The Issue The issue in this case is whether Petitioner can rescind his election to join the Deferred Retirement Option Program and return to the status quo ante such election so that he can opt instead to participate in the Public Employee Optional Retirement Program.
Findings Of Fact Petitioner Dennis Valdez ("Valdez") began working for Miami-Dade County ("County") as a paramedic/firefighter in 1979. As a county employee, he became a member of the Florida Retirement System, which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). Firemen such as Valdez are assigned to the Special Risk Class, whose members are eligible for enhanced retirement benefits under the FRS. One advantage of being in the Special Risk Class is that the member's normal retirement date arrives after 25 years of service, rather than 30. Each year the County sends its employees a statement showing the value of their employment benefits, including retirement benefits. Valdez received such a statement for 2004. The statement informed him, among other things, that the County offered "pre-retirement counseling" to help "plan for those years ahead." In pertinent part the statement explained: Miami-Dade offers you assistance in applying for retirement with the Florida Retirement System, in reviewing your options and in selecting appropriate payment options for your Deferred Compensation account. Contact the Employee Benefits Unit . . . before you expect to retire to request an estimate of your FRS benefit. Early in 2004, Valdez began thinking about retirement because he would have 25 years of service at the end of July 2004. He decided to make an appointment for pre-retirement counseling through the County's Employee Benefits Unit. It was arranged for him to meet with Marti Garcia ("Garcia"), a Senior Employee Benefits Specialist, on April 15, 2004. When Valdez met with Garcia as scheduled on April 15, he was a participant in the defined benefit program ("Pension Plan") of the Florida Retirement System.1 He was also eligible to participate, upon reaching his normal retirement date, in the Deferred Retirement Option Program ("DROP"). A member who elects to participate in the DROP is allowed to continue working (and drawing his salary) for up to 60 months after his retirement date, during which time the member's pension is paid into a trust fund where it earns interest at a fixed statutory rate. At the conclusion of the member's participation in the DROP, the Division distributes to him the retirement benefits that have accrued. Valdez told Garcia that he was concerned about providing for his family, including his wife, who is younger than he, and their young children. Though Valdez had just turned 53, he advised Garcia that he did not want to remain employed as a fireman for much longer. He also asked Garcia if he could control the investment of his retirement benefits. Garcia explained to Valdez that, if he entered the DROP, he would be able eventually to invest his DROP benefits, when he terminated his employment with the County, at which point the Division would distribute the funds which had accumulated for his benefit while he was in the DROP. In Garcia's presence on April 15, 2004, Valdez signed an application to participate in the DROP, using the Division's required Form DP-11. The application specified a DROP begin- date of August 1, 2004, and a DROP termination-date of July 31, 2009. At the same time, Valdez executed a notice of election to participate in the DROP, using the Division's Form DP-ELE. The notice likewise specified a DROP begin-date of August 1, 2004, and a DROP termination-date of July 31, 2009. Valdez signed the application and the notice before a notary public (Garcia). Each form required Valdez to acknowledge that he could not "add additional service, change options, or change [his] type of retirement after the DROP begin date." Garcia counter-signed both instruments and submitted them to the Division. Thereafter the Division sent Valdez an Acknowledgement of DROP Application and/or Notice of Election Form confirming the Division's receipt of his DROP application paperwork on April 21, 2004. Valdez entered the DROP in August 2004. Valdez claims that some months later, he discovered that the Florida Retirement System offers another plan that provides participants a menu of market-based investment products and options in which they can invest their retirement benefits. Valdez decided that he preferred this plan——which is called the Public Employee Optional Retirement Program ("Investment Plan")——to the Pension Plan and the DROP. Therefore, in November 2004, Valdez wrote a letter to Garcia requesting that he be allowed to quit the DROP and switch to the Investment Plan. Garcia responded in writing to Valdez's letter, telling him that what he had requested was not an available option. Valdez then took his case directly to the Division, which turned him down as well. The Division's denial of Valdez's request to rescind his decision to participate in the DROP is the preliminary agency action that opened the door to this formal administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Valdez's request to rescind his election to participate in the DROP. DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of September, 2005.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has suffered an injury protected by the provisions of Chapter 120, Florida Statutes, when the Respondent, the superintendent of education of Escambia County, acting pursuant to his statutory authority, Section 1012.22(1)(a)(3), Florida Statutes, refused to re-nominate the Petitioner for employment.1/
