Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the decision of the Division of Retirement to terminate the retirement benefits of Peter C. Versage be sustained, and that said benefits be terminated until the amount of $1,261.96 is repaid to the trust together with interest at ten percent per annum from the date of May 23, 1977. DONE and ORDERED this 2nd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32304 Peter C. Versage 6929 NW 34th Avenue Fort Lauderdale, Florida 33309
The Issue The issue is whether the Petitioner, Thelma H. Dampier, is entitled to consideration of her second application for disability retirement benefits based on the submission of new medical information.
Findings Of Fact Thelma H. Dampier was a member of the Florida Retirement System (FRS), Chapter 121, Florida Statutes, and had more than ten years of creditable service. She terminated her employment in August, 1988. In October, 1988, Ms. Dampier applied for in-line-of-duty disability retirement under FRS. By its final action letter received by Ms. Dampier on July 27, 1989, the Division denied her application for disability benefits. Under the applicable procedural rules, Ms. Dampier had 21 days to file a petition for an administrative hearing before the State Retirement Commission. She failed to request a hearing on the denial of benefits and her right to a hearing ceased. On September 8, 1990, Ms. Dampier filed a second application for in- line-of-duty disability retirement benefits. The application included medical records from Doctors Evans, Andrews, Barrow, and Chance. The medical records of Doctors Evans and Andrews had been submitted with and considered in connection to the first application. The medical records of Doctors Chance and Barrow were submitted for the first time with the second application. The report of Dr. Barrow opines that Ms. Dampier is permanently and totally disabled, but it does not reflect her condition at the time she terminated employment or any connection between her condition and her employment. The report of Dr. Chance, a chiropractic physician, relates to neck, shoulder and lower back pain. The report does not state that Ms. Dampier is totally and permanently disabled. Instead, it states that Ms. Dampier suffers only mild degenerative changes. It also does not relate that opinion to the date on which her employment terminated. The Division has a policy set forth in a Memorandum for Record dated July 17, 1990, regarding handling of reapplications for disability benefits. The policy specifies that reapplications will be considered "only when the member presents information of the existence of a medical condition that existed prior to termination of employment--unknown at the time of the initial application." This policy is reasonable and consistent with the Chapter 121.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Division of Retirement enter a Final Order denying consideration of Thelma H. Dampier's second application for in-line-of-duty disability benefits. DONE and ENTERED this 11th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division ofAdministrative Hearings this 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Retirement Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Proposed findings of fact 5 and 6 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is repetitive and unnecessary. COPIES FURNISHED: Thelma H. Dampier Post Office Box 342 Melrose, FL 32666 Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 A. J. McMullian III, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
The Issue Whether Petitioner was eligible to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS) when he applied on October 4, 2002.
Findings Of Fact Petitioner is employed by the Department of Business and Professional Regulation as a law enforcement officer, and has been since October 17, 1977 (Testimony of Petitioner). Petitioner was considered "vested" in the special risk class of the FRS when he reached ten years of service in 1987 (Testimony of Ira Gaines). On January 15, 2001, Petitioner reached 55 years of age. On October 4, 2002, Respondent received Petitioner's application to participate in the DROP. The Department of Management Services, Division of Retirement (Division), denied Petitioner's application for DROP participation because more than 12 months had passed since he first became eligible, and his opportunity to enter the program had lapsed. Petitioner testified that he was confused by the language of the educational materials on the Division's web site and thought he could defer DROP participation until he reached 25 years of service. The Division's web site stated the following regarding DROP eligibility when Petitioner became eligible: Eligibility - You are eligible to participate in the DROP when you are a participant of the Pension Plan, are vested and have reached your normal retirement date. Your "normal retirement date" is the earliest date at which you are eligible for full, unreduced benefits based upon your age and service. In most cases, you reach your normal retirement date when you are vested and reach age 62, or when you complete 30 years of service, regardless of your age (age 55 or 25 years of service for special risk members). You may make your election to participate in DROP up to 6 months before the date you plan to begin participation, and you must elect DROP participation within 12 months after you first reach your normal retirement date . . . . (Emphasis added) Petitioner admitted he never sought advice either from his personnel office or from the Division. Petitioner filed a timely request for a review of the Division's denial of his DROP application and this hearing followed.
