied their own rules to date, employees who are continually employed by the State of Florida may not use annual leave to repay a debt in the manner Petitioner and the Department of State chose. Prior to the December 31, 1991 deduction of the annual leave hours, Petitioner had "banked" 109.097 annual leave hours. After the deduction of 78 hours to satisfy his agreement with "State," he had only 31.097 hours remaining. It took Petitioner 12 months to build his annual leave balance back to where it was prior to the December 31, 1991 deduction. During the 1991 year, but prior to the deduction of the 78 annual leave hours, Petitioner had taken a vacation to Innsbruck, Austria utilizing his annual leave accrued to that point in time and being paid his regular salary while he was on vacation. Petitioner did not take a vacation in 1992, the year following the deduction of the 78 annual leave hours, because of the lack of sufficient accrued annual leave hours left in his balance to take the length of vacation he wanted to take. In 1992 there were still low air-fare prices for trips abroad. In 1991, Petitioner utilized 80 annual leave hours while receiving regular pay. In 1992, Petitioner utilized 18.25 annual leave hours while receiving regular pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Banking and Finance enter a final order providing as follows: That Petitioner is indebted for salary overpayments to the Department of Banking and Finance for the amount of $897.01; That Petitioner shall repay the aforesaid amount within one year from date of this order in payment amounts of not less than $100.00 each or the total remaining balance of the debt in any single payment and that failure of Petitioner to repay the full amount in the year provided shall result in the Department of Banking and Finance debiting his salary for the unpaid balance at the end of the year's grace period, and That once full payment is completed, the Department of Banking and Finance shall coordinate, to the degree possible, with all other agencies the restoration of 78 hours annual leave to Petitioner's annual leave account balance and the crediting of Petitioner with the appropriate compensatory leave hours earned after his promotional date. RECOMMENDED this 28th day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER 93-1886 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-5 Accepted in substance, but not adopted verbatim. 7-11 Accepted in substance, but not adopted verbatim. 6,12 Rejected as stated due to the legal words of art employed. See FOF 2 and 11 which more accurately conform to the record as a whole. 13-32 Not adopted verbatim. Accepted in substance except for unnecessary, subordinate or cumulative material. It is noted that PFOF 21 and 22 seem to be contradictory but were in fact stipulated as fact by the parties. Although a date of March 31 makes better sense, the hearing officer assumes that the parties' use of the May 31 date accounts for pre-earned payments of overtime delayed into a following pay period. This is not a dispositive issue and the parties' stipulation has been honored in FOF 13. 33-34 Rejected because these proposals are misleading as stated and are not dispositive. Covered in FOF 25-26. 35-36 Not adopted verbatim. Accepted in substance except for unnecessary, subordinate, or cumulative material. Rejected as stated because it contains words of art and represents a proposed conclusion of law. See Conclusions of Law. Covered only as necessary in FOF 21-23. Otherwise rejected as a proposed conclusion of law or as cumulative to the facts as found. 39-40 Rejected as conclusions of law or legal argument and as unnecessary and non-dispositive. See FOF 21-23 and Conclusions of Law. 41-49 The interspersed conclusions of law, including but not limited to the "payment" of leave hours, are rejected as such. The interspersed and footnoted legal arguments also are rejected. See FOF 28-30 Conclusions of Law. Otherwise, the proposals are accepted in substance but not adopted verbatim to avoid subordinate, cumulative and verbose material. 50 Accepted. Respondent's PFOF: 1-2 Accepted, but some unnecessary, subordinate and cumulative material has been excised. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 Scott C. Wright, Esquire Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
The Issue Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.
Findings Of Fact Mr. Gomia's Employment. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes. Mr. Gomia's Compensation. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months: Month Amount September, 1989 $1,750.00 May, 1990 500.00 September, 1990 1,750.00 May, 1991 600.00 September, 1991 2,150.00 Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office. The Clerk's Policy of Paying Additional Compensation. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners. Lack of Written Policy. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy: That applies all employees will receive Additional Compensation equally; Additional Compensation will be paid no later than the eleventh year of employment; Additional Compensation will be paid for as long as an employee continues employment; and Additional Compensation will be paid at least annually. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to. Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.
Recommendation Based 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 declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice. DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1992. APPENDIX Case Number 92-2504 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Gomia's Proposed Findings of Fact Findings of fact 1, 4 and 6-11. Hereby accepted. The Department's Proposed Findings of Fact Findings of fact 1-3. Findings of fact 4 and 6. Finding of fact 16. Conclusion of law. Findings of fact 4, 6 11 and 13. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law. COPIES FURNISHED: Harry H. Mitchell, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Burton M. Michaels Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan Kirkland General counsel Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is eligible for retirement pursuant to Section 112.05, Florida Statutes.
