The Issue Whether the Petitioner is entitled to receive Health Insurance Subsidy payments retroactive to July 1995, the month she began to receive retirement benefits from the Respondent as the surviving spouse of a member of the Florida Retirement System.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida retirement and pension systems. Section 121.025, Florida Statutes (1995). The Division is, and was at the times material to this case, also responsible for administering the Retiree Health Insurance Subsidy. Section 112.363(7), Florida Statutes (1995). Harold Mosser, the former husband of Mrs. Kirkley, retired from his job as a school principal in August 1979, and he was a member of the Florida Retirement System. Mr. Mosser received a monthly state retirement benefit, and, as a supplement to the retirement benefit, he received a monthly Health Insurance Subsidy. Mrs. Kirkley retired from her job as a schoolteacher in 1989, and she is a member of the Florida Retirement System. Since her retirement, Mrs. Kirkley has received a monthly state retirement benefit and a monthly Health Insurance Subsidy. Mr. Mosser died on April 28, 1995. Mrs. Kirkley did not advise the Division of Mr. Mosser's death. Rather, the Division learned of his death in July 1995, when conducting a routine check of the Bureau of Vital Statistics "death tape." As Mr. Mosser's surviving spouse and the person he named as his joint annuitant, Mrs. Kirkley was entitled to receive an "Option 3" monthly retirement benefit for the remainder of her lifetime, pursuant to Section 121.09, Florida Statutes (1995). Mrs. Kirkley was also eligible to receive a monthly Health Insurance Subsidy upon filing an application for the subsidy with the Division, and this benefit included payment of the subsidy from the date of Mr. Mosser's death or for the six months prior to the date the application was filed.1 In a Statement of Retirement Benefit Payments dated 1/31/95, the components of Mr. Mossers's monthly retirement benefit payments were identified. At the time of his death, Mr. Mosser received a gross monthly retirement benefit of $1,730.60, plus a Health Insurance Subsidy of $90.00, minus $250.00 withholding tax, for total net monthly benefits of $1,570.60. Because the Division did not learn of Mr. Mosser's death until July 1995, his monthly benefit check was issued in May and June 1995 and electronically deposited in NationsBank. When the Division learned of Mr. Mosser's death, a Division representative tried to reach Mrs. Kirkley by telephone but could not obtain her unlisted telephone number. The representative then sent Mrs. Kirkley a letter dated July 20, 1995, in which the representative advised Mrs. Kirkley that Mr. Mosser's estate was entitled to receive his benefits for the month of April 1995 in the net amount of $1,570.60 and that she must apply for a continuing monthly benefit as Mr. Mosser's designated beneficiary. The representative also advised Mrs. Kirkley to complete the Division Form FST-11b that was enclosed with the letter and to return it to the Division together with Mr. Mosser's death certificate. Mrs. Kirkley completed the form enclosed with the letter and mailed it to the Division as directed. The Division changed Mr. Mosser's account over to Mrs. Kirkley, and she began receiving a monthly retirement benefit check in October 1995.2 Mr. Mosser's Health Insurance Subsidy was terminated effective July 1995, and the net monthly benefit received by Mrs. Kirkley as Mr. Mosser's beneficiary did not include a Health Insurance Subsidy payment. It is the Division's practice to send each retiree added to the system a "retiree packet" that includes, among other things, an application for the Health Insurance Subsidy and an explanation of the subsidy, as well as a booklet containing an explanation of all of the benefits available to retirees and beneficiaries under the Florida Retirement System. The process of sending out the retiree packets is automated, so that a packet is sent to every retiree and beneficiary when they are first entered into the system. Pursuant to the Division's regular practice, Mrs. Kirkley would have been sent the retiree packet in October 1995, when she was added to the system as Mr. Mosser's beneficiary. The Division also sends retirees and beneficiaries an annual newsletter, and the Health Insurance Subsidy was discussed in the 1995 and 1996 newsletters. Mrs. Kirkley received a Statement of Retirement Benefit Payments, as Mr. Mosser's beneficiary, each July, December, and January. This statement includes a separate entry for the Health Insurance Subsidy, with the amount of the subsidy noted; Mrs. Kirkley would have been aware of this entry because the Statement of Retirement Benefit Payments that she had been receiving on her own account would have shown an amount paid as her Health Insurance Subsidy. Mrs. Kirkley received her first statement in December 1995, and it would have been apparent from the statement that no amount was included for the Health Insurance Subsidy. Mrs. Kirkley does not recall having any direct contact with the Division between the time she submitted her application for the retirement benefit as Mr. Mosser's beneficiary and late September 1997, when she called the Division to request that the monthly check be electronically deposited in her bank account. During the conversation in September 1997, the Division's representative advised Mrs. Kirkley that she was entitled to receive a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse, in addition to the monthly retirement benefit she received as Mr. Mosser's beneficiary. The representative told Mrs. Kirkley that she would send her an application for the Health Insurance Subsidy, which the representative did in September 1997. Mrs. Kirkley completed the application she received from the Division and sent it to the Division with a cover letter dated October 17, 1997. The application required certification of health insurance coverage, which Mrs. Kirkley satisfied by attaching a copy of her Medicare Health Insurance card. Mrs. Kirkley did not hear anything from the Division for quite a long time. She contacted the Division and was told that they had not received her application for the Health Insurance Subsidy. The Division sent her another application form, which she completed and sent to the Division in January 1998, and she began receiving a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse; she also received retroactive benefits effective July 1997 through December 1997, a period of six months prior to January 1998. The Division eventually located Mrs. Kirkley's October 1997 application, and it advised her in a letter dated April 6, 1998, that she would receive retroactive Health Insurance Subsidy payments for an additional three months, moving the effective date of her entitlement to the benefits back to April 1997. Including the retroactive benefits she received, Mrs. Kirkley has been receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse since April 1997. She also had the benefit of Mr. Mosser's May and June 1995 Health Insurance Subsidy, which were paid by the Division because it was not aware that Mr. Mosser was deceased. Mrs. Kirkley seeks to recover an additional $1890.00 in retroactive Health Insurance Subsidy payments as Mr. Mosser's surviving spouse, which is the difference between the total Health Insurance Subsidy payments she has received and the total Health Insurance Subsidy payments she would have received had the benefits been paid to her retroactive to Mr. Mosser's death (21 months x $90.00 per month = $1890.00). Summary The evidence presented by Mrs. Kirkley is insufficient to establish her entitlement to retroactive Health Insurance Subsidy payments from July 1995 to March 1997. It is uncontroverted that she submitted her application for the Health Insurance Subsidy with her certification of health insurance coverage in October 1997 and that the Division paid retroactive Health Insurance Subsidy payments for the six months prior to the date it received the application. In addition, Mrs. Kirkley has not presented sufficient evidence to establish that the Division should be required to pay her the additional retroactive Health Insurance Subsidy payments because it failed to send her an application until September 1997. The Division did not make any specific representations to her regarding her entitlement to the Health Insurance Subsidy payments until September 1997, and she failed to establish by the greater weight of the credible evidence that she did not receive any general information from the Division that included information regarding the Health Insurance Subsidy. In addition, Mrs. Kirkley knew or should have known in December 1995 that she was not receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse, when she received her first statement detailing the components of her gross monthly benefit as Mr. Mosser's beneficiary, and she could have made inquiry of the Division at that time.
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 dismissing the Petition for Review of Final Agency Action filed by Mary J. Mosser, now known as Mary J. Kirkley. DONE AND ENTERED this 20th day of November, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 20th day of November, 2001.