Findings Of Fact At all times material hereto, Jim Paul served as the superintendent of Schools for Escambia County. Joe Bernard was the director of risk management for Escambia County Schools, supervised by Superintendent Paul. Mr. Bernard began working for the school district in 1986. In January 2000, he began serving as the risk manager. AON Consulting is a firm involved in arranging for and inaugurating employee benefit plans, such as medical and dental benefits. It consulted in such an effort for the School Board and had a contract with the Escambia County School District designed to help the district contract with various health care insurers concerning medical and dental benefits for district employees. Under its arrangement with the Escambia County School District, AON Consulting (AON) would bill the school district by the hour for its consulting services and additionally would charge for costs involved for travel, food, and lodging. The bills were submitted in total amounts without being itemized. When Mr. Bernard became the risk manager for the School Board and the superintendent, the AON contract was under his budgetary supervision. He was the administrator of that contract and was charged with ensuring that bills were authorized when submitted by AON and that services performed by AON and paid for by the school district were within budgetary requirements and guidelines. Mr. Bernard did not request or require that AON bills be itemized. When Mr. Bernard became the director of risk management, AON already had the consulting contract with the school district. For the fiscal year 2002-2003, the contract was awarded through a bidding process. Several vendors bid on securing the contract. Mr. Bernard served on the evaluation committee that reviewed all bids. Other members of the committee were Dr. Garber, Barbara Luker, and Gary Moyer. The evaluation committee interviewed the final two vendors/bidders and then recommended that the superintendent award the contract to AON. Mr. Bernard was the superintendent's expert with regard to insurance matters and the superintendent relied on him a great deal in determining who would be awarded the contract. Mr. Bernard recommended AON and the contract was awarded to AON. Thereafter, in February 2003, at a School Board meeting, Mr. Bernard arranged for an agenda item for the Board to consider regarding an increase he proposed to AON's "purchase order" so as to provide AON an additional $25,000. Ms. Stidham, an Escambia County School Board member had questions and concerns about the non-itemized billing received from AON. She wanted a detailed itemization on all AON invoices. Because of her concern, the issue she raised was referred to Sam Scallan, the Board's Director of Internal Auditing. Mr. Scallan conducted an analysis of invoices for AON Consulting and sent his findings to Superintendent Paul. The Scallan analysis indicated that AON was not billing for reimbursements in accordance with Florida Statutes. It indicated that expenses reimbursed by the district included some exorbitant meal expenses for district employees and their guests. It also indicated that the director of risk management (Mr. Bernard) and his guest, had been furnished with substantial meals on three different occasions and that other expenses reimbursed by the district to AON, included business dinners, a retirement gift, and cigars. Superintendent Paul ordered an investigation of the matter because of Mr. Scallan's analysis. Dr. Doug Garber, the assistant superintendent of Human Resources was appointed to conduct the investigation. Dr. Garber interviewed Mr. Bernard and took a recorded statement from him during his investigation. Mr. Bernard stated that he was familiar with the Florida Statute regarding gifts and gratuities, as well as the School Board policy and knew that "[Y]ou're not supposed to [accept gifts]." Mr. Bernard had developed a business and personal relationship with Chris Clark, the AON consultant, whereby each would purportedly take turns paying for each other's meals. When Mr. Clark was in town, he and Mr. Bernard would sometimes have breakfast, lunch or dinner together. They would take turns buying meals at McGuire's Restaurant and the Pensacola Yacht Club. They had a $400.00 meal expense at Sandor's Restaurant in South Walton County (for four people). Mr. Bernard maintains that he paid his share of that bill by giving Mr. Clark $200.00 in cash on that occasion. They also attended Atlanta Braves baseball games in Atlanta and three NASCAR races. Mr. Bernard maintains he paid Mr. Clark for the NASCAR racing tickets in cash. When on the Atlanta trips, they would have dinner at Bones Steakhouse in Atlanta. Mr. Clark would typically pick up the tab for the meal and Mr. Bernard and his guest would pay the tab for the remainder of the weekend (lodging, cab fare, drinks, etc.). Mr. Bernard stated that he did not know that Mr. Clark was billing improperly because the bills were never itemized. Mr. Bernard contends that Mr. Clark charged the school district for bills that Mr. Bernard had already paid for himself. Mr. Bernard testified that he always reciprocated when dealing with vendors. The reason he states he reciprocated or took turns in paying the restaurant and other bills is that he did not want to create the appearance of an impropriety. Cynthia Craig is an Escambia County school district vendor. She