The Issue The issue is whether Florida Administrative Code Rules 19B-14.001, 19B- 14.002, and 19B-14.003 (collectively the “Rules”), are each an invalid exercise of delegated legislative authority for the reasons alleged by Petitioner.
Findings Of Fact The Board is the State Agency which administers the Stanley G. Tate Florida Prepaid College Program (Florida Prepaid College Plan) set forth in section 1009.98, Florida Statutes, and the Florida College Savings Program (Florida 529 Plan) set forth in section 1009.981, collectively known as the Plans. Intuition is a Florida corporation authorized to do business in Florida. Intuition provides services to customers nationwide, including college savings and prepaid record keeping administration services. It is the largest third- party contractor in the country providing prepaid record keeping administrative services. The Board and Intuition have entered into a series of contracts over the past 25 years. The parties entered their last contract on July 1, 2019, which called for Intuition to provide customer services and records administration services to the Board. Witnesses for both parties testified about the possibility of an upcoming contract dispute involving $700,000.00. This issue prompted the rule challenge. The dispute resolution paragraph in the July 1, 2019, contract provides the following in pertinent part: 33. INTERPRETATION, VENUE AND DISPUTE RESOLUTION * * * B. The sole and exclusive manner of resolution of all claims, disputes or controversies related to or arising under or from this Contract shall be pursuant to Rules 19B-14.001, 19B-14.002, and 19B-14.003, Florida Administrative Code, as amended from time to time. 5. Rules 19B-14.001, 19B-14.002, and 19B-14.003, were effective as “New” on June 20, 1996. Rule 19B-14.001, the only rule that has been amended since 1996,4 currently provides: 19B-14.001 Scope These rules shall apply to the resolution of all claims, disputes or controversies related to or arising from contracts, including any extensions of contracts, entered by the Florida Prepaid College Board on or after the effective date of these rules. These rules shall constitute the sole procedure for the resolution of all claims under all such contracts. These rules do not apply to advance payment contracts for the prepayment of Registration Fees, Local Fees, the Tuition Differential Fee and dormitory fees. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971[5] FS. History–New 6-20-96, Amended 10-18-10.[6] Rule 19B-14.001 identifies the “Rulemaking Authority” as section 1009.971(1), (4), and (6), and the “Law Implemented” as section 1009.971. 4 The rule was amended in the following ways: the name was changed from Florida Prepaid Postsecondary Education Expenses Board to Florida Prepaid College Board; the word “postsecondary” was deleted before “Registration Fees”; the word “registration” was deleted after the word “dormitory”; “Registration Fees” was capitalized; and the phrase “Local Fees, the Tuition Differential Fee” was added. 5 Although section 1009.971 is cited as the “Law Implemented,” these three statutory subsections: (2) Florida Prepaid College Board; Membership; (3) Florida Prepaid College Board; Elections; Meetings; and (5) Florida Prepaid College Board; Contractual Services, are not applicable to the challenged rules. 6 These history notes are not completely accurate. This rule was amended in 2010 and the citations are accurate for 2010. Florida Administrative Code Rule 1-1.012, Legal Citations and History Notes, provides the specific method to record legal citations and history notes. Section 1009.971(1), (4), and (6) state in pertinent part: FLORIDA PREPAID COLLEGE BOARD; CREATION.—The Florida Prepaid College Board is hereby created as a body corporate with all the powers of a body corporate for the purposes delineated in this section. The board shall administer the prepaid program and the savings program, and shall perform essential governmental functions as provided in ss. 1009.97-1009.988.[7] For the purposes of s. 6, Art. IV of the State Constitution, the board shall be assigned to and administratively housed within the State Board of Administration, but it shall independently exercise the powers and duties specified in ss. 1009.97- 1009.988. * * * (4) FLORIDA PREPAID COLLEGE BOARD; POWERS AND DUTIES.—The board shall have the powers and duties necessary or proper to carry out the provisions of ss. 1009.97-1009.988, including, but not limited to, the power and duty to: Appoint an executive director to serve as the chief administrative and operational officer of the board and to perform other duties assigned to him or her by the board. Adopt an official seal and rules. Sue and be sued. Make and execute contracts and other necessary instruments. Establish agreements or other transactions with federal, state, and local agencies, including state universities and Florida College System institutions. 7 In 1996, the statutes addressing the Plans ended at section 1009.984. Sections 1009.985 through 1009.988 were added in 2015; but those additions do not affect the issue herein. Further reference to these additional sections 1009.985 through 1009.988 will not be noted. Administer the trust fund in a manner that is sufficiently actuarially sound to defray the obligations of the prepaid program and the savings program, considering the separate purposes and objectives of each program. The board shall annually evaluate or cause to be evaluated the actuarial soundness of the prepaid fund. If the board perceives a need for additional assets in order to preserve actuarial soundness of the prepaid program, the board may adjust the terms of subsequent advance payment contracts to ensure such soundness. Invest funds not required for immediate disbursement. Appear in its own behalf before boards, commissions, or other governmental agencies. Hold, buy, and sell any instruments, obligations, securities, and property determined appropriate by the board. Require a reasonable length of state residence for qualified beneficiaries. Segregate contributions and payments to the trust fund into the appropriate fund. Procure and contract for goods and services, employ personnel, and engage the services of private consultants, actuaries, managers, legal counsel, and auditors in a manner determined to be necessary and appropriate by the board. Solicit and accept gifts, grants, loans, and other aids from any source or participate in any other way in any government program to carry out the purposes of ss. 1009.97-1009.988. Require and collect administrative fees and charges in connection with any transaction and impose reasonable penalties, including default, for delinquent payments or for entering into an advance payment contract or a participation agreement