Findings Of Fact Petitioner and Respondent agreed to the following facts: On November 23, 1975, Herschel and Audi Motes, a deputy sheriff with the Putnam County Sheriff's Department, died of a heart attack while arresting an individual who struggled with the arresting Louise Motes, Petitioner in this cause, was married to Herschel Audi Motes at the time of his death, thereby becoming his widow. Mrs. Motes remains unmarried to date and is qualified as to her status for all of the rights and benefits granted January 21, 1976, Sheriff E.W. Pellicer wrote a letter to the Department of Administration, Division of Personnel and Retirement, furnishing the Department with the record of Mr. Motes' salary, contributions to the retirement fund, together with the dates of his employment. The letter concluded by stating, "I would appreciate hearing from you at an early date and if anything further is needed, please advise." The letter was signed by E.W. Pellicer, Sheriff, Putnam County, Florida. On March 10, 1976, Mrs. Motes received a letter from Marjorie B. Smith, Retirement Benefits Specialist, with the letter showing a copy to Mr. E.W. Pellicer. The letter stated as follows: "As the designated beneficiary and surviving spouse of Herschel A. Motes, who died November 23, 1975, you are entitled to the refund of the accumulated retirement contributions which amount to $4,325.69 or the Option 3 monthly retirement benefit. If you desire the refund of the contributions, you should execute a request for refund, form . . . which must be completed in the personnel office of the Putnam County Sheriff's Department If you prefer the Option 3 monthly retirement benefit, which has been computed to be $125.29 based on 18.30 years of service, you should execute the enclosed form FST-11b on which a single beneficiary must be designated and send your personal remittance in the amount of $1,089.23 made payable to the Florida Retirement System. This payment is necessary to allow credit for four years of military service, service rendered from April through August 1963, and complete payment of the necessary contributions for the 1963-64 and 1964-65 years. This monthly benefit, if elected instead of the refund, is a lifetime income which will continue even though you should remarry. In the event of your death prior to receiving in monthly benefits an amount equal to the total accumulated retirement contributions, any contribution on deposit in excess of the total monthly benefits paid will be refunded to your beneficiary. Please let us know if we may be of further assistance." (emphasis added). Enclosed with this letter was form FST-11b which is an "Application of Beneficiary for Monthly Benefits." The form. Joint Exhibit I, contained no reference whatsoever to any rights or benefits under Section 121.091(7)(c)(1), Florida Statutes (the death in the line of duty benefits). Either the Division of Retirement or a Mrs. Key, with the Sheriff's Office of Putnam County, had filled in the blank portions of the first sentence of the form by writing "121" and "3" in the blanks where the form states "Chapter 121, Option 3." The remainder of the form is typed in except for the signature of Louise A. Motes. After filing the "application" through the Putnam County Sheriff's Office, and receiving her first benefit check, Mrs. Motes had a conversation with a Mr. Ronald Clark of Palatka, Florida, about workmens' compensation comprehension benefits. As a result of that conversation, she went to an attorney, who filed a workmens' compensation claim for her. Sometime thereafter, Mrs. Motes was going through some of her husband's papers, which were contained in a filing cabinet at the Sheriff's Office, which her sons brought home. In those papers, she found a newspaper article that Mr. Motes had cut out and saved which told about the death in the line of duty benefits, a copy of the newspaper articles is attached to and made part of Joint Exhibit K. In response thereto, Mrs. Motes went back to the attorney who had filed her workmens' compensation claim and inquired about the "death in the line of duty retirement benefits" of Section 121.091(7)(c), Florida Statutes. At no time prior to or during her filing out the "application" from the State of Florida, Bureau of Retirement, was she informed by anyone that she might possibly entitled to higher benefits because of the manner in which her husband died. At no time prior to filling out the retirement "application" did she have any actual knowledge that the State paid benefits other than those benefits which had been presented to her which were listed on said application. At no time did the Sheriff's Office inform her that she had any possibility of benefits other than the benefits listed on the above stated State of Florida, Bureau of Retirement, application form. By letter of November 7, 1977, Steven S. Mathues, Assistant Division Attorney for the Division of Retirement, Department of Administration, informed Ms. Jill Brown (the attorney for Mrs. Motes who began the original inquiry as to obtaining the "death in the line of duty benefits"), that " . . . it is this Division's position that all retirement benefits and options become fixed when the first warrant is cashed. However, it would appear that under Chapter 120, Florida Statutes, your client would have a right to challenge this position . . . . As I see it, the issue would be whether Mrs. Motes' notarized application . . . and continued acceptance of benefits would estop her from now attempting to change the benefit " Thereafter, Mrs. Motes' case was referred to Mr. Maynard, who after several conferences with Mr. Mathues, the attorney for the Division of Retirement, filed a Petition for Administrative Hearing on Mrs. Motes' behalf, alleging, among other things, that Herschel Audi Motes was killed in the line of duty within the meaning of Section 121.091(7)(c)(1), Florida Statutes. The petition also alleged that the Division's "policy" that as of the moment Mrs. Motes had cashed one of her benefit checks her retirement benefits had vested and could not be changed by her subsequent to that event was within the definition of a rule as defined by Section 120.54(14), Florida Statutes, and that the Division of Retirement had never promulgated such a rule in accord with the procedures required by Chapter 120. Depositions were taken in Daytona, Palatka, and Tallahassee on the issue of whether or not Mr. Motes had been "killed in the line of duty." Subsequent to those depositions, Mr. Mathues informed Petitioner that the Division of Retirement no longer wanted to contest the in line of duty issue. Thereafter, Mr. Mathues and Mr. Maynard, attorney for Petitioner, executed a "Joint Motion for Continuance" which states as follows: "1. The parties have settled all of the questions which relate to the issue of whether Herschel Audi Motes, his widow, to the in line of duty death benefits provided in Chapter121, Florida Statues. The only remaining issue in dispute is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided in Chapter 121, Florida Statutes, because she has been cashing her benefit checks since 1975. The remaining issue is solely a legal issue and does not require any testimony by witnesses, with the possible exception of testimony by Mrs. Motes and/or affidavits from Mrs. Motes and the Putnam County Sheriff's Office if the parties cannot agree to a stipulation of facts. Therefore, this issue can be argued by the undersigned attorneys for the parties in Tallahassee, Florida, at the time and place stated above." The Joint Motion was