Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue The issue is whether payment of Petitioner's retirement benefits should have commenced after the filing of an application to retire with the Division of Retirement, with an effective date of April 1, 2004, or be retroactively changed to the date of his termination of employment, July 1, 2003.
Findings Of Fact On July 19, 1995, Petitioner applied for membership in the Special Risk Division of the Elected Officers' Class of the Florida Retirement System ("FRS"). On August 14, 1995, Respondent sent Petitioner a letter admitting him into FRS. On September 6, 1995, Sarabeth Snuggs, Chief of the Bureau of Enrollment and Contributions for Respondent, sent Petitioner a letter revoking his membership in FRS. On December 17, 1996, Petitioner wrote to Sarabeth Snuggs responding to Respondent's decision to revoke his membership in FRS. Petitioner cited Section 121.052(2)(d), Florida Statutes, which provides that membership in FRS includes "any constitutional county elected officer assuming office after July 1, 1981, including any sheriff." The Consolidated City of Jacksonville was created by the Florida Legislature with the enactment of Chapter 67-1320, Laws of Florida. Section 1.01 of the Jacksonville Charter provides that the county government of Duval County and the municipal government of the City of Jacksonville are consolidated into a single body politic. The Charter further provides that the consolidated government succeeds to and possesses all of the properties of the former government. After being denied membership in FRS, Petitioner and other members of the consolidated government and its instrumentalities worked diligently to convince Respondent to admit Petitioner into FRS. During Petitioner's attempts to be included in FRS, Respondent repeatedly took the position that Duval County did not exist as a county agency. In a letter to Petitioner dated January 15, 1997, Ms. Snuggs wrote that the consolidated Duval County government "chose to consolidate as a 'city' government." Mr. Keane worked with the Duval County Legislative Delegation to amend Chapter 121 to specifically clarify the fact that the Duval County Sheriff and Clerk of Court are constitutional officers entitled to participate in FRS. In 2002, the Florida Legislature adopted language to clarify the Duval County Sheriff and Clerk of Court's status with respect to FRS. In a letter dated June 24, 2002, Petitioner thanked Ms. Snuggs for recognizing his right to elect membership in FRS. Petitioner observed that, since he was in the last year of his second term as Sheriff (Duval County allows only two consecutive terms), he wanted confirmation of his "right to connect the previous seven (7) years of service as Sheriff." The June 24, 2002, letter also asked for "guidance" from Respondent. The purpose of the June 24, 2002, letter was for Petitioner to learn how Respondent intended to treat his first six years of service. Petitioner sought to avoid any problems since his retirement date was rapidly approaching. On October 10, 2002, Petitioner and Mr. George Dandelake, the Chief of the Budget and Management Division of the Sheriff's Office, wrote to Ms. Snuggs requesting a calculation of the amount of employer contributions required on Petitioner's behalf. The October 10 letter also requested that Respondent "identify what documents are required, in addition to the contribution amount which will be paid by the City, that must be supplied to the Florida Retirement System." Petitioner re-applied for membership in FRS, which was granted on June 1, 2002, after the effective date of the legislation designed to specifically admit the Duval County Sheriff and Clerk of Court into FRS. On June 18, 2003, twelve days before the expiration of his term of office, still not having received confirmation of the status of his prior service, Petitioner sent a letter to Ms. Snuggs advising that FRS had not recognized his service from 1995 through 2002. Petitioner again stated in the letter that he was terminating his position as Sheriff on June 30, 2003. Less than a week prior to the termination of his term, Petitioner received two "Statement[s] of Account" dated June 24, 2003, indicating that "you have until retirement to pay the amount due on your account." The statements further indicated that "when you become vested for monthly benefits, we will provide you an estimate of benefits with and without this service." According to the first Statement of Account, Petitioner was entitled to purchase prior service at the 1.6 percent multiplier rate for the FRS regular class. According to the second Statement of Account, Petitioner was entitled to purchase prior service at the 2.0 percent multiplier rate for the FRS special risk class. Neither Statement of Account was correct, as both failed to permit Petitioner to purchase service at the 3.0 percent rate for special risk, despite the fact that Petitioner had served a continuous and uninterrupted term as Sheriff. The Statement of Account did not advise Petitioner that he must submit a separate retirement application, Form FR-11, in order to preserve his retirement date. The statement did advise Petitioner that interest would be assessed at a rate of 6.5 percent. This warning appeared in bold face on the Statement of Account. The June 24, 2003, statements were the first time that Petitioner was supplied with the amount due to purchase service credit. Since neither statement applied the correct multiplier rate (3.0 percent) for all eight years of Petitioner's service as Sheriff, neither statement was correct. Recognizing that only six days remained prior to the expiration of Petitioner's term as Sheriff, Mr. Keane advised Petitioner to submit payment to Respondent on an expedited basis. After receiving the June 24, 2003, Statements of Account, Petitioner prepared a letter dated June 26, 2003, to Cal Ray, the Director of the Department of Administration and Finance for the Consolidated City of Jacksonville. In this letter, Petitioner requested an employer contribution in the amount of $163,554.32 to purchase his prior service. Petitioner further requested an expedited preparation of the check to ensure delivery to Respondent by July 1, 2003. The letter to Mr. Ray requested payment of the amounts that would have been periodically contributed by the City of Jacksonville if Respondent had been acknowledged as a participant in FRS in 1995. On June 27, 2003, three days prior to the expiration of his term of office, Petitioner drove from Jacksonville to Tallahassee to meet with Respondent's representatives, including Ms. Snuggs, regarding Petitioner's retirement. Mr. Dandelake accompanied Petitioner on this trip. At the June 27, 2003, meeting, Petitioner personally delivered a check to Respondent in the amount of $163,554.32. Respondent accepted