The Issue Whether Petitioner showed by the preponderance of the evidence that she is entitled to receive Mr. Carl Kemper's retirement benefits. The specific factual issue for resolution is whether Petitioner brought forward evidence showing that Mr. Carl Kemper had selected Florida Retirement System Option 2 of Form FRS-11o, which would allow her to receive the monthly benefits, as opposed to Respondent's records, which show that Mr. Carl Kemper selected Option 1 of Form FRS-11o, which does not allow for continued benefit payments after his death.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Judith E. Mills', petition to receive Mr. Kemper's retirement benefits be DENIED. DONE AND ENTERED this 25th day of January, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 25th day of January, 2011.
The Issue The issue in the case is whether Eldon Sadler, Taylor County Property Appraiser, (Petitioner) is required to enroll Connie LaValle in the Florida Retirement System (FRS) for all of her employment with the Taylor County Property Appraiser's Office from June 1993 until the present.
Findings Of Fact Connie LaValle has been employed in Petitioner's office as a permanent part-time employee since September 16, 1992, as a "mapper." Pursuant to a contract, she has also been performing additional mapping services for Petitioner since June 1993, for which no contributions have been made to FRS. Contributions have been made for LaValle's other part-time employment in the office. Prior to June 2, 1993, LaValle and Petitioner spoke regarding LaValle's performing services related to implementing a Geographic Information System (GIS) in the event that Taylor County decided to obtain such a system. As a consequence, LaValle sought and obtained placement of her name on the Department of Revenue's approved bidder's list. Placement on the list is a prerequisite to entering into a contract with Petitioner's office. On June 2, 1993, Petitioner's office and LaValle entered into a contract whereby LaValle would perform "mapping services to aid in assessment." While not detailed as such in the written contract, these services were related to the GIS mapping function and were in addition to LaValle's existing part-time employment in the office. The contract was renewed on May 30, 1996. LaValle was not given any training for the tasks for which she contracted, she was not required to follow daily or weekly routines or schedules established in Petitioner's office, she was given no instructions in the way that work was to be performed, and Petitioner could not change methods used by LaValle or otherwise direct her as to how to do the work. LaValle did the contractual work at her convenience and was not required to perform that work in the office or pursuant to any schedule. She was paid for the work product as she finished it. Payment under one contract resulted in a $60 per map payment from Petitioner when the product was completed. Under the renegotiated contract, she received $3 per parcel on computerized maps. She was not guaranteed a minimum payment, nor did she receive pension benefits, bonuses, paid vacation time, or sick pay. Earnings pursuant to the contract were reported by LaValle as self-employment income on form 1099. The contract provided that neither Petitioner nor LaValle could terminate the agreement absent 30 days notice to the other party. In addition to furnishing her own work location, work equipment, tables, engineering scales, computer and other necessary equipment, LaValle also paid all related expenses. LaValle performed all contract work in her home. Although not prohibited by terms of the contract, she did not work for other entities. Respondent, pursuant to an audit of retirement records of Petitioner's office, determined that LaValle was performing additional duties for Petitioner's office and receiving salary for which no retirement contributions were paid. Petitioner was notified by Respondent by letter dated August 10, 1999, that LaValle previously filling a part-time regularly established position, was now performing additional duties for the same employer and was now considered to be filling a regularly established position for her total employment. Petitioner was informed that salary earned by LaValle for the additional duties should have been reported and contributions paid to Respondent for retirement benefits. Petitioner maintains that LaValle is an independent contractor with regard to additional duties and no retirement contributions are due and payable. Respondent has determined LaValle is not an independent contractor. Respondent asserts that the additional duties are an extension of her normal duties in her part-time position and contributions for retirement benefits are due with regard to compensation paid to her by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Division of Retirement, enter a final order finding that payments made to Connie LaValle for additional duties from Petitioner's office constitute salary for additional employment requiring payment of retirement contributions by Petitioner. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Levy E. Levy, Esquire 1828 Riggins Road Tallahassee, Florida 32308 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner's application to participate in the Deferred Retirement Option Program should be approved.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On August 24, 2001, Petitioner submitted to the Division a Florida Retirement System Application for Service Retirement and the Deferred Retirement Option Program (DROP), Form FRS DP-11. On the form, Petitioner indicated his name, social security number, birth date (June 22, 1946), his position title (guidance counselor), present Florida Retirement System employer (Miami-Dade County Public Schools), work phone, home phone, and home mailing address. These entries were followed by the a printed statement, which read as follows: I have resigned my employment on the date stated below and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement . I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit. I cannot add additional service, change options, or change my type of retirement after the DROP begin date. If I fail to terminate my employment in accordance with s. 121.021(39)(b), F.S., on my DROP termination date, my retirement will be null and void and my FRS membership shall be established retroactively to the date I began DROP. I have read and understand the DROP Accrual and Distribution information on the reverse side of this form. The "DROP begin date" and the "DROP termination and resignation date" that were filled in the form were August 1, 2001, and July 31, 2006, respectively. On the "Beneficiary Designation" portion of the form, Petitioner named his wife, Marianne F. Coto, as his "primary" beneficiary, and his daughter, Claudine Coto, as his "contingent" beneficiary. Their birth dates (but not their social security