The Issue Whether Petitioner must forfeit and repay distributions he received from the Deferred Retirement Option Program and subsequent monthly retirement benefits received as a consequence of his election to the position of County Commissioner of Jefferson County within six months of terminating state employment.
Findings Of Fact The Division of Retirement (Division) is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Petitioner, John Nelson, was employed by the Department of Financial Services (DFS) from October 1977 through July 31, 2010. For the last five years of his employment with DFS, Petitioner participated in the Deferred Retirement Option Program (DROP). Prior to ending his DROP participation, Petitioner completed a DROP Termination Notification Form (DP-TERM Rev. 06/06) on April 23, 2010, confirming he would terminate employment on July 31, 2010. The DROP Termination Notification was also signed by a representative from FRS confirming Petitioner's employment termination date and reads in pertinent part: I understand that I cannot work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity including part-time, temporary, other personal services (OPS) or non-Division approved contractual services during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to me enrollment date in the DROP. The above-referenced version of the DP-TERM (Revised 6/06) has been incorporated by reference into Florida Administrative Code Rule 60S-9.001(ee). Due to significant statutory changes made by the Legislature, the Division sent to Petitioner a second DROP Termination Notification, (Form DP-TERM revised 04/10) which he signed on June 9, 2010. The wording in the revised form reflected statutory changes which would take effect July 1, 2010. The revised form states in pertinent part: If your DROP termination date is on or after July 1, 2010: Your termination requirement means you cannot remain employed or become re-employed with any Florida Retirement System (FRS) covered employer during the FIRST SIX calendar months following your DROP termination date. This includes but is not limited to: Part-time work, temporary work, other personal services (OPS), substitute teaching or non-Division approved contractual services. During the 7th-12th calendar months following your DROP termination date, you may return to work for a participating FRS employer but must suspend your retirement benefit for any of these months your[sic] are employed. There are no reemployment exceptions during the reemployment limitation period. After the 12th calendar month following your DROP termination date, there are no employment restrictions. If you fail to meet the termination requirements noted above, you will void (cancel) your retirement and DROP participation, you must repay all retirement benefits received including your DROP accumulation, and you must apply to establish a future retirement date. If you void your retirement your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new termination date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP. (emphasis added). The revised form DP-TERM (Revised 04/10) has not yet been adopted as a rule. At the time of hearing, rulemaking had been initiated. Petitioner terminated his employment with DFS on the agreed termination date of July 31, 2010, and was no longer an employee of DFS after that date. Sometime between July 31, 2010, and November 2010, Petitioner was paid his accumulated DROP monies in the amount of $181,635.09, in the form of a direct rollover into an eligible retirement account. Petitioner was also paid monthly retirement benefits for the months of August through November 2010, in the total amount of $11,286.76. The Division deactivated Petitioner's monthly retirement benefits in December 2011. The total amount of retirement benefits paid to Petitioner after terminating employment with DFS is $191,921.85, which the Division seeks to recover. In April of 2010, at the urging of community members, Petitioner registered to run for public office in Jefferson County, Florida. He won the election and was sworn into office as a Jefferson County Commissioner on November 16, 2010. Tyler McNeill is the Chief Deputy Clerk and Human Resources Officer for Jefferson County. Following Petitioner's election as a County Commissioner, Mr. McNeill began to process a small packet of employment-related documents which he provides to elected officials. Mr. McNeill went to Petitioner's home on a Sunday evening to get the necessary papers signed. Prior to this meeting, Petitioner was unaware that Jefferson County participates in the FRS. Petitioner described his reaction to learning this as "shocking." When Mr. McNeill and Petitioner got to the FRS form, Petitioner did not want to sign it and informed Mr. McNeill of that. Mr. McNeill described Petitioner as appearing physically ill, shocked, and "so upset" upon learning that the County was an FRS participating employer. On November 22, 2010, Petitioner and Mr. McNeill called Ira Gaines, FRS Benefits Administrator, using a speakerphone. At the time they placed this call, Petitioner had not yet signed the employment documents supplied to him by Mr. McNeill, and Petitioner informed Mr. Gaines of this. During this conversation, Petitioner expressed his willingness to resign from office and refuse to accept payment from the County for his newly elected position. According to Mr. McNeill, Petitioner was not yet eligible to receive compensation from the County because the employment papers had not yet been processed. Mr. McNeill testified that he would have been able to discard the documents. During this telephone conversation, Mr. Gaines advised that Petitioner was legally a person employed by the County by virtue of his being sworn into office on November 16, 2010. Mr. Gaines equated bring sworn into office as being an employee. At hearing, Mr. Gaines reiterated his position: that he did not know any way Petitioner could not be enrolled in FRS when occupying an elected position. As a result of this telephone conversation with Mr. Gaines and in reliance on Mr. Gaines' advice, Mr. McNeill processed Petitioner's employment papers including the FRS reenrollment form. Mr. Gaines then began receiving salary payments for being a county commissioner. On December 6, 2010, Mr. Gaines sent a letter to Petitioner stating that his election to the position of County Commissioner had voided his DROP participation, and consequently, Petitioner would have to repay $181,635.09 for the DROP payment, and $11,286.76 in monthly retirement benefits. The letter further informed that Petitioner will continue to earn credit as an elected official in the Elected Officer's Class of FRS membership and that Petitioner's retirement account would be adjusted to reflect service from August 2005 through July 2010 (his DROP period) which he estimated would increase Petitioner's retirement benefits by $1,200 per month. In response to the December 6, 2010 letter, Petitioner appealed the voiding of his DROP participation. By letter dated February 1, 2011, the Division denied the request. The February 1, 2011 letter also informed Petitioner of his right to request a hearing, which gave rise to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Retirement enter a final order rescinding the February 1, 2011, notification letter requiring reimbursement of Petitioner's DROP distribution and reimbursement of Petitioner's monthly retirement benefits from August 2010 through December 2010 when those benefits were discontinued; reinstating those monthly benefits beginning six months following the completion of Petitioner's DROP period, and nullifying Petitioner's reenrollment in the Elected Officers' Class of FRS membership. DONE AND ENTERED this 8th day of March, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2012.