the check and issued a written receipt signed by Sarabeth Snuggs. Petitioner was never told during the June 27, 2003, meeting with Respondent that he would forfeit benefits if he failed to complete an application. Respondent knew that Petitioner was leaving office on June 30, 2003. Respondent never discussed the filing of an application for retirement benefits at any time during the course of its conversations and correspondence with Petitioner. Petitioner was never told by Respondent to complete any forms to protect his rights to the 2.0 percent multiplier during the pendency of his dispute with Respondent. Petitioner was never provided any handbook, notice, statutes, or rules indicating he would forfeit benefits under any circumstances. When Petitioner left the June 27, 2003, meeting, both he and Mr. Dandelake understood that he was still engaged in a dispute with Respondent over his entitlement to the 3.0 percent multiplier. Petitioner knew that he was required to file an application in order to receive retirement benefits. Petitioner testified that if he had left the June 27 meeting with any indication that he would forfeit benefits by not filing an application, he would have filed something, with advice of counsel, to preserve his rights. Petitioner received an Estimate of Benefits via fax from Respondent on June 27, 2003, reflecting an annual benefit of $23,105.90. This statement valued 6.92 years of Petitioner's uninterrupted special risk service as Sheriff using the 2.0 percent multiplier, and 1.08 years of service as Sheriff using the 3.0 percent multiplier. The June 27, 2003, statement lists Petitioner's retirement date as July 1, 2003. The estimate does not warn Petitioner that he must do anything in order to preserve his July 2003 retirement date. The estimate states only that it is subject to "final verification of all factors." Petitioner's term of office as elected Sheriff ended on June 30, 2003. Petitioner's employment terminated when his term expired on that date. Respondent was aware of the dates of the expiration of Petitioner's term of office as well as his employment termination date. When Petitioner's employment terminated on June 30, 2003, it was unclear whether he would be credited with the 3.0 percent multiplier for his eight years of special risk service. Petitioner was not notified by Respondent prior to the expiration of his term as Sheriff on June 30, 2003, that he needed to submit a retirement application. The first time Petitioner was advised by Respondent of the need to file an application for retirement benefits was in the comment section of the Estimate of Retirement Benefits provided to him by letter dated March 4, 2004. The warning was printed in bold face type. The Estimate of Retirement Benefits dated June 27, 2003, did not include the bold face warning to file an application. Respondent was not provided with a Division of Retirement publication entitled "Preparing to Retire" prior to his leaving service on June 30, 2003. In fact, the copy of the publication offered into evidence by Respondent is dated "July 2003," subsequent to Petitioner's retirement. As the only member of FRS in his office in Jacksonville, Petitioner had no staff or employees trained in FRS or Florida retirement benefits. Petitioner was provided with a "Preparing to Retire" booklet in March 2004. On November 3, 2003, Florida Attorney General Opinion 2003-46 confirmed that Petitioner, as the elected Sheriff, was eligible for membership in the Elected Officer's Class of the Florida Retirement System. On December 31, 2003, and on January 16, 2004, Petitioner's counsel attempted to obtain clarification from Respondent regarding Petitioner's retirement benefits. The December 31, 2003, letter noted that the "extraordinary delay" in resolving the issue of Petitioner's benefits was at no time due to fault on the part of Petitioner. Respondent never refuted or disputed this statement. By letter dated March 4, 2004, Petitioner was finally advised by Respondent that he was entitled to be credited with the higher 3.0 percent multiplier for all eight years of his service as Sheriff. Petitioner noted that the March 4, 2004, Statement of Account, while properly applying the 3.0 percent multiplier, now had changed Petitioner's retirement date to April 2004 from the previous estimates showing a retirement date of July 2003. The March 4, 2004, statement included the bold face notice to Petitioner that he must file an application for retirement benefits. No prior notices or correspondence from Respondent had informed Petitioner that he must file Form FR-11 in order to retain his retirement date of July 1, 2003. After formally being notified that he would receive the 3.0 percent multiplier for all eight of his years of service as Sheriff, and after having received the notice that he must file Form FR-11, Petitioner submitted the form in April 2004. Respondent is a fiduciary charged with acting in the best interest of participants in FRS. Andy Snuggs, who travels around the state educating employers and employees in FRS, acknowledged that Petitioner was not responsible for the delay by Respondent in recognizing Petitioner's entitlement to the 3.0 percent multiplier. Mr. Snuggs acknowledged that he does not tell employees that they will forfeit benefits if they delay the filing of their applications. Petitioner received his first retirement check in May 2004 which was based upon the benefit established in March 2004 of $32,624.58 annually, not the $23,105.90 previously established by Respondent in June 2003. Petitioner has received no retroactive benefits for the period of July 1, 2003, through April 30, 2004. In a letter dated May 6, 2004, Petitioner stated that his acceptance of the first retirement check was not to be construed by Respondent of a waiver of his rights to retroactive benefits from July 1, 2003, forward.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be awarded retirement benefits at the rate of 3.0 percent per year for his eight years of Elected Officer's Class of service, retroactive to July 1, 2003. DONE AND ENTERED this 21st day of July, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2005. COPIES FURNISHED: Robert D. Klausner, Esquire Klausner & Kaufman, P.A. 10059 Northwest 1st Court Plantation, Florida 33324 Robert B. Button, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
The Issue Whether Petitioner, Rebecca Hernandez ("Hernandez"), is entitled to the $22,943.81 her late mother, Darlene Rice ("Rice" or "Mother"), paid to buy into the Florida Retirement System Pension Plan ("Pension Plan"), as well as other monies transferred from Rice's Investment Plan account to the Pension Plan account, or is Hernandez only entitled to the $2,654.17 in employee contributions that Rice paid into the Pension Plan while an active member of that plan.
