The Issue The issue in this case is whether Petitioner, Barbara L. Hughes, who was reemployed as a "media specialist," but who also taught a class, violated the provisions of Section 121.091, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Barbara L. Hughes, is a member of FRS. She terminated DROP and retired effective June 30, 2007. Petitioner returned to work on August 14, 2007. Petitioner was paid retirement benefits and health insurance subsidy payments for August 2007. The retirement benefit for August was $1,640.23. The health insurance subsidy payment for August was $150.00. The total amount for retirement benefits and health insurance benefits was $1,790.23. To avoid a threatened penalty, she voluntarily repaid these benefits subject to her belief that she was legally entitled to them. Petitioner's retirement benefits have been inactivated since September 2007. Petitioner is currently employed and has been employed for more than 32 years as a media specialist for the Glades County School Board, teaching at Moore Haven Junior-Senior High School. The school's student population is approximately 350. Although her position title is "media specialist," her present instructional activities are mixed, i.e., she is a media specialist 71 percent of the workday and a classroom teacher 29 percent of the workday. In July 1999, Petitioner enrolled in the Florida Retirement System DROP plan. The Florida Retirement System DROP plan allows a member of the FRS to retire and accrue retirement benefits while the member continues employment. Since the member does not accrue further service credit while in DROP, the FRS considers the member retired. Petitioner terminated her DROP and retired, effective June 30, 2007. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes. Petitioner returned to employment with an annual contract with a position title, media specialist, in August 2007. This was the same position that she had been employed in when she entered and terminated DROP.
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, Barbara L. Hughes, meets the definition of "classroom teacher" in Subsection 1012.01(2)(a), Florida Statutes, and that she is eligible for retirement payments from August 2007 to present. DONE AND ENTERED this 7th day of February, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Barbara L. Hughes c/o Norman L. Hughes Education Center of Southwest Florida, Inc. Post Office Box 183 LaBelle, Florida 33975 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 Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. 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 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, 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 31st day of March, 2003.
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>.
The Issue Whether Petitioner, Sergeant Ronald Behnke, should be allowed to withdraw from the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS).
Findings Of Fact Petitioner is a trooper with the Florida Highway Patrol and participant in the Florida Retirement System for 27 years. On January 26, 1999, the Division of Retirement (Respondent) received a "Florida Retirement System Application for Service Retirement and the Deferred Retirement Option Program" from Petitioner for entry into the DROP program, effective April 1999, the month of his 50th birthday. Petitioner's application, a Special Risk Management Member, was acknowledged and accepted by Respondent on February 23, 1999, and Petitioner received his estimate of benefits shortly after that time. The statute governing FRS at that time permitted Petitioner to defer his election of entry into the DROP program to a date within "twelve months immediately following the date the member attains 57, or age 50 for Special Risk Class members." Section 121.091(13)(a)2., Florida Statutes (Supp. 1998). Respondent applied an internal policy requiring a member to elect to enter the DROP no later than the member's birth month at age 50. The statute permitted actual entry into DROP to be deferred by the member to any point within the 60-month duration of DROP eligibility. However, late entry could not extend the 60-month period, which is measured from the "date to which he or she is eligible to defer his or her election to participate." Section 121.091(13)(b)1., Florida Statutes (Supp. 1998). Petitioner's 50th birthday was April 9, 1999. Shortly after filing his application for the DROP program, but before April 1999, Petitioner learned there was pending legislation, which, if passed by the Legislature and signed by the governor, would allow him to delay his entry into DROP until 12 months following his 52nd birthday. He and other troopers closely watched and discussed legislation that could affect their positions. On March 12, 1999, Petitioner communicated with staff of Respondent. Respondent's staff advised Petitioner to send a letter requesting a delay in the effective date of entry into the DROP program. The staff explained that Petitioner could repeatedly change the effective date of DROP entry, while watching the pending legislation. Pursuant to these instructions, on March 12, 1999, Petitioner transmitted a letter, through personnel in the Department of Highway Safety and Motor Vehicles (DHSMV) to Respondent, modifying the DROP program entry date to commence on May 1, 1999. Thereafter, Petitioner continued to monitor the progress of the pending legislation closely. Shortly after April 23, 1999, Petitioner received a letter from Ira L. Gaines, Benefits Administrator, employed by Respondent, cautioning Petitioner about his letter delaying entry into the DROP program. The letter advised Petitioner that the month of April 1999, was the only month he could accomplish cancellation of his DROP application, and that if the pending legislation did not pass, he would not be able to establish a retroactive start date. On April 26, 1999, Petitioner received a telephone call from Ira L. Gaines concerning his letter delaying his entry into the DROP program until May 1, 1999. Petitioner testified that Gaines represented to Petitioner that the pending legislation, which would have extended the time for entering the DROP program until age 52, was most likely "dead." He explained that Petitioner would, therefore, lose substantial benefits unless he withdrew his letter