numbers) were noted on the form. At the bottom of the form was the following "Employer Certification," signed and dated (August 24, 2001), by Miami- Dade County Public Schools personnel officer, Maria Perez: This is to certify that the above named member will be enrolled as a DROP participant on the date stated and will terminate his or her employment on the date stated. On August 24, 2001, Petitioner also submitted to the Division a Florida Retirement System Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment, Form FRS DP-ELE. On the form, Petitioner indicated his name, social security number, birth date, his position title, present Florida Retirement System employer, work phone, home phone, and home mailing address. These entries were followed by a printed statement, which read as follows: Resignation From Employment to Participate in the DROP: I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate in the DROP for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. I cannot add additional service, change options, or change my type of retirement after my DROP begin date. On the form, Petitioner indicated that his "DROP begin date" and his "DROP termination and resignation date" were August 1, 2001, and July 31, 2006, respectively. Also on the form was an "Employer Certification," signed and dated (August 24, 2001), by Ms. Perez, the aforementioned Miami-Dade County Public Schools personnel officer, which was identical to the "Employer Certification" on the Form FRS DP-11 that Petitioner had submitted. Petitioner did not submit to the Division (along with Forms FRS DP-11 and DP-ELE) Form FRS 11o, on which he was required to indicate the form of payment of retirement benefits he desired. (Pursuant to the Division's Rule 60S-4.010, Florida Administrative Code, there are four optional forms of payment from which to choose.) Neither did Petitioner furnish the Division with any proof of age. In addition, Petitioner, in September of 1998, had submitted to the Division an Application to Purchase Retirement Credit for a Leave of Absence, but had not yet paid the amount necessary to purchase the credit. Accordingly, by letter dated September 8, 2001, the Division advised Petitioner of the following: This will acknowledge receipt of your Application for Service Retirement and the Deferred Retirement Option Program (DROP) You will be notified should we need additional information. If there is an amount due your account, please make your check payable to the Florida Retirement System (FRS) and reference your social security number on all future correspondence with this office. Date Received: 08/24/2001 Member SSN: . . . . Drop Begin Date: 08/2001 Drop End date: 07/31/2006 Amount Due, if any: $1,126.78 Option Selected: None The following items must be received. Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. The amount due is to purchase service for your leave of absence from 1975-76. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. A Final Salary Certification, FC-1, with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. Petitioner did not provide the Division with the items listed in the September 8, 2001, letter. The Division therefore sent Petitioner a follow-up letter, dated October 24, 2001, which read as follows: DROP RETIREMENT APPLICATION TO BE EFFECTIVE: 08/2001 The item(s) listed below must be received to complete your DROP application and retain the above retirement date: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. Not having received any response from Petitioner, the Division sent Petitioner an identical letter on November 29, 2001. Still not having received any response from Petitioner, the Division sent Petitioner another letter, dated January 3, 2002, requesting that Petitioner provide the items that had been requested from him in the previous correspondence. The January 3, 2002, letter warned that the items "must be received immediately to avoid cancellation [of Petitioner's] DROP application." The items were not provided by Petitioner. Accordingly, the Division sent him the following letter, dated February 14, 2002: For your Florida Retirement System (FRS) Application for Service Retirement and Deferred Option Program (DROP), DP-11 to be effective 08/2001, the following item(s) previously requested, must be received within 21 calendar days from the date you receive this letter: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). You should place your social security number on any documentation provided. Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) You should place your social security number on any documentation provided. Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. It is our intent to disapprove your application for the DROP if the requested information and documents are not received within the 21-day period. Should we disapprove your DROP application, the following will be applicable to you: You will be deemed to not have retired and the DROP application will be null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of applying for DROP. Your FRS membership will be reestablished retroactively to the effective date of DROP for which you applied. Your employer will be required to pay the FRS Trust Fund any difference between the DROP contributions and the contributions required for the applicable FRS class of membership. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. The beneficiary you designated on the retirement application you filed will remain in effect unless changed by you at a later date. Please call me if you have any questions. Petitioner received this February 14, 2002, letter from the Division on February 25, 2002, but, as of April 9, 2002, had not provided any of the items listed in the letter. Accordingly, on that date (April 9, 2002), Doug Cherry, the Division's Benefits Administrator, telephoned Ms. Perez, and asked her to attempt to make contact with Petitioner and remind him that that if he did not submit the items listed in the February 14, 2002, letter, his application to participate in DROP would be denied. On April 18, 2002, Ms. Perez faxed Mr. Cherry a copy of Petitioner's passport, along with a note that Petitioner would make additional submissions at a later date. No additional submissions were made by Petitioner. Accordingly, on May 29, 2002, the Division sent Petitioner the following letter: We have not received the items that were requested in our February 14th letter (copy enclosed) to you. Accordingly, your Florida Retirement System (FRS) Application for Service Retirement and the Deferred Retirement Option Program (DROP), DP-11, cannot be approved. Therefore, the following are applicable to you: You are deemed to not have retired and the DROP election is null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program (DROP) and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program (DROP) during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of your having applied for the DROP. Your FRS membership is being reestablished retroactively to 08/2001, the date of your DROP participation. Your employer will be required to pay to the FRS Trust Fund the difference between the DROP contributions (12.50%) and the contributions required for the applicable FRS class of membership during the period you participated in the DROP. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. By copy of this letter, we are advising your employer that immediate action is required by the employer to correct your FRS retirement plan on the next payroll reported to the Division. Your employer will be billed for the appropriate FRS contribution adjustments, if any, based on you not having joined the DROP. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-206.111, F.A.C. You may contact Doug Cherry at . . . should you desire additional information. Petitioner responded by sending the following letter to Mr. Cherry: I received a certified letter signed by Maurice Helms for Erin B. Sjostrom, which asks to contact you regarding a formal appeal to the action of your agency to cancel my D.R.O.P benefits for this 2001 to 2002 school year. Please allow this to serve as the formal appeal. Needless to say I am very frustrated and upset and would like to request your help to sort through this process. A bit of background history first I believe will help. I started working for Miami-Dade County Public Schools in 1970. At that time I was told it was necessary to be a U.S. citizen to be able to work as a teacher in the school system. I had already decided that and since I had officially turned 22, I became a naturalized U.S. citizen and submitted a copy of the Certificate of Naturalization to the School Board through the Dade County office. Where is that record and why am I being asked to produce it again after having accumulated 31 years of service and after I explained to the local retirement officer in charge, Maria Perez, that I had lost the original when I lost almost the entire contents of my house to Hurricane Andrew in 1992? Honestly since I had submitted [a] copy of my U.S. passport with birth-date and all other pertinent information and I also have my Florida Driver's License, which I have had since 1963 or so, and has been what I have used to verify my age and for identification purposes since I was a kid, (although now I am told by your office that this is not a valid acceptable proof, kindly explain why not?) I never thought it was necessary for me to obtain a copy of the Certificate of Naturalization (U.S. citizenship). Also please tell me why passport and driver's license and 31 years of continuous service on record is not sufficient. It is not as if I were trying to retire after a short time of service. I do have 31 years of service! I do not feel this is the right way to treat a dedicated teacher at the end of his career and I hope you agree with me and will help. To comply with the requirement of another piece of proof of age (which I fail to see the need of in my case where I already have 31 years of verifiable and documented service to Miami-Dade County Public Schools as stated before) I requested a copy of my child's birth certificate from the Bureau of Vital Statistics. This was also a frustrating experience. I requested one copy to be sent to me and one to Dade County Public Schools to the attention of Maria Perez. I was told that the copy would arrive in approximately 10 to 14 days. I have not yet received it. I assume that Ms. Perez never received it either. After thirty-one years of faithful service to the State of Florida, which you have on record, and my birth date established with you over 31 years ago, I find it ludicrous that, after having submitted my passport, having requested, although not having been able to get a copy from the Bureau of Vital Statistics, of my child's birth certificate within a number of days, that your office does not find this to be sufficient proof and that based on the technicality that you have only one instead of two forms of verification of my age, now you will cancel my D.R.O.P., which in essence means forfeiting close to $30,000 that I should have accumulated in my account. Please see the circumstances and kindly reconsider the action taken. I will be extremely grateful. Mr. Cherry responded to Petitioner's letter by sending the following letter, dated June 10, 2002, to Petitioner: This is in response to your letter received in our office on June 6th concerning cancellation of your DROP application. The letter from the Division dated May 29th canceling your DROP application was sent only after several prior notices were also sent. The birth date verification issue raised in your letter was only one of the pending items on your application. We sent an acknowledgment of your application dated September 8, 2001, informing you that we needed an option selection, your birth date verification, your spouse's birth date verification if you selected option 3 or 4 and either payment for your leave of absence or a statement that you did not wish to purchase the service. After receiving no response, we sent memos on October 24, 2001, November 29, 2001 and January 3, 2002, all requesting the same information. We never received any response to these notices. We then sent our February 14th letter by certified mail (which you signed for on February 25, 2002) informing you of our intent to cancel because your application was not complete. A copy of all of this correspondence is enclosed. Again, we received no response [to] this letter. Before sending our cancellation letter, I personally called the Dade School Board and asked them to contact you in one last effort to avoid cancellation. It was only then that we received (on April 18th) a copy of your passport but none of the other required documentation was submitted. After waiting until May 29th for the remaining items to be submitted, we sent the final cancellation letter. It was approximately eight months from our first notice to you of items pending on your application, to the May 29th letter of cancellation. That was certainly sufficient time to submit the needed information and also explain about the difficulty you might have obtaining additional birth date verification. However, during those eight months we had no contact or response from you despite our repeated notices. To summarize, your DROP application is not being cancelled because of birth date verification, but because you did not submit all of the items needed to complete your application, even though you had eight months to do so. Your letter will be forwarded to our Legal section and they will contact you concerning the appeal process. The "Legal Section," after receiving Petitioner's letter, referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's application to participate in DROP. DONE AND ENTERED this 15th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 15th day of October, 2002.