Recommendation Based on the foregoing Findings of Facts 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 participate in the DROP. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 June, 2003.
The Issue The sole issue in this cause is whether or not the payments received from Gadsden County by Petitioner, as set forth on pages 4 through 8 of her Amended Petition, for services rendered as Official Court Reporter pursuant to Chapter 29, Florida Statutes, constitute "compensation" within the meaning of that term in Chapter 121, Florida Statutes.
Findings Of Fact On April 27 and May 1, 1992, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their Proposed Recommended Orders including proposed Findings of Fact. In the Appendix to Recommended Order, the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's and Respondent's proposed Findings of Fact Nos. 1, 2, 3, 4, 5, 6, and 7, are hereby accepted and adopted in that they track the stipulated facts contained in the PREHEARING STIPULATION dated and filed March 30, 1992. The Petitioner's proposed Findings of Fact Nos. 8, 9, 10, and 11, are hereby rejected in that they are conclusions of law and were not contained within the stipulated facts contained within the PREHEARING STIPULATION, and are, therefore, not based upon competent substantial evidence. The actual employment position held by the Petitioner as an employee of the judicial branch of the State of Florida is clearly identified on Florida Retirement System Form FR-11, which was executed by the Petitioner on January 24, 1990, and certified by the Chief Judge of the Second Judicial Circuit (Exhibit 6 attached to the PREHEARING STIPULATION), whereon the "Title of Position held" is stated to have been "Official Court Reporter, Second Judicial Circuit of Florida assigned to Gadsden County." The supplemental salary that was paid to the Petitioner by the County required paper work identifying her as a county employee for payroll purposes only; but, as a matter of law, she held her State position as an official court reporter solely at the pleasure of the Judges of the Second Judicial Circuit pursuant to Section 29.01, Florida Statutes. In the Conclusions of Law in this Final Order, this issue shall be fully analyzed. RULINGS ON HEARING OFFICER'S RECOMMENDED CONCLUSIONS OF LAW Recommended Conclusion of Law No. 1 is hereby accepted as a proper statement of applicable law. Recommended Conclusion of Law No. 2 is hereby accepted as a correct statement of applicable law. Recommended Conclusion of Law No. 3 is hereby rejected in that it erroneously concludes that the Petitioner's salary and fees were authorized and set by statute, when, they had to have been authorized and set pursuant to Rule 2.070, Florida Rules of Judicial Administration. The conclusion of the Hearing Officer is incorrect because under Rule 2.070, Florida Rules of Judicial Administration, the compensation of, and the fees in question to be charged by, court reporters are authorized and set by such judicial rule. Rule 2.070, Florida Rules of Judicial Administration, adopted generally by reference the annual salary for court reporters set forth in Section 29.04, Florida Statutes, for a 60-hour work month. That judicial rule then goes on to provide for overtime at the rate of $10.00 per hour. That Rule 2.070, Florida Rules of Judicial Administration, also provides that the fees in question (for transcripts and depositions) to be charged by court reporters should be set in each circuit by administrative order, and, in the absence of such order, as provided by law. Such court reporters' fees, therefore, are set pursuant to said judicial Rule 2.070, which authorizes the charging of such fees in accordance with a circuit administrative order, and, in its absence, as provided by law. The setting of such fees and the authorization to charge same arise from said judicial Rule 2.070, and not from Chapter 29, Florida Statutes. The fee schedule set forth in Chapter 29, Florida Statutes, derives its legal efficacy not from its legislative enactment alone, but from its judicial approval in said Rule 2.070 in the event that a local circuit administrative order setting such fees has not been entered. In such instance, the fees are not set by statute, but by judicial approval of a statutory fee schedule. The judicial branch has set such fees, not the legislative. Thus, any such fees were not set by statute. The citations by the Hearing Officer in recommended Conclusion of Law No. 4 of Rules 