Findings Of Fact Based on the evidence presented and the record as a whole, the following facts were established: Darlene Rice was a Broward county teacher and member of FRS beginning September 1, 2011. Sometime in 2016, she became interested in transferring from the FRS Investment Plan to the FRS Pension Plan and actively began to investigate that option. Petitioner, Rebecca Hernandez, is the daughter of Rice and is entitled to Rice's benefits from FRS as determined by the Order of Summary Administration entered by the Circuit Court of Broward County, Florida, on October 2, 2018. Prior to transferring from the Investment Plan and as a part of her investigation, Rice contacted the FRS guidance line, on numerous occasions to seek guidance and inquire about the process to transfer into the Pension Plan. Resp. Ex. 20. The calls were recorded.3 More precisely, on March 7, 2017, Rice called the FRS guidance line to obtain information and ask questions regarding her contemplated transfer 3 The undersigned listened to all nine audio recordings. from the Investment Plan to the Pension Plan. On this call, the representative informed Rice that if she terminated FRS employment prior to having eight years of service, she "could not really recover anything." Resp. Ex. 20. During another call to the FRS guidance line, Rice was told that if she left the Pension Plan before vesting, monies she paid to "buy in" would be lost. Rice also acknowledged during one call that if something happened to her, she understood she would lose everything.4 Ultimately, after multiple telephone consultations and discussions with the FRS guidance line, Rice made the decision to transfer plans and buy into the Pension Plan. To do so, Rice was required to complete and submit a 2nd Election Retirement Plan Enrollment Form dated March 7, 2017. Resp. Exs. 2 and 16.5 On March 9, 2017, the Department sent a letter to Rice, confirming her 2nd Election into the Pension Plan. Resp. Ex. 16. The letter included the following: You have elected to move from the FRS Investment Plan and buy into the FRS Pension Plan. The effective date of this election is April 1, 2017. This is your final Plan Choice Election under the Florida Retirement System. You must remain in the FRS 4 The undersigned reasonably infers that this comment was based on what she had been told during previous phone calls to the FRS guidance line. The extensive information and consultation provided to Rice by the FRS guidance line was commendable, useful to her, and no doubt, very well intended. The representatives were patient and thorough with Rice. Regardless, their general admonitions and advice to Rice do not carry the force of law, nor do they necessarily dictate the outcome of this case. Rather, as will be explained, the correct decision in this case is derived by identifying and interpreting the applicable FRS laws and rules to the facts. 5 The top of the form notified her that "before using your 2nd Election, be sure you understand the impact of changing from one plan to another." By signing the form, at Option 2, Rice also acknowledged language that stated "I want to use my existing Investment Plan account balance and possibly other personal resources to 'buy' into the Pension Plan." Other disclosures were also made to her on page 3 of the form. Pension Plan until your retirement from FRS- covered employment. As a member who is switching from the FRS Pension Plan using the available balance in your FRS Investment Plan account. If your account is not sufficient to cover the cost of the buy-in, you will need to submit personal funds. * * * If you terminate employment prior to vesting in the Pension Plan benefit (less than 6 or 8 years) you are only entitled to receive: A refund of your contributions paid into the Pension Plan since April 1, 2017 (the effective date of your 2nd election). * * * If you feel that this retirement Plan election was made in error, you may be able to cancel it … Failure to notify us no later than 4:00 PM EST on the last business day of the month following your election month will void your right to cancel this election. Rice's election to transfer from the Investment Plan to the Pension Plan was slated to become effective on April 1, 2017. On April 18, 2017, Rice was informed by the Department that it received her notification of her second election and the accrued liability (costs) to transfer to the Pension Plan was $58,366.00; $35,422.19 was liquidated from her investment account and transferred to the FRS Trust Fund and $22,943.81 was the out of pocket cost to her to complete the transfer. Resp. Ex. 7. On June 6, 2017, the Department sent a letter to Rice confirming receipt of her personal payment of $22,943.81, which finalized her transfer to the Pension Plan effective April 1, 2017. Resp. Ex. 8. Less than a year later, on March 17, 2018, Rice passed away unexpectedly. Her death certificate listed a pulmonary embolism as the primary cause of death. Pet. Ex. 8.6 Rice did not have at least eight years of service credit in FRS at the time of her passing. After her mother's passing, Hernandez was contacted by the FRS guidance line to discuss the process and survivor benefits related to the Pension Plan.7 Naturally, Hernandez was shocked and dismayed when the representative informed her that she was only entitled to the total contributions her mother made while she was working and in the Pension Plan. He also regrettably informed Hernandez that she was not entitled to recover the buy-in costs paid by her mother, nor was she entitled to the balance she had in the Investment Plan when the transfer was made. During this telephone discussion, Hernandez lamented that she and her mother had made the decision together to transfer her from one plan to the other. On June 28, 2018, the Department sent a formal letter to Rice's daughter, Hernandez, acknowledging her mother's death and notifying her that since her mother did not have eight years of service, the benefit available to Hernandez was limited to a refund of retirement contributions in the amount of $2,654.17. Resp. Ex. 9. At Hernandez's request, the Department manually calculated the amount Rice paid into the FRS. When Rice transferred to the Pension Plan, the Department's system, which is called the Integrative Retirement Information System ("IRIS"), only showed the accumulation of the contributions that she paid into the Pension Plan after the transfer, since her contributions in the Investment Plan had already been liquidated for the transfer. Resp. Ex. 1. 6 The cause of her death is mentioned primarily to show that her death was unexpected. The undersigned infers from the evidence, particularly the CD recordings, that Rice had no forewarning or suspicions regarding her health when she made the transfer. 7 The date of this phone call is not in the record. Kathy Gould ("Gould"), the Department's Bureau Chief of Retirement Calculations, testified that the manual calculation revealed that a total of $16,042.58 was contributed by Rice since her participation began in the FRS. Based on the calculations and figures provided, her total contributions had two components: (1) $13,388.41 while Rice was in the Investment Plan and (2) $2,654.17 while Rice was in the Pension Plan. In addition to a return of these sums, Petitioner also seeks the return or refund of the "buy in" fee--$22,943.81--Rice paid to transfer to the Pension Plan. Testimony of Kathy Gould Gould's team handles the calculation of costs involved with transfers from the Investment Plan to the Pension Plan. She testified that there are two plans under the FRS, the Pension Plan and the Investment Plan. At all times related to Rice's tenure under the FRS, the funds for the FRS retirement plans came from employer and employee contributions. Employee contributions are currently three percent of salary. In the Pension Plan a member vests after eight years of service. If a member dies before the member vests, it was her position that the beneficiary would be eligible to receive the accumulated contributions. She referred to the applicable statute, section 121.091(7), Florida Statutes. Conversely, the State Board of Administration administers the Investment plan, and is separate from Respondent. A member vests after only one year in the Investment plan. Exhibit 1 was a screenshot of Rice's profile in the IRIS. This is a computer database that contains the Department's membership information. Rice's total employee balance as reflected in Respondent's Exhibit 1 was $2,654.17. This includes only Rice's payroll contributions while a member of the Pension Plan. Rice's "personal payment" to buy into the Pension Plan was $22,943.81. Gould explained that if a member of the Investment Plan left after only five months, the member would be entitled to receive the employee's contributions only. Tr. pp. 