The Issue Whether Petitioner made a timely election to participate in the Florida Flexible Benefits Plan (Plan) in accordance with Rule 60P-8.0041(2), Florida Administrative Code and if not, should his participation in the Florida Flexible Benefits Plan (the Plan) for the Plan Year of December 1, 1991, through December 31, 1992, be denied. Whether Petitioner would be entitled to reimbursement from the Plan for medical expenses incurred prior to November 12, 1992, provided it is determined that Petitioner made a timely election to participate in the Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was a full- time employee of the University of Florida, Institute of Food and Agriculture Science (IFAS) in Hardee County, Florida and as such, was eligible to participate in the Plan Medical Reimbursement Account provided he timely elected to participate and was otherwise qualified. The Respondent is the state agency charged with the responsibility of administering all state insurance plans for state employees in the State of Florida. As part of its insurance program, the State of Florida offers the Florida Flexible Benefits Plan. The Plan is a benefit program for state employees under which specified, incurred medical expense may be reimbursed. The period of coverage for the Plan material to this proceeding was December 1, 1991 through December 31, 1992. Petitioner did not enroll in the Plan during the open enrollment period for all state employees conducted by the Division during the month of October 1991. During the summer of 1992, and again in October 1992, (sometime after the child was born on October 5, 1992) the Petitioner's wife, Karen S. Weaver, contacted the Division by telephone to inquire about, and to get clarification on, enrolling in the Plan based on a "Change In Family Status" (the child' birth) after the effective date of the Plan, December 1, 1991. On both occasions, Karen Weaver talked with an enrollment agent of the Division and, other than the child's date of birth, no effective date was discussed. The enrollment agent advised Karen Weaver that the Petitioner could not apply until after the birth of the child due to the documentation needed concerning the child's birth. Neither Karen Weaver nor Petitioner were ever advised that with proper certification of pregnancy from the wife's doctor that Petitioner could apply before the birth of the child. After the wife's last conversation with the Division, the Petitioner completed and signed a Reimbursement Account Enrollment/Qualifying Status Change Form, Form FB-2 (the Form) which was dated October 23, 1992. Whether the Petitioner returned the Form to IFAS's personnel office by mail or hand delivery is not clear from the record. However, a notation on the bottom of the Form indicates the Form was received by the personnel office of IFAS on November 9, 1993. The Form was received by the Division on November 12, 1992. The instructions in the Revised September 1991 Florida Flexible Benefits Plan booklet on when Form FB-2 must be submitted provides in pertinent part as follows: Requests must be made by submitting a completed Enrollment/Qualifying Status Change Form, FB-2 (available from your personnel office), to DSEI within 31 days of the event's occurrence. . . . The instructions on the reverse side of Form FB-2 as to the submission of the form provides: Return this completed from to your personnel office. It must be received at DSEI within 31 days of your employment or change in family/employment status. The personnel office is responsible for sending the form immediately upon its receipt to DSEI. THE EFFECTIVE DATE OF PLAN PARTICIPATION OR CHANGE IN FAMILY/EMPLOYMENT STATUS WILL BE THE DATE THE SIGNED AND PROPERLY COMPLETED FORM AND DOCUMENTATION ARE RECEIVED BY DSEI. Petitioner was accepted in the Plan with an effective date of enrollment being November 12, 1992, the date the Division received the Form from Petitioner. The Petitioner elected to contribute $900.00 to the Plan Medical Reimbursement Account to fund reimbursement payment for incurred medical expenses. The Petitioner's acceptance in the Plan was based on the Division having: (a) considered the child's birth as a qualifying status change and; (b) determined that the Petitioner had timely elected to participate in Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code, in that the Form has been completed and dated (not received by the Division) within 31 calendar days of the occurrence of the qualifying status change. There was insufficient evidence to establish facts to show that within 31 calendar days of occurrence (child's birth) of Qualifying Status Change the Petitioner had: (a) placed the Form with the U.S. mail or similar carrier for delivery to the personnel office of IFAS for submission to the Division; (b) placed the Form with the U.S. mail or similar carrier for submission with the Division; (c) hand delivered the Form to the personnel office of IFAS for submission to the Division or; (d) hand delivered the Form to the Division. Notwithstanding that the notation on the bottom of the Form indicates that the personnel office of IFAS had the Form in its possession as early as November 9, 1992, there is competent substantial evidence to show that the Division did not receive the Form until November 12, 1992. Likewise, there is competent substantial evidence to show that the Respondent did not make a timely election to participate in the Plan by submitting the Form to the Division within 31 calendar days of occurrence (child's birth) of qualifying status change as required by Rule 60P-8.0041(2), Florida Administrative Code, notwithstanding that the Form was dated October 23, 1992, well within the first 31 calendar days of occurrence (child's birth) of the qualifying status change. On December 14, 1992, the Petitioner submitted a claim for medical expense reimbursement for his wife and infant daughter for medical expenses incurred in the month of March, April, June, October and December, 1992. By letter dated December 24, 1992, the Division advised the Petitioner that expenses incurred prior to his enrollment date of November 12, 1992, (the date the Form was received by the Division) were not eligible for reimbursement and to resubmit claims for services incurred after November 12, 1992. There was no evidence presented as to whether the Petitioner resubmitted the medical expenses incurred during the month of December 1992, for reimbursement. The Petitioner contends that the Division should grant Petitioner an exception to the requirement that the effective date must be the date Form FB-2 is received by the Division and allow the effective date in this instance to be the date of occurrence, October 5, 1992, (date of child's birth) of qualifying status change. The Petitioner's contention is based primarily on the fact that the verbal instructions from the Division was misleading, and that the Division had made an exception by allowing the Petitioner to participate in the Plan even though the Petitioner had not timely elected to participate in the Plan in accordance with Rule 60P-8.0042, Florida Administrative Code. The Division denied the Petitioner's request for an exception contending that there is no provision for granting an exception in either case. The Division also contends that date Form FB-2 is completed and signed is the date to be used to in calculating the 31-calendar day requirement to determine if an employee has timely elected to participate in the Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code. The Division's position is expressly stated in Petitioner's exhibit 8 wherein William H. Lindner, Secretary, Department of Management Services, is responding to a letter from Petitioner and states: In your letter you indicated that an exception had been made in the enrollment process. It had not. Subsection 60P- 8.0041(2), F. A. C. (copy enclosed) indicates that an election to participate in the reimbursement accounts must be made within the first 31 calendar days of the occurrence of the Qualifying Status Change. Our records indicate that you made your election on October 23, 1992 which is within 31 days of the birth of your child on October 5, 1992. The records indicate that the Form was signed on October 23, 1992, well within the 31-day requirement but was not received by the Division until November 12, 1992, some seven days after the 31-day requirement had expired.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, Department of Management Services, Division of State Employees' Insurance enter a final order finding that the Petitioner failed to timely elect to participate in the in Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code, was not qualified to participate in the Plan, and any participation in the Plan allowed by the Division was void ab initio. It is further recommended that the Division refund all contributions made by the Petitioner to the Plan after adjustment for any reimbursement for medical expenses that may have been made to the Petitioner by the Division. DONE AND ENTERED this 16th day of February, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994. APPENDIX TO RECOMMENDED ORDER NO. 93-5571 The following constitutes my specific rulings, pursuant Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Petitioner, Gregory E. Weaver's Proposed Findings of Fact. The following proposed finding(s) of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact:1(1); 3-4(5); 5-6(9); 7(6,11); 9(11); 10(6,11); 11(9,16); 12(9); 13(8); 14-15(13); 16(15); 17(16); 18(5) and 19(6). Proposed Finding of Fact 2 is neither material nor relevant to this proceeding. Proposed Finding of Fact 8 is more properly covered in the Conclusions of Law. Proposed Finding of Fact 20 is more an argument than a finding of fact. Respondent's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,2); 2(3); 3(4,6,9); 4(9); 7(13); and 8(14). Proposed finding of fact 5 is not supported by competent substantial evidence in the record. See Findings of Fact 10 and 11. Proposed finding of fact 6 is adopted in substance as modified in Findings of Fact 6 and 11, except for the first sentence which is rejected as I find no evidence as to the Form being mailed. Proposed findings of fact 9 and 11 ( there is no proposed finding of fact 10) are adopted in substance as modified in Finding of Fact 7 and 8. COPIES FURNISHED: Gregory Weaver Route 1, Box 423 Wauchula, Florida 33873 Augustus D. Aikens, Esquire Division of State Employment Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 2737 Centerview Drive Tallahassee, Florida 32399-0950 Alecia Runyon, Director Division of State Employees Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 307 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Albert F. Cook, had a relationship with the Department of Corrections (DOC) at any time during the month of April, 1993, and if so, whether he was eligible to receive a retirement benefit for that month, as well.