delaying entry until May 1999. He recommended that Petitioner enter the program effective April 1, 1999. Although he understood that no Division employee could control the outcome of the legislation, Petitioner relied upon these representations by Respondent's benefits administrator and sent a letter to Respondent dated April 27, 1999, rescinding his March 12, 1999, letter and entered the DROP program, effective April 1, 1999. Thereafter, Petitioner ceased efforts to follow actions by the Legislature. On October 8, 1999, Petitioner learned the legislation had passed and become law permitting DROP entry at the age of 52. Petitioner immediately addressed the question of withdrawing from DROP until the age of 52 with the director of the Division of the Florida Highway Patrol (FHP). Petitioner received a verbal assurances that it would benefit FHP if Petitioner were permitted to delay entry into DROP until the age of 52, since FHP expected to lose a great many experienced officers in a short period of time. The division director told Petitioner he would make inquiry and get back with Petitioner about his desire to withdraw from DROP until the age of 52. When Petitioner had not heard from his chain of command by October 20, 1999, he again initiated contacts with benefits staff in the DHSMV and Respondent. DHSMV Human Resources Director, Ken Wilson, on behalf of the FHP Director, directed Petitioner to pursue the matter with Respondent and to notify him of Respondent's decision. Petitioner's employer, FHP, supported and approved Petitioner's request to withdraw from DROP, and notified Respondent of its approval and its commitment to repay retirement contributions. On October 25, 1999, Petitioner contacted Maurice Helms with Respondent, and requested consideration of his desire to withdraw from DROP. On November 3, 1999, Petitioner received a decision from Respondent notifying him that request to withdraw from DROP was denied. The decision was received by certified mail, return receipt requested. The decision recited that it constituted "final agency action" and notified Petitioner of his right to file a formal petition for review within 21 days of receipt of the final order. Another trooper, Corporal Dwight Wiles, testified that he was allowed to cancel his DROP application after his first month of participation. However, Corporal Wiles did not receive his estimate of benefits until after his first month of participation. Ira L. Gaines testified on behalf of Respondent that the Division's policy allowed all participants to withdraw their application within the month of their eligibility, or within 30 days of receiving their estimate of benefits, whichever was later. Mr. Gaines testified that it was an operational policy of the Division, as it was a new program and there were some 40,000 participants, the estimates of benefits could not always be accomplished by the DROP effective date. Mr. Gaines testified that this was done for the benefit of the members, so that they would have an opportunity to decide if the benefits were enough or if they wanted to continue accruing retirement credits. No formal rules have been adopted by the Division regarding the DROP program because it is still a new program. Mr. Gaines testified that Respondent's DROP Question and Answer memoranda was an internal office operational policy that was necessary to deal with the new program and that the information was not given to members. In fact, the memoranda was marked "DO NOT DISTRIBUTE OUTSIDE THE DIVISION--FOR INTERNAL USE." Mr. Gaines testified that allowing members to change their DROP effective date as they pleased would create a burden on the Division and that his section would be unable to handle the workload. There is no provision in the statute which speaks to withdrawal from the DROP program once participation has begun. Petitioner detrimentally relied upon misrepresentations of fact and/or law by staff of Respondent, who convinced him to withdraw the letter delaying entry into DROP. Respondent's staff had both the appearance of knowledge and authority to make representations on behalf of Respondent. On learning of erroneous information, Petitioner did not sit on his rights. He immediately took action to mitigate his injury by seeking to withdraw from the DROP program. Respondent has adopted policies of general applicability governing administration of DROP entry by members of the Florida Retirement System. Although Respondent has rule-making authority, pursuant to Section 121.091(13)(k), Florida Statutes, these policies have not been adopted as administrative rule pursuant to Chapter 120, Florida Statutes. They have not been and are not otherwise distributed to members of the FRS or other agencies of Florida government. Rather, the policies are retained for internal use of Respondent. Two of Respondent's unadopted policies adversely affected Petitioner: (1) that of requiring an election to participate in DROP in the month of a Special Risk member's 50th birthday, rather than within 12 months of reaching 50 years of age; and (2) that of restricting withdrawal of a DROP application to the last day of the month of a member's 50th birthday or 30 days following receipt of a DROP estimate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Retirement enter a final order granting Petitioner's request to withdraw from the Deferred Retirement Option Program, without loss of eligibility upon repayment of any retirement contributions. DONE AND ENTERED this 14th day of August, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2000. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Thomas E. Wright, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue for consideration in this matter is whether Peter McRedmond, the deceased, should have been permitted to change the beneficiary on his state retirement plan to elect an annuity for the benefit of his estate and the Intervenor, Martin Horton.