The Issue Whether the Petition has forfeited his rights and benefits under the Florida Retirement System (FRS) as a result of a guilty plea in the United States District Court, Southern District of Florida, for acts committed in connection with Petitioner's employment with the Broward County Sheriff's Department.
Findings Of Fact From the Joint Stipulation of Facts: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS on behalf of the Department of Management Services. Petitioner was employed as an Assistant State Attorney by the State Attorney's Office from December 1972 to January 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed as Executive Director of the Broward County Charter Commission from January 1974 to November 1974. During this time, Petitioner was a member of the FRS and this service is credited as service under the FRS. Petitioner was employed by the Broward County Board of County Commissioners from March 1975 to November 1978. During this time, Petitioner was a member of the FRS, and this service is credited as service under the FRS. In November 1978, Petitioner was elected to serve as a member of the Florida Legislature; he continued to serve as a state legislator for approximately 18 years. As a state legislator, Petitioner was a member of the FRS class of State Elected Officers, and this service is credited service under the FRS. Most recently, Petitioner was the elected Sheriff of Broward County. By reason of his service as Sheriff, Petitioner was a member of the FRS. Petitioner was initially appointed Sheriff in January 1998 by then-Governor Lawton Chiles. Petitioner was subsequently elected Sheriff in 1998 and reelected in 2000 and 2004. As Sheriff of Broward County, Petitioner was Broward County's chief law enforcement officer and was responsible for directing the Broward County Sheriff's Office ("BSO"), a law enforcement agency that currently employs over 6,000 employees. The office of Sheriff is a constitutional office established under Article VIII, Section 1(d), Constitution of Florida. Upon assuming his duties as Sheriff of Broward County, Petitioner took an oath to support, protect, and defend the Constitution and Government of the United States and the State of Florida and to faithfully perform the duties of sheriff pursuant to Article II, Section 5(b), Constitution of Florida. On or about September 4, 2007, Petitioner wrote a letter to Governor Charlie Crist notifying him of his resignation from the office of Sheriff of Broward County. By reply letter of the same date, Governor Crist accepted Petitioner's resignation. Petitioner is not retired from the FRS and currently does not receive FRS retirement benefits. On or about September 4, 2007, Petitioner was charged, by information, in the United States District Court for the Southern District of Florida, in case number 0:07-cr-60209-WPB, with one count of conspiracy to commit mail fraud, in violation of Title 18, United States Code, Section 371, and three counts of filing a false tax return, in violation of Title 26, United States Code, Section 7206(1). The same four-count information is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr- 60209-WPB as document 1. At all times relevant to the information, Petitioner was the Sheriff of Broward County. The section of the information entitled "General Allegations" contains numerous references to Petitioner's service as Sheriff of Broward County and the power and authority vested in that position. The "Objects of the Conspiracy" contained in count one of the information states: An object of the conspiracy was for JENNE to unlawfully enrich himself by obtaining monies from P.P. and L.N., who were Broward Sheriff's Office vendors, by making false representations, omitting to state material facts, and concealing material facts concerning, among other things, the ultimate destination of monies that JENNE asked P.P. and L.N. to give to his secretaries, A.V. and M.Y. It was further an object of the scheme for JENNE to perpetuate and conceal the scheme and the actions taken in furtherance of it by, among other things, making false, misleading, and incomplete statements in public filings and to investigators. The "Manner and Means of the Conspiracy" contained in count one of the information states: JENNE and M.Y. arranged for JENNE to receive $20,000 from P.P. by having the money transferred from P.P. through JENNE's secretary, M.Y., to JENNE. JENNE and M.Y. did this in order to conceal that JENNE was the true recipient of the funds. JENNE provided L.N. with access to off- duty Broward Sheriff's Office deputies, who L.N. hired to do work for his companies. On two different occasions, in exchange for the access to the deputies, JENNE instructed L.N. to pay money to JENNE's secretary, A.V., purportedly to compensate A.V. for work done for L.N. JENNE instructed A.V. to cash checks