22B-1.004(4)(b)1., and 22B-6.001(49), Florida Administrative Code, are rejected as being inapplicable to the proceeding at bar inasmuch as the Petitioner as an Official Court Reporter appointed pursuant to Section 29.01, Florida Statutes, was an employee of the State of Florida and was not an employee of Gadsden County. Under said Section 29.01 all official court reporters are appointed by and serve at the pleasure of the Chief Judge and a majority of the Judges of the Court in which the reporter is serving. Provision is made in Section 29.04, Florida Statutes, for the respective counties to provide funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings, but any such monies paid to such official court reporters would be paid to state employees. The judicial branch of government in Florida is a State court system. Official Court Reporters are hired and retained by the State Judges in a Circuit, and their employment is not determined or continued to any extent whatsoever by any Board of County Commissioners. Under Section 29.04(3), Florida Statutes, provision is made for the counties to supplement the funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings. The counties are a source of funding, and are not employers of the Official Court Reporters. In the case of Matter of Compensation of Hunter, 635 P.2d 1371 (Or. App. 1981), the Court of Appeals of Oregon held that where court reporters are appointed and hold their offices at the pleasure of the Judges, and are officers of the Court subject to the direction and control of the Judges, those court reporters are employees of the State of Oregon and not of the counties. At page 1373 of 635 P.2d the Court held: "The right to control is also important from a policy standpoint. The judges of the State of Oregon benefit directly from the services of the court reporters. They not only perform reporting duties in court, but are also the judges' official secretaries. See ORS 8.330. The State benefits most directly from court reporters' services, and it should be responsible for providing their workers' compensation insurance." Recommended Conclusion of Law of No. 5 is hereby rejected as a conclusion of law in that is a recitation of the relative positions of the parties and is not of any recommended holding or ruling by the Hearing Officer. Upon the reasoning and authorities set forth in Paragraph No. (3), above, recommended Conclusion of Law No. 6 is hereby rejected in that the fees in question were not authorized or set by legislative statute but were, in fact, authorized and set pursuant to judicial Rule 2.070, Florida Rules of Judicial Administration. The first three sentences of recommended Conclusion of Law No. 7 are hereby rejected in that they misconstrue the first sentence of Section 121.021(22), Florida Statutes, that states: "`Compensation', means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form." [Emphasis supplied] A form 1099 is not a form on which an employer reports salary paid from a salary fund to an employee, but, rather is a form utilized to report payments of income to an independent contractor. The "similar form" in that statute refers to an employer's wage and tax statement, which may be a form W-2, which is not the equivalent to a form 1099. As hereinafter discussed in Conclusions of Law Nos. (11), (12), and (13) of this Final Order, Official Court Reporters are "professional persons" within the meaning of that term in Section 121.021(22), Florida Statutes. The recommended Conclusion of Law of the Hearing Officer that the transcribing of criminal proceedings do not constitute "special or particular services" does not comport with either judicial Rule 2.070, Florida Rules of Judicial Administration, or a 1957 Opinion of the Attorney General of Florida. Under said judicial Rule 2.070 the basic salary for a court reporter is set in subsection (g) together with provision for the payment of overtime for hours in excess of 60 worked per month. In subsection (e) of Rule 2.070, provision is made for fees for what would constitute special or particular services by a court reporter, and the fees that may be charged for same. In a 1957 Opinion of the Attorney General of Florida (1957 0p. Att'y. Gen. Fla. 057- 109 (April 26, 1957)), the Attorney General of Florida analyzed Section 122.02, Florida Statutes, the predecessor to Section 121.021(22), Florida Statutes, as to what constituted compensation under the State and County Officers and Employees Retirement System (SCOERS). The opinion of the Attorney General was that hourly wages plus overtime would be included within the monthly compensation. But, at the end of that opinion the Attorney General concluded: "We conclude that in the case mentioned in the question the employing authority has prescribed the formula for fixing the monthly compensation or salary. It may vary depending upon the hours employed in discharging the routine work of the employment but the formula is fixed and applicable mathematically. This is not a situation where fees are paid for special or particular services. It is a regular retainer made depending upon the actual hours engaged in performing the month by month routine duties as School Board Attorney. It has no reference to fees for handing special items such as bond validation or other litigation." Under Rule 2.070, Florida Rules of Judicial Administration, official court reporters are paid their basic salary and overtime for their court appearances in reporting the proceedings. But, if they are to furnish transcripts of proceedings or depositions, which work would be done after their regular working hours, then the fees for such special or particular services are to be set by local circuit administrative order, or in the absence of same, as provided by law. These special or particular services that the court reporters are performing for such additional fees are not performed during their regular working hours, which by said Rule 2.070, is limited to 60 hours per month. And the last sentence of Recommended Conclusion of Law No. 7 that the Petitioner was a county employee is hereby rejected upon the grounds and reasoning set forth in Paragraph No. (4) above. The Hearing Officer's Recommended Conclusion of Law No. 8 (misnumbered as "7") is hereby rejected upon the grounds and for the reasons set forth in Paragraph Nos. (3) through (7) set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order approving petitioner's request for additional retirement benefits by including in the calculation of average final compensation those fees received by petitioner between January 1973 and February 1990 as set forth on pages 4 through 8 of her amended petition. RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER 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 day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3168 Petitioner: Accepted in finding of fact 1. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4. 7. Accepted in finding of fact 5. 8-11. Accepted in finding of fact 3. Respondent: Accepted in finding of fact 1. Covered in preliminary statement and in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4. 7. Accepted in finding of fact 5. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1500 Edgar Lee Elzie, Esquire P. O. Box 82 Tallahassee, FL 32302 Burton M. Michaels, Esquire Cedars Executive Center, Building C 2630 North Monroe Street Tallahassee, FL 32399-1560
The Issue Whether Petitioner received a refund of retirement contributions made to the Florida Retirement System ("FRS") for his service from June 1969 to September 1975, thereby waiving his right to receive additional retirement benefits represented by the refunded contributions.
Findings Of Fact Petitioner is a member of the FRS. He was hired by Miami-Dade County ("County") in 1969, and terminated his employment with the County in 1989. At all times relevant to this proceeding, Respondent, Division of Retirement Services,1/ was the state agency charged with administering the FRS. § 121.031(1), Fla. Stat. (1989).2/ Prior to 1975, the FRS was a contributory system.3/ Under this system, members paid a portion of their salaries into the FRS Trust Fund ("Trust Fund") as a contribution toward future retirement benefits. Members who contributed to the Trust Fund could request a refund of those contributions at the time they left their FRS-eligible employment. Receipt of a refund constituted a waiver of the right to service credit for the employment period for which the contribution was paid. At the time Petitioner terminated his employment with the County, he had accrued 18.77 years of service credit. He had contributed $2,708.94 to the Trust Fund for creditable employment service from June 1969 through September 1975. In April 1990, Petitioner requested an audit of his FRS account. Specifically, he requested an estimate of his retirement benefits based on his total service credit consisting of both contributory and non-contributory service, and an estimate