The Issue The issue for determination is whether Section 121.091, Florida Statutes (2001), authorizes Petitioner to participate in the Florida Retirement System (FRS) beginning on February 1, 2001, or precludes Petitioner from receiving retirement benefits prior to April 1, 2001. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is a retired member of the FRS. Petitioner resigned from the Florida Department of Revenue (the Department) on January 19, 2001. On January 12, 2001, Petitioner made her first inquiries regarding her retirement. Between January 12, 2001, and the first week in February 2001, Petitioner made approximately six telephone calls to a Ms. Sherrie Ferrell, the retirement coordinator for the Department. Sometime during the first week in February 2001, Ms. Ferrell promised to mail the documents needed by Petitioner to apply for retirement benefits. Petitioner received the documents sometime during the last week of February 2001. On February 28, 2001, Petitioner mailed an Option Selection Form and application for retirement benefits to the Department at its main office in Tallahassee, Florida. The Department received the documents on March 6, 2001, but lost the documents. Petitioner filed a second application for retirement benefits with the Department at its main office in Tallahassee. The Department forwarded the second application to Respondent on April 10, 2001. Florida Administrative Code Rule 60S-4.0035(3)(a), in relevant part, provides that the effective retirement date is the first day of the month following the month in which Respondent receives the member's application. Pursuant to Rule 60S-4.0035(3)(a), Respondent established May 1, 2001, as Petitioner's effective date of retirement. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order). The Department eventually found the first application that the Department received on March 6, 2001. By letter dated May 2, 2001, the Department requested that Respondent establish the effective retirement date as April 1, 2001. Pursuant to Rule 60S-4.0035(3)(a), Respondent correctly changed the effective retirement date to April 1, 2001. April 1, 2001, was the first day of the month following March 6, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for retirement benefits that begin on February 1, 2001. DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2002. COPIES FURNISHED: Mary Claire Janszen 360 Killarney Bay Court Winter Park, Florida 32789-2996 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin B. Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief General Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact On June 19, 1987, the last day of the 1986-87 school year, Petitioner received his class schedule for the forthcoming 1987-88 school year at Kinlock Park Junior High School in Dade County, Florida, where he was the band director. Petitioner was discomfited with the schedule and resolved that he would investigate the process of applying for retirement benefits in view of a total of 36 years of service in the Florida Retirement System (FRS), inclusive of four years of military service. He knew he had been eligible for retirement since August, 1985. On July 1, 1987, Petitioner requested an appointment with administrative personnel of the Dade County School Board to discuss retirement options by executing and mailing a form entitled "Retirement Information/Appointment Request" to the Dade County School Board's Bureau of Personnel Management, Retirement Section. The form was received by the bureau on July 8, 1987. On the form, Petitioner stated he was tentatively planning to retire in August, 1987. Thereafter, Petitioner was contacted and attended a conference with a representative of the school board's retirement section on July 27, 1987, where he executed numerous personnel documents and completed the application for retirement benefits. The application was received by Respondent on July 30, 1987. The face of the application form contains a blank where an applicant for retirement inscribes the date for termination of service with all FRS employers. In the instant case, that blank reflects the date of June 19, 1987, as the effective date of Petitioner's termination of employment. Following the effective date of termination of employment on the application is the form's emphatic printed statement that this is the date for termination of employment and not the effective date of retirement. The application is notarized and bears the signature of Petitioner. While evidencing Petitioner's intent to terminate his employment on June 19, 1987, the application form provides no evidence of Petitioner's intent to retire prior to July 1, 1987. Another of the many forms which Petitioner received at the July 27, 1987, retirement conference is entitled "Retirement Information Form." Petitioner acknowledged his signature on this form which sets forth language stating that the signatory understands the data on the form is an estimate of his potential retirement benefits and that the amount may change. That form sets forth an effective retirement date of August 1, 1987. The Dade County School Board has 26,000 to 27,000 employees. Of this total number, approximately 18,000 are teachers. Between 400 and 500 of the employees seek retirement each year. Of that number, approximately 150-200 teachers retire in June of every year. All employees of the board are urged to contact the retirement section as soon as possible. The general policy is for the employee contemplating retirement to telephone the office. Four or five seminars are held throughout the year by various entities to familiarize school board employees with retirement procedures and benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered establishing Petitioner's retirement date for purpose of receipt of retirement benefits to be August 1, 1987. DONE AND ENTERED this 15th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3317 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Addressed. Addressed. Addressed. Addressed. Addressed. Addressed in part, remainder unnecessary to conclusion. COPIES FURNISHED: Jonathan W. Thurston 4850 Northwest 24th Court Miami, Florida 33142 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hon. Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether Petitioner is entitled to change the type of her retirement benefits from early service retirement to disability retirement.
Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System (FRS). The FRS is a public retirement system as defined by Florida law. Nearly 1,000 public employers participate in the FRS, including state agencies, local governments, and district school boards. There are more than 600,000 individual active members in the FRS. Petitioner was an employee of the Pasco County School Board until she submitted her resignation on February 28, 2011, in order to retire. By reason of her employment with the Pasco County School Board, Petitioner is a member of the FRS. After Petitioner resigned, she met with Michael Hudson, the director of Employee Benefits for the Pasco County District School Board, on March 4, 2011, to complete the paperwork for her retirement. At the March 4, 2011, meeting, Petitioner completed and signed the form application for service retirement. The information filled out on the form in Petitioner's clear handwriting included her name, position, address, telephone number, social security number, birth date, and service termination date. The following statement appears on the application form immediately above Petitioner's notarized signature: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options, change my type of retirement (Regular, Disability, and Early) or elect the Investment Plan once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. (Bold in original). Petitioner also filled out the payment option selection form, selecting Option 1 as the option for how her retirement benefits are to be paid out. Immediately above Petitioner's signature on the option selection form is this statement: I understand I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida statutes. I also understand that I cannot add service, change options or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins. (Bold in original). Petitioner was aware that she could seek to qualify for disability retirement benefits, but that in order to apply for disability retirement, she would have to submit certifications by two doctors that she was totally and permanently disabled, meaning that she was unable to work. Petitioner also knew that she could apply for early service retirement, which would not require proof of total, permanent disability. However, because Petitioner would be retiring early, her benefits would be discounted, so she would receive less. Petitioner understood, when she completed the application on March 4, 2011, that the type of retirement for which she applied was early service retirement. At retirement, she was 52 years and nine months old. In Petitioner's view, she was "forced" to retire. Petitioner had been employed as an adult education-health instructor at Marchman Technical Education Center, which she described as a stressful job. In 2010, she had to undergo three major abdominal and pelvic reconstructive surgeries. As she dealt with the challenges of complications and slow recoveries, she developed psychological issues that caused her to seek treatment from a psychiatrist. She was depressed and cried a lot, felt anxious and stressed, and experienced panic attacks. Petitioner took medication prescribed by her psychiatrist for her panic attacks and depression. She testified that the medication helped and that when she took her medication, she no longer cried all the time. However, she experienced side effects, including some drowsiness and difficulty processing information. By early 2011, Petitioner felt unable to return to her stressful job and had been attempting, without success, to find an appropriate job that she thought she could do with her limitations. She was worried and felt pressure, as a single mother who was supporting herself and her 17-year-old son, who lived with her. She was particularly concerned about ensuring a stream of income to pay for health insurance. Before Petitioner met with Mr. Hudson to apply for early service retirement, she discussed the different types of retirement with her good friend, Pat Beals. Ms. Beals had worked at Marchman Technical Education Center with Ms. Radicella. Both Petitioner and Ms. Beals testified that in discussing the different types of retirement, Petitioner believed at the time that she would not qualify for disability retirement. At the time in early 2011, Petitioner's belief was that she would be unable to obtain letters from two doctors who would render the opinion that Petitioner was unable to work. Ms. Beals apparently did not disagree with that opinion. Ms. Beals noted that Petitioner had been trying to get another job that she would be able to handle with her limitations. Ms. Beals said only that she thought Petitioner had tried to go back to work too soon, before she was fully healed. Petitioner went alone to her meeting with Mr. Hudson and did not ask any of her close friends or advisors, such as Ms. Beals or her neighbor, Mr. Edelman, to go with her. Petitioner testified that she had taken her medication to control her depression and her panic attacks that day. Petitioner was in good enough shape, mentally and physically, to safely drive herself to and from the school district administrative offices. Petitioner testified that Mr. Hudson explained Petitioner's choices to apply for early service retirement or to apply for disability retirement. Petitioner testified that Mr. Hudson explained that if she applied for disability retirement, two doctors would have to say she could never work again. This led Petitioner to choose early service retirement because, as she had discussed with Ms. Beals previously, she did not think two doctors would give the opinion that she was unable to work again. Moreover, at the time, Petitioner did not want to say that she would never work again. Petitioner found the meeting with Mr. Hudson to be very sad and embarrassing; she found the prospect of retirement itself to be very embarrassing, as