given to her by L.N. and to have the cash deposited into JENNE's bank account. JENNE and A.V. did this in order to conceal that JENNE was the true recipient of the funds, which totaled $5,500. JENNE perpetuated this fraud and attempted to prevent its detection by mailing incomplete and misleading annual financial disclosure forms, which did not list his receipt of the payments from P.P. and L.N., to the Florida Commission on Ethics. On or about September 5, 2007, after being advised of the nature of the charges against him, the above-referenced information, and of his rights, Petitioner waived in open court prosecution by indictment and consented to proceeding by information. The same waiver of indictment is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 13. On or about September 5, 2007, Petitioner entered into an agreement with the United States of America to plead guilty as charged in the four-count information. The same plea agreement is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 3. Paragraph 7.c. of the plea agreement provides: 7. The United States and the defendant agree that, although not binding on the probation office or the court, they will jointly recommend that the court make the following findings and conclusions as to the sentence to be imposed: * * * c. Advisory sentencing range on the conspiracy to commit mail fraud count: That, pursuant to U.S.S.G. § 2X1.1, the applicable guideline to be used in calculating the defendant's advisory sentencing range on the conspiracy to commit mail fraud count is § 2B1.1; that under § 2B1.1(a)(1), the Base Offense Level is 7; that under § 2B1.1(b)(1)(C), four levels are added because the loss was between $10,000 and $30,000; that under § 3B1.3, two levels are added because of the defendant's abuse of his position of public trust; and that under § 3E1.1(b), two levels are subtracted for acceptance of responsibility . . . The United States Sentencing Guide, Section 3B1.3, referenced in paragraph 7.c of the plea agreement, provides in relevant part that "[i]f the defendant abused a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." USSG § 3B1.3. Paragraphs 10. and 12. of the plea agreement provide: 10. The defendant confirms that he is guilty of the offenses to which he is pleading guilty; that his decision to plead guilty is the decision that he has made; and that nobody has forced, threatened, or coerced him into pleading guilty. The defendant affirms that he has discussed this matter thoroughly with his attorneys. The defendant further affirms that his discussions with his attorneys have included discussion of possible defenses that he may raise if the case were to go to trial, as well as possible issues and arguments that he may raise at sentencing. The defendant additionally affirms that he is satisfied with the representation provided by his attorneys. The defendant accordingly affirms that he is entering into this agreement knowingly, voluntarily, and intelligently, and with the benefit of full, complete, and effective assistance by his attorneys. * * * 12. This is the entire agreement and understanding between the United States and the defendant. There are no other agreements, promises, representations, or understandings. On or about September 5, 2007, Petitioner entered a statement of factual basis for guilty plea with the United States of America (hereinafter "factual proffer"), wherein he agreed that, if the case went to trial, the government would have been able to establish the facts recited therein beyond a reasonable doubt. The same factual proffer is filed in U.S. District Court (S.D. Fla.) case number 0:07-cr-60209-WPB as document 8. On or about September 5, 2007, a hearing was held in which Petitioner pled guilty as charged in the information. At the hearing, Petitioner admitted to committing the acts set forth in the charges and to which he pled guilty. In addition, at the hearing Petitioner admitted to the following facts and to committing the following actions: At no point in time did Petitioner ever disclose to the public that he received an $8,130 benefit from P.P. in November 2001 in connection with the demolition of a house he owned in Lake Worth, Florida. Within P.P.'s internal accounting system, the $8,130 check was attributed to the "HIDTA project" (i.e., a lease committing BSO and HIDTA as tenants of an office building owned by P.P.). Petitioner never reported the $8,130 benefit on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. At no point in time did Petitioner ever disclose to the public that, in September 2002, he had received $10,000 from P.P. as a reward for his work concerning a new company called SuperTech Products, Inc. Petitioner never reported the $10,000 payment on any of his state ethics disclosure forms, nor did he ever make a disclosure in any other fashion. Prior to becoming