55-56. This would not include the employer's contributions. After one year, an employee is fully vested in the Investment Plan and would be entitled to all contributions made, both employee and employer, if employment was terminated while still in the Investment Plan. The payment that Rice made to buy into the Pension Plan was in the form of a personal check, not a deduction from her payroll. Respondent's Exhibit 21 is an email Gould prepared for the Department's legal counsel. Gould analyzed Rice's reported salaries while she was a member of the Investment Plan and multiplied them by three percent to provide the total amount that Rice had paid into both plans. This totaled $16,042.58. This was the amount from Rice's first payroll through her last payroll while in the FRS. The amount was the total of both the Investment Plan and the Pension Plan. Gould admitted that there are essentially two types of contributions into the FRS, employer contributions and employee contributions. She acknowledged that the $22,943.81 Rice paid to transfer to the Pension Plan was not an employer contribution. Rice was not in the Investment Plan when she died. When she died, Rice was participating in the Pension Plan. As a result, Gould admitted that the state would pay out any benefits utilizing the statutes relating to the Pension Plan. The calculation of the buy-in amount performed by the Department in Rice's case was done on the "calculator" provided by their actuary, Milliman. Testimony of Matthew Richard Larrabee Matthew Larrabee ("Larrabee") was called by the Department. He is a pension actuary with Milliman and specializes in governmental pension plans. He discussed the Department's use of a "calculator" that is designed by Milliman. It is provided and created to allow agency staff to determine actuarial pension calculations without relying upon a certified actuary. The actuarial accrued liability ("AAL") determined by the calculator, establishes the "buy-in" or purchase price for a member that chooses to transfer from the Investment Plan to the Pension Plan. The components of the buy-in cost to transfer from the Investment Plan into the Pension Plan consist primarily of the projected monthly annuity amount, the state multiplier percentage for the employee's position, the years of service, and the member's pay level. There is also an assumption of projected pay increases and the life expectancy of the member. Age is also a factor in the formula. The funds collected and related to the transfer into the Pension Plan are deposited into a commingled, legally restricted pension trust. Respondent's Exhibits 4, 5, and 6 were prepared by the Department's staff at different date intervals using the Milliman calculator. These exhibits represent output sheets produced by the calculator, which was developed by Milliman under Larrabee's supervision. The sheets are accurate. They show different actuarial accrued liability amounts based, in part, on age.8 The final calculation in Respondent's Exhibit 6 is for a transfer date of April 2017 for Rice. The calculated actuarial accrued liability was $58,366.00. Larrabee explained that this calculation is a sound estimation or valuation of the financial present value of the total future retirement benefits for a given member--in this case, Rice. 8 Different dates are notated on the calculator sheets based on differing dates being considered for the effective transfer date by Rice when the individual sheet was run. The actuarial accrued liability calculation and resulting "buy in" amount is premised on the fact that the actuaries do not take into account a potential refund feature, such as the return of funds sought by Hernandez.9 Larrabee went on to explain that if potential refunds, such as those requested by Hernandez, were accounted for in the actuarial calculations, the cost to "buy in" would only be "modestly higher." This is because the mortality rates for people like Rice in their 50's or 60's are "quite low." As a result, the added costs to cover such an infrequent contingency, if that were an option, "would be low." Allison Olson Allison Olson ("Olson") is the Director of Policy, Risk Management and Compliance for the State Board of Administration ("SBA"). Her duties include the review and determination of compliance with contracts and policies by outside vendors for the FRS Investment Plan. She also reviews complaints that are received from Investment Plan members. The Investment Plan is a defined contribution plan, similar to a traditional 401(k). The SBA is a separate agency from the Department. A member has an option of making an election, as part of their initial choice, to be a member of the Investment Plan. Vesting for the Investment Plan occurs after one year of service. Then the member owns the contributions in their account. Under the Investment Plan, each account is funded by employer contributions as well as a mandatory three percent monthly employee contribution. Members in the FRS with questions about their accounts may consult with representatives on a financial guidance line managed by the SBA vendor.10 9 No evidence was offered to explain why this type of feature was not built into the actuarial calculation, or why it was not offered as an option to potential transferees. 10 As previously noted, Rice took advantage of this service on numerous occasions. The Department offered into evidence Respondent's Exhibit 14, an FRS Investment Plan Summary Plan Description (sometimes referred to as an "SPD"). However, this SPD was not issued until July 2018. Because it was issued after Rice passed away and there was no proof she ever received it or a prior version, it was excluded as evidence and not considered based on the objection of Petitioner.11 Garry Green Gary Green ("Green") is the Chief of Research and Education for Respondent. He handles the administrative aspects of the actuarial contract and services provided by Milliman. The liquidation of an investment plan account is the sale of all assets that the member has in the account. It includes all money, both employer and employee contributions. After applying to transfer from one plan to another, an employee has 60 days to "roll in" her "buy in" money, or to cancel the transfer. The money a member pays to buy-in to the Pension Plan, is deposited into the pension trust fund with all the other assets of the trust fund. His view was that if the member is not vested in the Pension Plan, the contributions used to "buy in" are not refundable. Respondent's Exhibit 6 calculates the actuarial accrued liability of $58,366.00. It is a calculation of the total cost to buy in to the Pension Plan. He explained that it is not a statement of the liquidated assets from Rice's Investment Plan or any funds owed to Rice. 11 It should be noted that, aside from notices she received in the enrollment forms she signed or guidance from FRS guidance line representatives, there was no proof presented by Respondent that any of the mandatory educational components required by section 121.4501(10)(a)-(g), Florida Statutes, entitled "Education Components," were complied with, or offered to Rice. This is particularly significant in this case since material "must be prepared under the assumption that the employee is an unsophisticated investor." § 121.4501(10)(e), Fla. Stat. Additional Facts Established by Discovery Petitioner's Exhibits 9-1 and 9-2 establish that Rice contributed $16,042.58 in employee contributions into the FRS. $2,654.17 was into the Pension Plan and $13,338.41 was while Rice was a member of the Investment Plan. The Department admitted that Rice paid $22,943.81 of her personal funds on or before June 6, 2017, to transfer from the Investment Plan to the Pension Plan. Request for Admission No. 19. The Department admitted that Petitioner is entitled to receive $2,654.17, the amount of contributions after Rice was in the Pension Plan. Request for Admission No. 21. The Department admitted that it received the Order of Summary Administration and Death Certificate. Requests for Admission Nos. 25 and 26. The Department admitted that Rice contributed at least $13,388.41 into the Investment Plan. Request for Admission No. 29.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, pay to Rebecca Hernandez, Darlene Rice's daughter and beneficiary, the sums of $2,654.17, $13,388.41, and $22,943.81, totaling $38,986.39, plus the appropriate statutory rates of interest which have accrued from October 2, 2018, the date of the circuit court's Order of Summary Administration, to the date of payment. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 21st day of September, 2020. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) Larry Allan Karns, Esquire Spink, Shrouder & Karns, P.A. 9700 Griffin Road Cooper City, Florida 33328 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1993.