she had always been independent and had always taken care of herself. Petitioner attempted to blame Mr. Hudson for the pressure she was feeling to make a choice and sign the paperwork presented to her, but Petitioner did not prove that Mr. Hudson was to blame for any pressure she felt. Petitioner failed to identify anything specific that Mr. Hudson said or did to create pressure, such as if he had told Petitioner she had to sign all of the paperwork then and there. Indeed, when asked if she felt pressured by Mr. Hudson, Petitioner's response was that "it was strictly business." Petitioner explained that she just "shut down," letting him give her papers, and she just signed them. Petitioner did not claim to misunderstand the different types of retirement benefits--early service retirement versus disability retirement--and indeed, expressed a very clear rationale for making the choice that she did. Petitioner had expressed that same rationale in conversations before March 4, 2011, with Ms. Beals. Petitioner testified that she did not understand the paperwork that Mr. Hudson presented her to sign and that she did not understand that she could not change the type of retirement from early service to disability retirement at a later date. Inconsistently, she testified that she understood that she would not be able to change her payment options after she cashed her first benefit check. That is part of the warning message appearing right above her signature. Petitioner did not credibly explain how she was able to understand that part of the warning message, while not understanding the other part of the warning message that she also could not "change my type of retirement (Regular, Disability, and Early)" after cashing her first benefit check. The notice appeared on both forms she signed that day in plain, clear language. Petitioner did not testify that she was given any misinformation or that she asked for explanations that were not forthcoming. Petitioner did not testify that she asked to delay signing the paperwork presented to her at the March 4, 2011, meeting, until she had had a chance to review it with one of her friends and advisors. Instead, Petitioner did not want to wait; she was in a hurry to sign the paperwork because the sooner she signed the paperwork, the sooner the payments would start. Petitioner attempted to disavow her March 4, 2011, early service retirement application on the theory that she lacked the mental capacity to understand the nature and consequences of her actions that day. Petitioner offered no competent medical opinion testimony or medical records to support her claim. Petitioner's two friends tried to support her theory, but they lacked the medical expertise to offer an opinion that Petitioner did not understand the nature or consequences of her actions that day. To the contrary, their testimony tended to confirm that Petitioner not only understood what she did on March 4, 2011, but that she acted as she did for a very rational, logical reason. The evidence did not establish that Petitioner was impaired to any great extent because of her physical or mental conditions or because of her medication taken to control her conditions. Petitioner may lack confidence and doubt herself; she may seek out opinions of her close friends when making important decisions because she did not trust her own ability to make decisions. However, as she acknowledged and certainly exhibited at the hearing, she is intelligent and capable. Petitioner was capable of functioning independently, living alone with her 17-year-old son and taking care of him. Petitioner was able to drive alone and did so. Petitioner took care of her own paperwork, writing out checks, and paying her own bills. Petitioner was not hospitalized or adjudicated incompetent because of her mental condition, nor was there any suggestion that her psychiatrist or good friends thought such steps were necessary for Petitioner's competency to manage her own affairs. After Petitioner returned from her meeting with Mr. Hudson on March 4, 2011, she called Ms. Beals to tell her about the paperwork she completed in her meeting with Mr. Hudson. Ms. Beals testified that she could tell Petitioner was anxious, because she was talking very fast. Nonetheless, Petitioner understood the nature and consequences of her actions on March 4, 2011, well enough to tell Ms. Beals that she had applied for early service retirement benefits. Ms. Beals was concerned and said that she may have made a mistake by not applying for disability retirement. While Ms. Beals expressed surprise that Petitioner did not ask her to go with her on March 4, 2011, she admitted that they had talked about the retirement issue previously and that Petitioner's actions on March 4, 2011, were consistent with what they had previously discussed. Petitioner's neighbor, Alvin Ellenwood, also testified that Petitioner called him later on March 4, 2011, and reported to him that she had completed the paperwork for early service retirement benefits. Mr. Ellenwood testified that he, too, was concerned and told Ms. Radicella that she may have made a mistake by not applying for disability retirement. Despite the concerns of both Ms. Beals and Mr. Ellenwood, apparently no steps were taken in the days after March 4, 2011, to review the forms that Petitioner had signed or to seek out any information from the Division regarding whether Petitioner could try to change the type of retirement benefits from early service retirement to disability retirement. On March 9, 2011, the Division issued and transmitted to Petitioner the following documents related to her application: Acknowledgement of Service Retirement Application (Acknowledgement); Estimate of Retirement Benefits (Estimate); an information sheet entitled, "What Retirement Option Should You Choose" (Option); and a FRS booklet published by the Division entitled, "Preparing to Retire" (Booklet). The Acknowledgement document confirmed receipt of Petitioner's service retirement application and repeated a similar warning as those appearing above Petitioner's signature on the forms she signed on March 4, 2011; this time, the notice was in all capital letters and in all bold print: "ONCE YOU RETIRE, YOU CANNOT ADD SERVICE, CHANGE OPTIONS, CHANGE YOUR TYPE OF RETIREMENT OR ELECT THE INVESTMENT PLAN. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED." Detailed information was provided about FRS retirement in the 15-page Booklet. The Booklet's first four pages are devoted to information for contacting the Division, including how to access the Division's website, and how to contact individuals, via numerous toll-free telephone numbers and e-mail addresses, to ask questions. And yet another warning message appears on page 11 of the Booklet, set apart from the rest of the text by a bold text box: Remember, once you cash or deposit any benefit payment or after the first payment is credited during your DROP participation period, you cannot add service credit, change your retirement benefit option selection, change your type of retirement from early to normal or from service to disability retirement, transfer to the FRS Investment Plan or cancel your DROP participation. The two other documents sent on March 9, 2011, the Estimate and Option documents, specifically addressed the retirement payment option choice. These two documents warned that Petitioner had selected Option 1 and could not change that option after cashing or depositing her first benefit check. Petitioner did not say what she did upon receipt of March 9, 2011, package of materials, whether she reviewed the material or whether she asked her friends to review it. Had these documents been reviewed, it would have been clear that once Petitioner cashed or deposited the first benefit payment, she could no longer change the type of retirement from early service retirement to disability retirement.2/ At any point in time before Petitioner received and cashed or deposited her first retirement benefit check, she could have sought to change the type of retirement benefit from early service to disability retirement. However, no such steps were taken. As Petitioner testified and Ms. Beals acknowledged, Petitioner did not believe at that time that she would qualify for disability retirement. In any event, it would have taken longer to seek disability retirement benefits because of the need to obtain verification by two doctors that Petitioner was unable to work, and Petitioner did not want to wait. Petitioner received her first retirement benefit check at the end of March 2011, and the state warrant was paid (cashed or deposited) on April 8, 2011. As of the hearing date, Petitioner had received an additional nine monthly payments for her early service retirement benefit. For some reason, it was not until June 2011, after receiving and cashing or depositing three early service retirement benefit payments, that Petitioner decided to submit an application for disability retirement benefits. The parties stipulated that Petitioner's disability retirement application was mailed to the Division on June 14, 2011.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order denying the request to change from early service retirement benefits to disability retirement benefits submitted by Petitioner, Reneé Radicella. DONE AND ENTERED this 27th day of February, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 27th day of February, 2012.
The Issue The issue for determination is whether Petitioner has enough creditable service in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida Statutes (2009),1 to be "vested" and, therefore, eligible for a retirement benefit.
Findings Of Fact Petitioner is not currently an employee of any FRS employer. Petitioner was an employee of several different FRS employers during the 1970's and 1980's. Petitioner proved that he had creditable earnings from three FRS employers. The creditable earnings were from Hillsborough County from October 1977 through April 1978, Pasco County from August 1987 through December 1987, and Hernando County from March 1988 through August 1989. Petitioner has 3.09 years of creditable service in the FRS. The creditable service is not sufficient to vest Petitioner and does not entitle Petitioner to retirement benefits. Petitioner was employed with the City of Largo, Florida, for some time. However, that municipality was not an FRS participating employer during the period of employment. Petitioner worked for the U.S. Postal Service for some time. That agency is not an FRS participating employer. Petitioner was a student on work study at both the University of Florida and Florida State University. Paid student positions at state universities were not positions which were included in the FRS during that time. Petitioner also seeks to purchase his military time of approximately 22 months. Members of the FRS are allowed to purchase certain military service after they vest in the FRS. A preponderance of the evidence does not support a finding that Petitioner has sufficient years of service to vest in the FRS and then purchase military service. Petitioner was employed in some state positions prior to 1975. Until 1975, the FRS was a "contributory" system. Employers withheld contributions to the retirement system from the wages of participating members and forwarded the withheld amounts to the Division. It is undisputed from Petitioner's testimony that no retirement contributions were ever withheld from his wages during the period that FRS was a contributory system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner's request for retirement benefits. DONE AND ENTERED this 5th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 5th day of April, 2010.