The Issue Whether Petitioner is entitled to participation in the State University Optional Retirement Program for the period August 1997 through December 1998.
Findings Of Fact Petitioner Jeffrey Bradshaw (Bradshaw) was employed by UWF as a Research Assistant from August 8, 1997, until December 1998. This position was eligible to participate in the ORP for the State University System as described in Section 112.35, Florida Statutes (1997). On August 18, 1997, Bradshaw signed a Form ORP-16, indicating his election to be a member of the ORP and indicating that he had signed the necessary contract with TIAA-CREF, an approved annuity provider. Bradshaw returned this form to UWF. Below Bradshaw's signature is a portion of the Form ORP-16 which is entitled, "To be completed by employer." Within that portion of the form, a signature appears in the signature line designated "Signature of University" beneath the following certification: "I certify that since their employment with the university, this employee has signed a contract(s) with the ORP carrier(s) as shown and is filling an eligible position." Following this certification and above the signature of the university representative appears the following in handwriting, "verbal by employee." This portion of the form indicates that it was signed by a representative of UWF on October 6, 1997. The fully executed form ORP-16 was forwarded to Respondent on or about October 6, 1997. Bradshaw recalls that he sent a copy of the executed contract directly to TIAA-CREF. UWF paid the employer's statutory portion of Bradshaw's salary to Respondent to participate in the ORP for the entire period from August 8, 1997 to December 31, 1998, for a total of $11,494.88. Respondent forwarded that money to TIAA-CREF. On June 2, 1998, Respondent sent a letter to Bradshaw in care of UWF which read in pertinent part as follows: Effective July 1, 1997, Section 121.35, F.S. was amended and now requires ORP participants that fail to select a provider company and execute an annuity contract within 90 days of eligibility, must be enrolled in the Florida Retirement System (FRS). Even though you selected a provider company within 90 days of becoming eligible for ORP, you have not completed the other required step in the process. According to the company, you do not have a contract with them. The Division will be forced to transfer your contributions from the company account to the FRS Trust Fund unless you act immediately. You will then be credited with the appropriate service credit under the FRS and your employer will be requested to begin reporting you under the FRS. In order that you may continue in the ORP, you must complete the establishment of your ORP Account. We therefore request that you provide the critical information requested by the company to establish a contract using their application form (enclosed). If you have any questions about this process, please call the special toll free number for the Service Plus Office, 800 842-7715. This should be done as soon as possible, but no later than 15 days from the date of this letter. Please send a copy of this letter along with your form. Otherwise, to revert your retirement membership to the regular class of the Florida Retirement System, please complete the enclosed Form FRS-M10, Personal History Record and return it to your employer within the next 15 days. Should you have any questions concerning enrollment in the FRS, please call our Enrollment Section at SUNCOM 278-8837 or (850) 488-8837. Please send a copy of this letter along with the form. (emphasis in original) Faye Borders is a Senior Personnel Representative with UWF. According to her files, UWF contacted Bradshaw by telephone when UWF received the June 2, 1998, letter and Bradshaw indicated that he sent the application directly to TIAA-CREF. It is not clear from the record the scope of the telephone conversation between the UWF representative and Bradshaw. The evidence of record does not establish that Bradshaw was sufficiently informed of the content of the June 2, 1998, letter, or of its consequences. Bradshaw does not recall that the telephone conversation took place. He believed he had done everything he needed to do and did not became aware that there was a question about his earlier membership in the ORP until he signed a new contract in October of 2000. What is clear is that Bradshaw did not receive a copy of the letter and never received any written correspondence from anyone inquiring as to his status in the ORP. As far as Bradshaw was concerned, he completed all forms necessary at the appropriate times. Bradshaw left employment with UWF in December 1998 and moved out of state. He returned to employment at UWF in 2000 and signed a new ORP-16 and a new contract with TIAA-CREF in October 2000, and is currently actively enrolled in the ORP with TIAA-CREF as his annuity provider. He became aware that there was an issue about his former membership in the ORP in a telephone call he placed to TIAA-CREF and when he received a letter informing him that the money from the time period of his earlier employment had been returned to UWF. At this point, he sought advice from UWF's office of human relations. Bradshaw and UWF sent letters to Respondent to clarify this issue. A letter dated November 17, 2000, from Faye Borders to Respondent reads in pertinent part as follows: Dear Hobe, Please see (attached) Mr. Jeffrey Bradshaw's letter regarding his status in the Optional Retirement Program during his prior employment with the University of West Florida. I am also attaching information from our files pertaining to Mr. Bradshaw's efforts to enroll in the Optional Retirement Program. Mr. Bradshaw is certain he sent the application directly to TIAA-CREF and has repeated that on several occasions. He has moved several times since his prior employment, thus the address we provided to TIAA-CREF on our attached copy of the fax sent to them may not have been current. TIAA-CREF's letter to Mr. Bradshaw states that the University of West Florida requested the institutional premiums be removed from the contract and placed in their Repurchase account at TIAA-CREF. I am unclear on this and as far as I know the University does not handle such transactions. Anything you can do to assist Mr. Bradshaw with his request will be greatly appreciated. Respondent responded directly to Bradshaw, again in care of UWF, with a letter dated March 30, 2001. The letter was written by David Ragsdale, Benefits Administrator, and reads in pertinent part as follows: Dear Mr. Bradshaw: This is in reference to your October 20, 2000 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires SUSORP participants that fail to select a provider company within 90 days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete and submit the ballot, Form ORP-16, within the ninety days window of eligibility in compliance with the law. As such, you will be a compulsory member of the FRS. Mr. Ragsdale acknowledges that the March 30, 2001, letter to Bradshaw was in error in that the Division had received the ORP-16 signed by Bradshaw in 1997. Mr. Ragsdale also explained that letters to Bradshaw