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Division of Retirement, was the state agency responsible for the control, operation and monitoring of the State Retirement System. Petitioner, Eugene McRedmond, is the surviving brother of Peter McRedmond, deceased, a former member of the Florida Retirement System. Intervenor, Martin V. Horton, is the former live-in friend and companion to Peter McRedmond and the individual who claims an interest in Peter's retirements benefits. For some period prior to 1988, Peter McRedmond was employed at Manatee Community College as a psychology professor and as such was a member of the Florida Retirement System, (FRS). He was so employed until he retired for disability in early 1990. Before that time, however, in August or September, 1988, he was diagnosed as having AIDS by Dr. Warren D. Kuippers, a physician with the Community Migrant Health Center. Tests taken at or around that time indicated he was suffering from toxoplasmosis, a disease of the brain in which significant portions of that organ are eaten by parasites, resulting in intermittent periods of impaired judgement and reasoning ability. He also suffered numerous other medical problems including weight loss, a wasting syndrome, general weakness and fatigue. Notwithstanding the seriousness of his illness, because Mr. McRedmond wanted to qualify for retirement under the FRS system, he continued to work for another year to meet the minimum requirements for retirement. On April 27, 1990, he made application for disability retirement to be effective July 1, 1990. As a part of that application, Mr. McRedmond selected Option 1 under the FRS as the method under which he desired his benefits be paid and named the Intervenor, Mr. Horton, as his designated beneficiary to receive any benefits legally due after his death. Mr. McRedmond could have elected to receive benefits under either Option 1 or Option 2 of the plan. Option 3 was not available to him because of his marital status. Under Option 1, he would receive payments of $639.33 per month for the remainder of his life, regardless of how long he lived. Under Option 2, he would have been paid a slightly lesser monthly sum, $587.51, for the rest of his life, but not less than 10 calendar years, and if he were to die before 10 years were up, the payments would go to his designated beneficiary. In May, 1990, consistent with the procedure then in effect within the Division, Mr. McRedmond was sent a second Option selection form to give him as much information as was possib1e and to make sure he understood what he was doing as it related to his option selection. Mr. McRedmond again selected Option 1, had his signature notarized, and returned the executed form to the Division. The individual who performed the notary service did not recall the transaction but indicated her routine practice was not to notarize a document for anyone who did not appear to know what he was doing. Peter McRedmond died on August 23, 1990 from the disease with which he was afflicted. Several months before his death, in mid June, 1990, Mr. McRedmond and Mr. Horton discussed finances and what Horton could expect after McRedmond's death. It is clear that Mr. McRedmond wanted to make arrangements for Mr. Horton to finish his education without having to work while doing so. At that time, McRedmond's life insurance policy, in the face amount of $60,000.00, had Horton as the beneficiary. Shortly before his death, however, upon the prompting of his brother, Eugene, Petitioner herein, Peter McRedmond directed the policy be changed to make his estate the beneficiary. This was done by Eugene through a power of attorney. There was also some discussion of an additional $500.00 per month which was to go to Mr. Horton, but no one, other than Mr. Horton, recalls this. Also shortly before his death, Mr. McRedmond and Mr. Horton travelled to the family home in Connecticut for several weeks. During that time, Mr. McRedmond had at least one major seizure and family members noticed that while he was sometimes forgetful, for the most part his thinking was rational and normal. There can be little doubt that Mr. McRedmond had deep feelings for Mr. Horton and wanted the latter to be provided for after his death. Friends of both relate the numerous comments McRedmond made to that effect and are convinced that at the time he made the contested election, Mr. McRedmond was not of sound mind sufficient to knowingly make the choice he made. To be sure, the ravages of his disease had taken its toll and there were numerous occasions on which he was not lucid or competent to determine issues such as here. On the other hand, the benefits administrator with whom McRedmond talked at the time he selected his retirement plan option was totally satisfied that at that time, he fully understood the nature and effect of the option he selected and was choosing that which was consistent with his desires at the time. By the same token, the notary, whose testimony was noted previously herein, also was satisfied he knew what he was doing at the time of the second election. In its final configuration, Mr. McRedmond's estate includes all his assets, including the proceeds of the insurance policy previously designated to go to Mr. Horton, for a total of approximately $120,000.00. According to the terms of the will, the estate is to be put into a trust from which Mr. Norton is to receive $1,000.00 per month for his lifetime, as well as all his medical expenses. Since Mr. Horton has tested HIV positive, these can be expected to be extensive. Eugene McRedmond is the executor of the estate. Petitioner and Mr. Horton claim that since the trust contains all of Peter's assets existing at his death, the only other source of the additional $500.00 per month would be the benefits from the FRS. Both cite this as evidence of Mr. McRedmond's intent that the option selection providing for payment after death was his intention. This does not necessarily follow, however. Notwithstanding what Petitioner and Intervenor state were his intentions, Mr. McRedomnd took no action to make the change in option selection which would have effectuated them. Instead, he went out of town to visit family for several weeks, and even after receipt of the first retirement check, received on July 31, 1990, still took no action to make the change. During this period, after the return from Connecticut, Mr. McRedmond's condition deteriorated to the point he was often bedridden and was periodically unaware. However, there is ample evidence to indicate that he was often lucid during this period and still took no action to change his retirement option. During this time, Mr. Horton conducted come of Mr. McRedmond's business affairs for him pursuant to specific