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
Findings Of Fact Petitioner, Timothy Green (Green), was born on April 19, 1941. Green was employed by Manatee County as a Highway Maintenance Technician on March 26, 1966. As a Highway Maintenance Technician, Green cleared ditches, brush and culverts. He also installed storm drainage pipe and operated chain saws and related tools. On September 24, 1984, Green was terminated from his job because of his inability to perform his assigned duties. Green referred to his termination as a "retirement." Having been promoted to Highway Maintenance Technician II, Green was earning $1,016.01 per month gross pay at the time he was terminated. He had accumulated 18.40 years of creditable service under the Florida Retirement System (FRS). Green is unable to read and has had no formal schooling other than the attendance of what he describes as "opportunity classes all his life." Green has not been found by any court to be incompetent to handle his personal affairs and generally paid his personal bills through money orders he purchased at convenience stores. However, Green's mental capabilities and ability to communicate are obviously quite limited, and his more complicated personal affairs were handled by his mother and sister. On September 28, 1984, Green sought out and met with Mr. A1 Chandler, Records Manager for Manatee County, at Chandler's office. Green thought that Manatee County already had "retired" him because of his disability and just wanted to get his retirement benefits. He did not understand the various optional benefits available to him as a member of the FRS. Green was able to communicate to Chandler only that he wanted to get all his money from retirement, or words to that effect. Chandler interpreted those words to mean that Green wanted to withdraw his contributions to the system. Based on his general familiarity with the FRS, Chandler discouraged Green from doing what he believed Green wanted to do (i.e.. withdraw his contributions from the system). Chandler believed intuitively that Green should not withdraw his contributions because he had accumulated 18.40 years of creditable service under the FRS. Chandler understood that Green's years of creditable service would entitle him to favorable benefits upon normal retirement at age 62. He therefore advised Green to wait and not to withdraw the contributions. Green, who never clearly understood the difference between getting his money (or benefits) out of the retirement system and withdrawing his contributions to the retirement system, decided that he did not want to wait as Chandler advised. Accordingly, Chandler gave Green a form to request a refund of his contributions to the FRS, and Green signed the form. The Request For Refund Form FRS-M81 Green signed contains the following information above his signature: TO THE DIVISION OF RETIREMENT: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. However, Green could not read the refund language. He did not think there was any reason to ask Chandler to read it to him, and Chandler did not read it or explain it to him. Neither Chandler nor anyone else fully explained to Green what optional benefits he might be entitled to as a member of the Florida Retirement System other than to wait until normal retirement or withdraw his contributions. Specifically, neither Chandler nor anyone else explained to Green that his request for refund of his accumulated contributions would eliminate his right to apply for disability retirement benefits. In fact, on that same day, September 28, 1984, Green began completing an application for disability retirement benefits. On October 2, 1984, Green's Statement Of Disability By Employer was received by Manatee County's Personnel Office. The form was completed by Green's former immediate supervisors. On October 3, 1984, Green's Request For A Refund Form FRS-M81 was mailed to Respondent, Department of Administration, Division of Retirement (Division) by Manatee County. Sometime between October 18, 1984 and November 20, 1984, Green's completed Florida Retirement System Application For Disability Retirement, with his Statement Disability By Employer, was sent to and received by the Division. On October 29, 1984 the Division sent Green the refund of his accumulated contributions totaling $1,686.52. Until Green received the refund, he expected to receive monthly checks. When he received the refund, Green realized for the first time that he would not be receiving monthly checks and that his lump sum check would be in the amount of only $1,686.52. Green never had any actual intent to relinquish his right to apply for disability retirement benefits from the FRS.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent Department of Administration, Division of Retirement: (1) enter a final order granting the Petition For Formal Proceedings in this case and determining that Petitioner, Timothy Green, has not waived his right to apply for disability retirement benefits: and (2) process the application of Petitioner, Timothy Green, for disability retirement benefits. RECOMMENDED this 4th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1985.
The Issue Whether the Petitioners are entitled to benefits as joint annuitants of the deceased employee.