were addressed to UWF because in 1997, and until sometime in 2001, Respondent did not maintain personal addresses for participants, but relied on the employing agencies to maintain addresses for their employees. On April 26, 2001, Sherell Hendrickson, Director of Human Resources at UWF, sent a letter addressed to Mr. Ragsdale which stated as follows: Dear Mr. Ragsdale: This is in reference to your March 30, 2001 letter denying Jeffrey Bradshaw's enrollment in the ORP in 1997. A copy of your letter is attached. This denial is based on Mr. Bradshaw's failure to complete and submit the ballot, Form ORP-16, within the ninety-day window of eligibility in compliance with the law. Mr. Bradshaw did complete and return his Form ORP-16. He was hired on August 8, 1997; the form ORP-16 was sent to the Division of Retirement on October 6, 1997, less than 60 days after his initial employment with UWF. On this form, he designated TIAA-CREF as his retirement annuity company and certified that he had signed a Florida ORP contract. Mr. Bradshaw sent his enrollment forms directly to TIAA- CREF. HR Benefits Clerk, Valerie Comparetta, notes that he sent the annuity contract to TIAA-CREF on the form ORP-16. Unfortunately, TIAA-CREF alleges that they did not receive his contract application and that after attempting to get in touch with him, they contacted UWF's Human Resources Department. He gave TIAA-CREF an address that may not have been current to contact Mr. Bradshaw. However, Mr. Bradshaw confirmed with us that he had completed and mailed the contract to TIAA-CREF. The University's institutional premiums of $11,496.88 were sent to TIAA-CREF during 1997-98. Mr. Bradshaw moved and did not hear anything else from either us or TIAA- CREF. He returned to employment at UWF on May 6, 2000. When he called TIAA-CREF, he was surprised to find out that his initial paperwork had never been located by TIAA- CREF and that UWF had requested that the institutional premiums "be removed from the contract and placed in their Repurchase account at TIAA-CREF." To my knowledge, and that of the Benefits Section in HR, no one in this office asked for this to be handled. We do not handle such transactions. I am requesting that you reconsider this issue. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, did not receive the notices sent to him by TIAA- CREF, and has stated on more than one occasion that he sent in his enrollment application to TIAA-CREF. The institutional funds were held by TIAA-CREF for two years. We believe that the institutional funds of $11,496.88 should be sent back to TIAA-CREF and into Mr. Bradshaw's ORP account. According to Ms. Hendrickson, her office has had problems in the past with TIAA-CREF losing documents or correspondence. Unlike other annuity providers, TIAA-CREF does not have a local representative at UWF. UWF deals directly with the TIAA-CREF office in Atlanta. Also according to Ms. Hendrickson, UWF's file indicates two instances when Bradshaw informed UWF that he provided a contract directly to TIAA-CREF. These are further explained in a June 13, 2001, memorandum from Hendrickson to Respondent which also references that UWF confirmed with TIAA- CREF in 1999 that the company had a completed application: Thank you for any additional consideration you might give to my April 26, 2001 letter to Mr. David W. Ragsdale concerning the ORP account of Mr. Jeffrey Bradshaw. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, and did not receive the notices sent to him by TIAA- CREF. He has stated to the University of West Florida Office of Human Resources personnel on two (2) separate occasions that he sent in his enrollment application to TIAA-CREF. Our first contact with him about the TIAA-CREF application was in October 6, 1997. When we contacted him about the TIAA- CREF application, he stated that he had signed and sent in his TIAA-CREF application to the company. This is noted on our ORP-16 enrollment form for him. On our second contact with him on June 23, 1998, our notes reveal that he verified to our office that he had sent in his forms directly to TIAA- CREFF[sic]. In January 1999, we have a note in our files that we again confirmed with TIAA-CREF that he completed his TIAA-CREF application and sent it directly to the company. We also have a completed ORP-16 Form from him dated August 18, 1997 after his initial employment on August 8, 1997. Copies of these documents may be provided, if necessary. They were included in my April 26, 2001 letter. Based on the above information, we have every reason to believe that Mr. Jeffrey Bradshaw completed his TIAA-CREF application and mailed it to TIAA-CREF. Respondent responded to Ms. Hendrickson's April 26, 2001, letter on September 4, 2001, in a letter addressed to Bradshaw in care of UWF. This letter gave a different reason for rejecting Bradshaw's membership in the ORP for the period of his earlier employment: Dean Mr. Bradshaw: This is reference to your June 13, 2001 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety-day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires ORP participants that fail to select a provider company within ninety days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete an annuity contract with a provider company within the ninety-day window of eligibility. Therefore, you are not eligible for the SUSORP and you will be a compulsory member of the FRS. Should you have any questions, or need additional information, please contact David Ragsdale or Hobart Lawrance at SUNCOM 278- 8837 or (850) 488-8837. According to Mr. Ragsdale, Respondent does not get a copy of the contracts entered into between individuals and annuity providers. Respondent made the payments to TIAA-CREF on behalf of Bradshaw based on the ORP-16 that indicated on its face that a contract existed. No one involved in this proceeding appears to have a copy of the contract signed by Bradshaw in 1997. At that time, it was not unusual for UWF or Respondent to not have a copy of contracts between individual employees and annuity providers. On or about June 24, 1999, TIAA-CREF credited the $11,494.88 to a repurchase fund maintained on behalf of Respondent. Respondent transferred these contributions to the Florida Retirement Trust Fund. As a consequence, Bradshaw has received service credit for the number of months of his earlier employment period with UWF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letter of September 4, 2001, and sending Petitioner Bradshaw's contribution of $11,494.88 to TIAA-CREF, requesting that it be deposited into Bradshaw's ORP account or, in the alternative, refunding the $11,494.88 directly to Bradshaw. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. 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 28th day of June, 2002. COPIES FURNISHED: Julie L. Sheppard, Esquire Patricia D. Lott, Esquire University of West Florida 11000 University Parkway Building 10 Pensacola, Florida 32514-5750 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner’s employment with Respondent terminated on May 31, 2003, or whether Petitioner continued to be employed by Respondent during the next calendar month.
