Findings Of Fact The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS). Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service credit for the period of time from September, 1950, through January, 1951, be denied. It is further RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied. THIS RECOMMENDED ORDER entered this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price 1000 N. E. 96th Street Miami Shores, Florida 33138 Diane R. Keisling, Esquire Suite 207C, Box 81 Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue Whether Petitioner is eligible to receive retirement credit for the period of his employment with the Florida Bar from July 1, 1977 through June 4, 1981.
Findings Of Fact Petitioner was employed by the Florida Bar from July 1, 1977 to June 4, 1981. The record is unclear as to the nature of his employment at the Florida Bar. He is presently employed as a professor at Florida State University and has approximately 24 years' credit in the Florida Retirement System (FRS). Employees of the Florida Bar are paid as part of an overall budgetary process generated primarily from members' dues. Their salaries are not established by or funded by legislative appropriation. The Florida Bar has its own pension system that is a defined contribution plan funded entirely by the Florida Bar. The Bar employees contribute nothing to their pension system. This system has been in place since approximately 1970. Salaries of state officers and employees are reported from the State Comptroller to the Division of State Retirement. No salaries of the Florida Bar were paid or reported to the Division for the period of time Petitioner was employed at the Florida Bar. In the 1970's the FRS went from an employee/employer funded system to a strictly employer funded system which became known as a non-contributory system. The Florida Bar does not participate as a paying agency of the FRS and employees of The Florida Bar do not participate in any state employee benefit system. Beginning in 1955, until the establishment of the FRS, the Florida Board of Bar Examiners participated in the former public retirement system. When the FRS was created, participants, such as the Florida Board of Bar Examiners, began reporting into the new system and were allowed to participate in the new system. Mr. Ragsdale, administrator of the enrollment section of the Division, established that the employees of the Board of Bar Examiners participated by contributing into the former retirement system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for retirement service credit for the period of his employment with the Florida Bar. DONE AND ENTERED this 14th day of September, 2001, 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 14th day of September, 2001.
The Issue Whether Petitioners are entitled to, and should receive, survivor retirement benefits from the Florida Retirement System account of their deceased mother, Adrianna Davis, which are presently being paid to their sister, Earnese Davis?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Adrianna Davis was a public school teacher in Broward County for more than 35 years before her retirement in or about the end of January of 1991. She enrolled in the Teacher's Retirement System of Florida in 1955, when she started her teaching career. On the enrollment form that she filled out, she designated her father, Charles Williams, who is now deceased, as her beneficiary. Adrianna subsequently became a member of the Florida Retirement System. At the time of her death, Adrianna had two adult sons, Kevin and Eddie Davis, (the Petitioners in this case) and one adult daughter, Earnese Davis, (the Intervenor in this case), all three of whom lived with her in the house she and the children's aunt co-owned. Adrianna was the undisputed head of the household and its primary decision maker. Although Earnese lived under the same roof as her brothers, she did not have a good relationship with them. Shortly after the beginning of the 1990-91 school year, Adrianna was told by a physician that he suspected that she had cancer. In October or November, she underwent exploratory surgery. The surgery confirmed that she had cancer, which was determined to be inoperable. Following the exploratory surgery, Adrianna received chemotherapy and radiation treatment. Adrianna was admitted to Humana Hospital Bennett (now Westside Regional Medical Center and hereinafter referred to as "Humana") on December 6, 1990. She was brought to Humana by Earnese, who remained with her in the hospital during the entire period of her hospitalization. 1/ After a medical history was taken and a physical examination was conducted, the following initial "assessment" was made of Adrianna's condition by the admitting physician: "Lung carcinoma with dehydration post chemotherapy." Approximately two days prior to her December 6, 1990, hospitalization, Adrianna had asked Earnese to go to the Broward County School Board (hereinafter referred to as the "School Board") offices to obtain a Florida Retirement System Application for Service Retirement form (hereinafter referred to as a "Form 11). Form 11 has four sections that need to be filled out. In the first section of Form 11 (hereinafter referred to as "Section 1"), the following information has to be provided: the applicant's name; the applicant's social security number; the applicant's job title; the applicant's birth date; the applicant's present or last employer; the applicant's home address and home and work phone numbers; and the date of termination of applicant's employment. In the second section of Form 11 (hereinafter referred to as "Section 2"), the following information has to be provided: the name of the beneficiary designated by the applicant; the beneficiary's social security number; the relationship of the beneficiary to the applicant; the beneficiary's home mailing address; and the "option" selected by the applicant. 2/ The following advisement is printed at the top of Section 2: "All previous beneficiary designations are null and void." The third section of Form 11 (hereinafter referred to as "Section 3") contains the following statement, underneath which the applicant has to place his or her signature "in [the] presence of [a] notary:" "I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES." It also has a certificate that has to be completed and signed by the notary public in whose presence the applicant signs this section of the form. The fourth and last section of Form 11 (hereinafter referred to as "Section 4") contains the following certification that has to be completed, signed and dated by an authorized representative of the applicant's employer, "if termination was within the last 2 years:" "This is to certify that was employed by this agency and will terminate or has terminated on / / , with the last day worked on / / ." As her mother had asked her to do, Earnese went to the to the School Board offices at 1320 Southwest 4th Street in Fort Lauderdale to pick up a Form There she met with Victoria Moten, a School Board retirement specialist. 3/ Earnese told Moten about her mother's situation. She explained that her mother was ill and it looked like she was "not going to make it." 4/ Moten obtained a blank Form 11. After typing in the information that needed to be provided in Section 1 of the form, Moten handed the partially completed form to Earnese and indicated what further steps needed to be taken in order to complete the application process. After her visit with Moten, Earnese returned home and gave her mother the partially completed Form 11 (with only Section 1 filled in) that Moten had provided Earnese with earlier that day (hereinafter referred to as the "Designation Form"). Adrianna kept the Designation Form in her possession and took it with her (in a knapsack, along with other papers) to the hospital on December 6, 1990. She explained to Earnese that she wanted to have the Designation Form filled out while she was in the hospital. It was Adrianna, not Earnese, who brought up the subject. On the morning of December 10, 1990, while Adrianna was still in the hospital, she told Earnese that she wanted to designate Earnese as the sole beneficiary of her retirement benefits so that Earnese would be able to get her "life together" and she asked Earnese to fill out Section 2 of the Designation Form accordingly. 5/ Adrianna also requested Earnese to obtain the services of a notary public to assist in filling out Section 3 of the Designation Form. Earnese thereupon left her mother's hospital room (without the Designation Form, which remained with Adrianna) to find a Florida notary public in the hospital. Her search was successful. She made contact with Elizabeth Sarkissian (now Gassew), a registered nurse and a Florida notary public, 6/ who agreed to help in filling out Section 3 of the Designation Form. Earnese returned to her mother's room with Sarkissian. Earnese filled out Section 2 of the Designation Form in accordance with her mother's previous instructions. Sarkissian, upon entering the room, engaged in conversation with Adrianna, who was sitting up in her hospital bed. Adrianna was alert and oriented. She spoke clearly and responded appropriately to questions Sarkissian asked her. By all appearances, she was in no way mentally incapacitated. After Earnese had finished filling out Section 2 of the Designation Form, Adrianna signed Section 3 of the form in Sarkissian's and Earnese's presence. 