Sheriff, Petitioner was a partner in Conrad, Scherer & Jenne, a law firm located in Fort Lauderdale. Petitioner was with the firm from 1992 through the beginning of 1998, when he left to become Sheriff. While Petitioner was at the firm, he, like some other partners, drove a car paid for by the firm's investment arm, CSJ Investments. In October, 1997, at Petitioner's request, the law firm, through CSJ Investments, bought a used 1994 Mercedes E320 convertible for Petitioner to drive. The price of the Mercedes was $61,297. Rather than pay for the car all at once, the firm financed the car with a 60-month loan. When Petitioner left the firm in early 1998 following his appointment as Sheriff, he took the Mercedes with him. Despite the fact that Petitioner no longer worked for the firm, the firm continued to pay off the Mercedes loan for the balance of the loan term, making the final payment in 2003. The loan payments were $1,320 per month, resulting in a total eventual cost to the firm of approximately $79,234 in loan payments, all but approximately $1,320, of which were made after Petitioner had already left the firm to become Sheriff. In addition, after Petitioner left the law firm, the firm continued to pay for the insurance on the Mercedes. The insurance payments continued even unto September 2007. At that time, the firm had made a total of approximately $30,961 in insurance payments on Petitioner's behalf, all but approximately $880, of which were made after Petitioner had already left the firm to become Sheriff. Petitioner never disclosed any of the loan payments or insurance payments made by the firm on his behalf on any state ethics filing. During the time that Petitioner was receiving these undisclosed payments from Conrad, Scherer, the firm was billing BCSO for legal work that it was doing on its behalf. At the hearing, Petitioner did not take any exception or make any objections to the facts as summarized in the factual proffer. In fact, with the exception of one non-substantive addition, Petitioner accepted the factual proffer as indicated. On or about November 16, 2007, a judgment was entered on the aforesaid guilty plea, wherein Petitioner was adjudicated guilty of all counts charged in the four-count information. The same judgment is filed in U.S. District Court (S.D. Fla.) in case number 0:07-cr-60209-WPB as document 59. By certified letter dated January 24, 2008, Petitioner was notified of Respondent's proposed action to forfeit his FRS rights and benefits as a result of the aforesaid guilty plea. The notice set forth the basis for the Division's decision and informed Petitioner of his right to an administrative hearing. Petitioner, by and through counsel, timely requested a formal administrative hearing to challenge said proposed agency action. [End of Stipulated Facts] The parties agreed that the following exhibits would be considered in this cause: Petitioner's resignation letter dated September 4, 2007; Governor Crist's letter accepting Petitioner's resignation dated September 4, 2007; The Information filed against Petitioner on September 4, 2007, in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Plea Agreement offered in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Statement of Factual Basis for Guilty Plea of Defendant Kenneth C. Jenne in United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Transcript of the Plea of Guilty before the Honorable William P. Dimitrouleas, U.S. District Judge, United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209- WPB, United States District Court, Southern District of Florida; The Waiver of Indictment from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Judgment in a Criminal Case from United States of America v. Kenneth C. Jenne, Case No. 0:07-cr-60209-WPB, United States District Court, Southern District of Florida; The Agency Action letter dated January 24, 2008; Form 6 Full and Public Disclosure of Financial Interests 2001 (with attachments and amendments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, June 27, 2002; Form 6 Full and Public Disclosure of Financial Interests 2002 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 7, 2003; and Form 6 Full and Public Disclosure of Financial Interests 2004 (with attachments), Ken Jenne, Sheriff, Broward County, Elected Constitutional Officer, July 1, 2005. Petitioner did not have a trial on the merits of the charges against him. Instead, he voluntarily accepted and admitted to the factual allegations set forth in the charging and plea documents. The factual statements set forth in those documents are not subject to interpretation or conjecture. They must be considered facts of this case based upon the stipulation of the parties. Petitioner was notified of the Department's preliminary decision to forfeit the FRS benefits and rights and Petitioner timely challenged that decision.