instructions. These included making bank deposits and as a part of one of these deposits, when Horton was to deposit two checks as requested by McRedmond, he also deposited the first retirement check. Horton and Eugene McRedmond both claim that at no time did Peter McRedmond ask or authorize him to do so. In a visit that Petitioner made to his brother in early August, 1990, just weeks prior to Peter's death, according to Petitioner his brother explained he had selected the wrong retirement option and requested that Eugene attempt to change the election. Peter gave Eugene a Power of Attorney with which he was to do this as well as to change the beneficiary on the life insurance policy. Consistent with those instructions, Eugene wrote a letter to the Division explaining the situation and that the check had been deposited by mistake. On August 13, 1990, Eugene telephonically contacted the Division where he spoke with Melanie White. During this conversation, in which he again spelled out the circumstances which he believed constituted the mistaken election, he was told to file a power of attorney. When he did this, the Division would not honor it claiming that since it had been executed in May, 1990, some three months earlier, it was not current. Subsequent to the death of Peter McRedmond and the filing of the claim against the Division, Eugene McRedmond and Martin Horton have entered into an agreement whereby any sums recovered from the Division will be split with 25% going to Mr. Horton and 75% going to the Trust. Upon the death of Mr. Horton, any sums remaining in the trust will be split by Eugene McRedmond and another brother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's and Intervenor's claims for retirement benefits under Option 2 of the Florida Retirement System retirement plan, on behalf of Peter McRedmond, be denied. RECOMMENDED in Tallahassee, Florida this 29th day of July, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Buildi5g 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clark of the Division of Administrative Hearings this 29th day of July, 1991 APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7104 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER AND INTERVENOR: Accepted and incorporated herein. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Third sentence not proven. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted that Peter McRedmond had numerous conversations with friends about providing for Mr. Horton, but it was not established that he mentioned using his retirement benefits for that purpose. & 9. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not necessarily following from the facts. Rejected as speculation not supported by fact, except that Petitioner claims Peter desired to change the option selection. First sentence accepted. Second sentence accepted in so far as it asserts Peter told Horton he would receive a monthly sum of $1,000.00. Balance rejected. Accepted and incorporated herein. Rejected as speculation and conclusion except for first sentence and first clause of second sentence. Accepted and incorporated herein. 17.-20. Accepted and incorporated herein. 21. First and second and last sentences accepted. 22.-24. Accepted. Accepted and incorporated herein. Accepted. & 28. Accepted. 29. Irrelevant. FOR THE RESPONDENT: 1-4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. 8.-10. Accepted. Ultimate finding accepted. On the date he filed his application, Peter McRedmond was capable of understanding what he was doing and the implications thereof. & 13. Rejected as comments of the evidence and not Findings of Fact. First four sentences accepted. Remainder rejected except that McRedmond wanted Horton to get at least $1,000.00 per month for life, and more if possible. & 16. Accepted except for last two sentences of 16. Accepted except for last sentence which is a comment on the evidence and not a Finding of Fact. Accepted. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. COPIES FURNISHED: Edward S. Stafman, Esquire Stafman & Saunders 318 North Calhoun Street Tallahassee, Florida 32301 Stanley M. Danek, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Bldg. C 1639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner, Glen L. Hessler (Petitioner) is entitled to participate in the Deferred Retirement Option Program (DROP).
Findings Of Fact The Petitioner is employed by the Indian River County Property Appraiser and is entitled by virtue of such employment to membership in the Florida Retirement System (FRS). For all purposes material to this case, it is undisputed the Petitioner began such employment (and thereby participated in the FRS) on November 9, 1992. The Petitioner was born on August 9, 1938. For purposes of this case, the Department has not disputed the accuracy of such date. In July 2000 an amendment to Section 121.021 took effect whereby employees within the FRS were "vested" after six years of service. This change in the law reduced the time to vest for retirement purposes from the 10 years previously set forth in the statute. As a result of the change, the Petitioner, who immediately became vested with the change, was eligible to apply for DROP on August 1, 2001. It is undisputed the Petitioner did not apply for DROP within 12 months of such date. The Petitioner maintains he was not given notice of the need to apply for DROP. The Petitioner maintains he was not timely notified of the change in the law affecting the time of his vesting. Finally, the Petitioner maintains he applied for DROP after 10 years of service. The Petitioner maintains that such application was timely filed as it was filed when he would have been eligible to apply but for the change in the statute. The Department disputes all assertions raised by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying the Petitioner's request for participation in DROP. DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ 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 29th day of September, 2003. COPIES FURNISHED: Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Eric Barkett, Esquire 2165 15th Avenue Vero Beach, Florida 32960 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issue is whether to grant Petitioner's request that her deceased husband's selection under the Florida Retirement System be changed from Option 1 to Option 3.