signed by both Mr. Maynard and Mr. Mathues. In response to that Motion, the hearing officer promulgated an Order entitled "Order of Continuance" which stated: "The parties in the above styled cause have filed a Joint Motion for Continuance of the hearing from February 15, 1979, at 1:00 p.m. in Palatka, Florida, to February 26, 1979, at 10:00 a.m., in Room 103, Collins Building, in Tallahassee, Florida. The Motion is granted. Done and Ordered this 12th day of February, 1979, in Tallahassee, Leon County, Florida." With the Division of Retirement, Department of Administration, no longer contesting the in line of duty issue, a final hearing was held on February 26, 1979, on the only remaining issue in dispute which is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided by Chapter 121, Florida Statutes, because she has been cashing retirement benefit checks since 1975. The issue as to whether Petitioner's husband died in such a manner as to entitle her to in-line-of-duty death benefits has been settled by agreement of the parties in Petitioner's favor. This Administrative Hearing was held to resolve the issue of whether Petitioner waived her right to the in-line-of-duty death benefits provided in Section 121.091(7)(c)(1), Florida Statutes, inasmuch as she has been cashing benefit checks awarded her pursuant to Section 121.091(6)(a)(3). Inquiry to the Respondent as to subject retirement claim was made by Petitioner, Louise Motes, when she became aware of the possibility of her entitlement to in-line-of-duty death benefits. No rules have been promulgated in relation to Section 121.091(7) Death benefits, although Rule 22B-4.10(5) was promulgated in 1972 (amended 1974) under authority of Section 212.091(6), Florida Statutes.
Recommendation Deny the request of Petitioner to change the retirement benefits she now receives to in-line-of-duty death benefits provided in Chapter 121, Florida Statutes. DONE and ORDERED this 1st day of June, 1979, 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: Stephen S. Mathues, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32301 Zollie M. Maynard, Esquire 502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT LOUISE MOTES, Petitioner, vs. DOAH Case NO. 78-2105 DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
Findings Of Fact This case is an action for in-line-of-duty death benefits brought pursuant to Sections 120.57, 121.021(14), and 121.091(7), Florida Statutes. Carolyn W. Walker was the legal wife and is now the widow of Ronnie D. Walker, deceased. Carolyn W. Walker is the natural mother and legal guardian of Melanie L. Walker, age 9; Ronnie D. Walker, Jr., age 5; and Jason W. Walker, age 6 months; the minor children of Ronnie D. Walker, deceased. At the time of his death on December 4, 1976, and for the previous six years, Ronnie D. Walker was employed as a sergeant and deputy sheriff for the Leon County Sheriff's Department. Sgt. Walker was killed in an automobile/tank truck collision at the intersection of Woodville Highway and Oakridge Drive, Leon County, Florida. The location of the accident in which Sgt. Walker was killed was less than one mile from his residence on Oakridge Drive. Based upon the time his shift terminated and the location of the accident, Sgt. Walker had chosen the most direct route from the Leon County Jail to his residence. At the time of his death, Sgt. Walker was in full uniform and was armed. Sgt. Walker was a member of the Florida Retirement System at the time of his death and was entitled to the benefits provided for in Chapter 121, Florida Statutes. Carolyn W. Walker was the designated beneficiary of Ronnie D. Walker for death benefits payable under the provisions of Chapter 121, Florida Statutes. Subsequent to the death of her husband, Carolyn Walker made application to the Division of Retirement for in-line-of-duty death benefits, pursuant to Section 121.091(7)(c), Florida Statutes. All information, data and documentation required by the Division of Retirement was furnished by either Mrs. Walker or her attorneys. Deputies of the Leon County Sheriff's Department work a tour of duty known as a shift. The work day for the Leon County Sheriff's Department was at the time in question in this case divided into three shifts; 7:00 a.m. - 3:00 p.m., 3:00 p.m. - 11:00 p.m., 11:00 p.m. - 7:00 a.m. The deputies worked different shifts on a rotating basis, the times changing on a 28-day cycle. Sgt. Ronnie Walker worked the 11:00 p.m. - 7:00 a.m. shift on the evening of December 3, 1976 and morning of December 4, 1976. Sgt. Walker was the acting shift commander during this particular shift due to the absence of Lt. Ron Koenig, the regular shift commander. Therefore, in addition to his duties as a field deputy, Sgt. Walker assumed a supervisory role with responsibility for efficient operation of the evening shift on the tour of duty preceding his death. As part of his normal and routine duties, a shift commander or his replacement is responsible for initiating investigations of more serious incidents during his shift. It is not unusual for a shift commander's involvement in such investigations to extend well beyond the termination of the normal tour of duty, to include providing additional information needed as the investigation by the Sheriff's Department is continued. However, the responsibility for making routine investigations passes from the shift commander on duty when he is relieved by the oncoming shift commander. A shift ends when the shift commander checks in the field deputies from their patrol assignments and clears them from the Leon County. Once the field deputies have been cleared and relieved the shift commander is relieved. Deputies below the rank of shift commander, to include Sgt. Walker, were not assigned a sheriff's patrol car 24 hours a day. All shift commanders and above were assigned an official vehicle which they were required to use and have available at all times. Although the Leon County Sheriff at the time would have preferred to provide field deputies with patrol cars, field deputies had to furnish their own transportation to and from work due to lack of money. Field deputies would pick up their official vehicles at the Leon County Jail at the commencement of their tour of duty. Sgt. Walker, as deputy shift commander, was required to provide his own transportation to and from work, and at the time of his fatal accident was driving his personal vehicle. At the time of his death and for the preceding several years, Sgt. Walker and other deputies of the Leon County Sheriff's Department had been required by their employer, the sheriff of Leon County, to work many overtime hours in addition to the hours of their regularly scheduled formalized shifts. These additional hours of work were required by the sheriff due to the lack of money in the sheriff's budget to employ additional deputies. Neither Sgt. Walker nor the other deputies of the Leon County Sheriff's Department received regular compensatory pay or compensatory leave for these additional hours of work which they were required to perform. At the time of his death, having been cleared of his regular shift duties, Sgt. Walker was subject to performance of the following duties prescribed and required by his employer the sheriff of Leon County: Walker was required to be available by telephone 24 hours a day except when on leave. If Walker was not at his residence, he was required to advise the Leon County Sheriff's Office of a telephone number in which he could be reached. Sgt. Walker was required to enforce the laws of the State of Florida