Recommendation Based upon the Findings of Fact and the Conclusions of Law set forth above, it is RECOMMENDED that Respondent enter a final order finding Petitioner was convicted of crimes that require the forfeiture of his rights and benefits under the FRS, pursuant to Florida law. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2009. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mark Herron, Esquire Thomas M. Findley, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317-5579 Clifford A. Taylor, Esquire Barbara M. Crosier, Esquire Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
Findings Of Fact Eugene L. Borus began employment with the Department of Transportation (DOT) in February, 1962, and was enrolled in the Florida Retirement System (FRS) as a mandatory member. In April, 1976, he terminated employment and applied for retirement. He was retired effective May 1, 1976, with 12.33 years of credible service (Exhibit 2). Mr. Borus was reemployed on May 23, 1977, by DOT. During 1977 and under the provisions of the "Reemployment After Retirement" provisions of Section 121.091(9), Florida Statutes, Petitioner received both his salary and his retirement benefit up to 500 hours of employment at which point his retirement benefits ceased. Beginning January 1, 1978, and on each January 1 thereafter Petitioner was again paid his retirement benefit up to 500 hours of employment after which the retirement benefit was discontinued. In early 1984, Mr. Borus applied to the Division to have his 1976 retirement cancelled and his employment service with DOT since 1976 included in his creditable service so that at such time as he would again retire, his total creditable service would include all his employment time. If this transpired, his future retirement benefits would be greater than those currently paid. His request was denied by the Respondent by letter dated April 5, 1984 (Exhibit 1). No member of FRS who has retired and drawn retired pay, except for those excepted in Section 120.091(4)(e) and 121.091(9)(d) have ever been "unretired" and allowed to rejoin the FRS.
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The central issues in this case are (1) whether Petitioner is eligible for membership in and retirement benefits from the Teachers' Retirement System; and (2) whether Petitioner is entitled to receive as a refund contributions paid by his employing agency and, if so, how much and at what interest rate.
Findings Of Fact Petitioner, currently sixty-six years old, was employed as a professor of economics and finance at the University of South Florida (USF), Tampa, Florida, from September 1965 through August 31, 1981, when he terminated employment. As a member of the teaching faculty, Petitioner automatically became a compulsory member of the Teachers' Retirement System (TRS) and remained a member throughout his tenure at USE. When Petitioner originally enrolled in the TRS in September 1965, he signed an enrollment form entitled "Teachers' Retirement System of Florida, Enrollment Blank New Teachers." The form provided general information concerning the TRS, and included information about contributions, service credit, and service retirement benefits under the TRS. The enrollment form provided in part the following: I understand that the full amount of deductions from my compensation for annuity purposes with compound interest will be returned to me if I leave the service without a retirement benefit or will be paid to my beneficiary if I die in active service. At all times relevant hereto, the TRS required that members make contributions of six-quarter percent of their total salaries to their retirement accounts. Of this amount, six percent went into the TRS member's retirement account and the quarter percent was allocated to the Survivors' Benefits Fund. In addition to the contributions made by TRS members, employers were required to contribute matching funds to the TRS Retirement Fund. While employed at USF, the prescribed six quarter percent of Petitioner's salary was deducted, with six percent appropriately posted to his TRS retirement account. During the time Petitioner was employed at USF, the employer contribution paid by USF to match Petitioner's contribution was $23,846.06. Had Petitioner remained a member of TRS, he would have been eligible to begin receiving benefits in February 1993. While employed at USF, Petitioner was given the option to transfer from the TRS to the newly created Florida Retirement System on five different occasions: December 1970; June 1971; July 1972; January 1975; and January 1979. Through information disseminated by Respondent, TRS members were notified that by transferring to the "new" Florida Retirement System, they would become mandatory members of the federal Social Security System. Petitioner chose to remain in TRS rather than transfer to the Florida Retirement System, thereby foregoing membership in the federal Social Security System. In August 1981, prior to his normal age of retirement, Petitioner terminated his employment with USF and requested that Respondent refund Petitioner's retirement contributions. In making the request, Petitioner completed and signed a form entitled, "Request for Refund," FRS M81. Completion of this form is a requisite for receiving retirement refunds and applies to members of any of the Florida retirement systems. The Request for Refund states: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. On the reverse side of the Request for Refund card, is the following: Under the provision of the Florida Statutes, a member MUST terminate employment before he can obtain a refund. * * * The refund process may be started upon receipt of this application. It may be necessary to issue a second refund after all payrolls on which a member's name appears are received and audited by the Retirement System Office. A member who has ten or more years of creditable service has a vested interest in retirement and may leave his contributions on deposit indefinitely and qualify for deferred retirement. Pursuant to Petitioner's request, the Division refunded $22,153.10 to Petitioner in October 1981. The refund, which was provided in three warrants, included all employee contributions and earned interest posted to Petitioner's retirement account as of the date of the refund. Petitioner's refund was provided in three separate warrants because the system in place, in 1981, was incapable of generating a single check for an amount in excess of $9,999.99. In late 1995 or early 1996, Petitioner called the Division