of his retirement benefits based only on his non- contributory service from October 1975 to August 1989. On May 17, 1990, Respondent responded to Petitioner's request. The response letter provided the requested estimates and further informed Petitioner that he had $2,708.94 in contributions in his retirement account for the period between June 1969 and September 1975, that he had 18.77 total years of service, and that he had 12.52 years of non-contributory service credit. The letter explained that if Petitioner wished to receive a lump sum refund of his contributions, he must submit a completed Request For Refund Form, FRS M-81. The letter was mailed to Petitioner at his then-current address4/ of 2221 Northwest 51st Street, Miami, Florida 33142. In addition to the May 17, 1990, letter explaining Petitioner's options, Respondent's staff engaged in several documented telephone discussions with Petitioner to explain the process for obtaining a refund of his contributions and the consequences of doing so. In September 1990, Petitioner submitted a completed Request For Refund Form, FRS M-81, requesting a lump sum refund of the $2,708.94 in retirement contributions he made for the period of June 1969 through September 1975. The form provided in pertinent part: "I give up all rights to receive any benefits from FRS based on service represented by this refund." Petitioner listed his address as 2221 Northwest 51st Street, Miami, Florida 33142, and signed the form. Upon receiving the completed Request For Refund form, Respondent provided pertinent information from the form to the Department of Banking and Finance5/ and requested issuance of a warrant in the amount of $2,708.94, the full amount of Petitioner's retirement contributions for his service between June 1969 and September 1975. The Department of Banking and Finance issued the warrant, dated September 19, 1990, and returned it to Respondent with a computer-generated label listing Petitioner's name and social security number, refund amount, voucher number, and date of the warrant. On September 26, 1990, the warrant was mailed to 2221 Northwest 51st Street, Miami, Florida 33142.6/ Respondent maintains a list of outstanding warrants. This list does not show the warrant sent to Petitioner as being outstanding; thus, Respondent's records establish that the warrant was cashed. In June 1993, Petitioner applied to receive his service retirement benefits. In the course of processing the retirement benefits application, Respondent provided Petitioner an estimate of the service benefits he would receive based on 12.52 years of creditable service. At that time, Petitioner did not question the estimate or that his benefit was based on 12.52 years of creditable service. On February 16, 2012——almost 22 years after the contributions refund warrant was sent to Petitioner and almost 19 years after Petitioner began receiving his retirement benefits based on 12.52 years of service——Petitioner contacted Respondent to inquire why he was not receiving retirement benefits based on 18 years of creditable service. Respondent's staff advised Petitioner that he was not entitled to benefits for 18 years because he had requested and received a refund of the contributions he had paid into the FRS Trust Fund between June 1969 and September 1975.7/ Petitioner insists that he did not submit the Request For Refund Form in 1990 and claims that the signature on the form was forged.8/ He further claims that he never received the warrant because Respondent mailed the warrant to an address using an incorrect zip code. He posits that an employee of Respondent forged his signature and cashed the warrant. However, the credible evidence in the record does not support these claims. The credible, persuasive evidence in the record establishes that Petitioner requested and received a refund of his retirement contributions in the amount of $2,708.94 for his employment service between June 1969 and September 1975, thereby waiving his right to receive retirement benefits for this period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, issue a Final Order determining that Petitioner is not entitled to receive retirement benefits for his service between June 1969 and September 1975. DONE AND ENTERED this 30th day of August, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 30th day of August, 2012.
The Issue The issue in this case is whether Petitioner’s husband’s selection of Option 1 for his pension plan benefits could be changed.