at all times with the exception established by the sheriff of Leon County that minor infractions which did not constitute a hazard to life or property or constitute a breach of the peace were not to be enforced. This policy was based upon a limited manpower of the sheriff's office and the existence of other law enforcement agencies specifically assigned the duty of traffic law enforcement and the enforcement of laws within the corporate city limits of municipalities within Leon County. In addition, Sgt. Walker was required to render assistance at any accident scene or other emergency situations in which he encountered at any time whether in uniform or in civilian clothes. Walker was required to carry his identification and a weapon at all times. Sgt. Walker was subject to recall to specifically assign duties at any time during the day. From observations of qualified individuals at the scene of the accident in which Sgt. Walker was killed, there was no indication tat the accident and death was the result of the enforcement of any law. At the time of his death, Walker was subject to the performance of all the duties enumerated in the paragraph above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the application of Carolyn W. Walker for death in-line-of duty benefits, based upon the death of he husband, Ronnie D. Walker, be approved and that she receive the death in-line-of-duty benefits payable under the provisions of Chapter 121, Florida Statutes. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT CAROLYN W. WALKER, Petitioner, vs. CASE NO. 77-1463 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. /
The Issue The primary issue in this case is whether Petitioner is entitled to receive an early retirement benefit pursuant to Sections 121.091(3)(b) and 121.091(7)(b), Florida Statutes, based on an effective retirement date of February 1, 1996.
Findings Of Fact Historical Facts When he passed away on January 26, 1996, at the age of 56, Roy Hoffman, Jr., was a fully vested participant in the Florida Retirement System ("FRS"), having worked as a professor at Florida Atlantic University for nearly 27 years. Professor Hoffman's named beneficiary and joint annuitant was his wife, Petitioner Jeanne Hoffman ("Hoffman"). As such, Hoffman became entitled, upon her husband's death, to receive a lifetime retirement benefit from the FRS. By letter dated March 8, 1996, Respondent Department of Management Services, Division of Retirement ("Division"), which administers the FRS, first notified Hoffman of her eligibility to receive a benefit. The letter provided in pertinent part as follows: As the designated beneficiary and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. The Option 3 monthly benefit is payable for your lifetime and is estimated to be $1,812.58 effective February 1, 1996. To receive this benefit, you need to [submit an application and provide certain information.] If we may be of further assistance, please call us at (904)488-5207. After receiving this letter, Hoffman was uncertain about whether she should accept the benefit immediately or, alternatively, postpone the benefit commencement date until nearer her own retirement, so she called the Division for assistance. Following a telephone conversation with an FRS counselor, Hoffman was left with the impression that she would be better off waiting until she reached the age of 59.5 years to begin receiving the monthly benefit, for the benefit, she believed, would then be higher.1 The Division sent a second letter to Hoffman, which was dated April 26, 1996, and provided: Please refer to our letter dated March 8, 1996. Before we can finalize [your] account, we need [to receive] the following [items and information from you.] Hoffman did not respond to this letter. Four months later, the Division sent a third letter to Hoffman regarding her benefit eligibility. Dated August 28, 1996, this letter provided in relevant part as follows: We have not received a response from our letters dated March 8, 1996 and April 26, 1996. If we have not heard from you within thirty days of the date of this letter, the file will be placed on inactive status. It will then be your responsibility to contact us to apply for a monthly benefit. The benefit will be effective the first of the month following contact from you. By this "warning letter," the Division intended to communicate its decision that, unless Hoffman submitted an application for benefits on or before September 27, 1996, she would forfeit the right to receive an "early retirement-death benefit"2 based on an effective date of retirement ("EDR") closely tied to her husband's date of death and be deemed to have elected a "deferred monthly benefit"3 based on a post-mortem EDR tied to the Division's receipt of her application for benefits. (EDR is a critical date because that is when the benefit accrues. See § 121.021(41), Fla. Stat.4) The parties dispute whether, in fact, the warning letter reasonably notified Hoffman of the Division's decision; the issue will be taken up below. Hoffman did not take the warning letter to mean what the Division had intended to convey. Thus she had no idea that she was in jeopardy of forfeiting the right to an early retirement-death benefit. Further, she did not deliberately elect to forego receipt of an early retirement-death benefit in favor of a deferred monthly benefit. Rather, being unfamiliar with the details regarding benefits payable under the FRS, Hoffman believed that, without any present action on her part, the benefit to which she was entitled had begun upon her husband's death to accrue for her use and benefit and would continue to accumulate until she was ready to begin receiving the benefit in monthly installments. Consequently, Hoffman made no reply to the warning letter, and at some point after September 27, 1996, the Division placed her file on inactive status. For the next eight-and-a-half years, nothing relevant to this case occurred. Then, in January 2005, Hoffman met with a financial planner for advice concerning her retirement. She was 57 at the time and told the planner about the benefit she expected to receive in a couple of years as her late husband's joint annuitant. The financial planner recommended that she contact the Division straightaway. On January 31, 2005, Hoffman called the Division and was informed that, having failed to apply for an early retirement-death benefit by September 27, 1996, in accordance with the warning letter dated August 28, 1996, she had forfeited nine years' worth of retirement income, and that her only remaining option was to request a deferred monthly benefit based on an EDR of February 1, 2005, at the earliest. The Division followed this telephone conversation with a letter dated February 16, 2005, which made clear that the only benefit for which Hoffman could apply would commence no earlier than February 1, 2005. Being given no choice, Hoffman applied as instructed, with the result that the FRS began paying Hoffman approximately $2,011 per month, which it was continuing to do as of the final hearing. Thereafter, by letter dated March 1, 2005, Hoffman petitioned the Division to pay her a retirement benefit "retroactive" to February 1, 1996, the date which, had she applied for an early retirement-death benefit on or before September 27, 1996, would have been her husband's EDR, without controversy.5 The Division denied Hoffman's request, by letter dated March 15, 2005. Relying on Section 121.091, Florida Statutes, and Florida Administrative Code Rule 60S-4.0035, which will be examined below, the