Findings Of Fact Petitioner Babu Jain was hired by Florida Agricultural and Mechanical University (FAMU) as a physics professor in September, 1967. He became an associate professor with tenure in 1979 and a full professor in 1996. The exact date of his last day of employment is a central issue in this case. In 1998, Dr. Jain learned of the DROP program. After reviewing written materials regarding DROP for nearly a year, Dr. Jain decided to join DROP in 1999. He executed Forms DP-11 and DP-ELE, indicating his election to participate in DROP. Form DP-ELE is entitled, "Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment." Form DP-ELE includes the following: "RESIGNATION FROM EMPLOYMENT TO PARTICIPATE IN THE DROP - I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes . . . and resign my employment on the date I terminate from the DROP." The form contains Dr. Jain’s notarized signature below the following: "I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S." Dr. Jain signed the form on October 12, 1999. The bottom portion of Form DP-ELE is to be completed by the agency head or designated representative. Within that portion of the form, the signature of Nellie Woodruff, Director of Personnel Relations at FAMU, appears following an acknowledgement: "I acknowledge that DROP participation for Babu L. Jain will begin on 06/01/1999, and I accept his resignation effective 05/30/2003 (the date the employee’s DROP participation will terminate)." This portion of the form indicates that it was signed by Ms. Woodruff on November 10, 1999. Sometime in the early part of 2003, Dr. Jain, for personal and financial reasons, decided that he wanted to relinquish his participation in DROP. He was aware that if he did so, he would forfeit all accumulated DROP moneys. Dr. Jain first relayed his desire to FAMU by verbally informing Dr. Henry Williams, the Assistant Dean of the College of Arts and Sciences, who was in charge of science departments. This conversation took place in approximately mid-February, 2003. On March 18, 2003, Dr. Jain sent a letter to Dr. Larry Rivers, Dean of the College of Arts and Sciences, which read in pertinent part as follows: This letter is in connection with my 1999 DROP application. I would like to inform you that I am finding my circumstances very unfavorable to accept the DROP at this time and, hence, I will not be taking the retirement in May 2003. Dr. Jain sent a copy to, among others, Dr. Gladys Lang, who was the Acting Provost and Vice President of Academic Affairs at that time. She did not take any action regarding Dr. Jain’s letter because it was her understanding and belief that no action was necessary. It was her understanding and belief that that Dr. Jain notified the University of his decision to withdraw from DROP and that no action was necessary on her part, "because I believed that the participants in DROP could make that decision that they wanted to continue to work and did not want to continue in the DROP program. I did nothing." She considered her decision not to take any action on Dr. Jain’s letter to be an acceptance of his decision. However, Dr. Lang acknowledged that had the letter been addressed to her, rather than her receiving a copy of it, she would have responded. Dr. Jain did not receive any response to his March 18, 2003, letter to Dr. Rivers. Because of this, Dr. Jain wrote again to Dr. Rivers on April 18, 2003, in which he reiterated that he did not want to retire in May 2003. Dr. Jain received a Termination Notification Form, Form DP-TERM, from the Division of Retirement in February 2003. Form DP-TERM specifies that it must be completed by both the DROP participant and the employer. It reads in pertinent part as follows: According to our records, your DROP termination date is 05/31/03. This form must be completed by both you and your employer and returned to the Division of Retirement in order to receive your DROP benefits and your monthly retirement benefits. In order to collect DROP, you must agree to the following statements. I understand that I cannot accept work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity . . . during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to my enrollment date in DROP. I understand that if I forfeit my DROP benefit, my employer will be responsible for making retroactive retirement contributions and I will instead be awarded service credit for the time period during which I was in DROP. I will be eligible for a service retirement benefit based on my new termination date. I will be responsible for submitting an Application for Service Retirement. My retirement benefit will be based on my creditable service and salary, including such service and salary earned while in DROP. Dr. Jain did not sign Form DP-TERM. It is not clear from the record whether FAMU was even aware that Dr. Jain received this form. In any event, the portion of the form which is to be completed by the employer certifying that the employee has or will terminate employment is not signed by anyone from FAMU. Dr. Bill Tucker is a faculty member of the physics department and is president of the FAMU chapter of the United Faculty of Florida. On or about April 19, 2003, Dr. Tucker met with Dr. Rivers regarding Dr. Jain’s intention not to retire. Dr. Tucker left that meeting with the impression that Dr. Rivers had accepted Dr. Jain’s decision to remain a faculty member at FAMU and not retire in May 2003. Following that meeting, Dr. Jain wrote a letter dated April 21, 2003, to Dr. Rivers thanking him for his support and understanding the he, Dr. Jain, had decided not to retire. The letter also reminded Dr. Rivers that Dr. Mochena had not yet given him his 2003-2004 assignment of responsibilities, and requested that Dr. Rivers ask Dr. Mochena to do so at his earliest opportunity. Dr. Rivers did then call Dr. Mochena regarding preparing a schedule for fall semester for Dr. Jain. Dr. Mochena described the call as a "very quick call." As a result of that call, Dr. Mochena issued an Assignment of Responsibility Form on April 23, 2003, for Dr. Jain for the fall 2003 semester. While Dr. Rivers insisted at hearing that his intention was that Dr. Jain be assigned teaching duties on an adjunct basis, he acknowledged, and Dr. Mochena confirmed, that the assignment of responsibilities for Dr. Jain for fall of 2003 was not of a type that would have been given to an adjunct professor. Sometime after April 23, 2003, Dr. Jain asked Dr. Mochena to assign him teaching responsibilities for the summer of 2003. Dr. Mochena had already made his summer teaching assignments. He assumed, however, that since Dr. Jain was being assigned fall classes, that it was it would be appropriate to assign summer classes to Dr. Jain as well. On May 2, 2003, Dr. Mochena issued an Assignment of Responsibility Form for Summer Term "C" 2003, which was for 12 weeks. This was signed by Dr. Jain and Dr. Mochena on May 2, 2003. While Dr. Mochena's assignment of summer teaching responsibilities to Dr. Jain was as a result of Dr. Jain’s request and not at the request of the Dean’s office, Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, and Dr. Larry Rivers signed the Assignment of Responsibility Form for Summer Term "C" for Dr. Jain on May 5 and 6, 2003, respectively. Dr. Williams and Dr. Rivers also signed two forms on May 5 and 6, 2003, respectively, regarding Dr. Jain entitled "Recommendation for Faculty Employment." One was for the period of employment designated May 12, 2003 to June 30, 2003. The second was for the period July 1, 2003 to August 1, 2003. These recommendations went to the new Provost, Dr. Robinson. Dr. Larry Robinson became Provost and Vice President of Academic Affairs of the University on May 5, 2003. On May 20, 2003, Dr. Robinson signed two