7/ Sarkissian then completed and signed the notary certificate underneath Adrianna's signature (in Section 3 of the Designation Form), 8/ after which the form (now with Sections 1, 2 and 3 filled in) was returned to the knapsack in which Adrianna kept the papers she had brought with her to the hospital. Her presence no longer needed, Sarkissian left Adrianna's hospital room. Sarkissian's visit lasted approximately five or ten minutes. Later that day (December 10, 1990), in the evening, Adrianna underwent a surgical procedure involving the insertion of a vascular access port. Adrianna was discharged from the hospital on December 12, 1991. She took the knapsack which contained the Designation Form home with her. Adrianna kept the Designation Form in her possession until January 3, 1991, when she gave it to Earnese, with instructions that Earnese deliver it to Moten for filing. Earnese followed her mother's instructions. Later that same day (January 3, 1991), she went to Moten's office (without her mother) and handed Moten the Designation Form. Moten thereupon completed Section 4 of the form. The now fully completed form was then filed for processing. In June of 1991, Adrianna went into a coma and eventually died. At the time of her death, the Designation Form (which, in Section 2, designated Earnese as the sole Option 2 beneficiary of Adrianna's retirement benefits) was the most recent designation of beneficiary form executed by Adrianna. At no time subsequent to signing the Designation Form did she express to Earnese a desire to make any changes to Section 2 of the form, nor were any such changes made. It has not been shown that Adrianna's designation of Earnese as the sole beneficiary of her retirement benefits was the product of any fraud, misrepresentation, trickery, coercion, undue influence, active procurement, or suggestion on Earnese's part or that it was anything other than a decision made freely, voluntarily and knowingly by a woman who, although terminally ill, was in all respects capable of making such a decision 9/ and fully understood the consequences her decision. On or about July 18, 1991, through the submission of a completed Application of Beneficiary for Retirement Benefits form, Earnese requested that the Division begin to pay her Adrianna's retirement benefits. On the form, Earnese designated her brothers, Eddie and Kevin, as the first and second contingent beneficiaries, respectively, of these benefits in the event of her death. Earnese has received monthly payments from her mother's retirement account since July of 1991. 10/ She currently receives a monthly payment of $1,986.30.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division enter a final order refusing to grant Petitioners' request that it treat as a nullity Adrianna Davis' written designation of Earnese Davis as her sole beneficiary and, based upon such nullification, discontinue paying Adrianna's retirement benefits to Earnese Davis and instead pay them to Petitioners. 13/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of February, 1996. STUART M. LERNER, 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 8th day of February, 1996.
Findings Of Fact John Wallace began service as a Sumter County school board member on January 1, 1959. (Joint Stipulation). On or about January 1, 1959, he completed a blue-top computer enrollment card (Petitioner's Exhibit 1), which also designated his wife Effie as his first beneficiary of his retirement benefits and his daughter, Mrs. Kindle Johnson, as the second beneficiary. (Joint Stipulation). Effie Wallace died January 22, 1963. (Joint Stipulation) John Wallace married Estell Loudin June 9, 1964. (Joint Stipulation). John Wallace executed an election to transfer to the Florida Retirement System, effective December 1, 1970. (Petitioner's Exhibit 2). (Joint Stipulation). John Wallace died September 8, 1975. (Joint Stipulation). On November 12, 1975, Betty Carruthers, an employee of the Sumter County School Board, notified the Division of Retirement of Mr. Wallace's death. Margie Smith in the Division of Retirement completed a form (Petitioner's Exhibit 4) setting forth the information she received from Betty Carruthers in the November 12, 1975, telephone conversation. Not having any beneficiary designation form in the School Board file, Carruthers simply advised Smith that petitioner was Wallace's second wife, his first wife, Effie, having predeceased him. Smith's quick check of the Division of Retirement records management section did not uncover Wallace's designation of beneficiary form. (Petitioner's Exhibit 1, 5). On March 9, 1977, the Division of Retirement received petitioner's FR- 11, an application (albeit on the incorrect form) for her deceased husband's benefits, along with certain supporting documents. In an April 13, 1977, letter (Petitioner's Exhibit 6) sent out over David Ragsdale's name but written and signed by a benefits calculation specialist trainee, petitioner was erroneously informed that she was the beneficiary of her husband's benefits, since he had designated his first wife Effie, who had predeceased him. But after the letter went out, it came to the attention of Marjorie Smith that the April 13, 1977 letter was incorrect since Wallace's original January 1, 1959 designation of beneficiary form designated Wallace's daughter, Mrs. Kindle [sic] Johnson, who is still living, as Wallace's second beneficiary. In a June 5, 1977, latter (Petitioner's Exhibit 7), again sent out over David Ragsdale's name but dictated by Marjorie Smith and signed by Ragsdale's secretary, petitioner was informed that respondent had located the designation of beneficiary card, signed by Mr. Wallace, designating his daughter, Mrs. Kindle [sic] Johnson, as his second beneficiary. On June 20, 1977, Randall Thornton, petitioner's attorney at the time, wrote a letter (Petitioner's Exhibit 8) to David Ragsdale, seeking a copy of the beneficiary card upon which the respondent based its decision in the June 15, 1977, letter to petitioner. On July 12, 1977, Mr. Thornton sent another letter to the respondent, attention Mrs. Ferguson (Petitioner's Exhibit 9), asking again for a copy of the beneficiary designation upon which its decision was based awarding Mr. Wallace's retirement benefits to his daughter. On the same date, respondent sent Mr. Thornton a letter (Petitioner's Exhibit 10), enclosing a copy of the original enrollment card. (Petitioner's Exhibit 1). Thornton's secretary called petitioner into the office on July 15, 1977, the day after Thornton received and reviewed respondents' July 12, 1977 letter. Petitioner looked at the copy of Wallace's designation of beneficiary form and stated that she did not believe her husband had written both his first wife's name and his daughter's name as first and second beneficiaries, respectively, at the same time. She did not, however, prove this at final hearing. Petitioner did not prove that there is or ever was another designation of beneficiary executed by Mr. Wallace other than Petitioner's Exhibit 1. Prior to 1972, if a member of the Florida Retirement System or any pension plan in existence prior to December 1, 1970, wanted to change his designated beneficiary, he would complete another blue-top enrollment card. In 1972, a new enrollment form, FRS-M10, was instituted consisting of three identical parts. If a member of the Florida Retirement System completed the form, the original would be sent to the respondent, with a copy to the agency employing the individual and a copy to the individual. (Carruthers deposition, p.4). Respondent has searched its records and has found no other designation of beneficiary form signed by Mr. Wallace apart from Petitioner's Exhibit 1. The files at the Sumter County School Board have been searched and no designation of beneficiary signed by Mr. Wallace found. (Carruthers deposition, p.3). Petitioner's attorney Randall Thornton has searched his files and found no designation of beneficiary signed by Mr. Wallace other than Petitioner's Exhibit (Thornton deposition, p.18)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration, Division of Retirement, enter a final order denying petitioner's request for benefits on the ground that she is not, in law and fact, entitled to benefits resulting from the death of her husband, John Wallace. RECOMMENDED this 9th day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1984.