Findings Of Fact Mrs. Renaud, who is deaf, was married to Mr. Renaud for approximately 40 years. Mr. Renaud was employed by the State of Florida as a correctional officer at all times relevant hereto. He entered the State retirement program (in the pension plan) in November 1994. Mr. Renaud was in the “special risk” category of retirement class based on his position as a correctional officer. On October 24, 2013, Mr. Renaud signed and submitted a “Florida Retirement System Pension Plan Application for Service Retirement” form to the Department, indicating his intent to retire. The application was signed and notarized; it designated Mrs. Renaud as the sole beneficiary of his retirement benefits. On the same day, Mr. Renaud signed an “Option Selection” form, wherein he designated which of four payment options he wanted to utilize for payment of his retirement income. He selected Option 1, which states: A monthly benefit payable for my lifetime. Upon my death the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. The form also contains the following statement: “I understand that I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options or change my type of retirement . . . once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins.” The option selection form was signed by Mr. Renaud and notarized by a certified notary public. Inasmuch as Mr. Renaud selected Option 1, it was necessary that he and his designated beneficiary (Mrs. Renaud) also fill out form SA-1, the “Spousal Acknowledgement” form. On the acknowledgement form, Mr. Renaud indicated that he was married. Mrs. Renaud then signed the “spousal acknowledgement” portion of the form. The acknowledgement statement included this statement: “I, Vivian Renaud, being the spouse of the above named member [Mr. Renaud], acknowledge that the member has selected either Option 1 or 2.” Option 2 provides for continued benefits during the retiring person’s lifetime. However, benefits to the person’s spouse will continue for only a 10-year period. If the retiring person dies within the first 10 years of retirement, the spouse would only receive benefits for the balance of the 10-year period starting at the retirement date. The benefits under Option 2 are, therefore, limited in nature. The state retirement system requires a person selecting Option 1 or Option 2 to have their spouse acknowledge that selection choice because those benefits have finite ending dates, whereas retirement benefits under the other options continue as long as either the retiree or his/her beneficiary is living. By letter dated October 30, 2013, the Department acknowledged receipt of Mr. Renaud’s retirement application. The letter referenced the date the application was received (October 24, 2013) and the option Mr. Renaud had selected (Option 1). The letter was mailed to Mr. Renaud’s address of record, the same address he listed in his retirement application. The letter was sent to Mr. Renaud some 30 days before the first retirement benefit check was deposited in his account. Mrs. Renaud does not remember seeing the letter, but inasmuch as it was addressed to Mr. Renaud, her recollection of its receipt is not relevant. After Mr. Renaud’s death, his family found numerous un-opened letters in his car; the acknowledgement letter from the Department could well have been in that group. Mr. Renaud retired on November 1, 2013. His first payment of retirement benefits was transferred to his bank by way of electronic fund transfer, commonly referred to as direct deposit, on November 27, 2013. The gross amount of his monthly retirement benefit was $1,987.85; the net amount was $1,937.75 after $30.09 had been deducted for taxes. At that time, Mr. Renaud had not signed form W4P, the form which showed how many dependents the retiree was claiming for tax purposes. After later filling out that form (in which he indicated he would prefer to file as “single” for tax purposes), his monthly net benefit was reduced to about $1,735. Mr. Renaud received a direct deposit of retirement benefits on December 31, 2013; on January 31, 2014; and again on February 28, 2014. Mr. Renaud passed away on March 26, 2014, only five months after commencing his retirement. In accordance with the provisions of Option 1, Mr. Renaud’s retirement benefits ceased at that time. His beneficiary was entitled to payment for the entire month that he expired, but was not to be provided any further retirement benefits. Thus, a final payment was deposited in Mr. Renaud’s account on March 31, 2014. Mrs. Renaud was provided notice of the cessation of retirement benefits due to Mr. Renaud’s death. She timely filed a protest, seeking to have the payment of benefits reinstated. The Department denied her request, resulting in the instant matter. It is clear from the evidence that Mr. Renaud selected Option 1, Mrs. Renaud acknowledged that Mr. Renaud had selected either Option 1 or Option 2, and that retirement benefits were directly deposited to Mr. Renaud’s bank account for several months. Mr. and Mrs. Renaud’s signatures were duly notarized and have a presumption of legitimacy. Mrs. Renaud disagrees as to whether Mr. Renaud’s selection of Option 1 was legitimate, legal, or proper under the circumstances as she views them. First, Mrs. Renaud contends that Mr. Renaud was not mentally well at the time he signed the option