on a fraudulent basis. Procure insurance against any loss in connection with the property, assets, and activities of the trust fund or the board. Impose reasonable time limits on use of the benefits provided by the prepaid program or savings program. However, any such limitations shall be specified within the advance payment contract or the participation agreement, respectively. Delineate the terms and conditions under which payments may be withdrawn from the trust fund and impose reasonable fees and charges for such withdrawal. Such terms and conditions shall be specified within the advance payment contract or the participation agreement. Provide for the receipt of contributions in lump sums or installment payments. Require that purchasers of advance payment contracts or benefactors of participation agreements verify, under oath, any requests for contract conversions, substitutions, transfers, cancellations, refund requests, or contract changes of any nature. Verification shall be accomplished as authorized and provided for in s. 92.525(1)(a). Delegate responsibility for administration of one or both of the comprehensive investment plans required in s. 1009.973 to persons the board determines to be qualified. Such persons shall be compensated by the board. Endorse insurance coverage written exclusively for the purpose of protecting advance payment contracts, and participation agreements, and the purchasers, benefactors, and beneficiaries thereof, including group life policies and group disability policies, which are exempt from the provisions of part V of chapter 627. Form strategic alliances with public and private entities to provide benefits to the prepaid program, savings program, and participants of either or both programs. Solicit proposals and contract, pursuant to s. 287.057, for the marketing of the prepaid program or the savings program, or both together. Any materials produced for the purpose of marketing the prepaid program or the savings program shall be submitted to the board for review. No such materials shall be made available to the public before the materials are approved by the board. Any educational institution may distribute marketing materials produced for the prepaid program or the savings program; however, all such materials shall be approved by the board prior to distribution. Neither the state nor the board shall be liable for misrepresentation of the prepaid program or the savings program by a marketing agent. Establish other policies, procedures, and criteria to implement and administer the provisions of ss. 1009.97-1009.988. Adopt procedures to govern contract dispute proceedings between the board and its vendors. Amend board contracts to provide Florida ABLE, Inc., or the Florida ABLE program with contractual services. (aa) Adopt rules relating to the purchase and use of a prepaid college plan authorized under s. 1009.98 or a college savings plan authorized under s. 1009.981 for the Gardiner Scholarship Program pursuant to s. 1002.385, which may include, but need not be limited to: * * * (6) QUALIFIED TUITION PROGRAM STATUS.— Notwithstanding any other provision of ss. 1009.97- 1009.984, the board may adopt rules necessary for the prepaid program and the savings program each to retain its status as a “qualified tuition program” in order to maintain its tax-exempt status or other similar status of the program, purchasers, and qualified beneficiaries under the Internal Revenue Code. The board shall inform participants in the prepaid program and the savings program of changes to the tax or securities status of advance purchase contracts and participation agreements. Rule 19B-14.001 provides, in plain language, “[t]hese rules shall apply to the resolution of all claims, disputes or controversies related to or arising from contracts” and “shall constitute the sole procedure for the resolution of all claims under all such contracts.” The term “shall” is defined as “directives to express what is mandatory.” See Merriam-Webster On-line Dictionary (https://www.merriam-webster.com/dictionary/shall). Rule 19B-14.002 provides the following: 19B-14.002 Initiating Proceedings Related to Contracts with the Board. Any person or firm that has entered into a contract with the Board and has been adversely affected by a decision of the Board or its employees concerning such contract shall file a written petition to contest the decision with the Board within 21 days of the date of the receipt by such person or firm of the decision. The notice of the decision shall be provided in writing to the person or firm by the Executive Director. The date of receipt of the notice shall be either the date on which the notice is received by the person or firm if the notice is sent by registered mail or by other means of delivery which results in a receipt for delivery or the date of the decision plus five days if the notice is sent by regular mail. Any person or firm who receives such written notice of the decision and who fails to request a hearing within twenty-one days, shall have waived his right subsequently to request a hearing on such matters. The petition shall include the following: The name and business address of the person or firm which claims to be adversely affected by a decision of the Board or its employees; A concise statement of the ultimate facts upon which the claim arose; The date and subject of the contract under which the claim arose; A statement of all disputed issues of material fact upon which the claim is based or, if there are none, the petition shall so indicate; A concise statement which explains how the substantial interests of the person or firm are affected by the decision of the Board or the Board’s employees; A concise statement of the provisions of the contract together with any fed., state and local laws, ordinances or code requirements or customary practices and usages in the industry asserted to be applicable to the questions presented by the claim; The demand for relief sought by the claimant; The date of the occurrence of the event or events which gave rise to the claim and the date and manner of the Contractor’s compliance with the contract; and Any other material information the person or firm contends is material to its claim. The written petition shall be printed, typewritten or otherwise duplicated in legible form. The petition shall include copies of all documents which support the claim. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971 FS. History–New 6-20- 96.