The Issue Whether Petitioner's application to participate in the Deferred Retirement Option Program should be approved.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On August 24, 2001, Petitioner submitted to the Division a Florida Retirement System Application for Service Retirement and the Deferred Retirement Option Program (DROP), Form FRS DP-11. On the form, Petitioner indicated his name, social security number, birth date (June 22, 1946), his position title (guidance counselor), present Florida Retirement System employer (Miami-Dade County Public Schools), work phone, home phone, and home mailing address. These entries were followed by the a printed statement, which read as follows: I have resigned my employment on the date stated below and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement . I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit. I cannot add additional service, change options, or change my type of retirement after the DROP begin date. If I fail to terminate my employment in accordance with s. 121.021(39)(b), F.S., on my DROP termination date, my retirement will be null and void and my FRS membership shall be established retroactively to the date I began DROP. I have read and understand the DROP Accrual and Distribution information on the reverse side of this form. The "DROP begin date" and the "DROP termination and resignation date" that were filled in the form were August 1, 2001, and July 31, 2006, respectively. On the "Beneficiary Designation" portion of the form, Petitioner named his wife, Marianne F. Coto, as his "primary" beneficiary, and his daughter, Claudine Coto, as his "contingent" beneficiary. Their birth dates (but not their social security numbers) were noted on the form. At the bottom of the form was the following "Employer Certification," signed and dated (August 24, 2001), by Miami- Dade County Public Schools personnel officer, Maria Perez: This is to certify that the above named member will be enrolled as a DROP participant on the date stated and will terminate his or her employment on the date stated. On August 24, 2001, Petitioner also submitted to the Division a Florida Retirement System Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment, Form FRS DP-ELE. On the form, Petitioner indicated his name, social security number, birth date, his position title, present Florida Retirement System employer, work phone, home phone, and home mailing address. These entries were followed by a printed statement, which read as follows: Resignation From Employment to Participate in the DROP: I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate in the DROP for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. I cannot add additional service, change options, or change my type of retirement after my DROP begin date. On the form, Petitioner indicated that his "DROP begin date" and his "DROP termination and resignation date" were August 1, 2001, and July 31, 2006, respectively. Also on the form was an "Employer Certification," signed and dated (August 24, 2001), by Ms. Perez, the aforementioned Miami-Dade County Public Schools personnel officer, which was identical to the "Employer Certification" on the Form FRS DP-11 that Petitioner had submitted. Petitioner did not submit to the Division (along with Forms FRS DP-11 and DP-ELE) Form FRS 11o, on which he was required to indicate the form of payment of retirement benefits he desired. (Pursuant to the Division's Rule 60S-4.010, Florida Administrative Code, there are four optional forms of payment from which to choose.) Neither did Petitioner furnish the Division with any proof of age. In addition, Petitioner, in September of 1998, had submitted to the Division an Application to Purchase Retirement Credit for a Leave of Absence, but had not yet paid the amount necessary to purchase the credit. Accordingly, by letter dated September 8, 2001, the Division advised Petitioner of the following: This will acknowledge receipt of your Application for Service Retirement and the Deferred Retirement Option Program (DROP) You will be notified should we need additional information. If there is an amount due your account, please make your check payable to the Florida Retirement System (FRS) and reference your social security number on all future correspondence with this office. Date Received: 08/24/2001 Member SSN: . . . . Drop Begin Date: 08/2001 Drop End date: 07/31/2006 Amount Due, if any: $1,126.78 Option Selected: None The following items must be received. Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. The amount due is to purchase service for your leave of absence from 1975-76. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. A Final Salary Certification, FC-1, with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. Petitioner did not provide the Division with the items listed in the September 8, 2001, letter. The Division therefore sent Petitioner a follow-up letter, dated October 24, 2001, which read as follows: DROP RETIREMENT APPLICATION TO BE EFFECTIVE: 08/2001 The item(s) listed below must be received to complete your DROP application and retain the above retirement date: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. Not having received any response from Petitioner, the Division sent Petitioner an identical letter on November 29, 2001. Still not having received any response from Petitioner, the Division sent Petitioner another letter, dated January 3, 2002, requesting that Petitioner provide the items that had been requested from him in the previous correspondence. The January 3, 2002, letter warned that the items "must be received immediately to avoid cancellation [of Petitioner's] DROP application." The items were not provided by Petitioner. Accordingly, the Division sent him the following letter, dated February 14, 2002: For your Florida Retirement System (FRS) Application for Service Retirement and Deferred Option Program (DROP), DP-11 to be effective 08/2001, the following item(s) previously requested, must be received within 21 calendar days from the date you receive this letter: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). You should place your social security number on any documentation provided. Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) You should place your social security number on any documentation provided. Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. It is our intent to disapprove your application for the DROP if the requested information and documents are not received within the 21-day period. Should we disapprove your DROP application, the following will be applicable to you: You will be deemed to not have retired and the DROP application will be null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of applying for DROP. Your FRS membership will be reestablished retroactively to the effective date of DROP for which you applied. Your employer will be required to pay the FRS Trust Fund any difference between the DROP contributions and the contributions required for the applicable FRS class of membership. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. The beneficiary you designated on the retirement application you filed will remain in effect unless changed by you at a later date. Please call me if you have any questions. Petitioner received this February 14, 2002, letter from the Division on February 25, 2002, but, as of April 9, 2002, had not provided any of the items listed in the letter. Accordingly, on that date (April 9, 2002), Doug Cherry, the Division's Benefits Administrator, telephoned Ms. Perez, and asked her to attempt to make contact with Petitioner and remind him that that if he did not submit the items listed in the February 14, 2002, letter, his application to participate in DROP would be denied. On April 18, 2002, Ms. Perez faxed Mr. Cherry a copy of Petitioner's passport, along with a note that Petitioner would make additional submissions at a later date. No additional submissions were made by Petitioner. Accordingly, on May 29, 2002, the Division sent Petitioner the following letter: We have not received the items that were requested in our February 14th letter (copy enclosed) to you. Accordingly, your Florida Retirement System (FRS) Application for Service Retirement and the Deferred Retirement Option Program (DROP), DP-11, cannot be approved. Therefore, the following are applicable to you: You are deemed to not have retired and the DROP election is null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program (DROP) and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program (DROP) during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of your having applied for the DROP. Your FRS membership is being reestablished retroactively to 08/2001, the date of your DROP participation. Your employer will be required to pay to the FRS Trust Fund the difference between the DROP contributions (12.50%) and the contributions required for the applicable FRS class of membership during the period you participated in the DROP. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. By copy of this letter, we are advising your employer that immediate action is required by the employer to correct your FRS retirement plan on the next payroll reported to the Division. Your employer will be billed for the appropriate FRS contribution adjustments, if any, based on you not having joined the DROP. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-206.111, F.A.C. You may contact Doug Cherry at . . . should you desire additional information. Petitioner responded by sending the following letter to Mr. Cherry: I received a certified letter signed by Maurice Helms for Erin B. Sjostrom, which asks to contact you regarding a formal appeal to the action of your agency to cancel my D.R.O.P benefits for this 2001 to 2002 school year. Please allow this to serve as the formal appeal. Needless to say I am very frustrated and upset and would like to request your help to sort through this process. A bit of background history first I believe will help. I started working for Miami-Dade County Public Schools in 1970. At that time I was told it was necessary to be a U.S. citizen to be able to work as a teacher in the school system. I had already decided that and since I had officially turned 22, I became a naturalized U.S. citizen and submitted a copy of the Certificate of Naturalization to the School Board through the Dade County office. Where is that record and why am I being asked to produce it again after having accumulated 31 years of service and after I explained to the local retirement officer in charge, Maria Perez, that I had lost the original when I lost almost the entire contents of my house to Hurricane Andrew in 1992? Honestly since I had submitted [a] copy of my U.S. passport with birth-date and all other pertinent information and I also have my Florida Driver's License, which I have had since 1963 or so, and has been what I have used to verify my age and for identification purposes since I was a kid, (although now I am told by your office that this is not a valid acceptable proof, kindly explain why not?) I never thought it was necessary for me to obtain a copy of the Certificate of Naturalization (U.S. citizenship). Also please tell me why passport and driver's license and 31 years of continuous service on record is not sufficient. It is not as if I were trying to retire after a short time of service. I do have 31 years of service! I do not feel this is the right way to treat a dedicated teacher at the end of his career and I hope you agree with me and will help. To comply with the requirement of another piece of proof of age (which I fail to see the need of in my case where I already have 31 years of verifiable and documented service to Miami-Dade County Public Schools as stated before) I requested a copy of my child's birth certificate from the Bureau of Vital Statistics. This was also a frustrating experience. I requested one copy to be sent to me and one to Dade County Public Schools to the attention of Maria Perez. I was told that the copy would arrive in approximately 10 to 14 days. I have not yet received it. I assume that Ms. Perez never received it either. After thirty-one years of faithful service to the State of Florida, which you have on record, and my birth date established with you over 31 years ago, I find it ludicrous that, after having submitted my passport, having requested, although not having been able to get a copy from the Bureau of Vital Statistics, of my child's birth certificate within a number of days, that your office does not find this to be sufficient proof and that based on the technicality that you have only one instead of two forms of verification of my age, now you will cancel my D.R.O.P., which in essence means forfeiting close to $30,000 that I should have accumulated in my account. Please see the circumstances and kindly reconsider the action taken. I will be extremely grateful. Mr. Cherry responded to Petitioner's letter by sending the following letter, dated June 10, 2002, to Petitioner: This is in response to your letter received in our office on June 6th concerning cancellation of your DROP application. The letter from the Division dated May 29th canceling your DROP application was sent only after several prior notices were also sent. The birth date verification issue raised in your letter was only one of the pending items on your application. We sent an acknowledgment of your application dated September 8, 2001, informing you that we needed an option selection, your birth date verification, your spouse's birth date verification if you selected option 3 or 4 and either payment for your leave of absence or a statement that you did not wish to purchase the service. After receiving no response, we sent memos on October 24, 2001, November 29, 2001 and January 3, 2002, all requesting the same information. We never received any response to these notices. We then sent our February 14th letter by certified mail (which you signed for on February 25, 2002) informing you of our intent to cancel because your application was not complete. A copy of all of this correspondence is enclosed. Again, we received no response [to] this letter. Before sending our cancellation letter, I personally called the Dade School Board and asked them to contact you in one last effort to avoid cancellation. It was only then that we received (on April 18th) a copy of your passport but none of the other required documentation was submitted. After waiting until May 29th for the remaining items to be submitted, we sent the final cancellation letter. It was approximately eight months from our first notice to you of items pending on your application, to the May 29th letter of cancellation. That was certainly sufficient time to submit the needed information and also explain about the difficulty you might have obtaining additional birth date verification. However, during those eight months we had no contact or response from you despite our repeated notices. To summarize, your DROP application is not being cancelled because of birth date verification, but because you did not submit all of the items needed to complete your application, even though you had eight months to do so. Your letter will be forwarded to our Legal section and they will contact you concerning the appeal process. The "Legal Section," after receiving Petitioner's letter, referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's application to participate in DROP. DONE AND ENTERED this 15th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2002.
The Issue Whether the purported selection of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was valid and effective.
Findings Of Fact On or about June 20, 1990, Lon Emory Sweely executed a Division of Retirement Form FR-13 Florida Retirement System Application for Disability Retirement. The application indicated that Sweely's disability resulted from AIDS-related conditions. It selected Option 1, which the application designates as the "Maximum Benefit" and describes as follows: Full benefits payable to the member for his lifetime. If death occurs before the total benefits paid to member equals the contributions made, the difference, if any, is refunded to beneficiary in a lump sum payment. In so doing, Sweely rejected Option 2, which the application designates as "Ten Years Certain," and describes: Lifetime benefit to member, but not less than 120 monthly payments to someone. A decreased retirement benefit payable to a member during his lifetime, and in the event of his death with a period of ten (10) years after his retirement, the same monthly amount shall be payable for the balance of such ten (10) year period to his beneficiary, or in case the beneficiary is deceased, in accordance with Section 121.091(3), Florida Statutes, as though no beneficiary has been named. The application, also designated the Petitioner, Richard A. Castillo, Jr., as Sweely's sole beneficiary. (Sweely previously had designated the Petitioner as his beneficiary, with the Petitioner's mother as the first contingent beneficiary, on a Division of Retirement Personal History Record Form FRS-M10 (Revised 3/89) executed by Sweely on January 25, 1990.) At the time of Sweely's application for disability retirement, Sweely knew that he had full-blown AIDS and that his life expectancy would have to be estimated at approximately two years or less. There also is evidence that Eulah Lee McWilliams, the principal at the elementary school where Sweely taught, counseled Sweely on his options and advised Sweely to select the "Ten Years Certain" option. It is clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided. McWilliams believed that Sweely wanted the Petitioner to have the benefits of the "Ten Year Certain" Option 