Division determined that it could not "pay benefits retroactive to 1996 because [Hoffman had] not compl[ied] with the Rule requiring that the application be filed timely." Hoffman requested a hearing on this determination, giving rise to DOAH Case No. 05-3200. Hoffman also petitioned the Division, pursuant to Section 120.542, Florida Statutes, to waive——or grant her a variance from——the provisions of Florida Administrative Code Rule 60S-4.0035(3)(c) upon which the Division intended to rely in rejecting her claim for an early retirement-death benefit. The Division denied Hoffman's petition for waiver or variance in an order dated August 15, 2005. Thereafter, Hoffman timely requested a hearing on the matter, which led to the commencement of DOAH Case No. 05-3679. Factual Analysis The parties sharply disagree about whether the Division reasonably notified Hoffman of the important decision (see paragraph 6, supra) that it made in late August 1996 respecting her eligibility to receive a benefit, which decision the Division intended to communicate to Hoffman via the warning letter. To recapitulate, the warning letter told Hoffman that if she failed to contact the Division by September 27, 1996, then (1) her file would become "inactive"; (2) it would be her responsibility to initiate further contact with the Division; and (3) her "benefit" would be "effective" starting the month after she contacted the Division. Yet, in fact, the Division had decided that if Hoffman did not contact the Division by September 27, 1996, then (1) she would forfeit the right to receive an early retirement-death benefit based on an EDR closely proximate to her husband's date of death; (2) the Division would treat her inaction as an affirmative election to receive a deferred monthly benefit; and (3) her benefit would be based on an EDR related to the Division's receipt of her application for benefits. It is striking, in reading the warning letter from the standpoint of a reasonable recipient, that no mention was made therein of the different types of benefits available to a surviving spouse, no explanation regarding the distinction between an early retirement-death benefit and a deferred monthly benefit was given, and no information concerning a beneficiary's right to elect the latter as an alternative to the former——much less why one might do so——was imparted. (The same can also be said of the two letters that preceded the warning letter.) It is striking, too, that neither the warning letter nor the two earlier ones mentioned EDR or its significance. Instead, the warning letter spoke of an effective date of "benefit," which, at least without more information than was contained in the letter, could be understood to refer to the date on which the benefit payments would commence as opposed to when benefits would start to accrue. The undersigned finds, therefore, that, as a matter of fact, the warning letter itself did not reasonably communicate that Hoffman was at risk of forfeiting the early retirement- death benefit and being deemed to have elected a deferred monthly benefit based on a future EDR to be determined. Put another way, although the warning letter clearly established a deadline (September 27, 1996) for making contact with the Division, its description of the consequences of letting the deadline pass without contacting the Division did not fairly match the consequences the Division actually had decided would follow such inaction. Of course, as the Division points out, the warning letter was not the only source of information about retirement benefits available to Hoffman. There were, in addition, the governing statutes and rules. Hoffman did not actually avail herself of these references, but, as the Division argues, she is presumed to know the contents of the applicable laws.6 Perhaps, armed with such knowledge, she would have——and hence should have——understood what the Division was trying to tell her in the warning letter. If Hoffman had consulted the relevant statutes, she would have learned that she was entitled to receive an early retirement benefit pursuant to Section 121.091(3), Florida Statutes, which provides as follows: EARLY RETIREMENT BENEFIT.--Upon retirement on his or her early retirement date, the member shall receive an immediate monthly benefit that shall begin to accrue on the first day of the month of the retirement date and be payable on the last day of that month and each month thereafter during his or her lifetime. Such benefit shall be calculated as follows: * * * (b) If the employment of a member is terminated by reason of death subsequent to the completion of 20 years of creditable service, the monthly benefit payable to the member's beneficiary shall be calculated in accordance with subsection (1), but shall be based on average monthly compensation and creditable service as of the date of death. The benefit so computed shall be reduced by five-twelfths of 1 percent for each complete month by which death precedes the normal retirement date specified above or the date on which the member would have attained 30 years of creditable service had he or she survived and continued his or her employment, whichever provides a higher benefit. There is no dispute that Hoffman was entitled to an early retirement benefit under Section 121.091(3)(b) when her husband's employment was terminated by reason of death after completing nearly 27 years of creditable service. The parties agree as well that, by the clear and unambiguous terms of the statute, the benefit would have been reduced by five percent per year for each of the approximately three years by which Professor Hoffman's death preceded the date on which he would have attained 30 years of creditable service. See also Fla. Admin. Code R. 60S-4.005(2)(c)(describing benefits payable upon early retirement brought about by death). If Hoffman had read Section 121.091(7)(b), Florida Statutes, she would have learned the following: If the employment of an active member who may or may not have applied for retirement is terminated by reason of his or her death subsequent to becoming vested and prior to his or her effective date of retirement, if established, it shall be assumed that the member retired as of the date of death in accordance with subsection (1) if eligible for normal retirement benefits, subsection (2) if eligible for benefits payable for dual normal retirement, or subsection (3) if eligible for early retirement benefits. Benefits payable to the designated beneficiary shall be as follows: 1. For a beneficiary who qualifies as a joint annuitant, the optional form of payment provided in accordance with [option 3] shall be paid for the joint annuitant's lifetime. Clearly, under the plain language of Section 121.091(7)(b), Hoffman was entitled to receive death benefits in the form of an early retirement benefit, for which latter her husband was eligible at the time of his death. As just mentioned, however, Professor Hoffman satisfied the conditions set forth in Section 121.091(3)(b) for an early retirement benefit, payable to his beneficiary, without reference to Section 121.091(7)(b). Moreover, because Professor Hoffman was, at the time of his death, closer to attaining 30 years' service than reaching age 62, Hoffman's early retirement benefit would be highest if calculated under Section 121.091(3)(b). Nevertheless, as Section 121.091(7)(b) is not inconsistent with Section 121.091(3)(b), there is no reason to treat them as mutually exclusive. Thus, bowing to the interrelatedness of these statutes——Section 121.091(3)(b)(early retirement