[8] Rule 19B-14.002(1) clearly states that any person or firm (vendor) “shall file a written petition to contest the decision with the Board within 21 days of the date of the receipt by such person or firm of the decision.” The next sentence provides the method by which the specific date of receipt of the notice is determined, and when the clock starts ticking for the affected vendor to file a written petition. However, the rule fails to establish a time frame in which Respondent must issue the notice once the adverse decision is made. Further, there are no specific requirements for the content of the written notice, such as explaining the basis for the adverse decision. Although Mr. Thompson asserted that any affected vendor could file a written petition to contest any adverse decision by the Board or a Board employee, there is no such language in the rule, the “sole procedure” for a vendor to do so. Rule 19B-14.002(2) provides specific requirements for the written petition. Although a vendor may be able to include some of the required information for the written petition, the requirement that the vendor “shall” provide a “concise statement of the ultimate facts upon which the claim arose”; a “statement of all disputed issues of material fact upon which the claim is based ...”; and a “concise statement which explains how the substantial interest of the person or firm are affected by the decision of the Board or the Board’s employees” is impossible without specific information from Respondent as to the circumstances giving rise to the adverse decision. Mr. Thompson testified there was nothing to preclude an affected vendor from filing a public records request seeking the information desired. 8 These citations are not accurate. In 1996, Respondent listed sections 120.53(1) and 240.551(5), Florida. Statutes (1995), as the “Specific Authority” and section 240.551 as the “Law Implemented.” Rule 1-1.012, Legal Citations and History Notes, provides the specific method to record legal citations and history notes. However, this is contrary to the specific language of the rule, which neither requires the Board to explain the basis for their adverse decision nor provides any procedure for an adversely affected vendor to obtain the information necessary to file a written petition. There is no such language in the rule, the “sole procedure” for a vendor to do so. Rule 19B-14.003 provides the following: 19B-14.003 Resolution of Claims. Upon receipt of a formal written petition, the Executive Director shall attempt to resolve the matters that are the subject of the petition by mutual agreement within fifteen (15) days, excluding Saturdays, Sundays, and legal holidays. If the petition is not resolved by mutual agreement within fifteen (15) days, excluding Saturdays, Sundays and legal holidays, the Executive Director shall deliver, within forty-five (45) days from the date such petition was filed, to the person or firm that filed the petition a determination that indicates the Board’s written response to the claims or such person or firm. Unless the person or firm who filed the petition agrees to the determination of the Board and a consent order adopting the determination is entered within thirty (30) days from the receipt by the person or firm of the Board’s determination, the Executive Director, if no disputed issues of material fact are involved, shall designate a hearing officer who shall conduct an informal proceeding pursuant to Section 120.57(2), F.S., and applicable Board rules. The hearing officer designated by the Executive Director shall be either a person who is a member in good standing of the Florida Bar or a person knowledgeable by virtue of education or practical experience with the subject matter of similar contracts involving state agencies. If there is a disputed issue of material fact, the Executive Director shall refer the petition to the Division of Administrative Hearings of the Department of Management Services for proceedings under Section 120.57(1), F.S. Once the Executive Director has referred the dispute to a hearing officer pursuant to subsection (3) or (4), no further information or amendment of the claims shall be permitted. The statements, facts, documents and materials contained in the petition filed pursuant to Rule 19B-14.002, F.A.C., or which are submitted to and received by the Executive Director prior to the determination made pursuant to subsection 19B- 14.003(2), F.A.C., shall constitute the entire factual record submitted by a person or firm on which a claim against the Board may be sustained in any hearing under this rule. A person or firm making a claim against the Board shall not be allowed to submit to a hearing officer any statements, facts, documents or materials to support any claim against the Board which were not submitted to the Executive Director by the person or firm making the claim prior to the Executive Director’s determination pursuant to subsection 19B- 14.003(2), F.A.C. The Board may submit statements, facts, documents or materials in response to the factual record submitted by a person or firm making a claim against the Board or to sustain the decision of the Executive Director which was made pursuant to subsection 19B- 14.003(2), F.A.C. The filing of a petition by a person or firm pursuant to the provisions of this rule shall not affect the duty or obligation of the person or firm pursuant to the contract under which the claim or dispute arose. Any person or firm which files a petition pursuant to the provisions of this rule expressly agrees that it shall continue to proceed with all scheduled work as determined under any prior existing schedule pursuant to such contract unless otherwise agreed in writing between the person or firm and the Board. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971 FS. History–New 6-20- 96.[9] Rule 19B-14.003(1) adds the word “formal” before “written petition” in the first sentence. The addition of this one word, without any definition and without any previous mention in rule 19B-14.001 (the “sole procedure”), imposes another requirement on vendors. Yet, there is no direction provided as to what that “formal written petition” includes. Respondent aptly states in its PFO: “A rule may be vague if it does not define important terms or standards.” Such is the case when a word is inserted and not defined. The remainder of rule 19B-14.003(1) places a duty on the Board’s Executive Director to attempt a resolution of the “formal written petition” within 15 business days of its receipt. Rule 19B-14.003(3) establishes that if no resolution is reached, the matter is referred to a hearing officer designated by the Board’s Executive Director for a hearing not involving disputed issues of fact (formerly and commonly referred to as an “informal hearing”). This informal hearing is to be conducted pursuant to section 120.57(2), Florida Statutes. Rule 19B-14.003(4) establishes that if no resolution is reached, the matter is referred to DOAH for a hearing involving disputed issues of fact (formerly and commonly referred to as a “formal hearing”), “for proceedings under section 120.57(1),F.S.” However, rule 19B-14.003(5) provides that regardless of which referral is made (either rule 19B-14.003(3) or (4)), “no further information or amendment of the claims shall be permitted.” This, in effect, precludes the discovery process at DOAH, and purports to cut off the authority of the presiding administrative law judge to grant leave to amend the petition. 