The Issue The issue in this case is whether Petitioner should be granted credit in the Florida Retirement System (FRS) for the period from September 1973 through September 1974.
Findings Of Fact Petitioner is a current employee of Miami-Dade County and a participant in the Deferred Retired Option Program (DROP). Petitioner has been an employee of Miami-Dade County since 1973. From 1970 until 1973, Petitioner was employed with the Florida Department of Transportation. Petitioner has 30 years of service credit in the FRS. From September 1973 through September 1974 Petitioner was employed in a position with Miami-Dade County which was funded under Budget Status Code 4. During this 13-month period, under Dade County Personnel Policy, Budget Status Code 4 denoted a "temporary or on call" position. In October of 1974, Petitioner was promoted into a full-time, regularly established position. In 2000, Petitioner was provided an estimate of benefits as he was in preparation to enter the DROP. As a result, Petitioner requested that the Division grant him credit for the September 1973 through September 1974 period. The Division denied this request and Petitioner filed a timely appeal. On March 6, 2001, Petitioner applied for and began participation in the DROP program effective April 1, 2001. Petitioner is now participating in the DROP. When Petitioner enrolled in the DROP program, two of the documents he signed included the following statement: "I cannot add additional service, change options, or change my type of retirement after my DROP begin date."
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 Petitioner's request for retirement service credit for the period of his employment with Miami-Dade County from September 1973 through September 1974. DONE AND ENTERED this 18th day of October, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. 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 18th day of October, 2001. COPIES FURNISHED: Victor Larger 4421 Southwest Third Street Miami, Florida 33134 Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Post Office Box 3900 Tallahassee, Florida 32399-3900 Erin 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 Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact The parties stipulated that the Petitioner submitted a request for extension of employment after reaching age 65 and that the Agency routinely processed said request, which was denied by the Agency. The Petitioner testified that he was over 65 years of age, eligible for retirement benefits, a career service system employee, was in good health, had a fine employment record, and desired to continue work until November 1976. Continuing work until November 1976, according to the Petitioner, would allow him to meet certain financial obligations which he had. He further testified that he had thought that the general policy of the Department of Transportation was to allow such extentions until the January following to an employee's 65th birthday and that he had planned on that additional employment. Without an extention, the Petitioner would retire effective May 28, 1976. The Agency did not controvert these facts, but pointed out that there was no policy regarding retention of personnel until the end of the year in which an employee reached age 65. The Hearing Officer notes that s. 112.051, Florida Statutes, creates the right in a state agency to retire personnel who are members of a merit system or similar tenure system on the basis of age and without specifying charges if the employee has reached age 65 and is eligible for retirement. The right to continue to employ such an employee is discretionary with the Agency. The facts establish that Petitioner is over 65 years of age and eligible for state retirement benefits. Therefore, Petitioner's retention was totally discretionary. There was no evidence that the Agency abused its statutory discretion in denying the Petitioner's request, or discriminated against the Petitioner in any fashion.
Recommendation Based on the foregoing findings of fact and conclusion of law, the Hearing Officer recommends that the Agency take no further action on the Petition, and not reconsider the Petitioner's request for retention. DONE and ORDERED this 26th day of May, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's deceased wife, Dorothy Bazzel, made a valid selection of retirement "option 1" instead of "option 2"; whether that apparent selection was a mistake and, consequently, whether the Petitioner should be allowed to receive retirement survivors benefits in accordance with "option 2", as provided for under section 121.091(6), Florida Statutes.
Findings Of Fact The Petitioner, Joe Bazzel, is a resident of Blountstown, Florida, and is retired. His wife, now deceased, was Dorothy Bazzel. She was a longtime teacher in the Bay County school system, with more than 46 years continuous creditable service in the Florida Retirement System and as a teacher. She retired on July 1, 1988. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutes, embodied in Chapter 121, and related rules, by which operation of the Florida Retirement System, including determinations of entitlement to and payment of benefits, is accomplished. Mrs. Bazzel underwent surgery for breast cancer on January 11, 1987. She had been diagnosed by Dr. Dixon McCloy, of Panama City, with breast cancer sometime in January of that year. Her progress after surgery was satisfactory, and she kept all appointments, had required x-rays, examinations and mammograms thereafter, by which her physicians monitored her progress. She had expressed to several persons of her acquaintance a desire to retire by the end of the 1987-1988 school year. In order to prepare for that event, she contacted her brother-in-law, Ray Bazzel, who testified in this case, and asked him to contact the Division of Retirement in Tallahassee, Florida, to obtain an estimate of her expected retirement benefits. He made that request to Ms. Loreen Vause, an employee of the Division, on July 16, 1987, by telephone. The Division of Retirement has an ongoing program which automatically generates an estimate of benefits for members who have certain amounts of creditable service and are of a certain age. When Mr. Bazzel made his request for an estimate of benefits for Mrs. Bazzel, the Division was already in the process of preparing a benefit estimate for her through its routine program. That estimate was forwarded to Mrs. Bazzel on July 22, 1987, and it stated as follows: This is a routine audit of your account. Noting the many years of service you have, we are furnishing you an estimate of your benefits as if you terminate your employment on June 30, 1988, and retire effective July 1, 1988. This is furnished for informational purposes only. By means of that estimate, Mrs. Bazzel was informed as to the benefit amounts which she would receive under all four retirement options. See Respondent's exhibit 8 in evidence. Ray Bazzel would visit Mrs. Bazzel on occasion during his visits to Panama City. She was described by him in his testimony to be a very private person not given to talking much about her illness or the operation. She did discuss the possibility of her retirement on one occasion with him, sometime during the summer of 1987. They discussed all four retirement options, and he explained the options in detail to her. He advised her that she would have to make a decision as to which option she would take, but he was never advised by Mrs. Bazzel nor anyone else as to which option she had actually selected until after her death. He did not know that she had made application for retirement on January 14, 1988. Harold Bazzel is a nephew of the Petitioner. He testified that he did not know that Mrs. Bazzel had made an application for retirement and did not know what option she selected until after her death. Richard Locker was the personnel officer with the school board where she was employed and knew Mrs. Bazzel personally and professionally. He