Findings Of Fact The Petitioner was employed at times pertinent hereto by the Department of Corrections (DOC) at its Baker Correctional Institution facility. On February 19, 1993, he was notified of his transfer to the Florida State Prison, purportedly for disciplinary reasons. Upon learning of this eventuality, the Petitioner immediately went on sick leave. He maintains that it was duly- approved sick leave. No medical evidence to that effect was presented, but the Petitioner suggested that his illness might be of a psychiatric nature. He clearly was disgusted with the action taken by the DOC to transfer him. Subsequently thereto, he decided to apply for retirement, effective March 31, 1993. Shortly thereafter, he sought to have his retirement request rescinded or withdrawn; however, that request was denied. He was thereupon removed from the DOC payroll, effective March 31, 1993, essentially as a termination action. He received a retirement benefit check for the period of April 1-30, 1993 in the amount of $2,324.53 from the Division of Retirement. The Petitioner appealed the DOC employment action to the Public Employees Relations Commission and an administrative proceeding ensued. Ultimately, a settlement agreement was reached in that case which resulted in the Petitioner being allowed to resign, effective April 16, 1993, rather than suffer termination effective March 31, 1993. That agreement entered into by the parties in that case specifically stated that "the agency [DOC] will take whatever action is necessary to return the employee [Cook] to the payroll for the period between March 31, 1993 and April 16, 1993". The Division of Retirement was, of course, not a party to that agreement since it was not a party to the litigation involved. The agreement was incorporated into a Final Order issued by the Public Employees Relations Commission in Case No. CF-93-196, entered June 7, 1993. The Petitioner sent a letter to E.I. Perrin, the Superintendent of Florida State Prison, dated April 12, 1993, in which he stated "that if I am still on the payroll, I hereby resign my position with the Florida Department of Corrections effective April 16, 1993 . . .". According to attendance and leave reports signed by both the Petitioner and Marion Bronson, the Personnel Director of Florida State Prison, the Petitioner was on sick leave for the payroll period of March 26, 1993 through April 8, 1993. While the date of the Petitioner's signature on the relevant time sheet was April 8, 1993, the end of the pay period, the Petitioner testified that the time sheets had actually been submitted earlier. Attendance and leave reports for the following pay period indicated that the Petitioner continued on sick leave status through April 16, 1993. The time sheets for the latter period were not signed by the Petitioner but were signed by Marion Bronson. DOC ordered a manual payroll made up to record payment and to pay the Petitioner through April 16, 1993. He received a salary warrant for $1,234.43 for that period from April 1-16, 1993. That salary check and warrant reflects that retirement contributions were paid as to that April payroll period salary. Because he received additional retirement service credit and a new average final compensation as a result of being in a payroll status and being paid for the period of time in April 1993, the Petitioner's monthly retirement benefits actually now exceed what he would receive as retirement benefit payments had he not been compensated as an employee for his service through April 16, 1993. The Petitioner testified at hearing that he was terminated on March 31, 1993 and not re-hired. He further testified that he neither wanted nor expected payment from DOC for the period of March 31, 1993 through April 16, 1993 and that he "merely wanted to clear his name". Nevertheless, he entered into the settlement agreement which provided for him to be compensated and on payroll status through April 16, 1993, when he entered into the settlement with DOC in the proceeding before the Public Employees Relations Commission. He is presumed to have full knowledge of the content of that settlement agreement, and it reflects that he freely and voluntarily entered into it, as does his testimony. According to Mr. Bronson's testimony, during the relevant period from March 31, 1993 through April 16, 1993, the Petitioner was occupying an authorized and established employment position with DOC. His employment relationship continued with the Department, as a result of the settlement agreement, until April 16, 1993. Because Mr. Bronson and DOC are not parties to the present proceeding and have no financial interest in the outcome of this litigation, Mr. Bronson's testimony is deemed credible and is accepted insofar as it may differ from that of the Petitioner. The Respondent agency learned that a payroll had been prepared for the period of time in April of 1993 in question and that a salary warrant was issued on the basis of the settlement agreement extending the Petitioner's employment with DOC through April 16, 1993. The Division of Retirement thus temporarily reduced the Petitioner's retirement benefits to recover the amount of the resulting, unauthorized April retirement check. It was unauthorized because he remained employed for the period of time in April and was paid as though he were employed, as a result of the settlement agreement. Consequently, he was not entitled to retirement benefits for that period of time in April 1993 ending on April 16, 1993. Mr. Snuggs testified that every retirement applicant, such as the Petitioner, receives a form FRS-TAR, entitled "Retirement System Termination and Re-Employment". The Petitioner did not deny receiving that form (Respondent's Exhibit 4) which advises prospective retirees of their rights and obligations in terms of retirement and retirement benefits as it relates to re- employment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Retirement, temporarily reducing the Petitioner's retirement benefits, in the manner already proposed by that agency, until such time as his April 1993 retirement benefit, paid to him previously, has been reimbursed to the agency. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2292 Respondent's Proposed Findings of Fact 1-11. Accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Albert F. Cook Post Office Box 782 Sneads, Florida 32460 Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 A.J. McMullian, III, Director Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether at the time of his father's death, Armando Martinez, Jr., was a "dependent beneficiary" of his father, a vested member of the Florida Retirement System, so as to be entitled to his father's retirement benefits?
Findings Of Fact Armando Martinez, Jr., was born on February 22, 1974, to Natalie M. Martinez and the late Armando Martinez, Sr. In 1992, when Armando, Jr., was eighteen years old, Mr. and Mrs. Martinez were divorced. The following year, 1993, less than two weeks after Armando, Jr.'s, nineteenth birthday, Armando Martinez, Sr., died. The cause of death was liver cancer, a disease from which Ms. Martinez presently suffers. At the time of his death on March 7, 1993, Mr. Martinez was a vested member of the Florida Retirement System. A municipal employee, he had been a bus operator. At some point close to commencement of his employment, slightly more than ten years prior to his death, Armando Martinez, Sr., had executed a Form M-10. The form named his wife, Natalie, as his primary beneficiary. Armando, Jr., the only child of Armando, Sr., and Natalie Martinez, was named as the sole contingency beneficiary. Following Mr. Martinez, Sr.'s death, Ms. Martinez disclaimed Florida Retirement System benefits. She did so in order for Armando, Jr., as the contingent beneficiary, to be able to receive the benefits. On February 17, 1997, the Division of Retirement denied Armando, Jr., survivor benefits. Had Mr. Martinez, Sr., died one-year and several weeks earlier, that is, prior to Armando, Jr.'s eighteenth birthday, the Division would have approved distribution of survivor benefits to him. But, although he was still a high school student, since he was older than nineteen by a few days at the time of his father's death, the Division required proof that Armando, Jr., had received half of his support from his father at the time of his father's death. No such proof was provided to the Division prior to or at the time of its preliminary denial. In fact, in his 1992 tax return, Mr. Martinez did not claim his son Armando, Jr., as a dependent. In this formal administrative proceeding, however, Armando Martinez, Jr., provided such proof, proof which was lacking until hearing. The year 1992 was very difficult for Armando Martinez, Jr., and his family. His parents separated, Armando, Jr., lived with his mother. Armando, Sr., lived elsewhere. Prior to his death, divorce proceedings were finalized. In the meantime, Ms. Martinez had lost her job. She remained unemployed for the entire year and in early 1993 as well. Armando, Jr., was still in high school at the time of his father's death. During the 1992-93 school year, to support himself and his mother, he obtained work part-time while he remained in school. Ms. Martinez paid the rent for their apartment at a rate of between $370 and $500 per month. The monthly phone bill of Ms. Martinez and Armando, Jr., was approximately $50; utility payments $70; groceries $300; gasoline $10, automobile insurance $100; and school supplies $40. There were other expenses, clothes, for example, that occurred from time-to-time. In addition to minimal government support to Ms. Martinez and Armando, Jr.'s, part-time employment income, Armando, Jr., was supported by cash payments provided by his father. Two or three times a month, Armando's father and a girl friend, Karen Jones, would drive to the front of the house. Because of his illness, Mr. Martinez remained in the car while Ms. Jones brought cash, usually between two and five hundred dollars in an envelope to the front door. On more than one of these occasions, Ms. Jones, the envelope, and the cash were observed by friends of the family at the moment of delivery. Ms. Martinez log of the estimates of these payments totals approximately $8,500, an amount in excess of Mr. Martinez's income reported in his 1992 tax return filed before his death in 1993 to be $6,389.00. But, Mr. Martinez, Sr. had access to other means of support and other monies including proceeds from insurance policies. The $8,500 provided to Armando, Jr., by Armando Martinez, Sr. constituted more than half of Armando, Jr.'s, support for the year 1992 and up until Mr. Martinez, Sr.'s, death in early 1993.