2. Based on their conversations, McWilliams believed that Sweely concurred with her recommendation in order to provide the maximum possible benefit to the Petitioner upon Sweely's death. But, in the face of Sweely's knowledge and McWilliams's advice and understanding, the application indicates that Sweely selected Option 1. There was evidence that the Petitioner was present and assisting Sweely when the Form FR-13 was executed and that the Petitioner filled out part of the form at Sweely's direction, as writing was inconvenient and difficult for Sweely at the time. But there was no evidence that Sweely was unable to make informed decisions when he executed Division of Retirement Form FR-13 on or about June 20, 1990. The evidence also did not prove that Sweely's choice of Option 1 was inadvertent error. At that point in time, Sweely may have wanted to be optimistic and to be able to enjoy and share with the Petitioner the maximum possible monthly benefit for as long as Sweely lived. McWilliams testified that, at the time, Sweely was trying to remain "up-beat" concerning his illness, in part thinking that this might extend his lifetime. A decision to choose Option 1, contrary to McWilliams's recommendation, also would not have been inconsistent with an earlier decision by Sweely in April, 1990, (this time in conformance with McWilliams's recommendation) to postpone applying for retirement benefits until he exhausted all of his accumulated fully-paid sick leave. Had Sweely died while on sick leave, the Petitioner would not have received the additional retirement benefits he is seeking in this case. (It is not clear from the record exactly what the benefits would have been, but it seems that the Petitioner would not have been entitled to any of the additional retirement benefits he is seeking in this case. Cf. Section 121.091(7), Fla. Stat. (Supp. 1990); F.A.C. Rule 60S-4.008.) A little over a month later, Sweely's condition worsened, and on or about August 14, 1990, he had to be hospitalized again (as already had happened from time to time during Sweely's full-blown AIDS.) On or about August 15, 1990, the Division of Retirement approved Sweely's application for disability retirement, effective July 1, 1990. On the same date, the Division of Retirement also sent Sweely a Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and a blank FRS- 11o "Option Selection Form for FRS Members." The Form FST-40c (R5/89) requested that Sweely "review carefully how the option one and two are paid to your beneficiary." The descriptions of the options in the Form FRS-11o were somewhat different from those in the Form FR-13 application. Option 1 was not called the "Maximum Benefit," and it was described as follows: A monthly benefit payable for my lifetime. Upon my death, the monthy benefit will stop and my beneficiary will receive only a refund of any contributionss I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. (Emphasis in the original.) Option 2 was not called "Ten Years Certain," and it was described as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly benefit payments, my designated beneficiary will receive a monthly benefit payment in the same amount as I was receiving until the monthly benefit payments to both me and my beneficiary equal 120 monthly payments. No further benefits are then payable. The FRS-11o "Option Selection Form for FRS Members" also stated in bold and underlined upper case type: "MEMBER MUST SIGN AND DATE IN THE PRESENCE OF A NOTARY PUBLIC." Whenever Sweely was hospitalized, the emotional strain on the Petitioner increased, and the time spent with Sweely in the hospital left the Petitioner less time to accomplish normal household tasks. The Petitioner's life and home usually became disorganized during Sweely's hospitalizations, and the Petitioner often allowed mail to pile up at their home at these times. The Petitioner testified that, notwithstanding Sweely's hospitalization and its disruptive effect on his life and habits, he happened to collect and read the mail on August 16, 1990. He testified that among the items of mail he read that day was the envelope postmarked the day before in Tallahassee, Florida, containing the Division of Retirement Form FST-40c (R5/89) Acknowledgement of Retirement Application and the blank FRS-11o "Option Selection Form for FRS Members." The Petitioner testified that he telephoned McWilliams to discuss the forms with her, and she asked him to bring them to the hospital. He testified, and she confirmed, that she met with the Petitioner at the hospital, looked at the forms, and explained them to the Petitioner. Believing, based on the conversations she had with Sweely before June 20, 1990, that Option 2 was Sweely's actual choice, McWilliams advised the Petitioner to choose Option 2. McWilliams testified that she discussed the matter with Sweely and with the Petitioner in Sweely's presence on August 16, 1990. (It certainly is possible that, had they discussed the matter with Sweely on August 16, 1990, Sweely might have chosen Option 2 at that time.) But the Petitioner testified that they did not discuss the matter with Sweely on August 16, 1990. The Petitioner explained that, although Sweely was oriented and physically able to write his name and, from time to time, was mentally lucid on that day, the Petitioner did not think that Sweely was in a position to give full consideration to the matter at the time they were discussing the forms because he was on morphine, was lethargic, and was having difficulty breathing without a non-rebreather mask. The Petitioner also did not think it was necessary to trouble Sweely with the matter, since the Petitioner believed that the selection of Option 2 on the Form FRS-11o was redundant and also that he was authorized to execute the form for Sweely as his attorney-in-fact under a purported durable power of attorney which Sweely executed on or about February 28, 1990, authorizing the Petitoner to act in Sweely's behalf in all matters. Under the circumstances on the afternoon of August 16, 1990, the Petitioner did not think that Sweely would have wanted to be troubled with the matter unnecessarily. He checked Option 2 and signed Sweely's name to the Form FRS-11o. On numerous previous occasions, the Petitioner had signed Sweely's name on Sweely's personal checks to pay Sweely's bills. In doing so, the Petitioner believed that he was acting properly under the authority of the purported durable power of attorney, and the bank always honored the checks the Petitioner signed this way. But on June 13, 1990, a physician insisted that the Petitioner sign a Division of Retirement medical records release form FR-13b in his own name as attorney-in-fact for Sweely. Himself not thinking well or clearly under the circumstances, the Petitioner assumed that his signature on the Form FRS-11o was valid. The Petitioner testified that it did not occur to him that there were notary services available for his use at the hospital. He testified that, after checking Option 2 and signing the Form FRS-11o, he telephoned his father, who was a notary, and asked him to come to the hospital to notarize something for him. The Petitioner's father confirmed this and also confirmed the Petitioner's testimony that they met in the hallway outside Sweely's hospital room, where the Petitioner gave his father the signed form and asked him to notarize it. Both testified that they did not discuss the form in any detail before the Petitioner returned to Sweely's hospital room. The Petitioner's father testified that he notarized the form thinking that Sweely had signed it. Sweely died two days later on August 18, 1990.