was the principal for six years at Cove Elementary School where both his wife, Nan Locker, and Mrs. Bazzel taught. Mr. Locker had a policy of discussing retirement issues with Florida Retirement Service members on his staff and advising them of correct procedures to follow, as to the paperwork involved, and as to the full retirement options which they could select. He advised all members who were employed at his school to call the Division of Retirement in Tallahassee for more information. He never advised anyone of which option they should take because each case is an individual case, and he did not feel comfortable advising an employee or friend which option to take and then later have that person accuse him of advising the wrong option. Mr. Locker saw Mrs. Bazzel after her surgery and stated that after the surgery, she appeared to be in good health. He saw her in May of 1988 and stated that she was very optimistic and appeared capable of teaching the next year. She did not seem moody or depressed in any way to him. He believed that she exhibited an attitude that her treatment had been a success and that her health had been restored. He discussed with her the possibility of her retiring at the end of the 1987-88 school year, and he believed that she would retire at that time. In two telephone calls, he and Mrs. Bazzel discussed the four different retirement options. She appeared to know what he was talking about and to understand those options. He felt that she understood that option 1 would pay the highest benefit amount to her of the four options. He, however, did not really know what option she had chosen until after the Petitioner, her husband, informed him after Mrs. Bazzel's death. Based upon the testimony of Ray and Harold Bazzel and that of Richard Locker, concerning their contact and discussions with and advice to Mrs. Bazzel, it is found that Mrs. Bazzel was aware of the four options and the differences between them. She was aware that option 1 provided the highest benefit to the retiring member for the lifetime of that member and that it would cease at the death of the member with no further benefits being payable to any person. On January 14, 1988, the Petitioner, Joe Bazzel, drove his wife to the offices of the school board, where she completed the forms necessary for her retirement. She talked with Vicky Poole, the records clerk, who helped teachers and administrators complete necessary retirement forms as part of her job duties. Ms. Poole had worked at the school board offices for approximately seven years and had an established procedure for informing prospective retirees of all information needed to process retirement applications. As part of her instructions to them, she would ask each potential retiree to inform her of the option they wanted to select, who their beneficiary would be and where the checks were to be sent. She would inform them when they would start receiving checks, would discuss with them their sick leave balance "payoff", and what steps they needed to take to obtain social security benefits. This discussion with prospective retirees would take up to one-half hour if the retirement form had not been partially completed before the retiree came into the office, or about 15 minutes if the form had already been partially completed. If Mrs. Bazzel already understood the retirement options and had formed an opinion of what she wanted to do concerning retirement and the selection of an option, and if the form had already been partially completed, then the entire process on January 14, 1988 could have occurred in a few minutes. It was Ms. Poole's practice to sit next to the prospective retiree, obtain the necessary information, and type it on the retirement form at that time. She would then advise the member of the various options by referring to the back of the retirement form (Respondent's exhibit 12 in evidence) or to a pamphlet explaining the options issued by the Division of Retirement. Both of those documents contain a narrative description of the retirement options. Ms. Poole did not choose a retirement option or advise a prospective retiree of which option to choose. The retiree must choose his or her own option. Ms. Poole would never advise a person concerning which option to take and had been advised by the Division of Retirement never to give such advice on option selection. If Ms. Poole perceived that a prospective retiree was indecisive about option selection or did not appear to understand the options or the consequences of such election, she would advise that person to speak with someone else who was knowledgeable about the retirement system and about the retiree's financial situation, such as a friend or relative. If a prospective retiree was still indecisive or unsure of the meaning of options or which option to select, Ms. Poole would hold the form and not complete it without being sure in her own mind that the retiree understood the option and knew what it meant. In her standard procedure, she would go over each item on the form at least two and up to four times with a retiree. If they were very certain of the option they wanted to select, she would then finish the form and have the person sign it and give it to Ms. Bolinger to notarize. Ms. Poole realized that the choice of an option was an important decision and conducted her interview with the retiree accordingly. She testified in this regard as follows: If they said well I'm looking at 2 and 3, that's waivering. If they said I want option 1, I typed 1 in and I would say it several times as I typed it in. I mean I was very well aware that this selection was for the rest of their life and could affect someone else. I was very well aware of that. So, I would repeat it several times and when I was complete, when the form was complete, I'd give it back and go over it again, again reemphasizing the option. If they did waiver, I would briefly go over the options and there was time, I always mention, you know, there's time to do this, to choose your option, perhaps you want to talk to someone. I could not advise them. That's what I did. Ms. Poole remembered that Mrs. Bazzel came into the office but did not remember if the retirement forms had already been completed or partially completed prior to the visit. She testified that there was no doubt in her mind that Mrs. Bazzel chose option 1 and no doubt that she knew what option 1 meant. Ms. Bolinger began to work with the school board dealing with retirement applications in 1984. She is now the records clerk who handles retirement matters for teachers and school administrators. This is the same job that Ms. Poole performed in January of 1988. Ms. Bolinger notarized the retirement form of Mrs. Bazzel. Ms. Bolinger learned her job from Ms. Poole and testified that the retirement form was always completed in the office before a retirement clerk and was never sent to anyone. She stated that the clerk would ask the member if they understood each of the options, and the clerk would be sure that the member did understand them. It was the practice to ask such a retiring person if he or she was familiar with the options. If the retiree seemed the least bit confused, Ms. Bolinger testified that the clerk would discuss each option all over again with the prospective retiree, give him the form with the options listed on the back, and they would then discuss each one and make sure that the prospective retiree understood each option before continuing the process of executing the requisite forms. Thus, Ms. Poole and Ms. Bolinger or any school board clerk follows a routine practice of examining and discussing in detail each retirement option with a prospective retiree and makes sure that person understands the wording of the four options and what the four options mean before making a selection, answering any questions the prospective retiree might have and advising them to seek counsel from a qualified person if the prospective retiree remains unsure of which option to