9 See Footnote 8 above. Rule 19B-14.003(6) then proceeds to place further restrictions on how either hearing (informal or formal) must proceed. Subsection (6) restricts what “shall constitute the entire factual record” to the “statements, facts, documents and materials contained in the petition,” and that which is “submitted to and received by the Executive Director prior to the determination made pursuant to subsection Rule 19B-14.003(2), F.A.C.” This phrase is emphasized again with the following statement: “[A] person or firm making a claim against the Board shall not be allowed to submit to a hearing officer any statements, facts, documents or materials to support any claim against the Board which were not submitted ... prior to the Executive Director’s determination.” (Emphasis added). However, the Board, itself, “may submit statements, facts, documents or materials in response to the factual record submitted by person or firm making a claim against the Board, or to sustain the decision of the Executive Director which was made pursuant to subsection 19B-14.003(2), F.A.C.” Overall, these three rules set forth the procedures, in either informal or formal proceedings, to adjudicate contractual disputes. To prohibit the adversely affected party from fully prosecuting their claim, while allowing the Board to submit additional material to the trier of fact is not fair, and is contrary to the procedures in place at DOAH, contrary to several statutory provisions found in sections 120.569 and 120.57(1), and the discovery permitted at DOAH under the Florida Rules. of Civil. Procedures. The phrase “judge, jury, and executioner” may not be an incorrect analogy. Each rule cites as its “Rulemaking Authority” section 1009.97(1), (4), and (6). The Board is a creature of the Florida Statutes, created by section 1009.971(1), “with all the powers of a body corporate,” yet subsection (1) does not provide any rulemaking authority. Further, nowhere does this section grant the Board the ability to adopt rules to bind another state agency, that is governed by different statutes and rules. Section 1009.971(6) allows the Board to “adopt rules necessary for the prepaid program and the savings program... to maintain its tax-exempt status or other similar status of the program,” but does not specifically provide that the Board may impose its rules on another state agency. Section 1009.971(4)(b) grants the Board the “power and duty to… (a)dopt an official seal and rules.” This subsection does not expound on what the rules may impart, and thus does not grant the specific authority to do more. Section 1009.971(4)(y) grants the Board the “power and duty to… “(a)dopt procedures to govern contract dispute proceedings between the board and its vendors.” Although the Board has the ability to adopt rules, that authority does not grant the Board the ability to impose its “procedures” on another state agency that is governed by different statutes and rules. The term “procedures” is not defined in the statute. The common definition of procedures is “a particular way of accomplishing something.” See Merriam-Webster On-line Dictionary (https://www.merriam- webster.com/dictionary/procedure). In the legal arena, the term “procedure” is defined as “[T]hat which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecutions.” Black’s Law Dictionary 1368 (4th ed. 1968). Another characterization of the term “procedure” is the structure for carrying on a lawsuit, including the pleadings, discovery process, evidence, and practice. The Division10 provides independent administrative law judges to conduct hearings pursuant to sections 120.569 and 120.57(1), and other laws. Section 120.569 sets forth the type of proceedings to be conducted: “Decisions which affect substantial interests.” The petition for a hearing is 10 The Division operates two distinct programs: the adjudication of administrative cases by administrative law judges (ALJs); and the adjudication of workers’ compensation claims by the judges of compensation claims. In this instance, the Division employs ALJs to conduct hearings in which the substantial interests of a person or entity are determined by an agency and involve a disputed issue of material fact. filed with the affected agency, which in turn has 15 days to notify DOAH, although the parties may attempt to resolve the dispute and a delay in sending the case to DOAH occurs. Once the case is at DOAH, an ALJ is assigned and the affected agency is mandated to “take no further action with respect to the proceeding ... except as a party litigant, as long as the division has jurisdiction over the proceeding under s. 120.57(1).” The “presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery on the written request of any party by any means available to the courts ” See § 120.569(2)(f), Fla. Stat. Further, the presiding officer shall exclude irrelevant, immaterial, or unduly repetitious evidence, while allowing “all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs ” See § 120.569(2)(g), Fla. Stat. The Florida Administration Commission, composed of the Governor and Cabinet, adopted the hearing procedures that DOAH utilizes, commonly referred to as the Uniform Rules. See §§ 14.202 and 120.54(5), Fla. Stat. Chapter 28-106, Part I, sets forth the general provisions that apply to “all proceedings in which the substantial interest of a party are determined by the agency and shall be construed to secure the just, speedy, and inexpensive determination of every proceeding.” Part II sets forth those processes for hearings involving disputed issues of material fact, which are at specific odds with rule 19B-14.003.11 Section 120.54(5)(a)2. provides that an “agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration Commission.” The Board provided no evidence that it has sought and received an exception that would authorize the challenged rules. 11 Chapter 28-106, Part III, provides the uniform procedures for proceedings and hearings not involving disputed issues of material fact; Part IV provides the uniform procedures for mediations; Part V provides the process for emergency actions; and Part VI provides conflict direction. It is true that the Board can adopt procedures to govern contract dispute proceedings. However, the challenged rules, read separately and as a whole, are an invalid exercise of delegated legislative authority.