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: (1) that the purported selection, on the Form FRS-11o dated August 16, 1990, of Option 2 for payment of Florida Retirement System disability retirement benefits to Lon Emory Sweely, now deceased, and his beneficiary, the Petitioner, Richard A. Castillo, Jr., was invalid and ineffective; and (2) that the previous selection of Option 1 on the Form FR-13 executed on or about June 20, 1990, is valid and shall be given effect. RECOMMENDED this 20th day of January, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of January, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to the Petitioner, his actions were not in accordance with the statement.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 12.-14. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) Last sentence, not proven (as to expression of "clear and unqualified acknowledgment and understanding); also rejected as subordinate to facts not proven and as hearsay insufficient in itself to support a finding. (Taking as true that Sweely made such a statement to McWilliams, his actions were not in accordance with the statement, and McWilliams also testified that Sweely tried to remain "up-beat," thinking that this might extend his lifetime.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Specifically, it was clear that Sweely wanted the Petitioner, and no one else, to be his sole beneficiary and to be provided for after his death in the manner and to the extent to which he decided.) 17.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31. "Substantially," rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 32.-35. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (The evidence was that the Patient Care Technician Records were prepared near the beginning of each nursing shift and reflected conditions at that time. Meanwhile, there was evidence that the patient's mental state would "wax" and "wane." When the patient "waned" and was lethargic, it was difficult to communicate with him. Changes during the course of a shift may or may not be noted in the Progress Notes. While the Patient Care Technician Records indicate that the patient was both oriented and lethargic, the 8 a.m. progress notes indicate "lethargic at times." The progress notes also indicate that, earlier in the day, the patient had difficulty breathing without the non-rebreather mask and that, by 2 p.m., he was wearing the mask continuously. Even disregarding the possibility that the morphine dosage was enough to affect his judgment, the patient's lethargy and his difficulty breathing without the mask probably would have made it difficult for him to communicate on legal matters on the afternoon of August 16, 1990.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Ultimate and penultimate sentences, rejected in part as contrary to facts found and to the greater weight of the evidence. (He did not allege that Sweely could not communicate or write his name. He testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily. He did not think he had to discuss it with Sweely or have Sweely sign it.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, Dr. Breen's curt medical evaluation of Sweely's general medical condition on August 16, 1990, was not for the purpose of evaluating whether it was possible or prudent to have him considering legal documents and making important legal judgments. In addition, Dr. Breen saw the patient early in the morning and would not have seen changes during the course of the day. 11.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Rejected as contrary to the greater weight of the evidence that Castillo, Jr., "insist[ed] that Sweely was incompetent, unable to provide or receive meaningful communication on August 16--and could not execute the form himself . . .." (Rather, he testified that he did not think Sweely would have been able to think clearly or want to be troubled with the form unnecessarily.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Keith F. Roberts, Esquire 201 North MacDill Avenue Tampa, Florida 33609 Robert B. Button, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 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 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The central issue in this case is whether Petitioner is entitled to benefits for a deceased Florida Retirement System member.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: William H. Schlussler, Jr. was employed with the police department for Metro-Dade County beginning in June, 1970. On December 1, 1970, Mr. Schlussler became a member of the Florida Retirement System. Mr. Schlussler remained continuously employed and a member of the System until his death on September 30, 1986. On July 13, 1970, Mr. Schlussler designated his father, William H. Schlussler, Sr., as the sole beneficiary of benefits under the retirement system. On July 14, 1972, Mr. Schlussler married Mirta Schlussler, Petitioner herein. The couple remained continuously married until the time of Mr. Schlussler's death. Throughout the course of their marriage, the Schlusslers acquired property in their joint names. Property which Mr. Schlussler had owned prior to his marriage was transferred to include Mirta Schlussler. In connection with his work, Mr. Schlussler participated in a group life insurance program. After his marriage, Mr. Schlussler amended the beneficiary forms to provide Mirta Schlussler as his sole beneficiary for life insurance proceeds. At his death, Mirta Schlussler received those benefits. Mr. Schlussler intended to designate Mirta Schlussler as his beneficiary for benefits under the Florida Retirement System. And although he stated this intention to several co-workers/friends, documentary evidence to establish that he completed and filed a change of beneficiary form does not exist. Moreover, no one witnessed Mr. Schlussler execute and file a change of beneficiary form for the Florida Retirement System (FRS). The only form on file with the FRS was the one executed on July 13, 1970, which designated William H. Schlussler, Sr. the sole beneficiary. William H. Schlussler, Sr. survived William H. Schlussler, Jr.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration, Division of Retirement enter a Final Order denying benefits to Petitioner. DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2472 Rulings on Proposed Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted but is unnecessary to the determination made herein. Paragraph 5 is accepted but is irrelevant, immaterial, and unnecessary to the determination made herein. With regard to paragraph 6 and its subparts, the first two sentences are rejected as contrary to the weight of the evidence presented. However, subparts a., b., c., d., e., and f. are accepted. There is no doubt William H. Schlussler, Jr. intended his wife to receive all benefits available. Subpart g. is rejected to the extent it suggests Mr. Schlussler did, in fact, execute the required form. There was no direct evidence that this deceased completed the form required to change the beneficiary designation. Subparts h. & i. are accepted but cannot constitute proof of this deceased having executed the required form. Paragraph 7 is accepted but is unnecessary to the resolution of the issue herein. Paragraph 8 is rejected as irrelevant, immaterial and unnecessary. Paragraph 9 is accepted but is irrelevant, immaterial and unnecessary. The file destroyed was a duplicate not the sole file. Paragraph 10 is accepted. Paragraph 11 is rejected. Mr. Schlussler's file did not contain the form in issue. The absence of it does not prove its existence. Moreover, the file required, by statute, would be maintained by the Division. That the local government might also have the form would be a sound argument of its execution. Of course then the argument would be as to filing. In this case, the proof failed as to both execution and filing. The proof offered established only intent. COPIES FURNISHED: Donald D. Slesnick, II, Esquire 2285 Southwest 17th Avenue Miami, Florida 33145 William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32399-1560 Adis Vila, Secretary Department of Administration Division of Retirement 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner, Rina Richard DeMichael (“Petitioner”), the surviving spouse of David DeMichael, is entitled to change the Florida Retirement System (“FRS”) retirement benefits payment Option 1 selected by Mr. DeMichael.
Findings Of Fact Respondent is the state agency charged under chapter 121, Florida Statutes, with administering the FRS. In 1991, Mr. DeMichael began employment with the Broward County Sheriff’s Office (“BCSO”). Mr. DeMichael was a member of the FRS pension plan based on his employment with the BCSO as a deputy sheriff. Mr. DeMichael married Petitioner on November 19, 2011. On February 11, 2013, Mr. DeMichael retired from the BCSO. At that time, he signed the Florida Retirement System Pension Plan Application for Service Retirement form (“Application for Service Retirement Form”) designating Petitioner as his primary beneficiary. On February 11, 2013, Mr. DeMichael also signed the Florida Retirement System Pension Plan Option Selection for FRS Members form (Form FRS-110)(“Option Selection Form”). On the Option Selection Form, Mr. DeMichael was required to select one of four retirement benefit payment options. The Option Selection Form provided an explanation for each of the four options. Mr. DeMichael selected to receive an Option 1 retirement benefit by checking the line next to the Option 1 benefit payment option. Option 1 provides the maximum benefit for the life of the FRS member with no continuing benefit after the member’s death. On February 11, 2013, Petitioner signed the Spousal Acknowledgement Form (Form SA-1)(“Spousal Acknowledgement Form”) acknowledging that Mr. DeMichael “selected either Option 1 or 2.” The purpose of the Spousal Acknowledgement Form is to inform the spouse that he/she will not receive a lifetime benefit following the FRS member’s death. The Spousal Acknowledgement Form does not give a spouse control over which option