The Issue Whether the Petitioner should be permitted to return his retirement contributions and be reinstated in the Florida Retirement System so that he can apply for disability benefits from the Florida Retirement System.
Findings Of Fact Petitioner is a thirty-four year old man, having left high school in the eleventh grade in order to get married, but later took the GED test to qualify as a high school graduate. Some years later he was informed by an Ophthalmologist that he had fallen into the bracket of being legally blind, a status which categorizes a person who has ten percent (10%) or less vision. Petitioner can and does read. He worked for a bakery which entailed work with machinery and required extensive reading, but was advised by the ophthalmologist to find a job where he would not be required to work with machinery and which did not require extensive reading. Petitioner began participating in the State and County Officers and Employees Retirement System on July 1, 1969, when he became a partner in a blind vending stand. He elected to become a member of the Florida Retirement System on December 1, 1970. Petitioner attended two (2) agency meetings at which retirement was discussed. He stated that he had changed from the State and County Officers and Employees Retirement System (Chapter 122, Florida Statutes) to the Florida Retirement System (Chapter 121, Florida Statutes), and was prompted to make the change because a senior partner in the business who had been there for many years said that it was a good idea for him and for the younger partner to sign into the new system. He stated that there probably was a discussion relative to the merits of the new retirement system but that he did not remember anything about it. He did, however, sign the card to change retirement systems. On June 1, 1971, Petitioner suffered some type of injury to his back which was subsequently diagnosed as a sprain. Petitioner received medical treatment and returned to work where he continued to work for the Bureau of Blind Services for approximately three years, resigning November 11, 1974. On March 5, 1975, Petitioner obtained a lump sum as a settlement for this disputed claim under the Florida Workmen's Compensation Act. Petitioner went on leave February 5, 1974, after supplying his supervisor, Mr. Eurgil G. Crawford, Administrative Vending Stand Section, Bureau of Blind Services, with a letter from the physician stating that Petitioner had a "nervous condition." In a letter of October 10, 1974, Mr. Crawford advised Petitioner to either return to work or to contact them if it was not possible. He also stated that the Petitioner would have sixty (60) days in which he might come back to work if he so desired, but that after that time his position would have to be filled permanently by another employee. Petitioner had had some employment problems with the other two (2) members of the three (3) man working team. The problems involved the work at the stand, cleanliness and the lifting necessary to operate the stand. He stated that he and the other two (2) members just could not get together as far as working as a team was concerned. After termination of employment, which was voluntary on the part of Petitioner, Petitioner contacted the supervisor, Mr. Crawford, and asked whether he was entitled to benefits he had contributed and was told that he was. Thereupon, Mr. Crawford sent him the necessary forms to apply for a refund. A refund was made after Petitioner had signed the proper forms and returned them to Mr. Crawford. Two (2) state warrants were issued to Petitioner, one on December 19, 1974, and a subsequent one to close out his account. Petitioner did not work after leaving the Blind Services and has not attempted to find work but receives disability benefits from Social Security based on a 15 percent permanent partial disability rating. He stated that "I have come up with a couple of not so advantageous jobs, you know, its a possibility of getting hurt and one thing and another, I haven't done anything." Subsequently, Petitioner requested information from the Respondent and, after receiving literature from them in 1976, tendered a sum of money equal to the refund he had received so he could apply for disability retirement benefits. The tender of the repayment of his contributions was denied. Petitioner applied for this administrative hearing. Petitioner contends: That he was unaware of a choice to apply for a disability rating when he signed the waiver to obtain a refund. That the supervisor owed Petitioner a special duty to inform him of the possibility of applying for disability benefits before requesting a return of his contributions. Respondent contends: That Petitioner was present at meetings at which the retirement system was discussed; he had information that caused him to transfer to the Florida Retirement System; that he knew of eligibility requirements under the Florida Retirement System and that requirements for eligibility were written in a booklet he had obtained from an employee of the retirement system and that he testified he knew of the five year eligibility requirement. That Petitioner voluntarily signed the waiver, that he had due notice and that the tender of the refund was properly denied.
Recommendation Deny the Petition. DONE and ORDERED this 18th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Townsend, Esquire Albritton, Sessums & Di Dio 100 Madison Avenue, Suite 301 Tampa, Florida 33602 Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center Tallahassee, Florida
The Issue The issue in the case is whether Eldon Sadler, Taylor County Property Appraiser, (Petitioner) is required to enroll Connie LaValle in the Florida Retirement System (FRS) for all of her employment with the Taylor County Property Appraiser's Office from June 1993 until the present.
Findings Of Fact Connie LaValle has been employed in Petitioner's office as a permanent part-time employee since September 16, 1992, as a "mapper." Pursuant to a contract, she has also been performing additional mapping services for Petitioner since June 1993, for which no contributions have been made to FRS. Contributions have been made for LaValle's other part-time employment in the office. Prior to June 2, 1993, LaValle and Petitioner spoke regarding LaValle's performing services related to implementing a Geographic Information System (GIS) in the event that Taylor County decided to obtain such a system. As a consequence, LaValle sought and obtained placement of her name on the Department of Revenue's approved bidder's list. Placement on the list is a prerequisite to entering into a contract with Petitioner's office. On June 2, 1993, Petitioner's office and LaValle entered into a contract whereby LaValle would perform "mapping services to aid in assessment." While not detailed as such in the written contract, these services were related to the GIS mapping function and were in addition to LaValle's existing part-time employment in the office. The contract was renewed on May 30, 1996. LaValle was not given any training for the tasks for which she contracted, she was not required to follow daily or weekly routines or schedules established in Petitioner's office, she was given no instructions in the way that work was to be performed, and Petitioner could not change methods used by LaValle or otherwise direct her as to how to do the work. LaValle did the contractual work at her convenience and was not required to perform that work in the office or pursuant to any schedule. She was paid for the work product as she finished it. Payment under one contract resulted in a $60 per map payment from Petitioner when the product was completed. Under the renegotiated contract, she received $3 per parcel on computerized maps. She was not guaranteed a minimum payment, nor did she receive pension benefits, bonuses, paid vacation time, or sick pay. Earnings pursuant to the contract were reported by LaValle as self-employment income on form 1099. The contract provided that neither Petitioner nor LaValle could terminate the agreement absent 30 days notice to the other party. In addition to furnishing her own work location, work equipment, tables, engineering scales, computer and other necessary equipment, LaValle also paid all related expenses. LaValle performed all contract work in her home. Although not prohibited by terms of the contract, she did not work for other entities. Respondent, pursuant to an audit of retirement records of Petitioner's office, determined that LaValle was performing additional duties for Petitioner's office and receiving salary for which no retirement contributions were paid. Petitioner was notified by Respondent by letter dated August 10, 1999, that LaValle previously filling a part-time regularly established position, was now performing additional duties for the same employer and was now considered to be filling a regularly established position for her total employment. Petitioner was informed that salary earned by LaValle for the additional duties should have been reported and contributions paid to Respondent for retirement benefits. Petitioner maintains that LaValle is an independent contractor with regard to additional duties and no retirement contributions are due and payable. Respondent has determined LaValle is not an independent contractor. Respondent asserts that the additional duties are an extension of her normal duties in her part-time position and contributions for retirement benefits are due with regard to compensation paid to her by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Division of Retirement, enter a final order finding that payments made to Connie LaValle for additional duties from Petitioner's office constitute salary for additional employment requiring payment of retirement contributions by Petitioner. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Levy E. Levy, Esquire 1828 Riggins Road Tallahassee, Florida 32308 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim 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 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue May Petitioner be excluded from participating in the Florida Retirement System for the academic/fiscal year 1978-1979?