benefits upon termination of employment by death) and Section 121.091(7)(b)(death benefits)——the undersigned has chosen to use the term "early retirement-death benefit" to refer to that benefit, available thereunder, which is based on an EDR in close proximity to the member's death. As an alternative to the early retirement-death benefit, Section 121.091(7) makes available to beneficiaries such as Hoffman another option, namely the "deferred monthly benefit." Had Hoffman studied the statute, she would have discovered that [t]he designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to becoming vested, but prior to actual retirement, may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his or her death and the age the member would have attained on the commencement date of the deferred benefit elected by the beneficiary, paid in accordance with option 3 of paragraph (6)(a). § 121.091(7)(h); see also Fla. Admin. Code. R. 60S-4.008(2)(b). The deferred monthly benefit allows a surviving spouse to postpone the deceased member's EDR, thereby reducing or eliminating the early retirement penalty of five percent per annum for each year the EDR precedes the member's normal retirement date.7 Postponing the EDR would make sense, most obviously, when, because of the number of years between the member's date of death and his or her normal retirement date, the survivor's early retirement-death benefit would be substantially consumed by the penalty. Because Professor Hoffman met the criteria for an early retirement benefit under Section 121.091(3)(b), however, his wife's benefit was subject to a relatively light penalty. Thus, it is unlikely that Hoffman intentionally would have made an election under Section 121.091(7)(h) for a deferred monthly benefit, had she been aware of the statute. The Division has promulgated a rule that specifies how the EDR will be determined in certain circumstances. Rule 60S- 4.0035(3)(c) was available to inform Hoffman as follows: For a member who dies prior to an effective retirement date established pursuant to paragraph (a) or (b), the effective retirement date shall be the first day of the month following the month in which the member died, provided the joint annuitant makes timely application for benefits; or, for a deferred monthly benefit, the first day of the month following the month in which the Division receives the joint annuitant's application for benefits, or the first day of a later month specified by the joint annuitant. Significantly, the Division has not established by rule a method of determining whether an application is "timely" for purposes of Rule 60S-4.0035(3)(c). Rather, it determines timeliness on a case-by-case basis. Had Hoffman been aware of Rule 60S-4.0035(3)(c), she might have surmised, upon reading the warning letter, that the Division had decided that her application for benefits would be "timely," for purposes of the Rule, only if received on or before September 27, 1996. She might also have reasoned that if her application were untimely, then the applicable EDR might not be February 1, 1996 (i.e. the first day of the month following the month in which her husband had died). At that point, she might have concluded that unless her application were received by September 27, 1996, she would forfeit the early retirement- death benefit, as the Division would deem her delay an election to receive a deferred monthly benefit. Maybe Hoffman would have connected all these dots. The undersigned finds, however, as a matter of fact, that a reasonable person could not have figured out what the Division had decided and what it intended to do, even if armed with the statutes and rules, because ascertaining the true nature of the Division's determination entails more analytical, indeed legal, reasoning than an ordinary layperson should be expected to employ. In fact, it is determined, the warning letter was inadequate to put even a well-informed person, cognizant of the applicable laws, on notice of the Division's decision regarding Hoffman's potential forfeiture of the early-retirement death benefit and "deemed election" of the deferred monthly benefit. While the warning letter was deficient in that it failed reasonably to tell Hoffman what the Division actually had determined with regard to her substantial interests, it was defective in yet another consequential way: the warning letter failed to notify Hoffman of her right to request a hearing to determine the substantial interests affected by the Division's establishment of an application deadline and the consequences of noncompliance therewith. The warning letter, in other words, did not afford Hoffman a clear point of entry into an adversarial proceeding, where the Division would be required to substantiate its determination with competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order determining that Hoffman shall receive an early retirement-death benefit based on an EDR of February 1, 1996, and establishing the form in which Hoffman shall be paid the benefits that have accrued, but not been paid, from the EDR to the present, as well as the benefit going forward.10 In the event that one or more factual disputes arise over the amount of the unpaid accrued benefits or the method of paying them, the amount or form of the benefit going forward, or some combination of these, then Hoffman should be afforded the right to request a hearing to determine the disputed issue(s).11 DONE AND ENTERED this 17th day of January, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 17th day of January, 2006.
The Issue Prior to the hearing a short pre-hearing conference was held. It was stipulated to by the parties that Hadden was a member of the Florida Retirement System, had over 17 years of creditable service, and that Hadden could no longer perform the duties of an automotive mechanic because of his physical limitations. Hadden had applied for regular disability retirement benefits. The Division controverted Hadden's eligibility for such benefits on the basis that while Hadden could not perform the duties of an automotive mechanic that his physical condition did not prevent him from rendering useful and efficient service to the State in some other capacity calling for less strenuous activity.
Findings Of Fact Hadden is a white male, 51 years old, who worked as an automotive mechanic for Polk County for over 17 years. Hadden had had no formal schooling and can read and write very little. From Hadden's testimony and observations at the hearing regarding Identification of documents, it was apparent Hadden is functionally illiterate. Evidence was received that the former employer had indicated that there were no positions available for which Hadden was qualified. Hadden testified that he did do yard work at his home, mowing the lawn with a riding mower and weeding flower beds. However, Hadden indicated that if he became hot he would suffer pains in his chest and have to take his medication and lay down and rest for several hours. It appeared that even light physical work was beyond his capacity to perform on a regular continuing basis. Doctors' reports supporting Hadden's retirement application indicate that Hadden's physical condition will not improve and will probably worsen. Doctors restrict his activity to "mild" activity which is not strenuous or continuous. This would be consistent with Hadden's testimony regarding yard work. It should be noted that medical reports indicate that Hadden's heart condition is complicated by a nervous condition which restricts his ability to perform tedious manual work.