Findings Of Fact Petitioner is a public health nurse supervisor who has been employed by the Hardee County Health Department since October 1, 1947. On October 22, 1971, while on annual leave in Texas, Petitioner telephoned her supervisor requesting that she be placed on leave of absence without pay until December 1, 1971. She requested this type of leave because she was experiencing difficulties with her back and did not desire to request sick leave since she was out of state. Her annual leave was almost exhausted at that time. Her supervisor authorized the requested leave and she was informed that she must keep up her health insurance premium payments while on leave of absence. She did so. The period of leave without pay extended from October 22 to December 3, 1971. (Testimony of Petitioner, Trussell, Petitioner's Exhibits 1-2) At the time the leave without pay was authorized, the personnel records clerk of the Hardee County Health Department requested and received information from the personnel department of the then State Board of Health of Jacksonville, Florida, that a leave without pay would not jeopardize Petitioner's retirement status. Similar information had been provided Petitioner and the clerk during a visit to that agency in 1970. (Testimony of Petitioner, Trussell) When Petitioner returned to duty from her leave without pay in December, 1971, the only personnel action taken by her employer was to prepare a personnel action form showing such return. At the time the leave without pay was taken by Petitioner, she had over 400 hours of accrued sick leave to her credit. (Testimony of Trussell, Petitioner's Composite Exhibit 2) During her employment, Petitioner was a member of the State and County Officers and Employees Retirement System (Chapter 122, F.S.) and paid contributions toward retirement under that system. As of January, 1978, she had contributed $11,195.37 into the retirement fund. She also was under the noncontributory plan for state employees (Section 112.05, F.S.) and was provided an estimated computation of retirement benefits under both retirement systems by the Department of Health and Rehabilitative Services on May 14, 1971. (Petitioner's Composite Exhibit 2) On March 22, 1977, Petitioner filed application for service retirement under the provisions of Chapter 122, Florida Statutes, with a designated retirement date of January 5, 1978. By letter of April 21, 1977, Respondent advised that applications were not accepted earlier than sixty to ninety days prior to the date of retirement. Petitioner resubmitted the application in September, 1977. By letter of October 7, 1977, Respondent advised the Petitioner that inasmuch as she had been granted a leave of absence without pay in November, 1971, a break in service occurred and therefore she was a compulsory member of the Florida Retirement System upon returning to employment in December of 1971, pursuant to Rule 22B-1.04(4), (sic) F.A.C. In this letter, she was also advised that Social Security contributions were payable on her account from December, 1971, but since her previous retirement contributions offset this indebtedness to some extent, she would owe for Social Security coverage retroactive to the calendar year, 1973. Thereafter, by an invoice dated January 30, 1978, the Division of Health, Department of Health and Rehabilitative Services, was billed a total of $6,523.74 for Petitioner's Social Security contributions, of which half or $3,261.87 was owed by the employee. (Petitioner's Composite Exhibit 2, Respondent's Composite Exhibit 1) In a letter dated November 9, 1977, the State Retirement Director advised Petitioner that she became a mandatory member of the Florida Retirement System in December, 1971, because she was off the payroll for a month and thereby had a break in service. He further advised that this fact alone did not interfere with her eligibility to be considered for retirement under Section 112.05, but since she had been off the state payroll for more than a month, she was not eligible to retire under that provision. Another letter of the State Retirement Director, dated February 23, 1978, stated that he had reconsidered his position, but adhered to the decision that Petitioner was a compulsory member of the Florida Retirement System pursuant to Rule 22B-1.04(1)4 and did not qualify for retirement under Section 112.05. Petitioner was advised of her right to a hearing in the matter and she thereafter requested the same on March 3, 1978, wherein she requests a determination of her eligibility to retire under Section 112.05.