Findings Of Fact Petitioner was hired by the University of Florida in 1975 and has been employed with the University of Florida from 1976 to the present. Petitioner believed himself to be a member of the Florida Retirement System from 1976 to the present. There is no dispute that he is entitled to Florida Retirement System benefits from 1976 to 1978 and from 1979 to the present, during which years Petitioner was paid from State salaries allocations and worked in a regularly established State position. Petitioner was paid during the years 1976-1980 with a combination of funds from several sources: the State salary budget, the federal Veterans Administration (VA), and a University of Florida practice funding account. The allocation of these funds in the year 1978-1979 created the current problem. During the years 1976-1980, Petitioner performed work for both the University of Florida (State of Florida) and the VA. The Federal Retirement System was a defined plan from 1976 to 1980. Petitioner was an employee of the VA from 1976 to 1980. Petitioner was a participant in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner received retirement credits in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner's employment during the State fiscal year 1978-1979 included job duties and work performed as an employee of the University of Florida (State of Florida) and did not change from previous years. Petitioner's salary during the State fiscal year 1978- 1979 should have included an allocation from State funds. Due to an administrative error, Petitioner's entire salary was paid only with federal VA funds for the State fiscal year 1978-1979. State funds did not contribute to Petitioner's salary during the State fiscal year 1978-1979 solely due to the administrative error in the allocation of funds for Petitioner's salary, and even though the State presumably benefited from his labor. For the 1978-1979 fiscal year, Petitioner received retirement credits in the Federal Retirement System and none have been taken away. Contributions were made to the Federal Retirement System on Petitioner's behalf as an employee of the VA from 1976 to 1980, and Petitioner received retirement credits in the Federal Retirement System as a VA employee for that period. Petitioner earned $2,072.50, in federal retirement contributions in 1977; $2,256.52, in federal retirement contributions in 1978; and $1,931.56, in federal retirement contributions in 1979. When Petitioner discontinued work for the VA in 1980, his federal contributions were paid to him in a lump sum by the federal government. Petitioner placed this money in a private retirement account.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a final order which: Finds Petitioner was a federal employee during the 1978-1979 academic/fiscal year and at this time is not entitled to credit therefor in the Florida Retirement System; Provides for his participation in the Florida Retirement System for the 1978-1979 academic/fiscal year if he elects to participate pursuant to Rule 60S-2.007(3) Florida Administrative Code; and Establishes, pursuant to the formula provided in Rule 60S-3.008(3), Florida Administrative Code, the amount by which Petitioner may "buy back" that year of State service, if he elects to do so. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Esteban F. Scornik, Esquire McDonough & Wieland, P.A. Post Office Drawer 1991 Orlando, Florida 32802 Thomas E. Wright, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim 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 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffman, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner may purchase retirement service credit for two (2) school terms in Leon County, Florida, beginning January 24, 1955 and January 16, 1956. Whether the Leon County School Board had authority to retroactively grant leave requests on July 2, 1957.
Findings Of Fact On or about January 19, 1955, Petitioner submitted a letter of resignation to Amos Godby, Superintendent of Public Instruction, resigning from her position as teacher in the Leon County schools effective January 21, 1955 (Petitioner's Exhibit 1). Maurice Peterson, principal of her school, wrote Petitioner and stated he did not want her to resign but instead would request a leave of absence for her (Petitioner's Exhibit 2). On or about January 20, 1955, Petitioner submitted an "Application of Member for Withdrawal of Accumulated Contributions" (Respondent's Exhibit 1) . In filing this form, Petitioner attested that she was withdrawing from service as a teacher as of January 21, 1955, and that she wished to have-her retirement contributions and accrued interest refunded to her. Amos Godby, superintendent of Public Instruction, also signed the form, certifying that Petitioner Berkowitz was no longer employed by the public school system, that her service as a teacher terminated on January 21, 1955, and that the last retirement deduction was made January 15, 1955. Petitioner received a refund of her retirement contributions in the amount of $200.41. Petitioner Berkowitz returned to teaching in Leon County, Florida, at the beginning of the school term in the 1955-56 school year. Thereafter, in December of 1955, she underwent surgery and, as a result, was unable to return to teaching for the remainder of the 1955-56 school term. By letter dated January 16, 1956, Maurice Peterson, her principal, asked Amos Godby, Superintendent of Public Instruction, to place Petitioner on temporary leave of absence because of her health problems Petitioner's Exhibit 3). At the beginning of the 1956-57 school term, Petitioner Berkowitz returned to teaching in Leon County, Florida. A letter dated June 11, 1957, from Maurice Peterson, principal of Petitioner's school, stated: Enclosed are two letters concerning Mrs. Irene Berkowitz which verify the fact that she was out of school in January, 1955 and January, 1956 on a leave of absence. (Petitioner's Exhibit 4) The Leon County School Board was the employer of all Leon County teachers and had exclusive authority to approve or grant leaves of absence. Petitioner had not been granted a leave of absence for January 24 - school term, 1955 by her employer, the Leon County School Board, and she filed no application to continue her membership in the retirement system and paid no retirement contributions. Petitioner also stopped teaching in January, 1956 without having been granted a leave of absence by the Leon County School Board for January 16 - school term, 1956, aid there was no evidence to show she filed application to continue her membership in the retirement system or paid retirement contributions. On July 2, 1957, the Leon County School Board retroactively approved leaves of absence for Petitioner for the periods of January 24 - school term, 1955 and January 16 - school term, 1956 (Petitioner's Exhibit 6). The former school superintendent, a witness for Petitioner, could not remember why the leaves of absence were not granted Petitioner Berkowitz by the school board at the time the leaves were taken, although he suggested it might have been an administrative oversight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Petitioner's request to purchase retirement service credit for the two (2) school terms beginning January, 1955 and January 1956 be denied. DONE and ORDERED this 7th day of May, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Diane K. Kiesling, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Mark S. Levine, Esquire 1801 North Meridian Road, Suite C Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether the Petition has forfeited his rights and benefits under the Florida Retirement System (FRS) as a result of a guilty plea in the United States District Court, Southern District of Florida, for acts committed in connection with Petitioner's employment with the Broward County Sheriff's Department.