The Issue Whether or not the Respondent, State of Florida, Department of Administration, Division of Retirement, was in error in refusing to allow the Petitioner, John S. Forster, Jr., a/k/a John S. Forster to repay his contributions to the Florida Retirement Systems after he had requested and been granted a refund of his contributions made to the Florida Retirement Systems.
Findings Of Fact John S. Forster, Jr. applied for a job with the University of North Florida, Jacksonville, Florida. That application was under the name John S. Forster. He was given employment by the University and commenced the job. His position was as Store Keeper II. That job involved the receiving and distribution of incoming materials which the University was purchasing. Sometime in the middle to late part of February, 1976 the Petitioner suffered an injury in his employment and was required to be away from his work. During the course of the treatment of the Petitioner and subsequent contact by the employer, it was discovered that the Petitioner had on several occasions given false answers on his employment applications and medical questionnaires. Specifically, in answering questions propounded to him about former serious illness or operations, he had answered in the negative when in fact he had had a back condition which required surgery. This finding is borne out by the Respondent's Exhibits 2, 3 and 4, admitted into evidence, which are employment questionnaires and medical questionnaires completed by the petitioner. After the discovery of the false answers and subsequent to the Petitioner having been away from his employment for an extended period of time, a decision was made to terminate the Petitioner from his employment with the University of North Florida. Upon receiving the notice of termination the Petitioner had no further contact with the University of North Florida and did not attend any form of exit interview, as is the policy of the University. However, prior to his employment, the University had given an orientation session in which he was made familiar with the right that he had under the Florida Retirement Systems, to include the distribution of certain brochures of information. It is not clear how the Petitioner obtained the form, but he did obtain a form which is a form utilized for requesting refund of contributions to the Florida Retirement Systems. This form may be found as Respondent's Exhibit 1, admitted into evidence. The form was completed in its entirety by the Petitioner, with the exception of the portions which are to be completed by the last Florida employer. The portions to be completed by the Florida employer were not completed. effectively what the form did was to instruct the, Petitioner that his application for refund would waive, for him, his heirs and assignees all rights, title and interest in the Florida Retirement Systems. This waiver constitutes a waiver in law on the question of any rights the Petitioner, his heirs and assignees would have under the Florida Retirement Systems. The waiver becomes significant because the Petitioner went to a social security office and discovered that he would possibly be entitled to certain benefits due to the injury he suffered on the job with the University of North Florida, and those benefits would accrue to the Petitioner as a member of the Florida Retirement Systems. Notwithstanding that possible right to recovery, the Petitioner may not recover any compensation from the Florida Retirement Systems, due to his voluntary withdrawal from the Florida Retirement Systems by his refund request dated May 7, 1976. This withdrawal was made without coercion and without the knowledge of the University of North Florida and without the responsibility on the Dart of the University of North Florida or the Florida Division of Retirement to give any instructions on the implications of such a refund being granted. The Petitioner now has received his contributions from the Florida Retirement Systems and is not entitled to further relief as petitioned for.
Recommendation It is recommended that the Petitioner, John S. Forster, Jr. also known as John S. Forster, be denied any right to repay his contributions into the Florida Retirement Systems as a means to receiving compensation on the injury received while employed by the University of North Florida. DONE AND ENTERED this 17th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John S. Forster, Jr. 11615 Jonathan Road Jacksonville, Florida 32225 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-C - Box 81 Tallahassee, Florida 32303
The Issue The issue in this case is whether the Petitioner, Gloria Godbolt, should be deemed, pursuant to Rule 22A-7.010(2), Florida Administrative Code, to have abandoned her position of employment with the Respondent, University of Florida.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. At all times material to this case, the Petitioner, Gloria Godbolt, was a Career Service employee of the Division of Finance and Accounting of the University of Florida. The last position held by Petitioner with the University of Florida was that of a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting. Petitioner last reported to work at the University of Florida on April 25, 1986. On April 27, 1986, the Petitioner called her sister, Ella Godbolt, collect from the Broward County jail. The Petitioner asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner was sick. On April 28, 1986, and again on April 29, 1986, Petitioner's sister, Ella Godbolt, called the Petitioner's office to notify the Respondent that the Petitioner was sick and would not report to work on each of these two days. On April 30, 1986, Ella Godbolt told the Petitioner's supervisor, Grace Strawn, that the Petitioner was sick, that the Petitioner had a doctor's appointment for the following day, and that the Petitioner would not be at work for the rest of the week. The Petitioner called her sister the following Sunday night, May 4, 1986, and asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner would not be at work that week, and that the Petitioner would explain everything later. On Monday, May 5, 1986, Ella Godbolt again talked to Grace Strawn on the telephone and informed Strawn that the Petitioner would not be at work that week and that Petitioner would call later in the week to explain the reasons for her absence. The Petitioner did not call Grace Strawn during the week of May 5, 1986. From May 6, 1986, through May 16, 1986, both dates inclusive, neither the Petitioner nor anyone on her behalf communicated either orally or in writing with the Respondent to report that the Petitioner would be absent from work or to explain the reasons for the Petitioner's absence. The Petitioner was advised by her attorney Michael Swan, that she should not report the fact of her arrest and confinement to anyone. However, that advice was not given to her until approximately one week after her incarceration. From April 26, 1986, through May 16, 1986, the Petitioner was incarcerated in Broward County, Florida, and, because of that incarceration, was unable to report to work on any of those days. During her period of incarceration, the