Recommendation Accordingly, it is hereby recommended that the Division of Retirement recognize Armando Martinez, Jr., to have been the dependent beneficiary of Armando Martinez, Sr., at the time of Mr. Martinez, Sr.'s, death, and therefore entitled to retirement benefits. DONE AND ORDERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Natalie Martinez Suite 3811 3801 Northgreen Avenue Tampa, Florida 33624 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 A.J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Petitioner and Respondent agreed to the following facts: On November 23, 1975, Herschel and Audi Motes, a deputy sheriff with the Putnam County Sheriff's Department, died of a heart attack while arresting an individual who struggled with the arresting Louise Motes, Petitioner in this cause, was married to Herschel Audi Motes at the time of his death, thereby becoming his widow. Mrs. Motes remains unmarried to date and is qualified as to her status for all of the rights and benefits granted January 21, 1976, Sheriff E.W. Pellicer wrote a letter to the Department of Administration, Division of Personnel and Retirement, furnishing the Department with the record of Mr. Motes' salary, contributions to the retirement fund, together with the dates of his employment. The letter concluded by stating, "I would appreciate hearing from you at an early date and if anything further is needed, please advise." The letter was signed by E.W. Pellicer, Sheriff, Putnam County, Florida. On March 10, 1976, Mrs. Motes received a letter from Marjorie B. Smith, Retirement Benefits Specialist, with the letter showing a copy to Mr. E.W. Pellicer. The letter stated as follows: "As the designated beneficiary and surviving spouse of Herschel A. Motes, who died November 23, 1975, you are entitled to the refund of the accumulated retirement contributions which amount to $4,325.69 or the Option 3 monthly retirement benefit. If you desire the refund of the contributions, you should execute a request for refund, form . . . which must be completed in the personnel office of the Putnam County Sheriff's Department If you prefer the Option 3 monthly retirement benefit, which has been computed to be $125.29 based on 18.30 years of service, you should execute the enclosed form FST-11b on which a single beneficiary must be designated and send your personal remittance in the amount of $1,089.23 made payable to the Florida Retirement System. This payment is necessary to allow credit for four years of military service, service rendered from April through August 1963, and complete payment of the necessary contributions for the 1963-64 and 1964-65 years. This monthly benefit, if elected instead of the refund, is a lifetime income which will continue even though you should remarry. In the event of your death prior to receiving in monthly benefits an amount equal to the total accumulated retirement contributions, any contribution on deposit in excess of the total monthly benefits paid will be refunded to your beneficiary. Please let us know if we may be of further assistance." (emphasis added). Enclosed with this letter was form FST-11b which is an "Application of Beneficiary for Monthly Benefits." The form. Joint Exhibit I, contained no reference whatsoever to any rights or benefits under Section 121.091(7)(c)(1), Florida Statutes (the death in the line of duty benefits). Either the Division of Retirement or a Mrs. Key, with the Sheriff's Office of Putnam County, had filled in the blank portions of the first sentence of the form by writing "121" and "3" in the blanks where the form states "Chapter 121, Option 3." The remainder of the form is typed in except for the signature of Louise A. Motes. After filing the "application" through the Putnam County Sheriff's Office, and receiving her first benefit check, Mrs. Motes had a conversation with a Mr. Ronald Clark of Palatka, Florida, about workmens' compensation comprehension benefits. As a result of that conversation, she went to an attorney, who filed a workmens' compensation claim for her. Sometime thereafter, Mrs. Motes was going through some of her husband's papers, which were contained in a filing cabinet at the Sheriff's Office, which her sons brought home. In those papers, she found a newspaper article that Mr. Motes had cut out and saved which told about the death in the line of duty benefits, a copy of the newspaper articles is attached to and made part of Joint Exhibit K. In response thereto, Mrs. Motes went back to the attorney who had filed her workmens' compensation claim and inquired about the "death in the line of duty retirement benefits" of Section 121.091(7)(c), Florida Statutes. At no time prior to or during her filing out the "application" from the State of Florida, Bureau of Retirement, was she informed by anyone that she might possibly entitled to higher benefits because of the manner in which her husband died. At no time prior to filling out the retirement "application" did she have any actual knowledge that the State paid benefits other than those benefits which had been presented to her which were listed on said application. At no time did the Sheriff's Office inform her that she had any possibility of benefits other than the benefits listed on the above stated State of Florida, Bureau of Retirement, application form. By letter of November 7, 1977, Steven S. Mathues, Assistant Division Attorney for the Division of Retirement, Department of Administration, informed Ms. Jill Brown (the attorney for Mrs. Motes who began the original inquiry as to obtaining the "death in the line of duty benefits"), that " . . . it is this Division's position that all retirement benefits and options become fixed when the first warrant is cashed. However, it would appear that under Chapter 120, Florida Statutes, your client would have a right to challenge this position . . . . As I see it, the issue would be whether Mrs. Motes' notarized application . . . and continued acceptance of benefits would estop her from now attempting to change the benefit " Thereafter, Mrs. Motes' case was referred to Mr. Maynard, who after several conferences with Mr. Mathues, the attorney for the Division of Retirement, filed a Petition for Administrative Hearing on Mrs. Motes' behalf, alleging, among other things, that Herschel Audi Motes was killed in the line of duty within the meaning of Section 121.091(7)(c)(1), Florida Statutes. The petition also alleged that the Division's "policy" that as of the moment Mrs. Motes had cashed one of her benefit checks her retirement benefits had vested and could not be changed by her subsequent to that event was within the definition of a rule as defined by Section 120.54(14), Florida Statutes, and that the Division of Retirement had never promulgated such a rule in accord with the procedures required by Chapter 120. Depositions were taken in Daytona, Palatka, and Tallahassee on the issue of whether or not Mr. Motes had been "killed in the line of duty." Subsequent to those depositions, Mr. Mathues informed Petitioner that the Division of Retirement no longer wanted to contest the in line of duty issue. Thereafter, Mr. Mathues and Mr. Maynard, attorney for Petitioner, executed a "Joint Motion for Continuance" which states as follows: "1. The parties have settled all of the questions which relate to the issue of whether Herschel Audi Motes, his widow, to the in line of duty death benefits provided in Chapter121, Florida Statues. The only remaining issue in dispute is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided in Chapter 121, Florida Statutes, because she has been cashing her benefit checks since 1975. The remaining issue is solely a legal issue and does not require any testimony by witnesses, with the possible exception of testimony by Mrs. Motes and/or affidavits from Mrs. Motes and the Putnam County Sheriff's Office if the parties cannot agree to a stipulation of facts. Therefore, this issue can be argued by the undersigned attorneys for the parties in Tallahassee, Florida, at the time and place stated above." The Joint Motion was signed by both Mr. Maynard and Mr. Mathues. In response to that Motion, the hearing officer promulgated an Order entitled "Order of Continuance" which stated: "The parties in the above styled cause have filed a Joint Motion for Continuance of the hearing from February 15, 1979, at 1:00 p.m. in Palatka, Florida, to February 26, 1979, at 10:00 a.m., in Room 103, Collins Building, in Tallahassee, Florida. The Motion is granted. Done and Ordered this 12th day of February, 1979, in Tallahassee, Leon County, Florida." With the Division of Retirement, Department of Administration, no longer contesting the in line of duty issue, a final hearing was held on February 26, 1979, on the only remaining issue in dispute which is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided by Chapter 121, Florida Statutes, because she has been cashing retirement benefit checks since 1975. The issue as to whether Petitioner's husband died in such a manner as to entitle her to in-line-of-duty death benefits has been settled by agreement of the parties in Petitioner's favor. This Administrative Hearing was held to resolve the issue of whether Petitioner waived her right to the in-line-of-duty death benefits provided in Section 121.091(7)(c)(1), Florida Statutes, inasmuch as she has been cashing benefit checks awarded her pursuant to Section 121.091(6)(a)(3). Inquiry to the Respondent as to subject retirement claim was made by Petitioner, Louise Motes, when she became aware of the possibility of her entitlement to in-line-of-duty death benefits. No rules have been promulgated in relation to Section 121.091(7) Death benefits, although Rule 22B-4.10(5) was promulgated in 1972 (amended 1974) under authority of Section 212.091(6), Florida Statutes.