elect. After the forms are completed, the clerks, including Ms. Bolinger and Ms. Poole, when she was performing that function, examine the forms with the retiring member to make sure that all information is correct. "We wait until they check the whole thing and this is exactly what they want, and I watch them sign it." The signature is the last item which is placed on the retirement form. If the retiring member appears unsure about the options, Ms. Poole and Ms. Bolinger will ask them to go home and think about it and think it all through before they decide. Like Ms. Poole, Ms. Bolinger leaves the option selection up to the retiring member and does not attempt to advise persons about which option to select, merely giving them the information concerning the effect of selecting a particular option. In her capacity as a notary, Ms. Bolinger stated that if a person did not look like they knew what they were doing in executing the form, she would not notarize the form. If they did not appear to understand that they were applying for retirement, or which facet of it they were applying for, she would, likewise, not notarize the form. She would not notarize a signature after the fact of the signature being placed on the form. Ms. Bolinger was shown a copy of Petitioner's exhibit 7, in evidence, which is a copy of the retirement form that did not have her notary signature. She observed that her notary stamp was on that copy but that her name had merely been signed in the wrong place, possibly because she was new to those duties concerning retirement clerk matters. She testified, however, that her signature was correctly placed on the form, she believes, that same day. See pages 17 and 37 of Petitioner's exhibit 7, in evidence. On January 14, 1988, Mrs. Bazzel completed two forms: FR-11, "Application for Service Retirement", and FR-9, "Request for Audit", (see Respondent's exhibits 9 and 10, in evidence). Both of those forms contain Mrs. Bazzel's signature and are dated with the same date, January 14, 1988. The FR- 11 form had that date written on it in three places. The two forms were then filed with the Division of Retirement. They were acknowledged by the Division as being received on the next day, January 15, 1988, according to the form FST- 40C, "Acknowledgment of Retirement Application", which has January 15, 1988 as the received date. See Respondent's exhibit 11 and the testimony of Stanley Colvin, in evidence. The Petitioner testified that he believes the retirement application forms referenced above were suspect as to accuracy because, according to his testimony, he took his wife to the school board offices on a Friday to sign the forms after the end of the teaching day on either January 8th or January 15th, and states that generally he remembers that it was a Friday because that was the day they had the habit of leaving the Panama City area to visit relatives for the weekend. However, the forms are dated January 14, 1988 in several places. The forms in evidence and the testimony of Ms. Colvin establish that the application documents were received on January 15th in the offices of the Respondent agency. Thus, they could not have been signed on Friday, January 15th. If they had been signed on Friday, January 8th, the record leaves no explanation as to why all of the forms were dated January 14th. The Hearing Officer can only logically find that, indeed, the forms were signed by Mrs. Bazzel on January 14, 1988 and received in the offices of the Division in Tallahassee, Florida, on January 15, 1988. The date of January 20, 1988, appearing on the documents, was established to be the date they were received in the bureau within the department which actually performs benefit calculations, not the date it was first received by the department. The evidence establishes that Mrs. Bazzel selected option 1, the retirement option which provides no survivor's benefits. None of the exhibits in evidence can support a finding that she chose or intended to choose option 2, which provides survivor's benefits. The application for service retirement shows an election for option 1 and the acknowledgment of receipt of that retirement application, FST-40C, shows that option 1 was selected, as well as the letter that informed Mrs. Bazzel that she was being added to the retirement payroll in the category of option 1 benefits. On August 1, 1988, the day after the first retirement warrant would have been received by Mrs. Bazzel, Ray Bazzel called the offices of the Division of Retirement to state that Mrs. Bazzel had checked the wrong number of income tax exemptions and wanted to change them. In order to know how many exemptions she had, he would have had to see the stub from that first retirement warrant. The stub would have depicted the gross amount of the benefit, which was the same amount as that provided for option 1, and not the gross amount attributable to option 2. See FST-40C form, in evidence as Respondent's exhibit 8. Additionally, in a conversation with one of her closest friends, Nan Locker, Mrs. Bazzel led Ms. Locker and friends at school to believe that her surgery had alleviated her medical problem with cancer and that she was in good health. During a conversation they had approximately nine months before Mrs. Bazzel's death, Mrs. Bazzel, in talking about retirement with Ms. Locker, who was also contemplating retirement, made a comment as follows: "Well, I've got my retirement and Joe's got his." This comment was made sometime in the fall of 1989 before Mrs. Bazzel's death in July of 1990. Although the Petitioner introduced exhibits 1, 2 and 4 in an attempt to show that his wife meant to select option 2 and that some mistake was made by the school board or the Division in preparing and submitting the documentation setting up Mrs. Bazzel's retirement benefit situation; in reality, those exhibits merely show that Mrs. Bazzel possibly did some calculations as to the difference in monthly amounts between option 1 and option 2. The exhibits can only show that she may have been aware of the difference in monthly benefit amounts between the two options, but they do not show that she intended to select option 2. Indeed, the evidence and testimony, considered in its totality, shows that her selection of option 1 was a voluntary, knowing selection. The evidence also shows that Mrs. Bazzel was mentally and medically competent to make that selection, freely and voluntarily. Her visits with Dr. McCloy, her treating physician, in the first half of 1988, to monitor her health situation after the cancer surgery, were normal and showed nothing unusual as far as any recurrence of cancer was concerned. Her chest x-rays were negative for recurrent cancer. On June 3, 1988, she was diagnosed as having a small duodenal ulcer, but no indication of recurrent cancer was present. Dr. McCloy treated her for the ulcer with medication; and by August 10, 1988, her symptoms attributable thereto had largely been alleviated. Her visits to Dr. McCloy were routine for the remainder of 1988 and 1989, with normal results. It was not until March of 1990 that she was diagnosed with a spot on the left rib, which proved to be recurrent cancer, probably attributable to the original breast cancer. She deceased as a result of this condition on July 9, 1990. Dr. McCloy testified that he never advised Mrs. Bazzel that her cancer was terminal because he believed that it had been successfully treated after the surgery and for a long period of time thereafter he had no evidence of its recurrence. Therefore, he had not advised her that she was terminally ill during the period of time she was making the retirement decisions, applying for and receiving her first retirement check during essentially the first half of 1988. Dr. McCloy's testimony further establishes, without doubt, that Mrs. Bazzel was alert, possessed her full intelligence and faculties, and understood the significance of his medical instructions, and understood his advice as to her health status. Accordingly, it