the FRS member selects. That option selection decision is the sole choice of the member. The Spousal Acknowledgement Form provided an explanation of the four different retirement payment options available to FRS members. At the hearing, Petitioner acknowledged she signed the Spousal Acknowledgement Form. Ms. Tiffany Pieters was a duly licensed notary with the State of Florida and an employee of BCSO on February 11, 2013. Ms. Pieters notarized the Application for Service Retirement Form and Option Selection Form signed by Mr. DeMichael, and the Spousal Acknowledgement Form signed by Petitioner. The Division received Mr. DeMichael’s Application for Service Retirement Form, Option Selection Form, and Petitioner’s Spousal Acknowledgement Form on or about February 11, 2013. On February 20, 2013, Respondent mailed Mr. DeMichael an Acknowledgement of Service Retirement Application letter acknowledging Respondent’s receipt of Mr. DeMichael’s Application for Service Retirement Form; his selection of Option 1 as the benefit payment option; his employment termination date of February 11, 2013; and retirement date of March 1, 2013. The Acknowledgement of Service Retirement Application letter expressly provides that Mr. DeMichael cannot change the option he selected once his retirement becomes final, and that retirement benefits become final when any payment is cashed or deposited. Mr. DeMichael’s Application for Service Retirement Form and Option Selection Form also expressly provide that he cannot change the option he selected once his retirement becomes final, and that retirement benefits become final when any benefit payment is cashed or deposited. On February 20, 2013, Respondent also mailed Mr. DeMichael an Estimate of Retirement Benefit letter, which provides an estimate of the payment benefit for each of the four options. The letter also acknowledges that Mr. DeMichael selected Option 1, and that his option selection cannot be changed after any payment is cashed or deposited. On April 1, 2013, Respondent mailed a request for birth date verification to Mr. DeMichael. In response, on April 30, 2013, Respondent received Mr. DeMichael’s birth certificate. Based on his selection of Option 1, Mr. DeMichael received an initial retroactive payment of $7,809.76 on May 10, 2013; an initial regular retirement payment of $3,904.88 on May 31, 2013; and a subsequent retirement payment every month in 2013 in the monthly amount of $3,904.88. Mr. DeMichael received a retirement payment every month beginning May 2013 until he died on August 25, 2015. Mr. DeMichael received a total of 29 retirement payments for a total gross benefit amount of $119,832.92. Each retirement payment was cashed or deposited into Mr. DeMichael’s bank account. Respondent was notified of Mr. DeMichael’s death in August 2015. On or about October 6, 2015, Respondent notified Petitioner that Mr. DeMichael’s benefit had ended and that there would be no continuing benefit to her based on Mr. DeMichael’s Option 1 selection. In this proceeding, Petitioner claims she is entitled to change Mr. DeMichael’s Option 1 retirement benefit selection and receive a continuing monthly spousal benefit. In support of her position, Petitioner contends Mr. DeMichael’s selection of Option 1 is invalid because he lacked the mental capacity to make a retirement option at the time his Application for Service Retirement Form and Option Selection Form was submitted to Respondent. Based on the persuasive and credible evidence adduced at hearing, Petitioner failed to establish that Mr. DeMichael lacked the mental capacity to make a retirement option at the time his Application for Service Retirement Form and Option Selection Form were submitted to Respondent. No medical evidence was presented establishing that Mr. DeMichael was mentally incapacitated at the time he executed the Application for Service Retirement Form and Option Selection Form on February 11, 2013. In fact, Mr. DeMichael was released from Sunrise Detoxification Center on February 11, 2013, following in-patient rehabilitative treatment for his alcoholism. Petitioner’s Exhibit 7 expressly states that Mr. DeMichael “was medically stable for discharge” at 8:00 a.m. that morning. Moreover, Petitioner and Mr. DeMichael ate breakfast together later that morning at the BCSO cafeteria. Subsequently, Petitioner was escorted to the BCSO Internal Affairs area where she was questioned about Mr. DeMichael’s alcoholism. After Petitioner refused to answer any questions, she was escorted to the BCSO rooftop terrace. After a while, Mr. DeMichael came to the rooftop terrace. According to Petitioner, Mr. DeMichael was smiling and they exchanged pleasantries. After February 11, 2013, Mr. DeMichael continued to manage his own financial affairs, including his bank account. On April 1, 2013, Respondent sent a request to Mr. DeMichael to provide verification regarding his date of birth. In response, Mr. DeMichael sent his birth certificate to Respondent. Finally, at no time did Petitioner ever seek a guardianship or power of attorney over Mr. DeMichael, and at no time was Mr. DeMichael adjudicated incompetent by a court. Petitioner also claims that Mr. DeMichael’s selection of Option 1 is invalid and that she is entitled to a continuing benefit because she lacked the opportunity to read the Spousal Acknowledgement Form before signing it. Based on the persuasive and credible evidence adduced at hearing, Petitioner failed to establish that she lacked the opportunity to read the Spousal Acknowledgement Form before signing it. In support of her position, Petitioner testified at one point in the hearing that she only saw the area of the form near where she signed it. However, in the area of the form near where Petitioner signed (Respondent’s Exhibit No. 6) is the express “acknowledgement that the member has selected either Option 1 or 2.” At another point in the hearing, Petitioner testified she saw the small writing below her signature at the bottom of the Spousal Acknowledgement Form, but she did not read any of the writing. The small writing below Petitioner’s signature at the bottom of the form provides an explanation of the four retirement benefit payment options. Notably, Petitioner did not testify that she asked Ms. Pieters for any explanation of the Spousal Acknowledgement Form. Further, Petitioner did not testify that she needed or asked for more time to read the Spousal Acknowledgement Form before signing it, or that Ms. Pieters refused to allow her to read the form. Petitioner could have asked Ms. Pieters for more time to read the Spousal Acknowledgement Form if she felt it was necessary, but she did not. At no time did Petitioner ever file a complaint against Ms. Pieters or complain about her handling of the Spousal Acknowledgement Form. Had Petitioner been concerned about the Spousal Acknowledgement form or Mr. DeMichael’s mental capacity on February 11, 2013, she also could have spoken to Judy Cowell, Mr. DeMichael’s supervisor at BCSO. Ms. Cowell greeted Petitioner and Mr. DeMichael at the front office when they arrived at BCSO on the morning of February 11, 2013, and Ms. Cowell escorted them to the cafeteria and rooftop terrace. At hearing, Petitioner testified that Ms. Cowell “was like a mom,” and that she had spoken to her on numerous occasions when Mr. DeMichael had problems with his employment. At hearing, the undersigned had the distinct opportunity to observe Petitioner’s testimony and her demeanor. Petitioner’s testimony regarding Mr. DeMichael’s alleged mental incapacity on February 11, 2013, and her not having the opportunity to read the Spousal Acknowledgement Form and the alleged invalidity of the Spousal Acknowledgement Form, Option Selection Form, and Application for Service Retirement Form, is not credited and is rejected as unpersuasive. In sum, Petitioner is not entitled to change Mr. DeMichael’s selection of Option 1 as his FRS retirement benefits payment option and she is not entitled to a continuing benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to change the Florida Retirement System retirement benefits payment Option 1 selected by Mr. DeMichael and receive a continuing monthly spousal benefit. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 14th day of April, 2020. COPIES FURNISHED: James C. Casey, Esquire Law Offices of Slesnick and Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134 (eServed) Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue The ultimate issue is whether Julie E. Reeber, Alexander Reeber and Christine Tadry are entitled to receive survivor benefits payable under the Florida Retirement System (FRS) for Marjorie A. McCollum, deceased, under the facts and circumstances of the Case. The factual issue is whether Marjorie A. McCollum was incompetent when she made the designation of beneficiary and under the undue influence of her daughter Suzanne L. Benson.