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
The Issue Whether the Division properly denied Petitioner's request to change Petitioner's retirement in the Florida Retirement System from an early retirement service benefit to disability retirement.
Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System ("FRS"). Royal worked for the Florida Department of Transportation ("DOT") over 28 years. As a prior employee of DOT, Royal is a member of the FRS. Royal was injured on his job on July 16, 2002. After being informed by the Social Security Administration that he was disabled, Royal started applying for line-of-duty disability retirement with the FRS. Since Royal's injury, Royal has gotten his neighbor, Levern Speights, to prepare his retirement applications and write letters to the Division on his behalf. Royal signs every submission. Royal first applied for disability retirement on December 19, 2003. About three months later, Royal applied for early service retirement benefits on or about March 9, 2004. Directly above Royal's signature, the application stated: 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. While the two applications were pending, Royal contacted the Division to check on the status of his disability retirement application. During the call, Royal found out that he could obtain retirement monies immediately if he wrote a letter requesting early retirement. On or about April 12, 2004, Royal submitted a letter to the Division that stated he "wish[ed] to apply for early service retirement." Upon receipt of the April 12, 2004, letter, the Division switched Royal's application from a disability application to early retirement application and Royal went on the Florida Retirement System payroll effective March 1, 2004. Royal has been receiving early service retirement checks and cashing or depositing them since March 2004. However, Royal still believes he is entitled to disability retirement benefits since he is disabled. Throughout the years, Royal has continuously contacted the Division periodically in an effort to still try and get disability retirement benefits. In January, April, and May 2006, the Division received three letters from Royal questioning his receipt of early service retirement benefits and requesting to apply for in-line- of-duty disability retirement benefits. On May 16, 2006, Royal applied for disability benefits again. On June 3, 2006, the Division responded to Royal's request by letter stating: The Division of Retirement has received your letter requesting that you receive disability benefits. Our records indicated you are receiving a service retirement benefit. According to Chapter 60S-4.002(4), Florida Administrative Code, you cannot change your option selection, purchase additional service, or change your type of retirement after you have cashed or deposited any benefit payment. Therefore the Division is unable to honor your request.[2] On December 24, 2008, Royal wrote the Division and requested that his "retirement be changed to disability retirement to reflect my current condition."3 On January 21, 2009, the Division informed Royal again by letter that "Florida law does not have provisions that allow the Division of Retirement to change a member's retirement type from service retirement to disability retirement. Therefore, your service retirement benefit is final and cannot be changed to disability retirement." Royal contacted the Division on several more occasions trying to get disability benefits. On or about June 25, 2011, Royal requested a hearing regarding the issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying Petitioner's request to change his early service retirement benefit to disability retirement. DONE AND ENTERED this 22nd day of December 2011, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 22nd day of December, 2011.
The Issue Is Petitioner, Cheryl Walker, entitled to an Option Two retirement benefit from the account of the deceased member, Mary Fowler (Fowler), in the Florida Retirement System (FRS)?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On January 8, 1975, Fowler began employment with the Clerk of the Circuit Court of Hillsborough County, Florida (Clerk) as an Administrative Secretary. On January 8, 1975, Fowler enrolled in the retirement plan (Plan) that was being offered by the Clerk for her position. Fowler made regular payments to the Plan and remained current until the Clerk offered the Plan as a benefit package and paid the premiums on behalf of his employees. Fowler purchased her previous years employment with the Neighborhood Service Center for retirement purposes. On September 29, 1997, Fowler, due to a serious health condition took a medical leave of absence and went on no-pay status. While on no-pay status Fowler's salary was reported for creditable service in the FRS and the Clerk's office paid Fowler's life and health insurance premiums except for certain supplemental health and life insurance premiums. On October 31, 1997, Dr. Greenberg advised Fowler that she was suffering from terminal lung cancer and prescribed certain pain medication. At all times pertinent to this proceeding, Fowler was eligible for retirement with the FRS. After Fowler was diagnosed as having terminal cancer, Petitioner moved in with Fowler and Petitioner became her caretaker. Petitioner's testimony that she held a durable-family power of attorney for Fowler and made all business decisions for Fowler after she was diagnosed with terminal cancer lacks credibility based on Petitioner's own testimony and the testimony of Grace Burmeister (Burmeister) and Victoria Spence (Spence), both of whom worked with Fowler before her illness and consulted with Fowler during her illness concerning her retirement. Likewise, there is insufficient evidence to show that Fowler advised the Clerk's office that Petitioner held a durable-family power of attorney for her and that Petitioner would be taking care of Fowler's business and business affairs. Fowler was never declared incompetent, and there is no evidence that she was incompetent to handle her own business affairs, notwithstanding that she was taking treatment for the cancer and taking pain medication. Sometime around November 3, 1997, Fowler notified the Clerk's office that she was terminally ill and would not be returning to work. At this time, Fowler was eligible for retirement under the FRS. On November 18, 1997, Petitioner talked to Burmeister concerning Fowler making a change of beneficiary for FRS and for life insurance benefits. Certain information concerning the rights of joint annuitants and beneficiaries was provided to Fowler by letter dated November 19, 1997. On November 19, 1997, Burmeister, Spence, and Neva Merckle, from the Clerk's office visited Fowler at her home and provided Fowler with certain forms to be completed for her retirement. Among those forms was a form to facilitate the change of beneficiary which Fowler completed and signed on November 19, 1997, naming Petitioner as beneficiary for her retirement benefits. Also among the forms provided to Fowler by Burmeister on November 19, 1997, was an Application for Service Retirement (Application). The Application was not completed by Fowler on November 19, 1997, as she apparently had not decided on the exact date for her retirement. In fact, Fowler, according to Spence, did not appear be interested in retiring on November 19, 1997, but agreed to consider retiring. Also at the meeting with Fowler at her residence on November 19, 1997, both Burmeister and Spence advised Fowler, among other things, that her date of retirement would occur on the first day of the month following