has been established that Mrs. Bazzel did not have a recurrence of cancer until it was diagnosed in March of 1990, long after she had made the relevant retirement decisions pertinent hereto, and that she knew and was fully aware of her medical condition during the process of applying for her retirement benefits. She, therefore, understood the steps she took for retirement application and benefit receipt purposes, and was not medically or mentally impaired to make those decisions. It was established that she began her teaching career as a member of the Teacher Retirement System, pursuant to Chapter 238, Florida Statutes. She subsequently transferred into the Florida Retirement System under Chapter 121, Florida Statutes, during an open enrollment period. While a member of the Teacher Retirement System, she paid $12,870.33 in total contributions, plus interest, which accumulated on those contributions in the amount of $8,561.97, for a total on deposit in her account of $21,432.30. During the period of her retirement before her death, Mrs. Bazzel received total benefits in the amount of $49,551.95. She, therefore, received $28,119.65 more in benefits than she had paid into the Teacher Retirement System in contributions, plus accumulated interest. It was proven that the distance to the residence or places of business of the deponents, whose depositions were admitted into evidence, comports with the standard of Rule 1.330, Florida Rules of Civil Procedure. Since the locations of the deponents as potential witnesses accorded with the 100 mile standard, their depositions were admitted in lieu of live testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Joe Bazzel, is not entitled to have the retirement option selected by Dorothy Bazzel changed from option 1 to option 2. DONE AND ENTERED this 15th day of September, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5774 Petitioner's Proposed Findings of Fact 1-5. Rejected as not being in accord with the preponderant weight of the evidence. 6. Accepted but not itself materially dispositive. 7-11. Rejected as not being in accord with the preponderant weight of the evidence. Respondent's Proposed Findings of Fact 1-25. Accepted. 26-30. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Mr. Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Joe Bazzel P.O. Box 46 Blountstown, FL 32424 Stanley M. Danek, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street, Bldg. C Tallahassee, FL 32399-1560
Findings Of Fact Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows: Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty. Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Ralph Miller, Esquire P.0. Box 112 DeFuniak Springs, Florida 32433 L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue presented in this case is whether Petitioner is entitled to change his retirement to in-line-of-duty disability benefits pursuant to Florida Administrative Code Rule 60S- 4.002(4).
Findings Of Fact The Department's Division of Retirement is charged with managing, governing, and administering the Florida Retirement System (FRS) on behalf of the Department. The FRS is a public retirement system as defined by Florida law. On or about January 3, 1983, Gordon B. Williams began his employment as a Vocational Instructor III for the Florida Department of Corrections. By reason of his employment, Mr. Williams became a member of FRS. Over the course of his career, Mr. Williams suffered a number of on-the-job accidents which resulted in various bodily injuries. On or about February 4, 1998, a Form FR-13a, signed by Sherry Rogers, Personnel Technician I, at Lake Correctional Institution was completed on behalf of Mr. Williams. The form indicated "regular" disability. By letter dated August 27, 1998, Mr. Williams tendered his resignation from his employment. His employment with the State of Florida terminated effective on or about September 23, 1998. Mr. Williams resigned because he was unable to continue performing his duties in light of his physical disabilities. Mr. Williams earned approximately 15.75 years of service credit in the FRS. Mr. Williams called the Division of Retirement to discuss his retirement twice: on or about October 22, 1998, and November 4, 1998. On or about December 14, 1999, Mr. Williams completed and filed with the Division an application for FRS early service retirement. His effective retirement date was November 1, 1998. However, the application received by the Department was not signed. On the unsigned form, immediately above where Petitioner should have signed the application, was the following 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 additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. (Bold in original.) On January 8, 1999, the Division of Retirement notified Petitioner that his application was not signed in the presence of a notary public, and provided another application for him to complete and have properly notarized. This letter also indicated, in all-cap, bold-face type, "Once you retire, you cannot add additional service or change options. Retirement becomes final when any benefit payment is cashed or deposited!" On January 29, 1999, a second Application for Service Retirement was filed with the Division of Retirement, signed by Mr. Williams and notarized on January 18, 1999. This application bore the same statement regarding the applicant's understanding of the inability to change retirement options or type as that quoted in Finding of Fact 9. A third application was submitted in approximately February 1999, to correct a problem related to the notarization of Petitioner's signature. This third application also contained the same statement identified in Finding of Fact 9. On or about March 24, 1999, Mr. Williams completed and filed with the Department a Health Insurance Subsidy Certificate and a withholding certificate for pension payments. Petitioner began receiving benefit payments in March 1999 and these payments were direct deposited to Petitioner's bank account. Petitioner did not apply for disability retirement prior to applying for service retirement. On or about December 28, 2007, a new Form FR-13a, signed by Luz Veintidos, Personnel Specialist, at the Department of Corrections Region III Personnel Office, was completed on behalf of Mr. Williams. This new Form FR-13a indicated "in-line- of-duty" disability. Attached to the new Form FR-13a was the original Form FR-13a completed in February 1998. On or about January 22, 2008, Mr. Williams completed and filed with the Department an application for in-line-of-duty disability retirement, along with a letter requesting that his type of retirement be changed from service retirement to disability retirement. Respondent's records do not indicate and no competent testimony indicates that Respondent received any documents related to Petitioner's claim for disability retirement prior to January 2008. While Petitioner inquired about disability retirement, no application was filed requesting it until 2008. By letter dated February 8, 2008, the Division of Retirement advised Mr. Williams that a retired member could not change his type of retirement after a benefit payment has been cashed or deposited and therefore the Division of Retirement could not honor his request. By letter dated February 25, 2008, Mr. Williams contended that he was "following Division of Retirement instructions when he applied for early service retirement instead of disability retirement" and that his October 1998 telephone conversation with the Division "was, in effect, a denial of application for benefits." He could not, however, identify who he talked to at the Division of Retirement that instructed him regarding his choice to file for early retirement. Nor did he indicate that at any time he understood that an application for retirement could be processed by an individual agency as opposed to the Division of Retirement, or processed by telephone without a written application. By letter dated April 11, 2008, the Division advised Mr. Williams of its final decision to deny his request to change his type of retirement from service retirement to disability retirement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request to change his retirement status to in-line-of-duty disability retirement. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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, 2008. COPIES FURNISHED: Gordon B. Williams 19607 North Highway 27 Clermont, Florida 34715 Geoffrey Christian, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact The Division of Retirement will make no Findings of Fact relating to whether Petitioner's disability was in-line-of-duty. Accordingly, for the reasons mentioned previously, all findings contained in paragraphs 5, 6, 7, and 8, of the recommended order are rejected. However, the Division accepts the remaining Findings of Fact contained in the recommended order. As taken from the order these findings are: Herman Williams was an employee of the Department of Transportation and a member of the Florida Retirement System. The Division of Retirement approved payment of regular disability benefits to Herman Williams. Herman Williams is currently receiving and accepting these benefits. Herman Williams is an illiterate Seminole Indian, 62 years of age. Williams' duties with the Department of Transportation were driving a mowing tractor and cleaning out roadside ditches. Williams worked for the Department of Transportation approximately 21 years 11 months prior to being placed on the retired roles [sic]. On May 1, 1975, Williams was driving his tractor in the course of his regular employment at the Department of Transportation when the power steering of the tractor malfunctioned causing the front wheels to swerve violently, wrenching the steering wheel in Williams' hands and nearly throwing him from the tractor. Repairs had to be made to Williams' tractor by a Department of Transportation mechanic because the tractor was inoperative. The mechanic discovered a loose nut in the power steering assembly when he exchanged the power steering unit in Williams' tractor with another from the maintenance yard. When the new unit was installed in Williams's tractor it functioned normally. When the power steering from Williams' tractor was installed in the other tractor, it also functioned normally. The mechanic stated that the loose nut which he had discovered could cause the tractor to swerve violently in the manner Williams' had described. On the afternoon of May 1, 1975, Williams reported this instant [sic] to his supervisor, David McQuaig. Mr. McQuaig inquired as to any injuries to Williams and the tractor. Williams reported to McQuaig that the tractor had not been harmed and that he was only sore and stiff. No report of injury was prepared by McQuaig whose duty it was to file such reports. Williams' condition did not materially improve after seeking medical treatment by Dr. Albritton. Williams remained on sick leave until August 11, 1975, when it was exhausted. Williams then took annual leave from August 12, 1975 until September 23, 19975, when his retirement became effective. When the Petitioner's sick leave was exhausted, he was contacted by his supervisor in the Department of Transportation. He suggested that Williams could retire on disability if two physicians would state that he was disabled. This letter was read to Williams by his son, Eddie, because Williams is illiterate. Retirement application forms were provided Williams by the Department of Transportation. The physician report forms were completed by Dr. Albritton and Dr. Wilkerson. The statement of disability by employer form was completed by Williams' supervisor, David A. Young, Maintenance Engineer, for the Department of Transportation. Young stated that he completed the Statement of Disability by Employer, indicating that the application was for regular disability benefits because he had determined that no workman's compensation claim had been made by Williams and because Dr. Wilkerson's medical report had stated that the injuries occurred at Williams's home. The determination that the application was for regular disability benefits was solely Young's. The Application for Disability Retirement signed by Williams was prepared by personnel at the Department of Transportation District Office. This form was signed by Herman Williams; however, this form does not make provision for the member to state the nature of the disability benefits sought. Eddie Williams, son of Herman Williams, took his father to sign the forms at the Department of Transportation office. These forms were not explained to Williams, nor did Eddie Williams read them. Herman Williams was also unaware that such a benefit existed. Herman Williams stated he sought disability benefits based upon his injury on the job. Disability retirement was not discussed between Herman Williams and David Young. Based upon the application submitted in his behalf, the Division of Retirement made a determination that Williams was entitled to regular disability benefits. Williams was unaware that he was not receiving the in-line-of-duty benefits until his son inquired as to how much money he was receiving. When he was advised, he told his father that it appeared to be too little money. At this point Eddie Williams discovered that the application had been for regular disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the administrator permit the applicant to file an amended application for disability in-line-of-duty retirement, and, further, that said application be approved. DONE and ENTERED this 8th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. W. Chalkley, III, Esquire Post Office Box 1793 Ocala, Florida 32670 Douglas Spangler, Jr., Esquire Asst. Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT DEPARTMENT OF ADMINISTRATION HERMAN H. WILLIAMS, Petitioner, vs. CASE NO. 77-982 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. / FINAL AGENCY ORDER A petition for formal proceedings having been duly filed, and a request for hearing officer having been duly made, a hearing was held in the above-styled cause pursuant to the provisions of Section 120.57(1), Florida Statutes, before the Honorable Stephen F. Dean, Hearing Officer, in Ocala, Florida, on September 15, 1977. The Petitioner requested relief from the Division's determination that Petitioner was not entitled to resubmit an application for disability retirement requesting in-line-of-duty disability retirement benefits because he had previously applied for and accepted regular disability retirement. The purpose of the hearing was to determine the factual basis for Petitioner's claim that he should be allowed to apply for in-line-of-duty disability retirement benefits. APPEARANCES AT THE HEARING: Eric E. Wagner, Esquire J. W. Chalkey, III, Esquire Law Offices of Eric E. Wagner, P.A. Post Office Box 1763 Ocala, Florida 32670 For the Petitioner E. Douglas Spangler, Jr., Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 For the Respondent The Hearing Officer entered his Recommended Order on December 8, 1977, in which he sustained Petitioner's assertion and concluded, on the basis of the findings made as a result of the hearing, that Petitioner should be entitled to resubmit his application and request in-line-of-duty disability benefits. In addition to this determination, the Hearing Officer found that Petitioner was in fact entitled to in-line-of-duty disability retirement benefits. In making this latter conclusion, both as a matter of fact and of law, the Hearing Officer went beyond his scope of authority. As will be developed more fully herein, the Hearing Officer was without jurisdiction to consider the issue of whether Petitioner was in fact entitled to the in-line-of-duty benefits. Therefore, so much of the recommended order as purports to address this issue is of no effect, being the result of a hearing that did not comply with the essential requirements of law.