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Clara F. Holland, seeks to change her late husband's selection under the Florida Retirement System from Option 1 to Option 3 on the ground he was mentally incompetent to make a rational decision when the selection was made. Respondent, Division of Retirement (Division), has denied the request on the grounds that the late husband, William T. Holland (Holland), cashed or deposited his Option 1 retirement benefits from February 1993 until his death in December 1997, and that the law prohibits a change of options under these circumstances. Counting his state and military service, Holland accrued almost thirty years of creditable service with the Florida Retirement System between 1959 and early 1993, when he retired, due to a disability. In the spring of 1990, while employed at Florida State Hospital as a vocational instructor II, he first began contemplating retirement and contacted the Division requesting an estimate of benefits. In April or May 1990, Holland was sent an estimate of benefits, a pamphlet entitled "Preparing to Retire," and an "OPT FRS form," which explained in detail the various retirement options available. Among these were Options 1 and 3. In general terms, the first option paid the largest monthly benefits but terminated upon the death of the retiree. The third option paid smaller benefits, but if the retiree predeceased his spouse, the spouse would continue receiving benefits for her lifetime. This was fully explained in the form. On October 8, 1992, Holland was admitted to Tallahassee Community Hospital (TCC) suffering from recurrent transient ischemic attacks. After various tests were run, Holland underwent an emergency carotid endarterectomy to alleviate a blockage in his left carotid artery. During that surgery, he suffered a stroke, which, among other things, paralyzed his left side and temporarily confined him to a wheelchair. Immediately after the stroke, he could not speak or recognize family members, and he was totally dependent on others. Holland was eventually discharged from TCC on October 22, 1992, and referred to Capital Rehabilitation Hospital (CRH) for additional physical and speech therapy. At the time of discharge from TCC, his treating neurologist, who did not testify at final hearing, noted in the patient records, and without further explanation, that he had "returned to essentially his normal mental status." As a medical record, and an exception to the hearsay rule, this notation constitutes the only competent evidence of record from a medical doctor concerning Holland's mental status at that time. Holland remained at CRH until November 25, 1992, or the day before Thanksgiving. During his month-long stay at CRH, he was given a course of rehabilitation treatment which included physical therapy, occupational therapy, speech therapy, psychology, and recreation. In addition, his brain function was evaluated by a certified speech language pathologist, Linda Boynton, who presented expert testimony as a speech pathologist in this cause. Boynton had no independent recollection of Holland; instead, she based her deposition testimony on the evaluation and testing data she compiled in October and November 1992 while treating him. According to Boynton, because of a deficit in the right side of his brain, Holland was disoriented in terms of time and date; his brain could not interpret all of the images that it was picking up; he had difficulty with remembering, retaining, or recalling facts; and he had problems with the higher levels of mental activity. In addition, while he could read "chunks" of words, he could not read whole sentences. She also opined that at the time she was evaluating him, Holland would have been unable to remember the information contained in the four retirement options even if it was explained to him. Boynton conceded, however, that Holland's stroke was "mild," his comprehension was "adequate," and he scored "moderate" in the cognitive areas. She also confirmed that stroke victims could improve in a matter of days, and that everyone's recovery is different. She had no firsthand knowledge of Holland's mental status on November 7, 1992, the critical date in this dispute. Finally, Boynton was not a medical doctor, and her expertise was limited to speech pathology. For these reasons, her testimony has not been accorded the weight given to the notation in Holland's medical records during his stay at TCH. Shortly after being transferred to CRH, that facility began allowing Holland to go to his home in Sneads, Florida, on "weekend passes." While at home on November 7, 1992, a Saturday, Holland decided to make application for disability retirement with the State. The record does not reflect the person who actually obtained the retirement papers from the Division, but Holland's daughter carried them to his treating physicians so that they could verify in writing the nature of his disability. With the assistance of his wife, Holland completed Division Form FR-13 and selected Option 1, which extended retirement benefits for his lifetime only. In his wife's words, Option 1 was selected because "I don't think we knew we had a choice." At that time, Petitioner says her husband was still strapped in a wheelchair, he was mentally confused, and he could only briefly converse with others. Petitioner also signed the form since there is a requirement that if Option 1 is selected by a married retiree, the spouse must sign the form. Petitioner telephoned William "Bubba" Nelson, Jr., a second cousin who was chief of police in Sneads, and asked that he stop by the house that morning, witness Holland sign the form, and notarize the application. Nelson agreed and notarized the document as requested. The entire visit took no more than five minutes. At hearing, Nelson recalled that Holland used a walker to come into the den to sign the document; he did not appear to be "confused" when he signed the application; he did not ever lose his train of thought; he did not struggle to think of a word while speaking; his "mental capacity seemed to be not affected," and the two were able to engage in small talk for a minute or so. Petitioner then carried the papers to the Division's offices in Tallahassee on November 9, 1992, but was told that her husband needed to sign the form in one other