Petitioner had access to a telephone which could be used to make "collect" long distance calls and she also had available the means necessary to write and mail a letter to her employer. The Petitioner neither called nor wrote to her employer to report her absence or to request appropriate leave. Instead, the Petitioner arranged for her sister to call the Petitioner's employer during the Petitioner's first week of absence to falsely report that the Petitioner was sick and to request sick leave for her absence. Based on these false representations, the Petitioner was granted sick leave for the first week of her absence. On May 17, 1986, which was a Saturday, the Petitioner returned to Gainesville. Upon learning that some of the employees in her department were working that day, the Petitioner went to her workplace to ask about her job. Her supervisor, Grace Strawn, told the Petitioner that it was out of her hands. The Petitioner did not explain to Strawn that she had been incarcerated and had not been sick. Again, on May 19, 1986, when the Petitioner talked with Cynthia Fidalgo Evans, Associate University Controller, asking what she could do to get her job back, she misrepresented to Ms. Evans that she had been hospitalized in Broward County. It was not until May 30, 1986, two weeks after the Petitioner had been released from jail, that the Petitioner corrected the record by stating in a letter to William Zeanah, Assistant University Controller, that she had been incarcerated and not sick as previously reported. The Petitioner was aware that she had to let her employer know if she was going to be absent from work and obtain appropriate leave for her absence. She was also aware that three consecutive workdays of unauthorized leave were considered job abandonment by the Respondent. On September 15, 1980, when the Petitioner was first employed, she signed a statement acknowledging receipt of the Career Service Employee Handbook of the University of Florida. This handbook provides at page 27: If you must be unavoidably absent from your job (that is, other than planned vacations or personal business times that have been approved in advance), let your supervisor know as soon as possible on the first day of absence why you must be absent and when you expect to return. If your anticipated return date changes, keep your supervisor informed. Unapproved absences for three consecutive workdays are considered job abandonment and, therefore, voluntary resignation. . The Respondent has consistently notified employees who have been on unauthorized leave for three consecutive workdays that they are considered to have abandoned their jobs and to have voluntarily resigned from the Career Service system. The Respondent needed to know if and when it could expect the Petitioner to report to work in order to make appropriate arrangements to have her work done in a timely fashion during her absence. As a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting, the Petitioner processed the necessary documents to pay vendors for the foods and services they provided to Respondent. Petitioner's task was the last step performed by Respondent before submitting vendors' invoices to the State Comptroller for payment by the issuance of warrants. The Petitioner was therefore aware of the importance of her job and of Respondent's need to have her job performed within specified time constraints. Petitioner was further aware that the Respondent is required by law to process vendors' invoices during a 15-day period and that failure to do so could result in penalties being imposed against the Respondent and disciplinary action taken against employees who persistently fail to process vendors' invoices in a timely fashion. Due to Petitioner's long and continuous unreported absence, Petitioner's supervisor had to work two consecutive Saturdays with other members of her staff in order to process vendors' invoices within the five-day period allotted to her office to accomplish that task.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Gloria Godbolt, was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ORDERED this 4th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3929 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. It will be helpful to a complete understanding of the rulings which follow to know that there was a great deal of conflict in the testimony of some of the witnesses who testified at the hearing. Most, if not all, of the conflicts in the testimony have been resolved in favor of the version of the facts advanced by the Respondent. In resolving the conflicts in the testimony, I have taken into account a number of matters, the most important of which are: how logical or illogical the competing versions were, whether the testimony was consistent or inconsistent with other reliable evidence, whether the witness had an interest in the outcome of the case, the extent to which the witness' credibility was impeached by prior inconsistent statements, if any, and, of course, the demeanor of the witness while testifying. It should also be noted that the finding that the Petitioner was the instigator of the false reports of her illness that were passed along to the Petitioner's employer is a finding based on the most reasonable inference to be drawn from the evidence. Rulings on Petitioner's proposed findings Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what the Petitioner told her sister to do. Accepted in substance with minor modifications in the interest of accuracy. Rejected as not supported by credible evidence. Accepted, with additional findings in the interest of clarity and accuracy. Rejected as irrelevant to the disposition of this case. Rejected as irrelevant to the disposition of this case. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Accepted in substance. Rejected as subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted, with additional findings in the interest of clarity and accuracy. Rulings on Respondent's proposed findings Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. First four sentences of this paragraph are rejected as subordinate and unnecessary details. Last two sentences are covered in the explanatory comments at the beginning of this Appendix. Accepted. Accepted. Rejected as subordinate and unnecessary details. Accepted. Accepted, with exception of last sentences and quoted material which are rejected as subordinate and unnecessary details. First sentence of this paragraph accepted. Second sentence rejected as unnecessary surplusage. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Carla D. Franklin, Esquire Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Isis Carbajal de Garcia, Esquire Associate General Counsel 207 Tigert Hall University of Florida Gainesville, Florida 32611 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Erin R. McGuire, is entitled to purchase retirement service credit for the 1980-1981 school year based upon the determination of whether she was on a properly authorized leave of absence for that school year or, conversely, had actually resigned for that year before returning as a full- time employee of the Bay County School System the following year.