The Issue The issue is whether Petitioner is entitled to additional retirement benefits for her years of service between September 1966 and December 1974.
Findings Of Fact Petitioner is a retired member of the FRS. She began working for the Duval County Juvenile Detention Center (DCJDC) in August 1966. However, Petitioner's name was not placed on the payroll until September 1966 because of the time she was absent. As an employee of the DCJDC, Petitioner was a county employee but also a participant in the FRS. She made contributions in the amount of $1,850.78 to the FRS from September 1966 through December 1974. The FRS became non- contributory for all state and county employees in January 1975. Petitioner terminated her employment with Duval County on June 20, 1977. At that time, Petitioner requested a refund of her accumulated contributions to the FRS. Petitioner acknowledged in her request for refund that she waived her interest in FRS for the refunded service. On or about February 22, 1978, Respondent issued Voucher #273254 and Warrant #0364356 made payable to Petitioner in the amount of $1,850.78. Petitioner's testimony that she never received the refund is not credible. On or about October 16, 1981, Petitioner returned to work at DCJDC. After receiving several promotions, Petitioner transferred to a position at the Department of Health. Petitioner terminated her employment at the Department of Health on November 13, 1998. In August 2000, Petitioner filed an Application for Service Retirement. The application includes the following sworn 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 additional service, change options, or change my type of retirement (Regular, Disability, and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. Respondent sent Petitioner an Acknowledgment of Service Retirement Application dated August 10, 2000. The acknowledgment indicated that Petitioner's retirement date was June 2000 and that she could purchase credit for refunded service from September 1966 through December 1974 by paying Respondent $7,918.46. The acknowledgment made it clear that Respondent required written notification if Petitioner did not intend to purchase this service. In March 2001, Petitioner executed an Option Selection for FRS Members. She selected Option 1, which provides her a monthly benefit for her lifetime. In a letter dated March 27, 2001, Petitioner advised Respondent that she did not intend to buy back any time. Additionally, she stated as follows: I would like for my retirement application to be accepted/processed as is. The rate quoted was at $517.00. However, if this amount is incorrect, I would like to know as soon as possible. Based upon Petitioner's statement in the letter, Respondent began paying and Petitioner began receiving her retirement benefits effective June 1, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to any additional retirement benefits. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 24th day of June, 2004. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Veronica P. Holt 230 East First Street, Apartment 1313 Jacksonville, Florida 32206 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner is entitled to disability retirement benefits calculated as if she had reached the age of 65, irrespective of her true age.
Findings Of Fact From April 1969 until March 1996, Petitioner, Bobbie Jones Scott, was employed as a school teacher by the Okaloosa County School Board. She served 27 years as an elementary school teacher, teaching at the same Okaloosa County elementary school for her entire tenure. Prior to commencing her teaching career, Petitioner served as a library aide in Okaloosa County for the full 9-month term of that position in the 1967-1968 school year. Petitioner is a member of the TRS. The TRS was closed to new members on December 1, 1970. Since closure, teachers have been enrolled in the Florida Retirement System (FRS). At some point, Petitioner purchased retirement credits in TRS for the school year during which Petitioner served as a library aide. Early retirees under both TRS and FRS, retiring without disability, have their retirement benefits actuarially reduced by five percent per year or five-twelfths percent per month for each year or fraction of year that the retiree is under the age of 62. See, Section 121.021(30), Florida Statutes and Rule 6S-7.003, Florida Administrative Code. Petitioner first inquired about retirement in 1993, when her husband, also a teacher, retired. She requested and obtained from the Division an estimate of early retirement benefits. In 1993, the early retirement penalty reduced Petitioner's retirement benefit to 67.9 percent of her normal retirement benefit. The reduction was so great that Petitioner elected to keep teaching. On October 16, 1994, Petitioner severely injured her arm when she slipped on a freshly waxed floor at the elementary school. Several surgical procedures were required over the next two years as a result of this accident. Despite extensive physical therapy, Petitioner did not regain full range of motion and full use of her dominant right arm. Petitioner could not raise her arm above shoulder level and could not raise it high enough to write on a blackboard. The injury clearly interfered significantly with Petitioner's ability to teach. In December 1994, because of her injury, Petitioner requested an estimate of retirement benefits. Again, the early retirement penalty reduced the retirement benefit to 77.9 percent of normal benefits. The reduction was so great that Petitioner could not afford to retire. Approximately three months after her accident on January 17, 1995, the Petitioner returned to teaching. Her physical therapy and surgical treatment continued. In June 1995, while recuperating from the third operation on her arm, Petitioner called the Division of Retirement to request information on disability retirement. She specifically told the person she spoke with that she was a member of TRS. Petitioner was sent an application form and instructions for retirement under FRS instead of an application and instructions for TRS. At that time, the Petitioner did not submit the application because a decision on the application would not be reached before the start of the 1995-1996 school year. Petitioner wished to avoid commencing the school year, only to leave teaching several weeks into the school year, necessitating finding and hiring a replacement teacher and disrupting the students’ course of studies. In November 1995, Petitioner was diagnosed with diabetes. Teaching was becoming detrimental to Petitioner's health. At the urging of her physician she elected to pursue disability retirement. The Petitioner reviewed a booklet sent to her by Respondent entitled "Florida Retirement System Disability Benefits." The Petitioner relied on the statement on page 27 of the booklet which states, "Disability benefits are not reduced for early retirement." Based on that statement Petitioner applied for disability retirement and submitted the disability retirement application which she had received earlier along with the requisite supporting documentation on January 10, 1996. Neither the FRS disability retirement application form nor the FRS Disability Retirement Handbook informed Petitioner that there would be an early retirement penalty for disability retirees. However, the FRS literature also indicates that employees who are members of other retirement systems may be governed by different rules and should look to those other retirement systems. Unfortunately, Petitioner had been given the wrong information by the Division of Retirement even though she had specified she was a member of TRS. On February 9, 1996, after receiving Petitioner's application, the Division of Retirement sent a letter to Petitioner advising her that the incorrect disability retirement application form had been used. A TRS Disability Retirement Application form was enclosed with the letter. Only the title of the application was changed. In essence, the TRS application was the same as the FRS application. No booklet or pamphlet explaining the TRS system was provided. On February 14, 1996, immediately upon her receipt of the February 9, letter and the TRS Disability Retirement Application form, Petitioner telephoned the Division of Retirement and spoke with Mark Sadler, a retirement administrator in the disability determination section within the Division of Retirement. The Petitioner explained that she had used the disability retirement forms provided to her by the Division. She inquired as to whether an additional 30 days would be needed to process her application. She also indicated that the reason she was still working and had not retired previously is that she could not afford to be assessed the early retirement penalty. Mr. Sadler informed the Petitioner that she would need to submit the correct TRS Disability Retirement application. However, Mr. Sadler agreed to accept the physician’s report of disability already submitted with the FRS form and to expedite her request for disability retirement since the medical information which Petitioner had submitted met the TRS requirements for disability documentation. On or about March 