Findings Of Fact In August of 1991, Ms. Marjorie A. McCollum, a member of the Florida Retirement System (FRS) applied for disability retirement benefits. (Deposition of Stanley Colvin). As part of her application for disability retirement benefits on Form FR-13 (Florida Retirement System Application for Disability Retirement), Ms. McCollum designated her daughter, Suzanne L. Benson, as her beneficiary. (Exhibit 1 of the deposition of Stanley Colvin). The designation reads, "All previous beneficiary designations are null and void. The beneficiary whom I designate to receive the benefit or refund at my death is Suzanne L. Benson." (Deposition of Stanley Colvin, Exhibit 1). According to the date on the form, Ms. McCollum signed the application on August 28, 1991, and was properly witnesses by a notary public, John T. West. (Testimony of Mary Shere). According to the application, Ms. McCollum was suffering from cancer. She selected the Option 2 retirement benefit. (Exhibit 1 of Stanley Colvin deposition). Ms. McCollum's application for disability retirement benefits, with the Option 2 retirement benefit, was approved by the Division of Retirement with an effective date of September 1, 1991. (Deposition of Stanley Colvin, Exhibit 9). Prior to receiving her first check, Ms. Marjorie McCollum died on September 23, 1991. (Deposition of Stanley Colvin, Exhibit 9). On November 4, 1991, the Division, by letter, notified Suzanne L. Benson that as designated beneficiary of Ms. Marjorie McCollum, she was entitled to the Option 2 benefit in the amount of $280.69 per month through August 31, 2001, for ten years. On November 19, 1991, the Division received a letter from Julia Reeber, another daughter of Ms. McCollum (the deceased), disputing the designation of her sister Suzanne L. Benson as the beneficiary. (Deposition of Stanley Colvin, Exhibit 16). As a result of the notice of dispute by Julia Reeber, the Division on November 26, 1991, notified Ms. Benson by letter that payment of the Option 2 benefit would not be forthcoming until the dispute was resolved. (Deposition of Stanley Colvin, Exhibit 12). The designation of beneficiary executed by Ms. McCollum was properly executed and filed with the Division of Retirement in accord with the Florida Statutes and rules pertaining to the designation of beneficiaries for Florida retirement benefits. (Deposition of Stanley Colvin). Suzanne L. Benson was the properly designated beneficiary, and the Division intended to pay the Option 2 benefit to Suzanne L. Benson in accord with the Division's rules. (Deposition of Stanley Colvin). Ms. McCollum suffered some deterioration of her mental faculties prior to her death because of her illness, she could no longer handle her financial matters, and needed aid from her children in the payment of her bills. However, at no time was the Petitioner legally declared incompetent. Testimony of Julie Reeber). Despite suffering from the ravages of the disease, Ms. McCollum was at times able to function in a normal matter without evidence of diminished mental capacity. (Testimony of Mary Shere). On August 23, 1991, the deceased came to the office of Ms. Mary Shere. Ms. McCollum had been a regular customer of Ms. Shere's beauty parlor and later her accounting service. Ms. Shere had known Ms. McCollum for over ten years. (Testimony of Mary Shere). On August 23, 1991, Ms. McCollum and Ms. Shere talked for an hour to an hour and a half regarding her illness and her application for disability retirement. Ms. McCollum expressed her desire for Ms. Shere to notarize the application for disability retirement benefits. Ms. McCollum told Ms. Shere that Ms. McCollum wanted her daughter Suzanne to be the beneficiary of her death benefits. However, they could not complete the designation of beneficiary because the form had not come. Another discussion concerning the arrival of the forms took place by telephone on August 24, 1991, between Ms. Shere and the Deceased. On August 26, 1991, Suzanne Benson telephoned Ms. Shere advising Ms. Shere that her mother had been hospitalized, and that she needed to come to the hospital in order to notarize the disability application. (Testimony of Mary Shere). On August 26, 1991, Ms. Shere accompanied by one of her employees, John West, visited Ms. McCollum in the hospital. In her presence, the application was signed by Ms. McCollum and notarized by John West. (Testimony of Mary Shere). Ms. Shere's very credible testimony was that Ms. McCollum knew what she was doing, was aware of what she possessed and knew she was terminal. Ms. McCollum made a knowing and rational decision to designate Suzanne L. Benson as her beneficiary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a Final Order be entered by the Division holding that Marjorie McCollum retired with an Option 2 retirement benefit and that Suzanne L. Benson, her designated beneficiary, receive the Option 2 benefit. DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992. COPIES FURNISHED: Julie E. Reeber 133 Kirkwood Drive Debary, FL 32713 Larry D. Scott, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 Rhonda B. Goodson, Esquire Post Office Box 4319 South Daytona, FL 32121 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2539 North Monroe Street Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 415 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Between October 1, 1988 and September 30, 1991, Petitioner's salary as the Director of the Department of Emergency Support Services for Hillsborough County was controlled by the compensation structure set forth in the Hillsborough County Exempt Service Classification and Compensation Plan (the Plan). His retirement system benefits were governed by Chapter 121, Florida Statutes as he was a member of the Florida Retirement System administered by the Division of Retirement. The Plan utilized by the County during this period of time created a pay structure for its exempt service employees that caused annual salary increases to be divided into two categories. The Plan referred to the categories as "merit increase" and "performance pay." Any salary adjustment under the "merit increase" category became part of the employee's adjusted base salary. "Performance pay" was an increase granted for a one year term. It was based upon work performance that exceeded performance standards during the preceding year. According to the Plan, the increase in salary from each of the categories was directly tied to the employees' annual performance rating. The possible percentages of the increases were regulated at the high end of the adjustment scale by a Maximum Performance Compensation Table. The one year "performance pay" increase could only be granted if the maximum "merit increase" was granted during the same evaluation. The method used to establish the pay increases for Petitioner under the Plan were applied because his salary was already above the midpoint of the pay grade the Plan dictated the County was willing to pay for the performance of his job when completed to the required standard. Salary increases above the midpoint were divided into the two separate categories in order to balance two distinct County interests. The first was to keep the maximum salary range in a pay grade aligned with the competitive salary indicators in the geographical area for the same type of work. The second was to annually reward each employee whose performance exceeded standards over the past year and to motivate continued high performance on an individualized basis. Petitioner's salary adjustments were divided between "merit increases" and "performance pay" for the three years which are the subject of this proceeding. During the time period between October 1, 1988 and June 30, 1989, the County was required to make a contribution into the Florida Retirement System for Petitioner's benefit. This contribution was a statutorily designated percentage of his monthly salary, including the annual "performance pay" increase. The inclusion of the "performance pay" increase was required by Subsection 121.021(22), Florida Statutes, which defines "compensation". In spite of this contribution into the system by the County, Subsection 121.021(24), Florida Statutes mandated that the Division had to exclude bonuses, whether paid as salary or otherwise, from the calculation of the "average final compensation" for a member seeking to establish the amount of his or her pension benefits. Effective July 1, 1989, the Legislature removed the provision in Subsection 121.021(22), Florida Statutes, which required employers to make a contribution into the system based upon a definition of "compensation" that included "bonuses" in the calculation. The Florida Retirement Systems Act has never included a definition of the word "bonus" as used in Subsections 121.021(22) and (24), Florida Statutes. The term, as used in Subsection 121.021(24) and as previously used in Subsection 121.021(22), is not plain nor the meaning clear. The term "bonus" is defined by the Division's rules, which excludes Petitioner's "performance pay" from any calculation of his "average final compensation." In its computation of Petitioner's "average final compensation", the Division determined that the "performance pay" category of the Hillsborough County Exempt Service Classification and Compensation Plan is a "bonus", as defined by Rule 22B-6.001(11), Florida Administrative Code. A definition of the term "bonus" is necessary to allow the Division to compute the "average final compensation" for each member of the system and for the determination of an employer's contribution into the Florida Retirement System on behalf of the member based on "compensation." Subsection 121.021(22), Florida Statutes, has consistently contained a clear definition of "compensation." The definition included the term "bonuses" until July 1, 1989 and excluded "bonuses" from the definition after that date. The definitions of "bonus" and "compensation" as set forth in Rules 22B-6.001(11) and (16)(a)3, Florida Administrative Code, establish adequate standards for agency decisions regarding retirement benefits. The definitions are based on relevant factors duly considered by the agency and they have been uniformly applied to all members.