Recommendation Deny the request of Petitioner to change the retirement benefits she now receives to in-line-of-duty death benefits provided in Chapter 121, Florida Statutes. DONE and ORDERED this 1st day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stephen S. Mathues, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32301 Zollie M. Maynard, Esquire 502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT LOUISE MOTES, Petitioner, vs. DOAH Case NO. 78-2105 DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
The Issue The issue is whether Petitioner timely filed his request for claim form requesting reimbursement for certain covered expenses under the Florida Flexible Benefits Program--Reimbursement Plan.
Findings Of Fact Petitioner is a member of the faculty of the University of South Florida. He participates in the Florida Flexible Benefits Program--Reimbursement Program (Program). The Plan allows participants to pay certain eligible medical or dependent day care expenses with pretax earnings. Each year, during an open enrollment period, an employee may elect to participate in the Program and select an amount of salary to be deducted from his or her pay. The amount of salary so deducted is not subject to federal income tax, but is available to reimburse the employee for covered expenses. In order for the Program to continue to enjoy preferential treatment under the federal income tax law, Respondent, which administers the Program, must adhere to certain rules. Most relevant to this case is that that the deducted salary must be at risk. Specifically, an employee is not entitled to a refund of all or part of the deduction if he or she does not timely submit sufficient reimbursable expenses to exhaust his or her account. The Program brochure clearly warns participants of this "use it or lose it" rule. The plan year for the Program is the calendar year. In 1997, Petitioner was a participant in the Program. He and his wife chose not to submit claims for covered expenses, as they paid them during the year. Instead, they accumulated the receipts with the intent of submitting a single claim for their account balance at the end of the plan year. The Program sets a claims filing deadline of April 15 for filing claims arising out of the expenses paid in the preceding calendar year. The Program brochure warns that this deadline means all claims for expenses incurred during a plan year must be postmarked by midnight, April 15 of the following year to be considered for processing. Any claims received after this date will be returned to the participant unprocessed, regardless of the account balances. Participants should file claims as soon as the required documentation is obtained. This case involves only one issue: whether Petitioner timely submitted his claims for reimbursement under the Program. There is no issue concerning Petitioner's payment of these expenses or his account balance. There is no issue whether these expenses are eligible for reimbursement. In early March 1998, Petitioner and his wife collected their receipts for covered expenses from 1997. Petitioner completed a reimbursement form and addressed the envelope to Respondent at the correct address. Wanting to make copies of the materials, Petitioner did not immediately mail the package to Respondent. A few days later, prior to copying the materials or mailing the package, Petitioner's father became ill in the Mideast, where he lives. Petitioner and his wife agreed that she would copy the materials and mail the package to Respondent. On March 21, which marks the birthday of Petitioner's wife and a cultural holiday for Petitioner and his wife, Petitioner's wife telephoned her husband, who was still visiting his sick father. In the ensuing discussion, Petitioner learned that she had not yet mailed the package. They discussed the matter and again agreed that she would copy the materials and mail the package without further delay. Without further delay, Petitioner's wife copied the materials and mailed the package to Respondent at the correct address. She placed the package with sufficient postage in a mailbox across from her home. The package consisted of a claims reimbursement form and receipts for eligible expenses. It appears that she may have written an old return address on the envelope. Respondent never received the package. Respondent's procedures are carefully designed and executed to ensure that it will not lose a claim form. Repeated searches for the missing form never uncovered it. The package was lost after its mailing by Petitioner's wife and prior to its delivery to Respondent. Possibly, the incorrect address precluded notification to Petitioner of problems with delivery. Possibly, the package was just lost. Unfortunately, Petitioner learned only after the April 15 deadline that Respondent had never received the package.
Recommendation It is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order determining that Petitioner timely submitted the claim and eligible expenses that were the subject of this case. DONE AND ENTERED this 8th day of March, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of March, 2000. COPIES FURNISHED: Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mohsen M. Milani 15927 Ellsworth Drive Tampa, Florida 33647 Julia Forrester Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399
The Issue Whether Petitioner, John Hasko ("Petitioner"), is entitled, pursuant to the City of Dania Beach Code of Ordinances ("Code") section 18-49(4), to be paid retirement pension benefits under the City of Dania Beach Police and Firefighters Retirement System's ("Respondent" or "System") "100 Percent Joint and Last Survivor Annuity" ("Last Survivor Annuity") or the "Modified Cash Refund Annuity" ("Life Annuity").
Findings Of Fact The Parties Petitioner is a retired police officer who was employed by the City of Dania Beach Police Department ("Police Department") and who has qualified for, and is receiving, retirement pension benefits under the System. Pursuant to chapter 18, article IV of the Code, Respondent is the retirement pension system provided for the benefit of firefighters and police officers, including Petitioner, who are or previously were employed by the City of Dania Beach. Evidence Adduced at Final Hearing Background Petitioner was hired by the Police Department on December 18, 1980, and, upon being employed, began accruing credit toward a pension under the System. Petitioner was employed by the Police Department for 20 years. On October 1, 1988, the City of Dania Beach Police Department merged with the Broward County Sheriff's Office ("BCSO"). At that time, Petitioner was given the option whether to remain in the System or to retrieve his contributions and become enrolled in the Florida Retirement System ("FRS"), which was and is the retirement program in which BSCO employees are eligible to enroll. At that time, Petitioner elected to remain enrolled in the System rather than enrolling in the FRS. On August 28, 2000, Petitioner executed a retirement benefits election form to select the type of pension under which he would receive pension benefits from the System starting on January 1, 2001. Petitioner retired from the Police Department effective December 31, 2000. In April 2001, Petitioner began receiving monthly pension payments under the System, and also received back payments for January through March 2001. Immediately upon retiring from the Police Department, Petitioner began working with the BCSO. At that time, he enrolled in the FRS and began accruing credit under a life annuity plan provided through the FRS. Petitioner was employed by the BCSO for slightly over 14 years. As the result of a series of work-related injuries, attendant surgeries, and permanent restrictions on his activities, Petitioner retired from the BCSO on April 14, 2014. In the 2006-to-2007 timeframe, Petitioner was diagnosed with a cardiac condition that ultimately necessitated placement of a stent in 2012. Petitioner remains under the regular care of a cardiologist and is on medication to treat his cardiac condition. He credibly testified that since 2012, his condition has remained stable. In June 2014, Petitioner applied for pension benefits under the FRS. Petitioner testified, credibly, that he had four options from which to choose,1/ and that he selected the Ten Year Certain option. Under this plan, Petitioner receives monthly payments for the rest of his life. If Petitioner were to predecease his beneficiary——in this case, his wife——before the 120-month period ends, she would continue to receive payments through the end of the 120-month period; however, if Petitioner were to predecease his wife after the end of the 120-month period, she would not receive any further payments. Petitioner testified that, based on his belief that he had enrolled in the Last Survivor Annuity under the System, he selected the FRS Ten- Year Certain Option so that if he predeceased his wife, she would receive benefits payments from two sources for the remainder of her life——the Last Survivor Annuity and Social Security. Petitioner receives benefit payments through the FRS to date. Petitioner has received monthly retirement benefit payments through the System since April 2001, including back payments for January through March 2001. He continues to receive monthly retirement benefit payments from the System to date. Evidence Regarding Petitioner's Election of Benefits Under the System The City of Dania Beach Police and Firefighters Retirement System Summary Plan Description ("SPD") summarizes the System's available pension plan options. The section titled "Forms of Benefits Payment," on page 16 of the SPD, states under the "Normal Form of Benefit Payment" subsection: "[u]nless you elect otherwise before your retirement, your pension is payable as a Single Life Annuity with a guaranteed refund of your contributions. This is a series of monthly payments for your life." This provision effectively makes the "Normal Form" the "default" form of benefits payments