7, 1996, Petitioner received notification from the Division of Retirement that her application for disability retirement had been approved. The next day, Petitioner met with Virginia Bowles, a benefits specialist with the Okaloosa County School Board, to obtain an estimate of her retirement benefits under Plan E of the TRS system. Mrs. Bowles prepared an estimate of Petitioner’s benefits. The estimate did not show any reduction of benefits for early retirement. The form Ms. Bowles prepared was clearly labeled "estimate" and provided, inter alia, that Petitioner would receive a calculation of her retirement benefits from the Division of Retirement in approximately three weeks. While in Mrs. Bowles’ office, Petitioner insisted on confirmation from the Division of Retirement that an early retirement penalty would not be imposed on her benefits. In the Petitioner’s presence, Mrs. Bowles called the Division of Retirement to verify that there was no early retirement penalty for disability retirees. Mrs. Bowles was assured that there was no such penalty. Mrs. Bowles immediately relayed that information to Petitioner. Based on this representation, Petitioner immediately resigned her position on March 8, to be effective March 13, 1996.1 Had Petitioner known there would be a reduction in her disability retirement benefits and had she not received incorrect information from both the Division of Retirement and the Okaloosa County School Board, she would have found some way to continue working to avoid the early retirement penalty even though continued employment would have been detrimental to her health.2 At the time of her retirement, Petitioner had attained the age of 58 years and 4 months, 44 months short of the normal retirement of age 62. The estimate prepared by Ms. Bowles reflected that Petitioner's monthly retirement benefit would fall between $1,458.20 and $1,512.41. At the time of her resignation, Petitioner was earning over $39,000 per year as an experienced teacher. Once Petitioner resigned her position, she could not immediately return to work. Board policy required her to wait one year before re-employment and then she could be rehired at a starting teacher’s salary of about $21,000. A couple of weeks after resigning her position, Petitioner received a calculation of her retirement benefits from the Division of Retirement. The benefits were significantly lower than the estimate of benefits prepared by Mrs. Bowles. Retirement benefits under Plan E are calculated by, first, determining an "average final compensation," or AFC, for an employee by averaging the 10 highest years of salary in the employee’s last 15 years of employment. The employee’s compensation percentage, or "comp percent," is then determined by assigning a 2 percent value for every year of creditable service. The AFC is then multiplied by the comp percent to arrive at a retirement benefits figure. In Petitioner’s case, the Division calculated AFC as $32,601.10. The Division, based on 27.9 years of service, arrived at a comp percent of .558, resulting in a normal retirement allowance of $18,191.41 per year or $1,515.95 per month.3 However, because Ms. Scott fell into the early retirement category under TRS her benefits were reduced. In calculating Petitioner’s disability benefits, the Division of Retirement reduced the otherwise normal retirement benefit calculation by 18.33 percent to 81.667 percent of her normal benefit. The reduction resulted in a monthly retirement benefit of $1,238.03. The reduction is the result of a five- twelfths of one percent reduction for each month that Petitioner was short of age 62 and is the correct benefit calculation under TRS. See Rule 6S-7.003, Florida Administrative Code.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Division of Retirement calculated Petitioner’s benefits correctly and is not estopped from reducing Petitioner’s benefits based on her status as a disability retiree. DONE AND ENTERED this 30th day of July, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1997.
The Issue The issue is whether petitioner's average final compensation and retirement service credit were properly calculated.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Dr. Michael Kasha, is a former professor in the School of Arts and Sciences at Florida State University. His most recent stint of employment occurred during school year 1995-96 when he was employed in the Institute of Molecular Biophysics. He retired at the end of December 1995, and counting several years of out-of-state service, he had a total of 50.58 years of creditable service. In November 1995, petitioner contacted respondent, Division of Retirement (DOR), for the purpose of determining his Average Final Compensation (AFC) for retirement purposes. That agency has the statutory responsibility of performing all retirement related calculations. In making its calculations, DOR determined petitioner's service credit for his last fiscal year of service (1995-96) by using a nine-month work year divided by six months of actual service (July-December 1995), or a .67 service credit. When this factor was applied to his compensation received for the six months of service, it produced a much lower annualized salary for ranking purposes than petitioner expected. Contending that a twelve-month work year should have been used, rather than the nine months used by DOR, petitioner filed a request for a hearing to contest DOR's action. During petitioner's last fiscal year of service, he was contracted to work from July 1 to July 28, 1995, by a Summer Supplemental Employment Contract. In addition, he was employed under a Nine Month Employment Contract from August 8, 1995, to May 6, 1996. On January 23, 1996, however, this contract was mutually revised by the parties to provide that petitioner's employment would terminate on December 29, 1995. Between July 1, 1995, and December 29, 1995, the parties agree that petitioner received $67,290.22 in total compensation from the university. To determine a member's appropriate service credit, DOR rule 60S- 2.002(4)(a) provides that if a member earns service credit for fewer months than comprise his work year, he shall receive a fraction of a year of service credit, such fraction to be determined by dividing the number of months and fractions thereof of service earned by the number of months in the approved work year. Since petitioner worked only six months during his last work year, the rule requires that this period of time be divided by "the number of months in the approved work year" to calculate his appropriate service credit. Members of the retirement system are employed for either nine, ten or twelve months each fiscal year, depending on the nature of their jobs. As to university instructional/academic members, such as petitioner, DOR rule 60S- 2.002(4)(b) defines the work year to be the number of months in the full contract year or nine months, whichever is greater, as specified by the contract between the employee and the school system. Because university faculty members normally work under a nine-month contract, DOR used that time period to establish petitioner's work year. In doing so, DOR excluded petitioner's Supplemental Summer School Contract on the theory it was "supplemental to (his) regular 9 month contract." That is to say, petitioner earned a maximum full year of creditable service during the nine months, and the three months in the supplemental contract would not add any additional creditable service. This determination is in conformity with the rule. Since petitioner's actual service credit for fiscal year 1995-96 was six months, that is, he worked full-time from July 1 through December 29, 1995, the computation under rule 60S-2.002(4)(a) produced a service credit of .67. Petitioner's compensation of $67,290.22 was then divided by the .67 factor and resulted in an annualized salary for ranking purposes of $100,433.16. Since the salary was not one of petitioner's highest fiscal years of salary, it was excluded from his AFC. Petitioner contends, however, that his work year is actually twelve months, rather than nine, if his Supplemental Summer School Contract is included. He points out that the university has always required that he and other science professors be on campus twelve months a year, unlike most other faculty members. Despite this requirement, the university has never used a twelve-month contract for this group of professors. Instead, it has relied on a combination of regular and supplemental contracts. If a twelve month work year had been used for petitioner's last fiscal year, this would have produced a service credit of .50, which if applied to his compensation, would have produced an annualized salary for ranking purposes of $134,580.44. This in turn would increase petitioner's retirement benefits by more than $1,200 per year. There is no provision in the DOR's rules which permits the use of a twelve-month work year in calculating the service credit for any person who is employed under a nine-month contract. While this may be unfair to members who find themselves in petitioner's circumstances, until the rule is changed, it must be uniformly applied. Therefore, the request should be denied.