Findings Of Fact From the Joint Stipulation of Facts: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS on behalf of the Department of Management Services. Petitioner was employed as an Assistant State Attorney by the State Attorney's Office from December 1972 to January 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed as Executive Director of the Broward County Charter Commission from January 1974 to November 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed by the Broward County Board of County Commissioners from March 1975 to November 1978. During this time, Petitioner was a member of the FRS, and this service is credited as service under the FRS. In November 1978, Petitioner was elected to serve as a member of the Florida Legislature; he continued to serve as a state legislator for approximately 18 years. As a state legislator, Petitioner was a member of the FRS class of State Elected Officers, and this service is credited service under the FRS. Most recently, Petitioner was the elected Sheriff of Broward County. By reason of his service as Sheriff, Petitioner was a member of the FRS. Petitioner was initially appointed Sheriff in January 1998 by then-Governor Lawton Chiles. Petitioner was subsequently elected Sheriff in 1998 and reelected in 2000 and 2004. As Sheriff of Broward County, Petitioner was Broward County's chief law enforcement officer and was responsible for directing the Broward County Sheriff's Office ("BSO"), a law enforcement agency that currently employs over 6,000 employees. The office of Sheriff is a constitutional office established under Article VIII, Section 1(d), Constitution of Florida. Upon assuming his duties as Sheriff of Broward County, Petitioner took an oath to support, protect, and defend the Constitution and Government of the United States and the State of Florida and to faithfully perform the duties of sheriff pursuant to Article II, Section 5(b), Constitution of Florida. On or about September 4, 2007, Petitioner wrote a letter to Governor Charlie Crist notifying him of his resignation from the office of Sheriff of Broward County. By reply letter of the same date, Governor Crist accepted Petitioner's resignation. Petitioner is not retired from the FRS and currently does not receive FRS retirement benefits. On or about September 4, 2007, Petitioner was charged, by information, in the United States District Court for the Southern District of Florida, in case number 0:07-cr-60209-WPB, with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 371, and three counts of filing a false tax return, in violation of Title 26, United States Code, Section 7206(1). The same four-count information is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr- 60209-WPB as document 1. At all times relevant to the information, Petitioner was the Sheriff of Broward County. The section of the information entitled "General Allegations" contains numerous references to Petitioner's service as Sheriff of Broward County and the power and authority vested in that position. The "Objects of the Conspiracy" contained in count one of the information states: An object of the conspiracy was for JENNE to unlawfully enrich himself by obtaining monies from P.P. and L.N., who were Broward Sheriff's Office vendors, by making false representations, omitting to state material facts, and concealing material facts concerning, among other things, the ultimate destination of monies that JENNE asked P.P. and L.N. to give to his secretaries, A.V. and M.Y. It was further an object of the scheme for JENNE to perpetuate and conceal the scheme and the actions taken in furtherance of it by, among other things, making false, misleading, and incomplete statements in public filings and to investigators. The "Manner and Means of the Conspiracy" contained in count one of the information states: JENNE and M.Y. arranged for JENNE to receive $20,000 from P.P. by having the money transferred from P.P. through JENNE's secretary, M.Y., to JENNE. JENNE and M.Y. did this in order to conceal that JENNE was the true recipient of the funds. JENNE provided L.N. with access to off- duty Broward Sheriff's Office deputies, who L.N. hired to do work for his companies. On two different occasions, in exchange for the access to the deputies, JENNE instructed L.N. to pay money to JENNE's secretary, A.V., purportedly to compensate A.V. for work done for L.N. JENNE instructed A.V. to cash checks given to her by L.N. and to have the cash deposited into JENNE's bank account. JENNE and A.V. did this in order to conceal that JENNE was the true recipient of the funds, which totaled $5,500. JENNE perpetuated this fraud and attempted to prevent its detection by mailing incomplete and misleading annual financial disclosure forms, which did not list his receipt of the payments from P.P. and L.N., to the Florida Commission on Ethics. On or about September 5, 2007, after being advised of the nature of the charges against him, the above-referenced information, and of his rights, Petitioner waived in open court prosecution by indictment and consented to proceeding by information. The same waiver of indictment is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 13. On or about September 5, 2007, Petitioner entered into an agreement with the United States of America to plead guilty as charged in the four-count information. The same plea agreement is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 3. Paragraph 7.c. of the plea agreement provides: 7. The United States and the defendant agree that, although not binding on the probation office or the court, they will jointly recommend that the court make the following findings and conclusions as to the sentence to be imposed: * * * c. Advisory sentencing range on the conspiracy to commit mail fraud count: That, pursuant to U.S.S.G. § 2X1.1, the applicable guideline to be used in calculating the defendant's advisory sentencing range on the conspiracy to commit mail fraud count is § 2B1.1; that under § 2B1.1(a)(1), the Base Offense Level is 7; that under § 2B1.1(b)(1)(C), four levels are added because the loss was between $10,000 and $30,000; that under § 3B1.3, two levels are added because of the defendant's abuse of his position of public trust; and that under § 3E1.1(b), two levels are subtracted for acceptance of responsibility . . . The United States Sentencing Guide, Section 3B1.3, referenced in paragraph 7.c of the plea agreement, provides in relevant part that "[i]f the defendant abused a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." USSG § 3B1.3. Paragraphs 10. and 12. of the plea agreement provide: 10. The defendant confirms that he is guilty of the offenses to which he is pleading guilty; that his decision to plead guilty is the decision that he has made; and that nobody has forced, threatened, or coerced him into pleading guilty. The defendant affirms that he has discussed this matter thoroughly with his attorneys. The defendant further affirms that his discussions with his attorneys have included discussion of possible defenses that he may raise if the case were to go to trial, as well as possible issues and arguments that he may raise at sentencing. The defendant additionally affirms that he is satisfied with the representation provided by his attorneys. The defendant accordingly affirms that he is entering into this agreement knowingly, voluntarily, and intelligently, and with the benefit of full, complete, and effective assistance by his attorneys. * * * 12. This is the entire agreement and understanding between the United States and the defendant. There are no other agreements, promises, representations, or