if the employee does not elect another form of benefit payments before retiring. The "Election of Optional Forms of Benefit Payments" subsection of the SPD states: "You have the right at any time before your retirement date to elect not to have your retirement benefit paid in the Normal Form." This subsection identifies other forms of benefit payments available that the employee may choose as an alternative to the Normal Form. These forms are the Joint and Last Survivor Annuity, the Ten Year Certain and Life Thereafter Annuity, and another optional form actuarially equivalent to the Normal Form. Petitioner decided to retire from City of Dania Beach Police Department at the end of 2000. On August 28, 2000, he met with Sonia Brown, then the plan administrator for the System, to fill out an application for retirement benefits. He completed a form titled "City of Dania Beach Police and Firefighters' Retirement System Application for Benefits" ("Application Form"). Section 1 of the Application Form, titled "For Retirement or DROP Benefits," contained a section to identify the beneficiary for the Joint and Survivor and Ten Year Certain options. Petitioner completed this portion of the form, naming his wife as his beneficiary and providing pertinent information about her. He also completed section 4 of the form, designating his wife as his beneficiary for all purposes under the System. He signed and dated the Application Form. Petitioner testified that he met with Brown again in early December 2000, to finalize his election of his benefits that he would be paid under the System. According to Petitioner, at that time, he told Brown that he chose the Last Survivor Annuity option. He testified that Brown gave him paperwork to fill out, that he completed the paperwork, and that she told him that he would receive benefit payments of between $2,400 and $2,500 per month based on his chosen option. Petitioner testified that Brown did not give him the "City of Dania Beach Police and Firefighters Retirement System Notification of Benefits Payable as a Result of Retirement" form ("Notification of Benefits Form") to complete at the December 2000 meeting. Petitioner testified that he did not specifically remember what documents he completed that day, and that he did not receive a copy of those documents. Respondent's file regarding Petitioner's benefits election does not contain either the original or a copy of the documents that Petitioner claims he signed in December 2000. In short, there is no physical evidence substantiating the existence of these documents. Petitioner testified that based on the December 2000 meeting with Brown, he believed he had selected the Last Survivor Annuity and that the payments under that option would start in January 2001. After Petitioner retired from the Police Department, he did not receive his benefit payments under the System for January, February, and March 2001. He testified that he assumed that this delay was due to the time involved in processing the paperwork he claims to have completed in December 2000. On January 23, 2001, Brown sent correspondence to the System's actuarial services firm requesting that Petitioner's early retirement benefit be calculated according to the various benefits options available to police plan participants who are eligible for early retirement with 20 years of service. Petitioner is shown as having been copied on this letter, and he acknowledges having received the letter. By letter dated February 19, 2001, Respondent sent Petitioner "several forms to be completed by you and returned to this office for further processing of your early retirement benefit." The letter identified these forms as the Notification of Benefits Form, a W-4P form for specifying the amount to be withheld from the benefit payments for federal income tax, and a form to authorize direct deposit of the benefit payments into Petitioner's bank account. Petitioner claims that he did not receive this letter. Petitioner testified that in March 2001, Brown contacted him to complete a "verification of beneficiary form." On March 8, 2001, Petitioner went to Brown's office, where she presented him with what he characterized as a "verification of beneficiary form." According to Petitioner, Brown "asked him to make sure my beneficiary information was correct" and to sign and date the form where she had placed check marks. The "verification of beneficiary form" Petitioner signed actually consists of the second page of the Notification of Benefits Form. The second page of the Notification of Benefits Form that Petitioner executed contains a table that identifies Petitioner's wife (whose name is redacted) as his beneficiary. Portions of the table consist of spaces in which to state information regarding the amount of the nontaxable portion of monthly benefits for the various annuity options, which are identified by number and listed on the first page of the form. There are no amounts listed in those spaces on the form that Petitioner signed; those spaces have been left blank. A paragraph below the table states: "[t]he Survivor Annuity benefit amounts shown above are based on the beneficiary named above and are payable only to this beneficiary. Should you wish to change your beneficiary before your payments begin, new amounts have to be calculated."2/ Near the bottom of the form is the sentence "I accept the terms above, including my choice of annuity form, and confirm the information shown above to be correct."3/ Immediately below the above-referenced sentence is a "Participant's Signature" line. Petitioner signed the form on this line and dated it "3/08/01." Petitioner testified that at the time he signed this form, the spaces for the signature by the Board of Trustees representative and the date of signature were blank. The form subsequently was executed by the Board of Trustees, through Eugene H. Jewell, on March 13, 2001. Petitioner testified that in November 2015, he became aware, through checking his various beneficiary designations as the result of a bank error,4/ that the System was paying his retirement benefits pursuant to the Life Annuity rather than the Last Survivor Annuity. Petitioner testified that on November 6, 2015, he went to the System office to verify that his wife was correctly designated as his retirement pension beneficiary. He met with Cathy David,5/ the current system plan administrator, to review the documents in his retirement pension file. Petitioner testified that, he saw, for the first time, the first page of the Notification of Benefits Form contained in his file. This page had a check mark next to the "Modified Cash Refund"——i.e., the Life Annuity——option. He testified that he did not make the check mark next to the "Modified Cash Refund" option on the form. Petitioner obtained documents contained in the Salem Trust ("Salem")6/ file regarding his retirement pension. Among these documents was a letter dated March 13, 2001, from Brown to Livia Nixon, with Petitioner shown as copied, transmitting the completed forms to enable Salem to process Petitioner's retirement pension, and requesting that Salem expeditiously issue retroactive checks to Petitioner for January through March 2001. Petitioner testified that he had not previously received a copy of the March 13, 2001, letter or the attached forms, and that he did not see them until he obtained the documents in the Salem file. Petitioner also testified that he did not receive a December 6, 2001, letter from Respondent notifying him that the System's auditors, S. Davis & Associates, P.A. ("SDA"), were conducting an annual audit of Respondent's financial statements.7/ This letter contained information regarding Petitioner's pension ——including information expressly identifying the type of benefit Petitioner was receiving as the "Life Annuity." The letter requested that Petitioner review the information contained in the letter and correct any errors by providing the correct information to SDA. Petitioner testified that he first saw this letter during his November 6, 2015, review of the documents in the System's file, so he did not respond to SDA in 2001. In sum, Petitioner claims that at a December 2000 meeting with Brown, he selected the Last Survivor Annuity as the form in which he would be paid retirement pension benefits under the System. He claims that he did not select the Life Annuity, and that he did not make the check mark by the "Modified Cash Refund" option on the first page of the Notification of Benefits form that was contained in the System file. In sum, Petitioner also claims that he did not receive or otherwise was not provided the following documents: (1) the unidentified "paperwork" that he claims he completed at a meeting with Brown in December 2000, at which he selected the Last Survivor Annuity; (2) the letter dated February 19, 2001, from Brown to Petitioner, transmitting forms——including the entire Notification of Benefits Form——that Petitioner needed to complete to enable processing of his early retirement benefit; (3) the first page of the Notification of Benefits Form on March 8, 2001, when he completed the second page of that form confirming his wife as his beneficiary; (4) the March 13, 2001, letter from Brown to Livia Nixon of Salem, transmitting Petitioner's retirement pension forms completed on March 8, 2001, to Salem for processing; and (5) the December 6, 2001, letter to Petitioner from Respondent's outside auditor, SDA, requesting him to verify the accuracy of the information regarding his pension and to correct any errors in that information. Petitioner acknowledges that he did receive a letter from Cathy David dated July 1, 2012, regarding a change in Florida law that could affect retirees. That letter expressly stated "[y]ou chose the life annuity when you retired on January 1, 2001." Petitioner claims that he did not read this letter in its entirety, so he did not see the statement in the letter regarding having chosen the life annuity. Findings of Ultimate Fact Upon careful consideration of