Findings Of Fact The Petitioner is a regular class member of the FRS, with some 28 years of service credit. Her entire FRS career has been with the Bay County School District. On October 8, 1980, the Petitioner resigned her employment with the Bay County School System to re-locate her residence to Alabama. She wanted to be closer to her family in Alabama and at the time did not intend to return to Bay County. She changed her mind, however, and on September 9, 1981, was re-hired by the Bay County School System. She has continued her employment with Bay County schools from that time until the present. The Petitioner maintains that she spoke to her school principal after tendering her resignation in 1980, and he persuaded her to rescind her resignation and instead take a leave of absence. No school board record of such a decision or denomination of her absence from employment as a leave of absence, was produced at hearing. The Petitioner did admit that when she left her employment with Bay County in 1980, she had no intention of ever returning at that point. She did, however, return for the following school year and has been employed by Bay County Schools ever since. When a member, such as the Petitioner, seeks to purchase a leave of absence from the FRS, they, and their employer, must verify the leave of absence on the FRS form FR That form is provided by the Division and must be executed by both the employer and the employee. The leave of absence must have been approved by the employer, the school board, either prior to or during the time period of the leave of absence, according to the rule cited herein. When Ms. McGuire submitted her form FR 28 to the school board, the board completed the form indicating that she had resigned on October 8, 1980 (not a leave of absence), and was re-hired as a "new hire" on September 9, 1981. It is also the case that the school board approved amending her record to show the time period in question as a leave of absence. That amendment of her record was approved by the school board on January 14, 2004, however, long after the time period of the purported leave of absence itself.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, denying the Petitioner's request to purchase leave of absence credit for the period October 1980 through September 1981. DONE AND ENTERED this 1st day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of September, 2004. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Erin McGuire 1507 Rhode Island Avenue Lynn Haven, Florida 32444
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which the Petitioners and the Intervenor assert that they are substantially affected by an agency statement that violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns the method of determining the order of layoff of some of the Respondent's employees.
Findings Of Fact Stipulated facts In 1996, the federal government modified and/or reformed welfare to require eligible participants to obtain employment. The Florida Legislature enacted Chapter 414, Florida Statutes, also known as the WAGES law, which required the Respondent to provide certain services to applicants for and participants in the WAGES program, including work activities, training, and other job-related services, which the Respondent termed "front-end services." Those services were primarily provided by Career Service employees of the Respondent. In 1998, the Florida Legislature amended portions of the WAGES law to require that local WAGES coalitions, instead of the Respondent, provide those front-end services to WAGES participants, effective October 1, 1998. As a direct result therefor, the Respondent was required to lay off approximately 700 career service employees. As a part of the implementation of the announced layoff of employees, Respondent requested approval of a method of determining the order of layoff, pursuant to Rule 60K- 17.004(3)(g), Florida Administrative Code, which provides: (g) Agencies shall then choose and consistently apply one of two methods, or another method as approved by the Department of Management Services, in determining the order of layoff. These methods are commonly referred to as "bumping." Option 1: The employee at the top of the list shall have the option of selecting a position at the bottom of the list based on the number of positions to be abolished, e.g., 20 positions in the affected class, 5 positions to be abolished. The employee at the top of the list can select any of the positions occupied by the 5 employees at the bottom of the list. The next highest employee on the list then has the option of selecting any of the positions occupied by the 4 remaining employees at the bottom of the list with the process continuing in this manner until the 5 employees at the top of the list have exercised their option. Option 2: The employee at the top of the list has the option of selecting any position occupied by any employee on the list with fewer retention points in the class. The next highest employee and remaining employees shall be handled in a similar manner until the list is exhausted. Rather than selecting Option 1 or Option 2, set forth in the published rule, the Respondent requested approval of an alternative method of determining the order of layoff. By letter dated August 17, 1998, the Department of Management Services (DMS) approved the method of determining order of layoff set forth in its correspondence. The method of determining the order of layoff is described by DMS in its approval letter as: The option you have chosen will allow adversely affected employees to select any position in the affected class and series, in the competitive area approved in our August 5, 1998 letter. Neither the Respondent's request for approval of the alternate method of determining the order of layoff, nor DMS' approval of that method, have been adopted in substantial conformity with Section 120.54, Florida Statutes. The Respondent's request for approval of the alternate method of layoff was intended to apply solely to the layoff occasioned by changes in the WAGES law. Facts based on evidence at hearing Florida Public Employees Council 79, AFSCME, is the certified bargaining agent for approximately 67,000 career service employees of the State of Florida. As such, it represents the employees of the Department who were affected by the subject layoff. The individual Petitioners, Betty Hall, Diana Lomas, Mercedes Valdez, and Elizabeth Judd, are members of the AFSCME collective bargaining unit. The challenged bumping procedure was not reached by collective bargaining. Under the alternative layoff method approved for the Respondent by DMS, employees with the greater number of retention points received enhanced bumping rights, permitting them to "bump" employees with fewer retention points in the same class and in the class series. Conversely, by this alternative procedure, employees with fewer retention points were accorded diminished protection against bumping. These employees could be bumped not only by employees with greater retention points in the class, but also by employees with greater retention points in other classes in the class series. For example, Consuelo Casanovas, from Petitioners' Exhibit 8, who was adversely affected in her position of Employment Security Representative I, was accorded bumping rights to positions in her class and to positions in the other two classes in the class series, Customer Services Specialist and Interviewing Clerk. Had the Respondent elected Option 1 or Option 2 in the published rule, Rule 60K-17.004(3)(g), Florida Administrative Code, Ms. Casanovas would not have had the right to bump to positions in the other two classes, and persons in those other two classes would not have been subject to bumping by Ms. Casanovas.1
The Issue The issue is whether Petitioner is eligible to purchase her employee service as a CETA employee with a state agency as credible service in the Florida Retirement Service.