Recommendation That Petitioner's request for retirement under the provisions of Section 112.05, Florida Statutes, be approved. DONE and ENTERED this 17th day of August, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony N. Deluccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 2258 Fort Myers, Florida 33902 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Building 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue As a member of the Florida Retirement System, should Petitioner be allowed to purchase, for retirement credit service time with the Florida Retirement System, six months of out-of- state employment with the State of Indiana Agricultural Extension Service during 1972 and 1973?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced through the depositions, the following relevant findings of fact are made: Petitioner is a regular class member of the Florida Retirement System with 28 years service credit. In May 2001, Petitioner requested information from the Division of Retirement concerning the purchase of retirement service credit for the six months that she was employed by the Cooperative Extension Service at the Carroll County Extension Office in Delphi, Indiana. Petitioner obtained the required form (FR-30) (Division of Retirement's Exhibit 1) and submitted the FR-30 to her former employer. The FR-30 was completed by Pat Davis, Deputy Auditor, Carroll County Auditor's Office, Delphi, Indiana, which indicated that Petitioner had been employed by the Carroll County Cooperative Extension Service during the periods of June 1, 1972 through August 31, 1972, and June 1, 1973 through August 31, 1973, for a total of six months service. The portion of the FR-30 completed by Pat Davis also indicated that Petitioner had closed her account and withdrawn her contributions. The FR-30 form also indicated that the pension plan was: (a) a defined benefit plan; (b) a defined contribution plan; and (c) that the employer made contributions on behalf of the member. Petitioner testified, which I find credible, that she made contributions to a pension plan during her employment with the Cooperative Extension Services at the Carroll County Extension Office and that she withdrew her contributions to that plan after she left her employment with the Cooperative Extension Services at the Carroll County Extension Office. By letter dated July 31, 2001, the Division of Retirement advised Petitioner that Section B of the FR-30 had not been completed by the Indiana Public Employees Retirement System and advised Petitioner to submit an enclosed FR-30 to that agency for completion. By letter dated August 20, 2001, Charles E. Moore, Pension Administrator for the State of Indiana, Public Employees' Retirement Fund (PERF), advised Petitioner that he was returning the FR-30 because he was unable to find any record of Petitioner being a member of, or contributing to, the Indiana PERF. The letter further advised Petitioner: (a) that the records indicated that Carroll County did not join the Indiana PERF until January 1, 1976 and (b) that Petitioner was apparently not covered by the Indiana PERF during her employment by Carroll County, Indiana. Although Petitioner was not a member of the Indiana PERF while employed by the Carroll County Extension Service, it is apparent that she was covered by a retirement or pension plan provided by Carroll County, Indiana (a political subdivision) during her employment there as indicated by Petitioner's testimony and by Pat Davis's responses on the Division of Retirement's Exhibit 1 (FR-30), notwithstanding June Ferguson's subsequent conversations with Pat Davis to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order finding Madonna J. Wise eligible to purchase, for retirement credit service time with the Florida Retirement System, the six months of out-of-state service with the Extension Service in Carroll County, Indiana during June 1, 1972, through August 31, 1972, and June 1, 1973, through August 31, 1973. DONE AND ENTERED this 1st day of August, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Madonna Jervis Wise 6245 Frontier Drive Zephyrhills, Florida 33540 WILLIAM R. CAVE 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 1st day of August, 2002. 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 Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether the Petitioner is entitled to either a refund of employee contributions to the Florida State and County Officers' and Employees' Retirement System ("SCOERS") made from August 26, 1966, through June 3, 1974, or service credit toward retirement for this period of time.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the administration of the Florida Retirement System ("FRS"). § 121.025, Fla. Stat. (2004). Ms. Johnson has been employed by Jackson Memorial Hospital since February 1985, and she is an active member of the FRS. Ms. Johnson was also employed by Jackson Memorial Hospital from August 26, 1966, through June 3, 1974, and was a member of the SCOERS during that time. Under the SCOERS, both members and employers paid contributions into the system. Members of the SCOERS could request a refund of employee contributions into the system upon termination of employment.2 When Ms. Johnson terminated her employment at Jackson Memorial Hospital in June 1974, she completed a Division of Retirement Request for Refund card, in which she requested a refund of her contributions to the SCOERS. Ms. Johnson signed the Request for Refund Card, which directs that the refund be sent to the 17th Floor of the Dade County Courthouse, which was the address for the Miami-Dade County Finance Department. Ms. Johnson was an employee of Miami-Dade County when she worked for Jackson Memorial Hospital from 1966 until 1974. At the time Ms. Johnson terminated her employment in 1974, refund checks for employees of Miami-Dade County were sent to Miami-Dade County rather than to the employee, and all Request for Refund cards completed by Miami-Dade County employees had typed on the cards the Dade County Courthouse address of Miami- Dade County's Finance Department. Included on the Request for Refund card signed by Ms. Johnson was a statement that, by requesting a refund of contributions to the SCOERS, she waived the right to any retirement service credit for the time period covered by the refund. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to notify the Comptroller's office to send the refund requested by a SCOERS member to the address indicated on the Request for Refund card. The normal business practice of the Division of Retirement is, and was at the times material to these proceedings, to affix to the Request for Refund card labels provided by the Comptroller's office confirming that refund checks were mailed to the member requesting the refund. The labels attached to Ms. Johnson's Request for Refund card indicate that two refund payments were sent by the Comptroller on Ms. Johnson's behalf to the address shown on the Request for Refund card: One, in the amount of $2,150.29, was sent on July 19, 1974, and one, in the amount of $242.18, was sent on January 31, 1975.3 Although Ms. Johnson claims that she did not receive any refund of her employee contributions to the SCOERS, she did not contact the Division of Retirement regarding the refund until August 2003, when she telephoned the Division of Retirement and stated that she had never received the 1974 refund. Because Ms. Johnson is an active member of the FRS, she is entitled to purchase the retirement service credit she accumulated between 1966 and 1974.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the request of Delores F. Johnson for a formal administrative hearing. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 22nd day of September, 2004.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the decision of the Division of Retirement to terminate the retirement benefits of Peter C. Versage be sustained, and that said benefits be terminated until the amount of $1,261.96 is repaid to the trust together with interest at ten percent per annum from the date of May 23, 1977. DONE and ORDERED this 2nd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32304 Peter C. Versage 6929 NW 34th Avenue Fort Lauderdale, Florida 33309
The Issue Whether Respondent is subject to a civil penalty for alleged violation of Section 400.424(3)(a), Florida Statutes, and Rule 58A-5, Florida Administrative Code, through failure to provide a timely prorated refund following the death of a resident of Respondent’s facility.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of assisted living facilities, and, in this case, specifically “Holly Hill Care Center” in Holly Hill, Florida. Holly Hill Care Center is operated by a corporation owned by Harry Hartman, President, and Mr. Hartman’s wife. Pursuant to a complaint, Ernest H. Cartwright, a health care evaluator employed by Petitioner, conducted an investigation on November 20, 1997, of Respondent’s facility. The complaint, alleging that a timely prorated refund had not been made to a beneficiary following death of a resident, was confirmed. Beatrice Raverini moved into Holly Hill Care Center on August 24, 1997, and died on September 1, 1997. Her personal belongings were removed from her room on September 8, 1997. While the policy of the facility is to process refunds on the first day of the month following termination, an error in communication occurred between the onsite administrator and the facility’s bookkeeper who is located off-site. As a consequence, the refund was not mailed on October 1, 1997. A refund check was prepared and mailed on or about November 1, 1997, and deposited by Mrs. Raverini’s beneficiary on November 14, 1997, in Canada. Approximately 53 days elapsed before the refund was made. Section 400.424(3)(a), Florida Statutes, requires that the refund occur within 45 days or less. The refund check processed and mailed by Respondent erroneously refunded 958 dollars instead of 616 dollars. Since the room was not vacated of personal belongings until September 8, 1997, the refund should have been calculated from that date instead of the date of September 1, 1997. Respondent refunded 342 dollars in excess of what was owed to the beneficiary.
The Issue Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account of her late husband for the period September 1999 through February 28, 2003.
Findings Of Fact Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of Commissioners and had approximately 25 years of creditable FRS service at the time of his death. Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made. Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner. According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death. After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567. However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband. Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death. On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows: We are sorry to learn of the death of Robert Roberts on August 20, 1999. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received. If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207. At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter. In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not. Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court. The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed. On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows: This is in reference to the retirement account of Robert R. Roberts. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate. If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999. To receive the Option 3 benefit, the following documents are needed: Copy of member’s death certificate. Proof of member’s date of birth. Proof of your date of birth. Completed application, Form FST-11B. Copy of your marriage certificate. The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter. No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division. The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits: If you will furnish this information within 30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999. Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information. Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts. Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation. Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records. Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003. Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given. Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing. The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected. A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate. On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document. Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits. On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts. On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following: As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $561.35 effective March 1, 2003. To receive the Option 3 benefit, we need the following: Completed application, Form FST-11b. (Emphasis supplied) A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003. Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin, Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date. Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred. Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999. DONE AND ENTERED this 27th day of April, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2004. COPIES FURNISHED: James C. Campbell, Esquire James C. Campbell, P.A. 4 Eleventh Avenue, Suite 2 Shalimar, Florida 32579 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