understandings. On or about September 5, 2007, Petitioner entered a statement of factual basis for guilty plea with the United States of America (hereinafter "factual proffer"), wherein he agreed that, if the case went to trial, the government would have been able to establish the facts recited therein beyond a reasonable doubt. The same factual proffer is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 8. On or about September 5, 2007, a hearing was held in which Petitioner pled guilty as charged in the information. At the hearing, Petitioner admitted to committing the acts set forth in the charges and to which he pled guilty. In addition, at the hearing Petitioner admitted to the following facts and to committing the following actions: At no point in time did Petitioner ever disclose to the public that he received an $8,130 benefit from P.P. in November 2001 in connection with the demolition of a house he owned in Lake Worth, Florida. Within P.P.'s internal accounting system, the $8,130 check was attributed to the "HIDTA project" (i.e., a lease committing BSO and HIDTA as tenants of an office building owned by P.P.). Petitioner never reported the $8,130 benefit on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. At no point in time did Petitioner ever disclose to the public that, in September 2002, he had received $10,000 from P.P. as a reward for his work concerning a new company called SuperTech Products, Inc. Petitioner never reported the $10,000 payment on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. Prior to becoming Sheriff, Petitioner was a partner in Conrad, Scherer & Jenne, a law firm located in Fort Lauderdale. Petitioner was with the firm from 1992 through the beginning of 1998, when he left to become Sheriff. While Petitioner was at the firm, he, like some other partners, drove a car paid for by the firm's investment arm, CSJ Investments. In October, 1997, at Petitioner's request, the law firm, through CSJ Investments, bought a used 1994 Mercedes E320 convertible for Petitioner to drive. The price of the Mercedes was $61,297. Rather than pay for the car all at once, the firm financed the car with a 60-month loan. When Petitioner left the firm in early 1998 following his appointment as Sheriff, he took the Mercedes with him. Despite the fact that Petitioner no longer worked for the firm, the firm continued to pay off the Mercedes loan for the balance of the loan term, making the final payment in 2003. The loan payments were $1,320 per month, resulting in a total eventual cost to the firm of approximately $79,234 in loan payments, all but approximately $1,320, of which were made after Petitioner had already left the firm to become Sheriff. In addition, after Petitioner left the law firm, the firm continued to pay for the insurance on the Mercedes. The insurance payments continued even unto September 2007. At that time, the firm had made a total of approximately $30,961 in insurance payments on Petitioner's behalf, all but approximately $880, of which were made after Petitioner had already left the firm to become Sheriff. Petitioner never disclosed any of the loan payments or insurance payments made by the firm on his behalf on any state ethics filing. During the time that Petitioner was receiving these undisclosed payments from Conrad, Scherer, the firm was billing BCSO for legal work that it was doing on its behalf. At the hearing, Petitioner did not take any exception or make any objections to the facts as summarized in the factual proffer. In fact, with the exception of one non-substantive addition, Petitioner accepted the factual proffer as indicated. On or about November 16, 2007, a judgment was entered on the aforesaid guilty plea, wherein Petitioner was adjudicated guilty of all counts charged in the four-count information. The same judgment is filed in U.S. District Court (S.D. Fla.) in case number 0:07-cr-60209-WPB as document 59. By certified letter dated January 24, 2008, Petitioner was notified of Respondent's proposed action to forfeit his FRS rights and benefits as a result of the aforesaid guilty plea. The notice set forth the basis for the Division's decision and informed Petitioner of his right to an administrative hearing. Petitioner, by and through counsel, timely requested a formal administrative hearing to challenge said proposed agency action. [End of Stipulated Facts] The parties agreed that the following exhibits would be considered in this cause: Petitioner's resignation letter dated September 4, 2007; Governor Crist's letter accepting Petitioner's resignation dated September 4, 2007; The Information filed against Petitioner on September 4, 2007, in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Plea Agreement offered in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Statement of Factual Basis for Guilty Plea of Defendant Kenneth C. Jenne in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Transcript of the Plea of Guilty before the Honorable William P. Dimitrouleas, U.S. District Judge, United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209- WPB, United States District Court, Southern District of Florida; The Waiver of Indictment from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Judgment in a Criminal Case from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Agency Action letter dated January 24, 2008; Form 6 Full and Public Disclosure of Financial Interests 2001 (with attachments and amendments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, June 27, 2002; Form 6 Full and Public Disclosure of Financial Interests 2002 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 7, 2003; and Form 6 Full and Public Disclosure of Financial Interests 2004 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 1, 2005. Petitioner did not have a trial on the merits of the charges against him. Instead, he voluntarily accepted and admitted to the factual allegations set forth in the charging and plea documents. The factual statements set forth in those documents are not subject to interpretation or conjecture. They must be considered facts of this case based upon the stipulation of the parties. Petitioner was notified of the Department's preliminary decision to forfeit the FRS benefits and rights and Petitioner timely challenged that decision.
Recommendation Based upon the Findings of Fact and the Conclusions of Law set forth above, it is RECOMMENDED that Respondent enter a final order finding Petitioner was convicted of crimes that require the forfeiture of his rights and benefits under the FRS, pursuant to Florida law. DONE AND ENTERED this 3rd day of March, 2009, 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 3rd day of March, 2009. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mark Herron, Esquire Thomas M. Findley, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317-5579 Clifford A. Taylor, Esquire Barbara M. Crosier, Esquire Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
The Issue At issue in this proceeding is whether petitioner is eligible to transfer from the State and County Officers and Employees Retirement System (SCOERS) to the Florida Retirement System (FRS), and thereby retire under FRS as opposed to SCOERS.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which dismisses petitioner's request for formal hearing, and denies petitioner's request to transfer from the State and County Officers and Employees Retirement System to the Florida Retirement System. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of February 1993. WILLIAM J. KENDRICK 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 11th day of February 1993.