Findings Of Fact Petitioner, Sherry Stearns, was employed by the State of Florida, Department of Labor and Commerce, in the Florida State Unemployment office from January 1976 until September 30, 1977. The records maintained by the Department of Retirement based upon payroll data submitted by the Department of Revenue reflect that Petitioner was not in a permanent position as reflected by the Code 0303 and the entry of "zz" in the last column showing she was not eligible for retirement benefits. The Petitioner offered no evidence in support of her claim to show that she was employed in a position which was covered or for which she could claim prior service credit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner's claim be DENIED. DONE AND ENTERED this 29th day of July, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1998. COPIES FURNISHED: Sherry Stearns 360 South Senaca Boulevard Daytona Beach, Florida 32114 Stanley N. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 July, 2009.
The Issue Whether Petitioner transferred to the Florida Retirement System (FRS) Investment Plan from the FRS Pension Plan, pursuant to section 121.4501, Florida Statutes (2012).1/
Findings Of Fact Petitioner is a 32-year-old former employee of the Florida Department of Corrections. Petitioner was employed as a correctional officer at the Northwest Florida Reception Center in Washington County, Florida from June 14, 2004, until he resigned on July 23, 2012. Petitioner is a fully vested member of the State of Florida Retirement System (FRS). Respondent, State Board of Administration, is the agency with the duty and responsibility to administer the State of Florida Retirement System Investment Plan. See § 121.4501(8), Fla. Stat. In mid-2011, Petitioner decided to look for other employment and began researching his retirement options. Petitioner discovered he needed to be employed by the State for six years to be fully vested in the FRS and have the option to transfer from the FRS Pension Plan (a defined benefit plan) to the FRS Investment Plan (a defined contribution plan). Sometime between May 1 and 10, 2012, Petitioner accessed the FRS website, either downloaded or printed the FRS “second election form” –- the paperwork required to transfer his retirement account to the Investment Plan -- and completed the form. Although Petitioner does not remember the exact date, Petitioner approached Ms. Charity Pleas, Secretary Specialist for the Chief of Security, and asked her to file his second election form for him by facsimile transmission (fax). Ms. Pleas testified she faxed the document to the number on the form. Petitioner observed Ms. Pleas place the paperwork into the fax machine, dial a fax number, complete the fax transmission, and retrieve a fax transmission confirmation report. Ms. Pleas handed the confirmation report to Petitioner. Petitioner cannot be certain what became of the confirmation report or his original second election form. Petitioner did not contact anyone with the Florida Retirement System to confirm receipt of his second election form. Ms. Pleas often sends faxes on behalf of employees at the Reception Center where she has been employed since 2007. Ms. Pleas occasionally receives complaints from employees that a fax she has sent on their behalf was not received by the other party. Sometimes this happens despite the fact that she has received a fax confirmation report. Petitioner began employment in the private sector with Power South on July 30, 2012. In early August 2012, Petitioner contacted the FRS to find out if the retirement funds were available to move into a 401K account with his new employer. He spoke with someone named “Jason” who said there was no record of a second election having been made by Petitioner. An investigation ensued. Aon Hewitt is the Plan Choice Administrator for the FRS Investment Plan. Aon Hewitt provides services to the SBA in connection with the Investment Plan, including processing enrollments and second elections. Lynette Murphy is Benefits Operations Manager for Hewitt Associates, LLC, a division of Aon Hewitt. Ms. Murphy researched the issue of whether Petitioner’s second election form was received by Aon Hewitt. She conducted several searches of the company’s files, including a search by Petitioner’s name (both first and last names) and social security number. In case the second election form had been received without a member name or social security number, Ms. Murphy also conducted a search on the numbers “99” and “90,” the codes assigned to forms received which are unidentifiable. Ms. Murphy’s search included not only forms received between April 1, 2012 and July 30, 2012, but also all dates covering the life of Petitioner’s eligibility and enrollment in the FRS. Ms. Murphy was unable to find any record of a second election form filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order denying the relief requested in Petitioner’s Petition for Hearing. DONE AND ENTERED this <day> day of <month>, <year>, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 <day> day of <month>, <year>.