of Retirement to inquire about his benefits under the TRS. Petitioner made after this call after he reviewed his Social Security wage earning history and learned that no contributions had been posted to his Social Security account during the sixteen years he had been employed at USF. Upon reviewing the Petitioner's request, Respondent discovered that $1,692.96 remained in Petitioner's TRS account. Of the amount remaining in Petitioner's account, $292.63 represented Petitioner's employee contributions, and $1,400.33 was earned interest. Respondent's failure to refund Petitioner's $292.63 and the interest earned thereon as soon as these moneys were posted to Petitioner's account was the result of an unintentional accounting error. Under the procedures used by the Division at that time, Petitioner's most recent employee contributions were not posted to his account until November or December 1981. The interest earned on Petitioner's employee contributions were not posted to Petitioner's account until the end of the 1981/1982 fiscal year. This matter is addressed in the Request for Refund which notified members that "it may be necessary to issue a second refund" after all payrolls on which the member's name appears have been posted. After discovering this inadvertent accounting error, Respondent initially agreed to refund Petitioner the outstanding $1,692.96. Subsequently, the Division of Retirement agreed to pay Petitioner $1,692.96 plus six a-half percent interest from October 1981, for a total amount of $4,088.31. The six and a- half percent interest rate is the current rate established by Respondent. Pursuant to Petitioner's request, Respondent has not yet refunded Petitioner's outstanding employee contributions and interest, pending the culmination of this proceeding. At the time Petitioner completed and signed the Request for Refund, it was his intention to obtain all of his contributions and interest. It was not until Petitioner's inquiry in 1995 or 1996 that he became aware that a small amount of his employee contributions and interest thereon had not been refunded. Petitioner believes that because Respondent did not refund all moneys due him, some $1,692.96, he retained membership in the TRS and is now able to retire from that system with a partial benefit. Alternatively, Petitioner asserts that he is entitled to receive as a refund, all contributions paid into his retirement fund, including the contributions paid by USF. According to Petitioner, his understanding and belief in this regard is based on an explanation provided to him by Dr. John Milliken, the Dean of the College of Business at USF. Petitioner's understanding in this regard was not correct. At some point prior to Petitioner's terminating his employment at USF, he reviewed a Summary Plan Description (SPD) which was issued by the Division of Retirement in 1980. One section of the SPD, Refund of Contributions, provides in relevant part: If a member terminates employment he may elect to receive a refund of all the contributions he has made to the retirement system, except those made to the Survivors' Benefit Trust Fund. Furthermore, the first paragraph of the Summary Plan Description states: This brochure contains basic information on the Teachers' Retirement System, established by Ch. 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers' Retirement System and should not be used in place of the law on questions of interpretation and appli-cation. Any question which are not answered by this brochure may be addressed to the Div. of Retirement, . . . . Based on Petitioner's reading of the provision of the SPD quoted in paragraph 20 above, it was his "judgment" and "impression" that any refund prior to retirement, would include both employee and employer contributions and the interest on these contributions. At no time did Petitioner verify his interpretation with the Division of Retirement or the USE Personnel Office.
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 that Petitioner, John C. Deiter, is (1) ineligible for retirement benefits under the Teachers' Retirement System and (2) is not entitled to receive employer contributions and interest thereon. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELDK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. COPIES FURNISHED: Murray B. Silverstein, Esquire POWELL, CARNEY, HAYES and SILVERSTEIN, P.A. Barnett Tower One Progress Plaza, Suite 1210 St. Petersburg, Florida 33701 Stanley M. Danek, Senior Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Upon consideration of the joint stipulation of facts submitted by the parties, the following relevant facts are found: The petitioner was elected to the office of tax assessor, Bay County, for successive regular terms in 1952, 1956, 1960, 1964, 1968, and 1972. He was commissioned for that office on January 6, 1953, January 8, 1957, January 3, 1961, January 5, 1965, January 7, 1969, and January 2, 1973. As tax assessor, petitioner was a member of the retirement system now known as the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. By two written ballots, petitioner rejected membership in the Florida Retirement System, Chapter 121, Florida Statutes, to be effective December 1, 1970, and January 1, 1975. The constitutional office of tax assessor was abolished and the constitutional office of property appraiser was created in its stead by amendment to Article 8, Section (1)(d) in 1974. The petitioner was elected to the office of property appraiser in 1976, and commissioned on January 4, 1977. The petitioner's duties as property appraiser were and are the same as they were when he was the tax assessor. Petitioner has been in office continually since January 6, 1953, either as tax assessor or property appraiser. He has not terminated his employment and received a refund of contributions; has not had a non-creditable leave of absence; nor was he off the payroll for at least one calendar month.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's demand for admittance into the Florida Retirement System as of January 4, 1977, be denied. DONE and ENTERED this 20th of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William A. Cooper, Jr., Esquire Davenport, Johnston, Harris, Gerde and Harrison 406 Magnolia Avenue Robert L. Kennedy, Jr. Panama City, Florida 32401 State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303 Stephen S. Mathues, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207-C, Box 81 Tallahassee, Florida 32303
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1993.