selection form. The basis for her contention is that Mr. Renaud had experienced some seizure-related behavior during the year prior to signing the form. He had driven his car north on US Highway 301 one day in July 2012, “heading to work,” but ended up in Georgia without remembering why or how he got there. He later apparently lost his driver’s license because of the seizures (although the testimony on that issue was not clear).1/ Mr. Renaud worked for approximately 15 more months after his inexplicable drive to Georgia. Mrs. Renaud also argued that Mr. Renaud’s signatures on the three different forms he signed on October 24, 2013, were not similar to each other, indicating in her mind that he was having some sort of medical or psychological difficulty at that time. Inasmuch as there could have been any number of reasons the signatures were different (whether he was in a hurry, what base existed under the paperwork, etc.), there is insufficient evidence to determine why the signatures did not match. Mrs. Renaud’s testimony regarding the signatures is not persuasive. Ed Renaud said Mr. Renaud had been forced to retire due to his medical condition, i.e., that he had lost his driver’s license due to having seizures and the Department of Corrections would not let him work if he could not drive. However, Ed Renaud also said Mr. Renaud was able to continue working even when he was “forced” to retire. Again, the testimony on these facts was not clear. Mrs. Renaud said she should have been provided an interpreter on the day she signed the acknowledgement form. She did not state whether she requested an interpreter or whether the agency employee who provided her the form was aware of her disability.2/ Again, no one from Mr. Renaud’s employer, the Department of Corrections, testified at final hearing as to what happened on the day the forms were signed. Mrs. Renaud stated that she could read and write English, so she knew what she was signing.3/ She did claim to be confused as to whether her husband had selected Option 1 or Option 2, but candidly admitted that Mr. Renaud never told her one way or the other which option he had chosen. He only told her that he would “continue to provide for her in the future.” She believed the amount which was to be deposited in their account each month under Option 2 would be approximately $1900. The first check was in that approximate amount (due to the fact that Mr. Renaud had not established the amount of taxes to be deducted from his check at that time). The next five checks were in a lesser amount, approximately $1700. There is no evidence that Mrs. Renaud questioned the amount of the later checks. However, once the first check had been deposited in Mr. Renaud’s bank account, he would not have been allowed to change his option anyway. Lastly, Mrs. Renaud said her husband’s medical and mental condition was not conducive to making the option selection in October 2013. However, there was no competent evidence to support her claim. There was no direct testimony as to Mr. Renaud’s condition on the day he signed, nor as to whether he was or was not capable of understanding what he was signing. The only statement about his condition that day was that he wanted to park the car far enough away from the building that his co-workers could not see that Mrs. Renaud had driven the car. Ed Renaud also pointed out the issue of Mr. Renaud’s three signatures that day looking different from each other, but his lay opinion is not evidence upon which a finding of fact can be made as to Mr. Renaud’s mental condition. On October 24, 2013, Mr. Renaud had not been adjudged mentally incapacitated and no guardian had been appointed. Ed Renaud said that Mr. Renaud still believed he could perform his work assignments at that time and did not want to retire. But, other than his wife, no one provided any evidence that Mr. Renaud did not understand what he was signing. Mrs. Renaud, however, could not say which option he had selected because he never told her. Her subsequent presumption that Mr. Renaud did not intend to choose Option 1 is not persuasive. It should be noted that selection of Option 1 by Mr. Renaud set his average pre-tax monthly benefit at around $1,900.00; had he chosen Option 2, the benefit would have been around $1,700. Thus, there was incentive to “roll the dice” and select Option 1, hoping that he would survive long enough to provide for his wife. In this case, sadly, that gamble did not pay off. The facts of this case are sad in that Mr. Renaud had every intention of providing for his wife financially as long as she lived. However, he either made a mistake when he selected his payment option or he attempted to tempt fate and hope for the best. In either case, once he made his selection and began receiving benefits, the die was cast. Based upon the facts as presented, there is no basis for overturning the Department’s denial of Mrs. Renaud’s requested amendment of the payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's request for entitlement to her husband’s retirement benefits following his untimely death. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 24th day of June, 2015.
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 an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
Findings Of Fact 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