her date of termination and that should her death occur before her date of retirement then there were serious consequences as far as the beneficiary was concerned. One of those consequences was that since Fowler did not have a joint annuitant, no one would receive the monthly benefit, except for monies Fowler had contributed to her retirement in the FRS. Both Burmeister and Spence advised Fowler to move forward immediately to set her date of termination so that her date of retirement would occur on December 1, 1997. Apparently, the comment expressed by Petitioner that the Clerk's office was attempting to push Fowler out the door had some impact on her decision not to fill out the retirement application until later. By letter dated December 2, 1997, Fowler gave the Clerk formal notice of her intent to resign December 31, 1997, for the primary purpose of retirement effective January 1, 1998. Although Burmeister could not remember going to Fowler's home but on one occasion, which was November 19, 1997, Spence was very clear in her testimony that she and Burmeister went to Fowler's home on two occasions to discuss Fowler's retirement. Although Spence could not remember the exact dates of their visits, apparently, the date of the second visit was on December 3, 1997, when Fowler completed and signed the Application in the presence of Burmeister, who notarized the Application, notwithstanding Petitioner's testimony to the contrary, which lacks credibility in that regard. Fowler selected Option 2, whereby she would receive a slightly reduced benefit payable monthly for her lifetime. However, should Fowler die before receiving 120 monthly payments, her designated beneficiary, Cheryl Walker, would receive the monthly benefit until the total number of monthly benefits paid to Fowler and to Cheryl Walker equaled 120. Fowler, either through documents furnished to her by the Division concerning retirement or information furnished by Burmeister during her visits on November 19, 1997, and December 3, 1997, had available to her sufficient information concerning retirement in order to make an intelligent decision concerning, among other things, her date of termination, date of retirement, and her Options. The FRS received Fowler's Application on December 9, 1997. However, an attempt to change the date of termination to November 30, 1997, and thereby change the date of retirement to December 1, 1997, was rejected by the FRS in that the FRS did not recognize retroactive terminations. Even though the Clerk's office was paying certain life and health insurance premiums, there is no evidence that this influenced Fowler's decision on retirement. Fowler died on December 14, 1997, and was an active member of the FRS at that time. Therefore, her termination date was established as the date of her death. Fowler also changed her life insurance and deferred compensation documents to name Cheryl Walker as the primary beneficiary. There is no provision in the FRS, nor is the FRS funded to provide a "death benefit" for the beneficiary of an active member who dies before the active member's effective retirement date, unless the beneficiary is a spouse or dependent beneficiary of the deceased member. By letter dated January 29, 1998, the Division notified Petitioner that since Fowler died before her retirement date, the only benefit available to her was a refund of retirement contributions paid by Fowler in the amount of $3,811.98. The Division also advised Petitioner that in order to receive the refund she would need to complete an application for beneficiary refund. Petitioner completed and filed the beneficiary refund application with the Division in February 1998. A warrant in the amount of $3,811.98 was mailed to Petitioner, which she cashed on April 8, 1998. Subsequently, Petitioner unsuccessfully challenged the Division's position and this proceeding ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order finding Petitioner, Cheryl Walker not eligible for an Option 2 benefit from the account of Mary Fowler. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2002. COPIES FURNISHED: J. David Pobjecky, Esquire Post Office Drawer 7323 Winter Haven, Florida 33883-7323 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The retirement benefits to which Petitioner is entitled.
Findings Of Fact Jules Cofman was born September 20, 1911, and died September 23, 1990. Mr. Cofman was happily married to Petitioner, Beatrice Cofman, for 55 years, and they had two children. Prior to his death, Mr. Cofman was employed by the City of Margate, Florida, as an inspector and became entitled to retirement benefits from the Florida Retirement System. Mr. Cofman retired effective March 1, 1990, with 10.14 years of credible service in the Florida Retirement System. On June 20, 1989, Mr. Cofman was diagnosed as having cancer of the bladder. On June 30, 1989, Mr. Cofman underwent surgery, but the cancer continued to spread following the surgery. After his surgery in June 1990, Mr. Cofman was in constant pain and was on medication, including narcotic analgesics. Following his surgery, Mr. Cofman was treated at Bethesda Memorial Hospital between July 20, 1989, and September 14, 1990, on seven occasions as an inpatient and on twelve occasions as an outpatient. Between January 11, 1990, and July 23, 1990, Mr. Cofman was treated at Boca Medical Center on 16 separate occasions. The record does not reflect the nature of his treatments at Boca Medical Center or whether Mr. Cofman was treated as an inpatient or as an outpatient. No medical records were introduced into evidence. A letter from Dr. Mark Ziffer, the urologist who treated Mr. Cofman, was admitted into evidence as a joint exhibit, but there was no testimony from any of Mr. Cofman's treating physicians. There was no competent medical evidence introduced in this proceeding upon which it can be concluded that Mr. Cofman was incompetent when he selected his retirement option or when he cashed his retirement checks. On July 21, 1989, the Respondent mailed to Mr. Cofman an estimate that provided him with an explanation of his options under the Florida Retirement System and provided him with an estimate of the benefits under each option. On February 16, 1990, Mr. Cofman executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. On the reverse side of the form is an explanation of each option. By this form, Mr. Cofman selected retirement benefit Option 1, which is described as being a "member benefit only." The explanation of Option 1 on the reverse side of FR-11 is as follows: Option 1: A monthly benefit payable to you for your lifetime. Upon your death, the monthly benefit will cease and your beneficiary will receive only a refund of any contributions you paid which are in excess of the amount you received in benefits. This option does not provide a continuing benefit to a beneficiary. If you wish to provide a beneficiary with a continuing monthly benefit after your death, you should consider selecting one of the other three options. The option 1 benefit is the maximum form of lifetime payment and all other optional payments are derived by applying actuarial equivalency factors to the option 1 benefit. The FR-11 also contained the following statement in capital letters: ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE NOR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN THE FIRST BENEFIT CHECK IS CASHED OR DEPOSITED! Between the date of his retirement and the date of his death, Mr. Cofman received seven retirement benefit checks from the Florida Retirement System and cashed those benefit checks. The Respondent was notified of the death of Mr. Cofman by a