place. Accordingly, she carried the form to CRH and obtained her husband's signature. A stamp on the document reflects that the fully executed document was later filed with the Division on November 13, 1992. When she filed the forms, Petitioner did not ask for any additional information regarding the various options; had she done so, counseling was available at the Division during normal business hours. When the application was filed, Holland had 1.84 years of military service; he also had refunded service from October 1959 to October 1961 and September 1963 to February 1966. Accordingly, on January 12, 1993, the Division advised Holland that $3,334.68 was due if he intended to claim that service. If he did so, his Option 1 benefits would increase almost $200.00 per month. The form requested that Holland notify the Division in writing only if he wished to retire with paid-on service, and not claim his military and refunded service. Finally, the form advised him in bold print as follows: YOU HAVE CHOSEN OPTION 1. YOUR OPTION SELECTION CANNOT BE CHANGED AFTER YOU CASH OR DEPOSIT ANY BENEFIT PAYMENT. The record does not specifically show if Holland opted to purchase his military and refunded service. However, it can be reasonably inferred that he did since the first benefit check described in Respondent's Exhibit 4 roughly equated to what his estimated benefits would have been under Option 1 if such service had been purchased, and there is no record of any written notice to the Division by Holland that he did not wish to purchase this service. Holland's first benefit check was issued on February 5, 1993, and mailed to him on February 9, 1993. That check, and all subsequent monthly checks until his death in December 1997, were cashed or deposited by Holland. They totaled $55,830.72, or more than his total deposits to the retirement system. Therefore, when he died, Petitioner was not due any refunded contributions or future monthly benefits. If Petitioner prevails in this action, however, she would be required to offset any future benefits by approximately $22,000.00, which represents the difference between the benefits payable under Options 1 and 3 during the lifetime of her husband. In August 1994, Holland received a new driver's license with the only restriction being that he had to drive a vehicle with an automatic transmission. He used his license to drive to Marianna for physical rehabilitation treatement. At no time was Holland ever adjudicated incompetent or incapacitated by a court. It is fair to state that he experienced gradual but continued improvement from the time of his release from the hospital until his death in December 1997.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request that her late husband's election of retirement benefits be changed. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 29th day of June, 1999. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Robert B. Button, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stanley M. Danek, Esquire 2114 Great Oak Drive, Suite 200 Tallahassee, Florida 32303
The Issue Whether Petitioner is entitled to an award of attorney’s fees pursuant to Section 57.105(5), Florida Statutes, and, if so, what amount?
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 57.105(5), Fla. Stat.; and Order and Mandate in Case No. 1D04-4167, First District Court of Appeal. Section 57.105(5), Florida Statutes, reads as follows: (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. Subsection (5) of Section 57.105, Florida Statutes, directs the undersigned to the preceding subsections which set forth standards to be applied in the analysis of entitlement to attorney’s fees. Subsection (1) provides that reasonable attorney’s fees shall be awarded to the prevailing party to be paid by the losing party where the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the administrative tribunal or at any time before the administrative hearing, “[w]as not supported by the material facts necessary to establish the claim or defense or [w]ould not be supported by the application of then-existing law to those material facts.” The standards set forth in Subsection (1) and incorporated by reference in Subsection (5) were the result of an amendment to Section 57.105, Florida Statutes, in 1999. s. 4, Ch. 99-225, Laws of Florida. Prior to that amendment, the statute provided for the award of attorney’s fees when “there was a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party.” These new standards became applicable to administrative hearings in 2003 by s. 9, Ch. 2003-94, Laws of Florida, with an effective date of June 4, 2003. Petitioner filed his Petition for Administrative Hearing in September 2003. Accordingly, the newer standards of Section 57.105, Florida Statutes, apply to this case. In the case of Wendy’s v. Vandergriff, 865 So. 2d 520, (Fla. 1st DCA 2003), the court discussed the legislative changes to Section 57.105: [T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99- 225, s. 4, Laws of Florida. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. (Citations omitted) However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. (Citations omitted) In determining whether a party is entitled to statutory attorney's fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. (Citation omitted) In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.(Citation omitted) An award of fees is not always appropriate under section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. (Citation omitted) Wendy's v. Vandergriff, 865 So. 2d 520, 523. The court in Wendy’s recognized that the new standard is difficult to define and must be applied on a case-by-case basis: While the revised statute incorporates the ‘not supported by the material facts or would not be supported by application of then-existing law to those material facts’ standard instead of the ‘frivolous’ standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis. Wendy’s v. Vandergriff, 865 So. 2d 520, 524 citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003). More recently, the First District Court of Appeal further described the legislative change: The 1999 version lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105, Florida Statutes . . . Significantly, the 1999 version of 57.105 ‘applies to any claim or defense, and does not require that the entire action be frivolous.’ Albritton v. Ferrera, 913 So. 2d 5, 6 (Fla. 1st DCA 2005), quoting Mullins v. Kennelly, supra. The Florida Supreme Court has noted that the 1999 amendments to Section 57.105, Florida Statutes, “greatly expand the statute’s potential use.” Boca Burger, Inc. v. Richard Forum, 912 So. 2d 561, 570, (Fla. 2005). The phrase “supported by the material facts” found in Section 57.105(1)(a), Florida Statutes, was defined by the court in Albritton to mean that the “party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton, 913 So. 2d 5, at 7, n.1. Therefore, the first question is whether FAMU or its attorneys knew or should have known that its defense of Dr. Jain’s claim was not supported by the material facts necessary to establish the defense when the case was initially filed or at any time before trial. That is, did FAMU possess admissible evidence sufficient to establish its defense. The parties filed a Pretrial Stipulation the day before the hearing. The Pretrial Stipulation characterized FAMU’s position as follows: It is the position of the University that Dr. Babu Jain retired at the close of business on May 30, 2003, pursuant to the provision of the DROP retirement program. Dr. Jain did not have the right, nor the authority, to unilaterally rescind his resignation and retirement date. In a letter dated May 5, 2003, the Division of Retirement informed Dr. Jain that it was providing him with the “DROP VOID” form that had to be signed by himself and the University, for his participation in DROP to be rescinded. No University official signed that form nor agreed to rescind his retirement. On May 30, 2003, Dr. Babu Jain knew that his retirement through DROP had not been voided and that he had in-fact retired. The University included the position that Dr. Jain occupied in its vacancy announcement in the ‘Chronicle of Higher Education.’ The University, through Dr. Larry Robinson notified Dr. Jain that his retirement rescission was not accepted. Dr. Jain did not work past May 30, 2003. Finally, there was never a ‘meeting of the minds’, nor any other agreement between the University and Dr. Jain to void his retirement commitment. It [is] the University’s position that Dr. Babu Jain retired from Florida Agricultural and Mechanical University effective at the close of business on May 30, 2003. Pretrial Stipulation at 14-15. (emphasis in original) The material facts known by FAMU necessary to establish its defense against Petitioner's claim at the time the case was filed included: Petitioner’s initial Notice of Election to Participate in DROP and Resignation of Employment in which Dr. Jain resigned effective the date he terminated from DROP (designated as May 30, 2003); Dr. Robinson’s letter dated May 27, 2003, which asserted that the University was not in agreement with Dr. Jain's decision and that the decision to terminate from DROP is a mutual one; Dr. Robinson's letter of May 30, 2003, which informed Dr. Jain that the two summer semester employment contracts were issued to him in error and informing Dr. Jain that he would be paid through May 30, 2003, his designated DROP date; the refusal of anyone from FAMU to sign the DROP-VOID form provided to Dr. Jain by the Division of Retirement; the reassignment of another instructor to take over Dr. Jain’s classes the first Monday following the designated DROP termination date; and the Refund of Overpayment of Salary Form and resulting salary deduction from Dr. Jain’s sick leave payout. It is difficult to determine what, if any, additional facts FAMU learned through discovery. That is, whether deposition testimony of FAMU officials enlightened FAMU or its attorneys as to material facts not known at the time the case was filed by Dr. Jain, is not readily apparent. However, a review of the pre-trial depositions reveals material facts which supported FAMU’s defense that the summer contracts were issued in error and that there was no meeting of the minds between the parties regarding voiding Dr. Jain’s DROP participation. In particular, Dr. Robinson, Provost and Vice- President for Academic Affairs, testified in deposition that when he signed Dr. Jain’s summer employment contracts on May 20, 2003, he had no knowledge of Dr. Jain’s participation in the DROP program; that he first became aware that Dr. Jain was in DROP with a DROP termination date of May 30, 2003, upon receiving a May 21, 2003, memorandum from Nellie Woodruff, Director of the FAMU Personnel Office; and that Dean Larry Rivers did not have the authority to issue work assignments for any of his faculty beyond their DROP dates. Additionally, Dr. Henry Williams, Assistant Dean for Science and Technology, testified in deposition that when he signed the Recommendation for Summer Employment on May 5, 2003, which recommended Dr. Jain for teaching summer courses beginning May 12, 2003, he was unaware that there was a 30-day window during which a DROP participant could not be employed. Obviously, when the undersigned weighed all of the evidence, including evidence presented at hearing which is not part of this analysis, it was determined that the preponderance of the evidence was in favor of Dr. Jain’s position. However, that is not the standard to be applied here. The undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU possessed admissible evidence sufficient to establish the fact that it did not give written agreement to his decision to abandon DROP and resume employment if accepted by the finder of fact. While the finder of fact ultimately did not agree with FAMU, FAMU possessed the material facts necessary to establish the defense, i.e., admissible evidence sufficient to establish the fact if accepted by the trier of fact, when the case was filed and prior to the final hearing. The second question is whether FAMU’s defense would not be supported by the application of then existing law to those material facts, when the case was initially filed or at any time before the final hearing. In the Pretrial Stipulation, the parties referenced Sections 121.091(13) and 121.021(39), Florida Statutes, as provisions of law relevant to the determination of the issues in the case.2/ These statutory provisions were also referenced by the undersigned in the Recommended Order as “two competing statutory provisions.” Recommended Order at 15. Subsection 121.091(13), Florida Statutes, establishing the DROP program, was created by s. 8, Ch. 97-180, Laws of Florida, with an effective date of January 1, 1999.3/ Section 121.091(13), Florida Statutes (2003), read as follows: DEFERRED RETIREMENT OPTION PROGRAM.