Findings Of Fact Petitioners are the adult, nondependent children of the deceased, Leonora Chapin. Respondent is the state agency charged with the responsibility of managing the Florida Retirement System (FRS). Leonora Chapin was a vested member of the FRS with over ten years of service as a teacher with the Miami Dade County School District. The exact number of years of her service was not established nor is it dispositive of the issues of this case. In February of 1991, Ms. Chapin became extremely ill. This illness prevented her from returning to work but she did not formally retire. Instead, Ms. Chapin continued as an active member of the FRS until her death, April 14, 1991. At the time of her death, Ms. Chapin had designated "according to will" as her beneficiary to receive benefits, if any, which would be payable at her death. This Personal History Record form is the only record of any designation by the deceased received by the FRS. Based upon the foregoing designation, the Respondent determined that the deceased's two sons would share the deceased's personal contributions to the FRS account. This amount totaled $4,305.17. The Petitioners have disputed this determination and claim they are entitled to benefits as joint annuitants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioners' claim for benefits and returning the member's contributions in the amount of $4,305.17. DONE AND ENTERED this 14th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1999. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Robert Chapin 14014 Northwest Passage Unit 240 Marina Del Ray, California 90292 Stuart Chapin 10729 Westminster Avenue Los Angeles, California 90034 Barry M. Brant, C.P.A. Berkowitz, Dick, Pollack & Brant, LLP One Southeast Third Avenue, Suite 150 Fifteenth Floor Miami, Florida 33131
Findings Of Fact Petitioner, Norma I. Brown, was a public school teacher for over twenty years in the Hillsborough County School System. Her last renewal of membership to the Retirement System for School Teachers occurred prior to July 1, 1963. During her tenure with the school system, Petitioner was covered under Plan E and made all contributions required under the Plan. Norma Brown retired on October 1, 1981. At the time of her retirement, she had accrued 21.67 years of creditable service under Plan E, and was 59 years and 5 months of age. The normal retirement age under Plan E is age 60. The retirement was an approved disability retirement. Petitioner's claim for full retirement benefits was denied by Respondent. Department of Administration, Division of Retirement. Instead, she was given benefits which were reduced by using an early retirement factor. The denial of her claim precipitated this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Norma I. and Albert S. Brown for increased retirement benefits be DENIED. DONE and ORDERED this 30th day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1982.
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
The Issue The issue is whether the Petitioner, Thelma H. Dampier, is entitled to consideration of her second application for disability retirement benefits based on the submission of new medical information.
Findings Of Fact Thelma H. Dampier was a member of the Florida Retirement System (FRS), Chapter 121, Florida Statutes, and had more than ten years of creditable service. She terminated her employment in August, 1988. In October, 1988, Ms. Dampier applied for in-line-of-duty disability retirement under FRS. By its final action letter received by Ms. Dampier on July 27, 1989, the Division denied her application for disability benefits. Under the applicable procedural rules, Ms. Dampier had 21 days to file a petition for an administrative hearing before the State Retirement Commission. She failed to request a hearing on the denial of benefits and her right to a hearing ceased. On September 8, 1990, Ms. Dampier filed a second application for in- line-of-duty disability retirement benefits. The application included medical records from Doctors Evans, Andrews, Barrow, and Chance. The medical records of Doctors Evans and Andrews had been submitted with and considered in connection to the first application. The medical records of Doctors Chance and Barrow were submitted for the first time with the second application. The report of Dr. Barrow opines that Ms. Dampier is permanently and totally disabled, but it does not reflect her condition at the time she terminated employment or any connection between her condition and her employment. The report of Dr. Chance, a chiropractic physician, relates to neck, shoulder and lower back pain. The report does not state that Ms. Dampier is totally and permanently disabled. Instead, it states that Ms. Dampier suffers only mild degenerative changes. It also does not relate that opinion to the date on which her employment terminated. The Division has a policy set forth in a Memorandum for Record dated July 17, 1990, regarding handling of reapplications for disability benefits. The policy specifies that reapplications will be considered "only when the member presents information of the existence of a medical condition that existed prior to termination of employment--unknown at the time of the initial application." This policy is reasonable and consistent with the Chapter 121.
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 consideration of Thelma H. Dampier's second application for in-line-of-duty disability benefits. DONE and ENTERED this 11th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division ofAdministrative Hearings this 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Retirement Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Proposed findings of fact 5 and 6 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is repetitive and unnecessary. COPIES FURNISHED: Thelma H. Dampier Post Office Box 342 Melrose, FL 32666 Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 A. J. McMullian III, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