telephone call from Mrs. Cofman on September 24, 1990. On October 2, 1990, the Respondent notified Mrs. Cofman by letter that Mr. Cofman had ". . . elected to retire under Option 1 of the Florida Retirement System which provides the maximum monthly benefit for the lifetime of the member only." This was the first time that Mrs. Cofman was aware that Mr. Cofman had selected a retirement option that would not provide her benefits after his death. By letter to Respondent dated December 7, 1992, Ms. Cofman stated, in pertinent part, as follows: My husband, Jules Cofman (Social Security No. 028-01-6868) has worked as Lot Inspector at the Public Works Department of Margate, Florida for 13 years. In June of 1989 he was diagnosed with bladder cancer. Because of surgery, chemotherapy and radiation he found it necessary to retire. He received notice that he would receive his retirement check the end of April, 1990. In conversations I have had with him in regard to his retirement, he said "of course I would be his beneficiary". He did not discuss the Options with anyone. He received about four checks before he passed away on September 23, 1990. I was shocked to learn that because of his state of mind, he had inadvertently put down Option One instead of Option Two. He had been unable to accept the fact that he was so sick and could not discuss his possible death even with me. He never made any arrangements for my financial security. He had no insurance and no savings. We always planned on his retirement to augment our Social Security. I cannot believe that he would knowingly do this to me. We had been happily married for 55 years. If he had been in a rational state of mind, knowing that he had less than a year to live, he would have certainly chosen OPTION TWO. I would greatly appreciate it if you would review his case and determine whether it would be possible for me to receive his Retirement Benefit. Thank you for your consideration. By letter dated January 28, 1993, the Respondent denied Petitioner's request to change the option selected by Mr. Cofman. The letter asserted the position that the selection cannot be changed since the retirement checks were cashed and cited the following portion of Rule 60S-4.002(4)(b), Florida Administrative Code: After a retirement benefit payment has been cashed or deposited: * * * (b) The selection of an option may not be changed . . . Mrs. Cofman does not believe that her husband made a rational choice in selecting retirement Option 1. Mrs. Cofman believes that her husband would not accept the fact that he had cancer and that he was in a state of denial to the extent he refused to discuss his illness. The testimony of Mrs. Cofman and that of Mr. Gold established that Mr. Cofman's personality changed after he became ill. Prior to his illness, Mr. Cofman was a warm, extroverted person. After his illness, he became withdrawn, moody, depressed, and lifeless. The testimony of Mrs. Cofman and the testimony of Mr. Gold do not, however, establish that Mr. Cofman was incompetent at the time that he selected his retirement option or at the times he cashed his retirement checks. Mrs. Cofman attempted to talk to her husband about his condition and about family financial matters, but he would not talk to her. When Mr. Cofman executed his retirement option, the form did not require the consent or signature of the spouse. Since Mr. Cofman's death, the form has been changed to require that the spouse sign if the retiree selects Option 1. Mrs. Cofman testified that had she been informed as to Mr. Cofman's retirement options, she would have insisted that he select Option 2. Mr. Cofman executed FR-11 on February 16, 1990. The form appears to have been completed in type on February 15, 1990. The evidence in this matter does not establish that Mr. Cofman was incompetent to execute the FR-11 on February 15 or 16, 1990, or that there was any irregularity in the execution of this form or in its delivery to the personnel office of the City of Margate. Between March 1, 1990, and the date of his death, Mr. Cofman received and cashed seven retirement benefit checks. Mrs. Cofman testified that she would not have permitted those checks to have been cashed had she been informed as to Mr. Cofman's retirement options.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order which denies Petitioner's request to change the retirement option selected by Jules Cofman. DONE AND ENTERED this 29th day of December 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1507 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, and 3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4, 5, and 6 are adopted in part by the Recommended Order. The argument contained in those paragraphs are rejected as findings of fact as being argument and as being, in part, contrary to the findings made and the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence and to the findings made. The proposed findings of fact in paragraph 8 are subordinate to the findings made. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence or as being argument that is contrary to the findings made or to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 12, and 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. As reflected by Joint Exhibit 1, Mr. Cofman had additional hospital visits. The proposed findings of fact in paragraphs 8, 9, and 10 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 11 are adopted in material part by the Recommended Order or are subordinate to the findings made. COPIES FURNISHED: Stanley M. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stuart B. Klein , Esquire Klein & Klein, P.A. 1551 Forum Place, Suite 400B West Palm Beach, Florida 33445 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether the Petitioners are entitled to benefits as joint annuitants of the deceased employee.
Findings Of Fact Petitioners are the adult, nondependent children of the deceased, Leonora Chapin. Respondent is the state agency charged with the responsibility of managing the Florida Retirement System (FRS). Leonora Chapin was a vested member of the FRS with over ten years of service as a teacher with the Miami Dade County School District. The exact number of years of her service was not established nor is it dispositive of the issues of this case. In February of 1991, Ms. Chapin became extremely ill. This illness prevented her from returning to work but she did not formally retire. Instead, Ms. Chapin continued as an active member of the FRS until her death, April 14, 1991. At the time of her death, Ms. Chapin had designated "according to will" as her beneficiary to receive benefits, if any, which would be payable at her death. This Personal History Record form is the only record of any designation by the deceased received by the FRS. Based upon the foregoing designation, the Respondent determined that the deceased's two sons would share the deceased's personal contributions to the FRS account. This amount totaled $4,305.17. The Petitioners have disputed this determination and claim they are entitled to benefits as joint annuitants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioners' claim for benefits and returning the member's contributions in the amount of $4,305.17. DONE AND ENTERED this 14th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1999. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Robert Chapin 14014 Northwest Passage Unit 240 Marina Del Ray, California 90292 Stuart Chapin 10729 Westminster Avenue Los Angeles, California 90034 Barry M. Brant, C.P.A. Berkowitz, Dick, Pollack & Brant, LLP One Southeast Third Avenue, Suite 150 Fifteenth Floor Miami, Florida 33131