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 petitioner's request to have his retirement benefit calculated using a twelve- month work year for his last fiscal year of employment. DONE AND ENTERED this 22nd day of January, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1997. COPIES FURNISHED: Dr. Michael Kasha 3260 Longleaf Road Tallahassee, Florida 32310 Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner is eligible for retirement pursuant to Section 112.05, Florida Statutes.
Findings Of Fact Petitioner is a public health nurse supervisor who has been employed by the Hardee County Health Department since October 1, 1947. On October 22, 1971, while on annual leave in Texas, Petitioner telephoned her supervisor requesting that she be placed on leave of absence without pay until December 1, 1971. She requested this type of leave because she was experiencing difficulties with her back and did not desire to request sick leave since she was out of state. Her annual leave was almost exhausted at that time. Her supervisor authorized the requested leave and she was informed that she must keep up her health insurance premium payments while on leave of absence. She did so. The period of leave without pay extended from October 22 to December 3, 1971. (Testimony of Petitioner, Trussell, Petitioner's Exhibits 1-2) At the time the leave without pay was authorized, the personnel records clerk of the Hardee County Health Department requested and received information from the personnel department of the then State Board of Health of Jacksonville, Florida, that a leave without pay would not jeopardize Petitioner's retirement status. Similar information had been provided Petitioner and the clerk during a visit to that agency in 1970. (Testimony of Petitioner, Trussell) When Petitioner returned to duty from her leave without pay in December, 1971, the only personnel action taken by her employer was to prepare a personnel action form showing such return. At the time the leave without pay was taken by Petitioner, she had over 400 hours of accrued sick leave to her credit. (Testimony of Trussell, Petitioner's Composite Exhibit 2) During her employment, Petitioner was a member of the State and County Officers and Employees Retirement System (Chapter 122, F.S.) and paid contributions toward retirement under that system. As of January, 1978, she had contributed $11,195.37 into the retirement fund. She also was under the noncontributory plan for state employees (Section 112.05, F.S.) and was provided an estimated computation of retirement benefits under both retirement systems by the Department of Health and Rehabilitative Services on May 14, 1971. (Petitioner's Composite Exhibit 2) On March 22, 1977, Petitioner filed application for service retirement under the provisions of Chapter 122, Florida Statutes, with a designated retirement date of January 5, 1978. By letter of April 21, 1977, Respondent advised that applications were not accepted earlier than sixty to ninety days prior to the date of retirement. Petitioner resubmitted the application in September, 1977. By letter of October 7, 1977, Respondent advised the Petitioner that inasmuch as she had been granted a leave of absence without pay in November, 1971, a break in service occurred and therefore she was a compulsory member of the Florida Retirement System upon returning to employment in December of 1971, pursuant to Rule 22B-1.04(4), (sic) F.A.C. In this letter, she was also advised that Social Security contributions were payable on her account from December, 1971, but since her previous retirement contributions offset this indebtedness to some extent, she would owe for Social Security coverage retroactive to the calendar year, 1973. Thereafter, by an invoice dated January 30, 1978, the Division of Health, Department of Health and Rehabilitative Services, was billed a total of $6,523.74 for Petitioner's Social Security contributions, of which half or $3,261.87 was owed by the employee. (Petitioner's Composite Exhibit 2, Respondent's Composite Exhibit 1) In a letter dated November 9, 1977, the State Retirement Director advised Petitioner that she became a mandatory member of the Florida Retirement System in December, 1971, because she was off the payroll for a month and thereby had a break in service. He further advised that this fact alone did not interfere with her eligibility to be considered for retirement under Section 112.05, but since she had been off the state payroll for more than a month, she was not eligible to retire under that provision. Another letter of the State Retirement Director, dated February 23, 1978, stated that he had reconsidered his position, but adhered to the decision that Petitioner was a compulsory member of the Florida Retirement System pursuant to Rule 22B-1.04(1)4 and did not qualify for retirement under Section 112.05. Petitioner was advised of her right to a hearing in the matter and she thereafter requested the same on March 3, 1978, wherein she requests a determination of her eligibility to retire under Section 112.05.
Recommendation That Petitioner's request for retirement under the provisions of Section 112.05, Florida Statutes, be approved. DONE and ENTERED this 17th day of August, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony N. Deluccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 2258 Fort Myers, Florida 33902 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Building 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