employment contracts regarding Dr. Jain for Summer Term "C." The first contract period was May 12, 2003 to June 30, 2003. The period of the second contract was July 1, 2003 until August 1, 2003. There were two contracts covering the summer term because the "C" summer term during which the physics courses were taught, extended into the next fiscal year. There is a section on the two summer contracts entitled "Tenure Status." There is an "X" beside the designation "Tenured." On May 21, 2003, Nellie Woodruff sent a memo addressed to Dr. Robinson which stated as follows: SUBJECT: DROP Termination Date for Babu L. Jain We are requesting your intervention in bringing closure to the subject employee’s request to withdraw from the DROP and continue his employment with the University subsequent to May 31, 2003. Enclosed are copies of the documents which were received in this Office from both Dr. Jain and the Division of Retirement. Please advise this office by May 30, 2003, regarding the appropriate action to take relative to Dr. Jain’s request for withdrawal from the DROP and remaining an employee of the University. According to Dr. Robinson, Ms. Woodruff’s May 21, 2003, memorandum to him was the first time he "officially" became aware of the issue regarding Dr. Jain. That is, he was generally aware of the fact that several employees were approaching their retirement date and entering DROP. Dr. Jain’s designated retirement date was a month earlier than the other FAMU DROP participants who had a June 30, 2003, DROP termination date. Whether Dr. Robinson had unofficial knowledge of Dr. Jain's retirement date or of his desire to withdraw from DROP at the time he signed the two summer contracts is unclear based upon his testimony. As a result of learning of Dr. Jain’s situation, Dr. Robinson sent a certified letter to Dr. Jain dated May 27, 2003, which read as follows: This comes in response to your request to void your participation in the Deferred Retirement Option (DROP) program. It appears from your correspondence of April 18, 2003, addressed to Dr. Larry Rivers, Dean of the College of Arts and Sciences, that you believe the decision to void your participation is a unilateral one. On the contrary, the decision to void your participation in DROP is a mutual one, requiring the University’s assent. The University is not in agreement with your decision to void your participation in DROP. I call your attention to two documents, Form DP-ELE and Form DP-11, which are on file with your signature. Specifically, Form DP- ELE reads in relevant part as follows: "I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated above and resign my employment on the date I terminate from the DROP." Additionally, Form DP-11 reads in relevant part as follows: "I have resigned my employment on the date stated above and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.).” Regrettably, the University must inform you that it will follow the guidelines for DROP as outlined in the aforementioned Florida Statutes and cannot support your request to void your application in DROP. I also call your attention to Florida A&M University Rule 6C-10.211(2)(c), Florida Administrative Code which is enclosed with the aforementioned forms. Thank you for your many years of service to the University. The Division of Retirement issued a letter, dated May 5, 2003, to Dr. Jain with Form DP-VOID enclosed. Dr. Jain insists he did not receive it in the mail and, therefore, went to the Division of Retirement on May 29, 2003, to pick it up. In any event, he signed the DROP-VOID form on May 29, 2003, and took it to FAMU in an attempt to get it executed by Dr. Rivers or Dr. Robinson. The DROP-VOID form contains a section entitled "Employer Certification" which reads as follows: This is to certify that the (agency name) has rescinded the resignation of the above named member, and the member will continue working in a regularly established position with FRS ceverage. We understand the member’s DROP participation will be null and void, the membership in the FRS Pension Plan will be reestablished to the date the member joined the DROP and we will begin immediately reporting the correct retirement plan and contributions to the Division of Retirement. FRS will adjust previous payrolls reported under DROP based upon the member not having joined the DROP. In addition, we understand that contributions, plus interest, may be required. Future payrolls should reflect the retirement plan of active membership. Despite Dr. Jain’s efforts on May 29 and 30, 2003, to get this form signed, the DROP-VOID form was not signed by anyone at FAMU. On either May 29 or 30, 2003, Dr. Mochena received a call from Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, who instructed Dr. Mochena to end Dr. Jain’s summer employment and to reassign Dr. Jain’s classes to another instructor. Dr. Mochena assigned Mr. Jay Jackson to teach Dr. Jain’s classes beginning Monday, June 2, 2003. Dr. Robinson wrote a second letter to Dr. Jain on May 30, 2003, which read in pertinent part as follows: Dear Dr. Jain: This letter is to inform you that the two Summer Semester Employment Contracts, May 12, 2003 to June 30, 2003, and July 1, 2003 to August 1, 2003, were issued in error to you due to the fact that your DROP retirement date is May 31, 2003. As a result, you will be paid through May 30, 2003 for your services to the University and the University will consider you to have retired as of May 31, 2003. On Monday, June 2, 2003, Dr. Jain arrived at his classroom where Mr. Jackson was teaching. Dr. Jain left the classroom and went to see Dr. Mochena. Dr. Jain learned from Dr. Mochena that he had been instructed by the Dean prior to Saturday, May 31, 2003, to replace Dr. Jain with another instructor. Dr. Jain continued to go to his office for several days after June 2, 2003, "doing things I usually do. Do some research, study, read." He did not teach any classes in June 2003. Each department submits a payroll certification indicating the number of hours that an employee worked during a pay period. The payroll certification signed by Dr. Mochena on June 4, 2003, for the pay-period May 23 through June 5, 2003, initially indicated that Dr. Jain worked 79.3 hours. However, the 79.3 was crossed out and replaced with 47.58. The 47.58 was in handwriting, not typed as the rest of the numbers on the certification sheet which included the entry of 79.3 hours. The record is not clear as to who made the correction or when it was made. According to Ms. Woodruff, however, it is not the practice of the payroll section to change any certifications after the fact. Additionally, once an employee in a salaried position is added to the payroll, he/she is automatically issued a paycheck based upon the contract, unless some action occurs. In any event, the payroll section did not make an adjustment in Dr. Jain’s pay for the pay-period May 23 through June 5, 2003. Dr. Jain’s received an Earnings Statement reflecting a "pay date" of June 13, 2003, and a pay-period of 05/23/2003- 06/05/2003 reflecting regular wages of $3,266.11. Subsequently, the payroll office at FAMU completed a Refund for Overpayment of Salary form and submitted it to the Office of the Comptroller, Bureau of State Payrolls. In the section entitled, Reason for Adjustment, the payroll office wrote, "DROP end date 5/30/03." A salary refund in the amount of $898.33 was deducted from Dr. Jain’s sick leave payout on June 20, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letters of May 27 and 30, 2003, and reinstating Petitioner to employment effective June 1, 2003, including all salary and benefits for that period of time.1/ DONE AND ENTERED this 17th day of May, 2004, 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 17th day of May, 2004.