--In general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation in the DROP does not guarantee employment for the specified period of DROP. Participation in the DROP by an eligible member beyond the initial 60-month period as authorized in this subsection shall be on an annual contractual basis for all participants. Section 121.021(39)(b), Florida Statutes (2003), read as follows: 'Termination' for a member electing to participate under the Deferred Retirement Option Program occurs when the Deferred Retirement Option Program participant ceases all employment relationships with employers under this system in accordance with s. 121.091(13), but in the event the Deferred Retirement Option Program participant should be employed by any such employer within the next calendar month, termination will be deemed not to have occurred, except as provided in s. 121.091(13)(b)4.c. A leave of absence shall constitute a continuation of the employment relationship. Unlike the situation in Albritton, supra, the DROP program was relatively new and the statutes creating the same were not well established provisions of law. Dr. Jain was in the first “class” of DROP for FAMU. FAMU and its lawyers did not have the benefit of established case law that discussed DROP and its provisions when this case was filed or at any time before the hearing. While general contract law also came into play, it had to be considered in the context of the DROP program, which had no precedent of case law. FAMU argues in its Response to the Motion for Attorney's Fees that it interpreted the provision in Section 121.091(13), Florida Statutes, that requires written approval of the employer to be either the DROP VOID form provided by the Division of Retirement or a written document, executed by the designated University official, specifically approving Petitioner's decision. "The University did not believe the employment contracts that were issued to Petitioner in error, would constitute written approval." FAMU's Response at 5. This argument is consistent with the position FAMU took in the Pretrial Statement quoted above, that there was never a meeting of the minds "or any other agreement" that Dr. Jain's retirement rescission was accepted. A critical conclusion in the Recommended Order is found in paragraph 38: "Moreover, while the FAMU administration did not sign the DROP-VOID form, the contracts issued to Dr. Jain constitute written approval of Dr. Jain's employer regarding modification of his termination date." FAMU also took the position in the Pretrial Stipulation that Dr. Jain did not work past May 30, 2003, based upon the material facts recited above. Under that reading of the facts, Dr. Jain did not work during the next calendar month after DROP, and, therefore terminated employment consistent with the definition of "termination" in Section 121.021(39)(b), Florida Statutes. Again, while the undersigned did not agree with FAMU's application of the material facts to the then-existing law, FAMU's interpretation was not completely without merit. See Mullins v. Kennerly, 847 So. 2d 1151, 1155. (Case completely without merit in law and cannot be supported by reasonable argument for extension, modification or reversal of existing law is a guideline for determining if an action is frivolous.) Accordingly, the undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU did not know and could not be expected to know that its defense would not be supported by the application of then-existing law to the material facts necessary to establish the defense. Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is ORDERED: Petitioner’s Motion for Attorney’s Fees is denied. DONE AND ORDERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 March, 2006.
The Issue Whether Petitioner is eligible to participate in the Deferred Retirement Option Program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1976, a firefighter employed by Miami-Dade County and, as such, a Special Risk member of the Florida Retirement System. Petitioner's date of birth is September 19, 1937. Accordingly, on July 1, 1998, the effective date of DROP, Petitioner was 61 years of age and had approximately 22 years of creditable service as a Special Risk member of the Florida Retirement System. Petitioner was aware that he needed to file an application to join DROP within 12 months of July 1, 1998, but he opted not to file such an application because he believed that the retirement benefits he would receive if he joined DROP within this 12-month period would not be enough for him to "live on" after he stopped working.2 Petitioner thought that it would be in his best interest, instead, to wait until 2003 to retire (and enjoy higher retirement benefits). On June 7, 2001, Petitioner sent an e-mail to Governor Bush, which read, in pertinent part, as follows: Yesterday I met with the head spokesman of FL. State Retirement concerning my participation in the D.R.O.P. [and] he advised me to send this note. As you know it started in 1998 at which time I was offered a small window because of my age (unlawful discrimination) for which I was not able to get into because of the insignificant amount offered as permanent retirement. Since then, as anticipated, my retirement has increased from the high 30's to the low 60's due thanks to you . . . Now, I am asking, by special request, to be allowed to enter into the D.R.O.P. either to finish these two years or to be given an opportunity to go for the whole 5 years, which I doubt I would complete. . . . Petitioner's e-mail correspondence was referred to the State Retirement Director who, by letter dated June 8, 2001, advised Petitioner that Petitioner's "request to join DROP at this late date must be denied."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding that Respondent is not eligible to participate in DROP because he did not elect to do so within the time frame prescribed by Subsection (13)(a)2. of Section 121.091, Florida Statutes. DONE AND ENTERED this 14th day of December, 2001, 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 14th day of December, 2001.