the evidence in the record, it is determined that Petitioner did not show, by a preponderance of the evidence, that he selected the Last Survivor Annuity, rather than the Life Annuity, so that, pursuant to section 18-49(4) of the Code, he should be reclassified as being enrolled in the Last Survivor Annuity. First, the undersigned finds implausible Petitioner's testimony that he signed unspecified "paperwork" selecting the Last Survivor Annuity——clearly, a very important decision on his part——but that he does not "remember specifically" what that paperwork was and that he did not receive a copy of that paperwork. Compounding that implausibility is that neither the original nor any copies of that "paperwork" were found in Respondent's file or in Salem's file. Simply stated, there is no physical evidence establishing the existence of this "paperwork" ——which Petitioner claims is the instrument through which he elected the Last Survivor Annuity.8/ Second, the first page of the Notification of Benefits Form that was contained in Respondent's file on Petitioner's retirement pension shows the "Modified Cash Annuity" option—— i.e., the Life Option——as having been selected by the placement of a check mark next to that option. It is undisputed that Petitioner executed the second page of the form. This complete Notification of Benefits Form contained in Respondent's file constitutes the complete, most credible evidence in the record that Petitioner selected the Life Annuity when he executed the form on March 8, 2001. To this point, Petitioner offered no credible evidence to support his assertion that someone——unknown to him and having unknown motives——must have placed the first page of the Notification of Benefits Form, having the check mark next to the "Modified Cash Refund" option, in Respondent's file without his knowledge. The undersigned does not find credible or persuasive Petitioner's testimony that he was not given the first page of the Notification of Benefits Form on March 8, 2001,9/ and that based on the language in the paragraph below the table, quoted in paragraph 29 above, he reasonably believed that the second page of that form constituted a "verification of beneficiary" that simply confirmed his beneficiary for his previous selection of the "survivor annuity." However, in order for the clause "the Survivor Annuity benefit amounts shown above" in that paragraph to make sense, it must be read in conjunction with the table above the paragraph. As discussed above, in the table on page 2 of the Notification of Benefits Form that was executed by Petitioner, no amounts of nontaxable portion of monthly benefit for any of the survivor annuity options have been filled in, even though the paragraph below the table expressly refers to the "Survivor Annuity benefit amounts shown above." The absence in the table of any "Survivor Annuity benefit amounts shown above" is inconsistent with Petitioner having chosen a survivor annuity option. Thus, the paragraph below the table can only be reasonably read to mean that to the extent the employee has selected one of the different survivor annuity options on the first page of the form, the survivor annuity benefits amounts shown in the table apply to the particular beneficiary identified in the table. Accordingly, if no survivor annuity benefit amounts are "shown above"——i.e., set forth in the table ——that would indicate, and only be consistent with, the selection of a retirement option other than a survivor annuity. The undersigned also does not find plausible Petitioner's testimony that he did not receive or otherwise was not given copies of five crucial retirement-related documents—— four of which clearly informed him that he was enrolled in the life annuity——so that he was not timely informed of the need to correct a mistake in his retirement pension enrollment. That these documents were transmitted by different senders—— Respondent, Salem, and SDA——compounds that implausibility.10/ For these reasons, it is determined that Petitioner has not sustained his burden in this proceeding to show, by a preponderance of the evidence, that he has been erroneously classified as being enrolled in the Life Annuity, and that, pursuant to section 18-49(4) of the Code, he should be reclassified as being enrolled in the Last Survivor Annuity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for reclassification of pension enrollment from Life Annuity to Last Survivor Annuity. DONE AND ENTERED this 21st day of September, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2018.
The Issue Whether the Petitioner, Kellie Brown, on behalf of her minor son, Brandon Brown, is entitled to payment of the Health Insurance Subsidy on the retirement account of Corporal Arthur "Donnie" Brown, deceased, for the period of February 1, 1994, through and including September 1996.
Findings Of Fact Kellie M. Brown (Petitioner) is the natural mother and guardian of Brandon D. Brown, a minor child, whose deceased father was Donnie Brown. At the relevant times, Donnie Brown was employed by the Orange County Sheriff's Office (Sheriff's Office) as a deputy with the rank of Corporal, and was a compulsory member of the Florida Retirement System (FRS). On or about January 16, 1994, Cpl. Brown disappeared from public view and did not report for duty with the Sheriff's office. His last day of work was listed as January 15, 1994. He was subsequently terminated from his position for failure to report for duty. His body was later found on March 15, 1994, and after examination by the county medical examiner, it was determined that his date of death was January 15, 1994. Based on this determination, survivorship benefits became available to Brandon Brown as if his father had died while still employed with the sheriff's office. The Petitioner is the former spouse of the deceased. After the discovery of the body, the Sheriff's office offered to assist Petitioner in the completion and transmission of the necessary paperwork to obtain available benefits. The Sheriff's Office enrolled Brandon under its health insurance plan for one year at no cost to the Petitioner. In March 1994, Petitioner visited the personnel office of the Sheriff's Office. She was given many forms and applications to sign in order to obtain benefits for her son. Petitioner testified that one of the forms in the packet of material was the Health Insurance Subsidy (HIS) application form of the Respondent. She claimed it was given to her in a manila folder by Barbara Hill, a personnel specialist with the Sheriff's Office. Petitioner later had another conversation with Ms. Hill in which the Petitioner wanted to know where the completed form was and insisted that the HIS form was in the material given to her by Ms. Hill. Petitioner then stated that Ms. Hill called the offices of the Respondent in Tallahassee and was told that her son was not eligible for the HIS payment. Thereafter, Petitioner stated that she did not pursue the issue. On behalf of her minor son, the Petitioner applied for and began receiving a FRS retirement benefit on the account of Cpl. Brown, effective July 1994 and retroactive to February 1994. After Brandon's name was added to the retired payroll, in July 1994, Petitioner was notified by mail from the Respondent that Brandon was also eligible for payment of a HIS, which is a benefit separate from the retirement benefit that is paid to retirees and their beneficiaries to help offset the cost of health insurance. Petitioner did not return the HIS application form. Notification of new retirees after their name has been added to the retired payroll about their eligibility for the HIS is the normal and customary practice of Respondent. The HIS application form of Respondent is not given to the employing agency. Therefore, the Sheriff's office would not have a copy of the form to give to Petitioner. Instead, the HIS form is sent by the Respondent directly to the retired member or the beneficiary after the actual retirement. The form is sent out at the same time or shortly after the notice to the retiree that he or she has been placed on the retired payroll. Brandon Brown was added to the retired payroll in July 1994, retroactive to February 1994, and the notification letter form was sent to Petitioner in July 1994. The HIS form would have been sent at that time or shortly thereafter. In early 1997, Barbara Hill reviewed the roll of retirees because of a reengineering program instituted by the Sheriff's office. She found three widows who were not being paid the HIS benefits by Respondent, including Petitioner. She contacted all three women at the request of the Sheriff's office. Respondent sent information about the program to the women. As the result of conversations between Petitioner and Barbara Hill of the Sheriff's office, Petitioner was sent an HIS application form by Respondent, which she completed and returned to the Division on April 23, 1997. Brandon was added to the HIS payroll retroactive to October 1996. The amount of the benefit is $51.99 per month. The Sheriff's office has a health insurance subsidy program for its retired members that is similar to the FRS HIS program and is the same dollar amount as the HIS benefit paid by FRS. However, it is paid only to members and not to beneficiaries so that a beneficiary like Brandon would receive the FRS HIS payment but would not receive the Sheriff's Office HIS payment. The Respondent makes regular efforts to notify retirees of the various benefits offered to them under FRS. As it applies to this case, the Respondent issues a pamphlet entitled "After You Retire" on a periodic and ongoing basis. The then current edition was issued in October 1993, and provided on page 7, information about the HIS. The pamphlet stated as follows: The health insurance subsidy (HIS) is a monthly supplemental payment that you may be eligible to receive if you have health insurance coverage. This monthly payment, which you must apply for, is figured by multiplying your total years of creditable service at retirement (up to a maximum of 30 years) by $3. The minimum monthly subsidy is $30 and the maximum is $90. After your name is added to the retired payroll, an application for the health insurance subsidy, Form HIS-1, will be mailed to you. The completed application must be returned to the Division of Retirement within six (6) months of the date your retirement benefits commenced if you wish to receive the subsidy retroactive to your retirement date. If you fail to return the form within six (6) months, retroactive subsidy payments will be limited to a maximum of six (6) months. It is your responsibility to obtain certification of health insurance coverage and apply for the health insurance subsidy. (emphasis in quoted material) The Respondent also issued a "Retiree Newsletter" in December 1994, and informed all retirees about updates to the HIS program. On page 3, the Newsletter stated: The Health Insurance Subsidy (HIS) is an extra payment that is added to your monthly retirement benefit to help you pay the cost of health insurance. To be eligible for receive the HIS payment, retirees must have health insurance, Medicare or Champus. The subsidy payment which you must apply for, is $3 per month for each year of creditable service you had earned at retirement. The minimum monthly subsidy is $30 and the maximum is $90. If you believe you are eligible for the subsidy but are not currently receiving it, you should call or write the Disbursement Section and request Form HIS-1, Health Insurance Subsidy Certification. If you apply for the HIS after you retire, you will receive retroactive HIS payments limited to a maximum of six months, or the number of months you have been retired, if less than six months. (emphasis in quoted material) Petitioner was mistaken in her belief that the application form for FRS HIS benefits was provided to her by the Sheriff's Office in March 1994.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Kellie Brown, is not entitled to the payment of the Health Insurance Subsidy for her minor son on the retirement account of Corporal Arthur "Donnie" Brown, deceased, for the period of February 1, 1994, through and including September 1996. RECOMMENDED this 17th day of November, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1997. COPIES FURNISHED: Kellie M. Brown, pro se 12868 Downstream Circle Orlando, Florida 32828 Stanley M. Danek, Senior Attorney Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399 Thomas J. Pilacek, Esquire Thomas J. Pilacek & Associates 601 South Lake Destiny Road Maitland, Florida 32751 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact The Division of Retirement will make no Findings of Fact relating to whether Petitioner's disability was in-line-of-duty. Accordingly, for the reasons mentioned previously, all findings contained in paragraphs 5, 6, 7, and 8, of the recommended order are rejected. However, the Division accepts the remaining Findings of Fact contained in the recommended order. As taken from the order these findings are: Herman Williams was an employee of the Department of Transportation and a member of the Florida Retirement System. The Division of Retirement approved payment of regular disability benefits to Herman Williams. Herman Williams is currently receiving and accepting these benefits. Herman Williams is an illiterate Seminole Indian, 62 years of age. Williams' duties with the Department of Transportation were driving a mowing tractor and cleaning out roadside ditches. Williams worked for the Department of Transportation approximately 21 years 11 months prior to being placed on the retired roles [sic]. On May 1, 1975, Williams was driving his tractor in the course of his regular employment at the Department of Transportation when the power steering of the tractor malfunctioned causing the front wheels to swerve violently, wrenching the steering wheel in Williams' hands and nearly throwing him from the tractor. Repairs had to be made to Williams' tractor by a Department of Transportation mechanic because the tractor was inoperative. The mechanic discovered a loose nut in the power steering assembly when he exchanged the power steering unit in Williams' tractor with another from the maintenance yard. When the new unit was installed in Williams's tractor it functioned normally. When the power steering from Williams' tractor was installed in the other tractor, it also functioned normally. The mechanic stated that the loose nut which he had discovered could cause the tractor to swerve violently in the manner Williams' had described. On the afternoon of May 1, 1975, Williams reported this instant [sic] to his supervisor, David McQuaig. Mr. McQuaig inquired as to any injuries to Williams and the tractor. Williams reported to McQuaig that the tractor had not been harmed and that he was only sore and stiff. No report of injury was prepared by McQuaig whose duty it was to file such reports. Williams' condition did not materially improve after seeking medical treatment by Dr. Albritton. Williams remained on sick leave until August 11, 1975, when it was exhausted. Williams then took annual leave from August 12, 1975 until September 23, 19975, when his retirement became effective. When the Petitioner's sick leave was exhausted, he was contacted by his supervisor in the Department of Transportation. He suggested that Williams could retire on disability if two physicians would state that he was disabled. This letter was read to Williams by his son, Eddie, because Williams is illiterate. Retirement application forms were provided Williams by the Department of Transportation. The physician report forms were completed by Dr. Albritton and Dr. Wilkerson. The statement of disability by employer form was completed by Williams' supervisor, David A. Young, Maintenance Engineer, for the Department of Transportation. Young stated that he completed the Statement of Disability by Employer, indicating that the application was for regular disability benefits because he had determined that no workman's compensation claim had been made by Williams and because Dr. Wilkerson's medical report had stated that the injuries occurred at Williams's home. The determination that the application was for regular disability benefits was solely Young's. The Application for Disability Retirement signed by Williams was prepared by personnel at the Department of Transportation District Office. This form was signed by Herman Williams; however, this form does not make provision for the member to state the nature of the disability benefits sought. Eddie Williams, son of Herman Williams, took his father to sign the forms at the Department of Transportation office. These forms were not explained to Williams, nor did Eddie Williams read them. Herman Williams was also unaware that such a benefit existed. Herman Williams stated he sought disability benefits based upon his injury on the job. Disability retirement was not discussed between Herman Williams and David Young. Based upon the application submitted in his behalf, the Division of Retirement made a determination that Williams was entitled to regular disability benefits. Williams was unaware that he was not receiving the in-line-of-duty benefits until his son inquired as to how much money he was receiving. When he was advised, he told his father that it appeared to be too little money. At this point Eddie Williams discovered that the application had been for regular disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the administrator permit the applicant to file an amended application for disability in-line-of-duty retirement, and, further, that said application be approved. DONE and ENTERED this 8th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. W. Chalkley, III, Esquire Post Office Box 1793 Ocala, Florida 32670 Douglas Spangler, Jr., Esquire Asst. Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT DEPARTMENT OF ADMINISTRATION HERMAN H. WILLIAMS, Petitioner, vs. CASE NO. 77-982 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. / FINAL AGENCY ORDER A petition for formal proceedings having been duly filed, and a request for hearing officer having been duly made, a hearing was held in the above-styled cause pursuant to the provisions of Section 120.57(1), Florida Statutes, before the Honorable Stephen F. Dean, Hearing Officer, in Ocala, Florida, on September 15, 1977. The Petitioner requested relief from the Division's determination that Petitioner was not entitled to resubmit an application for disability retirement requesting in-line-of-duty disability retirement benefits because he had previously applied for and accepted regular disability retirement. The purpose of the hearing was to determine the factual basis for Petitioner's claim that he should be allowed to apply for in-line-of-duty disability retirement benefits. APPEARANCES AT THE HEARING: Eric E. Wagner, Esquire J. W. Chalkey, III, Esquire Law Offices of Eric E. Wagner, P.A. Post Office Box 1763 Ocala, Florida 32670 For the Petitioner E. Douglas Spangler, Jr., Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 For the Respondent The Hearing Officer entered his Recommended Order on December 8, 1977, in which he sustained Petitioner's assertion and concluded, on the basis of the findings made as a result of the hearing, that Petitioner should be entitled to resubmit his application and request in-line-of-duty disability benefits. In addition to this determination, the Hearing Officer found that Petitioner was in fact entitled to in-line-of-duty disability retirement benefits. In making this latter conclusion, both as a matter of fact and of law, the Hearing Officer went beyond his scope of authority. As will be developed more fully herein, the Hearing Officer was without jurisdiction to consider the issue of whether Petitioner was in fact entitled to the in-line-of-duty benefits. Therefore, so much of the recommended order as purports to address this issue is of no effect, being the result of a hearing that did not comply with the essential requirements of law.