The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether Petitioner is eligible to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, the following findings of fact are made: Petitioner is now, and has been since December 19, 1974, an employee of the State of Florida. By virtue of her employment with the State of Florida, Petitioner is an active, regular class member of the FRS. Petitioner was considered “vested” for purposes of the FRS when she completed 10 years of creditable service with the State of Florida. The “normal retirement date,” for regular class members, is defined, in pertinent part, as the first day of the month following the date on which the member attains 62 years of age, with six or more years of creditable service,1/ or the date on which the member reaches 30 years of creditable service, regardless of age. § 121.021(29)(a), Fla. Stat. Petitioner was born on June 6, 1944 and reached the age of 62 on June 6, 2006. She reached 30 years of creditable service in November 2004. Petitioner’s “normal retirement date” for purposes of the FRS was established as December 1, 2004, by virtue of reaching 30 years of creditable service in November 2004. Petitioner was aware that her “normal retirement date” had been established as December 1, 2004. An active member becomes eligible to enter the DROP upon reaching his or her “normal retirement date.” A member must elect to participate in the DROP within 12 months of the date on which he or she first attains his or her normal retirement date. A member who fails to make an election within such 12-month limitation period forfeits all rights to participate in the DROP. § 121.091(13)(a), Fla. Stat. Petitioner’s period of eligibility to enter the DROP began on December 1, 2004 and ended on November 30, 2005. Petitioner requested DROP retirement benefit estimates from the Division on three separate occasions. On November 25, 2003, Petitioner asked Respondent to send her the first DROP retirement benefit estimate. On December 2, 2003, Respondent sent Petitioner the first DROP retirement benefit estimate. The Comments section of the document advised that the estimate was based on the assumption that Petitioner would enter the DROP effective 12/1/2004. Accordingly, the DROP Estimated Benefit Accrual Calculation section provided for a 12/2004 “DROP Begin Date,” an 11/2009 “DROP End Date,” and 60 “Months in DROP.” The first DROP retirement benefit estimate makes no reference to Petitioner’s normal retirement date. On December 1, 2004, Petitioner asked Respondent to send her a second DROP retirement benefit estimate. On December 1, 2004, Respondent sent Petitioner the second DROP retirement benefit estimate. The Comments section of the document advised that in order for Ms. Campbell to retain a 12/2004 DROP retirement date, she must complete and return the enclosed DROP application materials within 30 days of the date the second estimate was mailed. Again, the DROP Estimated Benefit Accrual Calculation section provided for a 12/2004 “DROP Begin Date,” an 11/2009 “DROP End Date,” and 60 “Months in DROP.” The second DROP retirement benefit estimate makes no reference to Petitioner’s normal retirement date. On October 24, 2005, Petitioner asked Respondent to send her a third DROP retirement benefit estimate. On October 25, 2005, Respondent sent Petitioner the third DROP retirement benefit estimate. Again, she was advised in that mailing that in order for Petitioner to retain a 10/2005 DROP retirement date, she must complete and return the enclosed DROP application materials within 30 days of the date the third estimate was mailed. The Comments section also advised that Petitioner’s 50 months of DROP participation would be from 10/01/2005 to 11/30/2009. Accordingly, the DROP Estimated Benefit Accrual Calculation section was changed to provide for a 10/2005 “DROP Begin Date,” an 11/2009 “DROP End Date,” and 50 “Months in DROP.” The third DROP retirement benefit estimate makes no reference to Respondent’s normal retirement date. Petitioner alleged at final hearing that she was confused by the language Respondent used in the third DROP retirement benefit estimate. Petitioner presumed that Respondent had changed her normal retirement date to 10/2005, and therefore she believed she had an additional 12 months to elect to participate in the DROP. There is no indication in Respondent’s records that Petitioner ever contacted Respondent’s personnel to express confusion about or to ask questions about any of the DROP retirement benefit estimates provided to her. Respondent’s standard practice is to enclose an informational brochure, entitled “Deferred Retirement Option Program,” when it sends DROP retirement benefit estimates. Petitioner also testified at final hearing that she was confused by certain language Respondent used in the DROP Brochure to her to explain when a member could begin the DROP, specifically: The earliest you may begin participation in DROP is the month you reach your normal retirement date based upon your age, or the month after the month you reach your normal retirement date based upon your years of service. Petitioner claim of confusion is not credible in view of the fact that the above language is followed by an example designed to help those members who may have difficulty understanding the meaning of the language: If you are vested (have at least 6 years but less than 30 years of service credit), and attain age 62 on May 22nd; your normal retirement date would be May 1st. Or, if you will complete 30 years of service in May, your normal retirement date is June 1st. (Exhibit R-10). Finally, the DROP Brochure was intended to put statutory language into laymen’s terms for the FRS membership. The DROP Brochure includes a disclaimer on the first page after the cover page which states: If questions of interpretation arise as a result of the attempt to make these retirement provisions easy to understand, Chapter 121, Florida Statutes, Chapter 60S, Florida Administrative Code, and the Internal Revenue Code shall remain the final authorities. There is no indication in Respondent’s records that Petitioner ever contacted Respondent’s personnel to express her confusion about the wording of the DROP Brochure or to ask questions about when she could begin DROP or her DROP participation eligibility. Petitioner possesses both Bachelor’s and Master’s Degrees in Education. In addition, she formerly possessed a Florida Teaching Certificate. On the basis of her educational achievements and teaching certification, Petitioner is a well- educated individual. Petitioner’s former employer, the Division of State Group Insurance, was in the process of privatizing during 2005, and was therefore laying off some of its employees. Petitioner also feared lay-off and decided to delay filing her application materials for the DROP. Respondent received Petitioner’s Application for Service Retirement and the Deferred Retirement Option Program (Form DP-11) on January 5, 2006. Petitioner signed the Form DP- 11 on December 22, 2005. Petitioner’s employer certified the Form DP-11 on December 29, 2005. Petitioner’s Form DP-11 also included the following acknowledgement: I . . . elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement. (Exhibit R-5). On January 5, 2006, Respondent also received Petitioner’s Notice of Election to participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment (Form DP-ELE). Petitioner signed the Form DP-ELE on December 22, 2005. Petitioner’s employer certified the Form DP- ELE on December 29, 2005. Petitioner’s Form DP-ELE also included the following acknowledgement: I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below. . . . I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, . . . . (Exhibit R-6). On January 11, 2006, Respondent issued an initial agency action letter which advised Petitioner as follows: To participate in the Deferred Retirement Option Program (DROP), you were required to submit a Form DP-ELE (Notice of Election to Participate in the DROP and Resignation of Employment) within twelve months of the date you first became eligible to participate in the DROP. If the Form DP-ELE is not received within this twelve month period, the right to participate in DROP is forfeited. Your dates of eligibility to elect participation in the DROP was [sic] from 12/01/2004 to 11/30/2005. We received your Form DP-ELE and Form DP-11, Application for Service Retirement and DROP, in our office on 01/05/2006. Because the Division received the DP-ELE after the ending eligibility date, you are not eligible to participate in the DROP. The DP-ELE and DP- 11 forms are considered null and void. (Exhibit R-7). On March 6, 2006, Respondent issued a final agency action letter which advised Petitioner as follows: Section 121.091(13)(a)(2), Florida Statutes, gives all active Florida Retirement System (FRS) members the right to elect participation in the DROP provided that: “Election to participate is made within 12 months immediately following the date on which the member first reaches normal retirement date. . . A member who fails to make an elections [sic] within such 12-month limitation period shall forfeit all rights to participate in the DROP “ (emphasis added). You first became eligible to participate in the DROP on 12/01/2004, after earning 30 years of service credit in 11/2004. Therefore, your Form DP-ELE, Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment and Form DP-11, Application for Service Retirement and the Deferred Retirement Option Program (DROP) must have been received no later than 11/30/2005 for you to be eligible to participate in the DROP. Your Forms DP-ELE and DP-11 were received in the Division of Retirement on 01/05/2006. Since the Forms DP-ELE and DP-11 were not submitted and received by the Division within the 12-month limitation period, you have forfeited your right to participate in the DROP. The Forms DP-ELE and DP-11 you submitted are null and void. It is unfortunate that your eligibility period to begin participation in DROP has expired, however because the 12-month eligibility period stated above is a statutory requirement and we have no authority to waive the law, we must deny your request for DROP participation. (Exhibit R-8)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order denying Petitioner’s application to participate in the DROP. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2006.
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The basic issue in this case is whether the Petitioner, Mr. Joseph M. Lesko, violated the provisions of Section 238.181(2)(a), Florida Statutes, by being reemployed within twelve (12) months of retirement by an agency participating in the Florida Retirement System, and, if so, whether his retirement benefits were overpaid and need to be refunded to the Florida Retirement System.
Findings Of Fact Mr. Joseph M. Lesko was employed as an instructor with the Palm Beach Community College (hereinafter "the College") and retired under the provisions of the Teachers' Retirement System (hereinafter "TRS"), Chapter 238, Florida Statutes, on July 1, 1986. In October of 1986 a science instructor at the College suffered a stroke and was unable to continue working. Dr. Paul Dasher, then the Chairman of the College's Science Department, called Mr. Lesko and asked him to be a substitute instructor for some of the classes of the instructor who had suffered the stroke. Mr. Lesko, a former Senior instructor in Chemistry, was the only qualified candidate who was known to be available on short notice. Although Mr. Lesko had not intended to teach at that point in his retirement, he agreed to teach for the balance of the semester to help the College during the incapacity of the stricken instructor. When the stricken instructor was unable to return during the next semester, Mr. Lesko also agreed to substitute in Chemistry for the following semester. The incapacitated instructor died in March of 1987, and Mr. Lesko finished substitute teaching for the balance of the semester. At the time Mr. Lesko was reemployed as described above, the College's Director of Human Resources, Mr. Schneider, was not aware that Mr. Lesko had retired under the TRS, because the vast majority of the College's instructors retire under the Florida Retirement System. Mr. Schneider believed that Mr. Lesko was covered by certain amendments to the Florida Retirement System that became effective in July of 1986. Those amendments allowed retired instructors who retired under the Florida Retirement System to be reemployed by community colleges on a noncontractual and part time basis after one month of retirement without loss of retirement benefits. Mr. Schneider was under the erroneous impression that those amendments applied to all retired instructors, because he did not recall receiving any information from the Division of Retirement indicating that retirees under TRS were to be treated differently from retirees under the Florida Retirement System for purposes of eligibility for reemployment. Three other instructors who retired at the same time as Mr. Lesko, and who were rehired during the same time period as Mr. Lesko, have not been required to repay any retirement benefits because they all retired under the Florida Retirement System. Neither Mr. Schneider nor Mr. Lesko were aware that Mr. Lesko's retirement benefit would be jeopardized by his returning to work for the College in October of 1986. Both believe that the information regarding TRS retirees provided by the Division of Retirement is at least unclear, if not misleading. Mr. Lesko would not have returned to teach at the College during the first year of his retirement if he had been aware that doing so would require him to lose his retirement benefits during that period. During the period from October 1986 through May 1987, Mr. Lesko earned $4,460.60 for the services he provided to the College. During that same period he received retirement benefits of $6,506.72.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be issued in this case requiring Mr. Lesko to repay retirement benefits to the Division of Retirement in the amount of $6,506.72. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2 day of April, 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 2 day of April, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5717 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: First page, First unnumbered paragraph: All covered in the Preliminary statement portion of this Recommended Order. First Page, Second unnumbered paragraph: Accepted in substance. Second Page, Paragraph No. 1: Accepted in substance. Second Page, Paragraph No. 2: Accepted in substance. Second Page, Paragraph No. 3: Accepted in part and rejected in part; rejected portion is portion following the comma. The rejected portion is contrary to the greater weight of the evidence. Second Page, paragraph No. 4: Accepted in substance. Third Page, Paragraph No. 5: Rejected as irrelevant to the disposition of this case. Third Page, Paragraph No. 6: Rejected as constituting subordinate and unnecessary details. Third Page, Paragraph No. 7: First sentence accepted in substance. Second sentence rejected as constituting argument, rather than findings of fact. Third Page, Last paragraph of Findings: Rejected as constituting commentary about the proceedings, rather than proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with certain unnecessary details omitted. Paragraphs 3 and 4: Rejected as subordinate and unnecessary procedural details. Paragraphs 5 and 6: Accepted in substance. Paragraph 7: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Mr. Joseph M. Lesko 184 Meadows Drive Boynton Beach, Florida 33462 Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Petitioner is eligible to participate in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida Statutes (2009),1 as a substitute teacher for the Lee County School Board.
Findings Of Fact Petitioner has been an employee of the Lee County School Board (the School Board) from February 28, 2001, through the date of the final hearing. The School Board is a participating member in the FRS. Petitioner has never been a full-time employee of the School Board and has never been eligible for service credits for purposes of the FRS. From February 28, 2001, until some time in May 2004, the School Board employed Petitioner in a temporary, part-time position. From some time in May 2004 through the date of the final hearing, the School Board has employed Petitioner as a substitute teacher. From February 28, 2001, through some time in May 2004, the School Board required part-time employees such as Petitioner to participate in a plan identified in the record as the Bencor FICA Alternative Plan (the Bencor Plan). The Bencor Plan provided retirement benefits for temporary teachers, who were not eligible for FRS retirement benefits. On May 25, 2004, Petitioner submitted a Distribution Request Form to withdraw her accumulated savings from the Bencor Plan. Petitioner was eligible to withdraw her retirement benefits from the Bencor Plan, because she changed her employment status from a temporary teacher to a substitute teacher. Some time in May 2004, Petitioner began teaching as a substitute teacher for the School Board. Petitioner has continued as a substitute teacher for the School Board through the date of the final hearing. As a substitute teacher, Petitioner is not a full-time employee, who is eligible for service credits for purposes of the FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for FRS benefits. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of August, 2010.
The Issue Whether Respondent, John R. Blum (Mr. Blum), violated the re-employment provisions set forth in section 121.091(13)(c)5.d., Florida Statutes (2013), and, therefore, must repay his Deferred Retirement Option Program (DROP) distribution and subsequent monthly retirement benefits.
Findings Of Fact The Division is the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Mr. Blum was employed as a highway patrol officer with the Department of Highway Safety and Motor Vehicles (DHSMV). He made the decision to enter DROP, and, for the last five years of his employment with DHSMV, he participated in DROP. Prior to ending his DROP participation, Mr. Blum completed a Deferred Retirement Option Program Termination Notification, confirming he would terminate employment on May 31, 2013. The notification was also signed by the retirement coordinator for DHSMV confirming Mr. Blum’s employment termination date, and reads in pertinent part: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or non-covered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. * * * If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). The form has been incorporated by reference into Florida Administrative Code Rule 60S-11.004(9). Mr. Blum terminated his employment with DHSMV on the agreed termination date of May 31, 2013. In July 2013, Mr. Blum began to work once again with DHSMV. He had applied and was hired to return as a reserve officer to work security at Florida turnpike stations. The Florida Highway Patrol provided Mr. Blum with access to the online system for payroll, and he was paid for his work through direct deposit from DHSMV, an FRS employer. Mr. Blum was under the mistaken impression that, when he worked the security for the turnpike stations, he was working for a private vendor. He had no intention of violating the termination of employment provisions. In September 2013, after working for almost three months, Mr. Blum was notified that he had violated the termination of employment provisions of DROP, and he ceased working as a reserve officer. On May 8, 2014, the Division sent a letter to Mr. Blum, notifying him that his DROP participation and retirement had been voided and that he must repay all retirement benefits, including his DROP accumulation. The total amount paid is $227,755.51, which the Division seeks to recover. He was also informed that his retirement account would be credited to reflect membership from March 2009 through May 2013. Mr. Blum has returned to work as a highway patrol officer, and his DROP application has been approved effective May 1, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding that Mr. Blum violated the re-employment provisions of section 121.091(13)(c)5.d., Florida Statutes, and, therefore, must repay retirement payments in the amount of $227,755.51 to the Division. DONE AND ENTERED this 25th day of August, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2014. COPIES FURNISHED: John R. Blum 5050 Southwest Eleventh Place Margate, Florida 33068-4060 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Bruce Conroy, Interim General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