testified that she and Mr. Bernard would take turns buying lunches for each other but they would occasionally lose track of who's turn it was to pay. She also stated that she and Mr. Bernard would sometimes consume alcohol during business lunches. Dr. Garber provided Mr. Bernard with a number of opportunities to clear the matter up concerning the allegations. Mr. Bernard provided Dr. Garber with the names of two witnesses that he wanted to be contacted and interviewed who he felt had information favorable to him. Dr. Garber attempted multiple times to contact those witnesses but was unable to reach them. Dr. Garber told Mr. Bernard on two or three occasions that he had not been able to reach the witnesses and requested that Mr. Bernard get verification from his witnesses so their information could be included in Dr. Garber's report. Dr. Garber was prepared to give credence to the witnesses identified by Mr. Bernard and attempted to contact them, but was unable to subpoena them or otherwise force them to testify. Dr. Garber completed his investigation and issued a report on April 30, 2003. The report to the superintendent concluded that Mr. Bernard had not violated the Code of Ethics provided in Section 112.314(h), Florida Statutes, but that he did violate School Board Rule 3.08, which essentially prohibits employees from taking anything of value from vendors of the school district. As a result of the investigation AON reimbursed the school district $5,700.00, for expenses improperly billed by Mr. Clark. Mr. Bernard only provided receipts for $900.00 of such expenses. Mr. Bernard had not provided any additional receipts as of the time of the hearing, although he possibly could have obtained receipts from his credit card company or through cancelled checks obtained from his bank. Dr. Garber stated that he was prepared to consider any additional information shedding light on the subject matter of the investigation that Mr. Bernard could have provided, and gave him an opportunity to do so. Before taking any action regarding Mr. Bernard's future with the School Board and the superintendent's office, Superintendent Paul waited for the investigation to be completed. After the investigation was completed the superintendent decided not to re-new Mr. Bernard's contract. Superintendent Paul decided not to renew the contract because he believed that Mr. Bernard's effectiveness in negotiating future health insurance rates and plans for 10,000 employees, dependents, and retirees had been damaged. The superintendent had lost confidence in Mr. Bernard's judgment. On May 9, 2003, the superintendent sent Mr. Bernard a letter advising him that his employment contract would not be re-newed. He was allowed to serve-out the end of his existing contract, however, and then left the school district in May 2003 on administrative leave. His contract actually expired June 30, 2003. It was an annual employment contract. He had received all the pay he was entitled to under the contract and according to the terms of the contract, Mr. Bernard did not possess any expectancy of continued employment beyond the end of the 12- month term of the contract. Paragraph 9 of Mr. Bernard's contract of employment provided as follows: "It is expressly understood and agreed by and between the parties hereto that neither the Employee nor the School Board owes any further contractual obligation to the other after June 30, 2003, and that no expectancy of re-employment may be derived from the execution or performance of this agreement."
Recommendation Having consideration the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the petition of Joseph Bernard be denied. DONE AND ENTERED this 9th day of June, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2004.
The Issue Whether the Department of Management Services, Division of Retirement (“the Department”) should be equitably estopped from requiring Michael A. Fewless to return $541,780.03 of retirement benefits.
Findings Of Fact The following findings are based on witness testimony, exhibits, and information subject to official recognition. FRS and the Termination Requirement FRS is a qualified plan under section 401(a) of the Internal Revenue Code and has over 500,000 active pension plan members. The Department administers FRS so that it will maintain its status as a qualified pension plan under the Internal Revenue Code. Section 121.091(13), Florida Statutes (2018),1/ describes the benefits available to FRS members through the “Deferred Retirement Option Program (“DROP”): In general, and subject to this section, the Deferred Retirement Option Program, hereinafter referred to as DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the Florida Retirement System on behalf of the member, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the member shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Section 121.091 specifies that “[b]enefits may not be paid under this section unless the member has terminated employment as provided in s. 121.021(39)(a). ” Section 121.021(39)(a) generally provides that “termination” occurs when a member ceases all employment relationships with participating employers. However, “if a member is employed by any such employer within the next 6 calendar months, termination shall be deemed not to have occurred.” § 121.021(39)(a)2., Fla. Stat. Moreover, the employee and the re-employing FRS agency will be jointly and severally liable for reimbursing any retirement benefits paid to the employee. § 121.091(9)(c)3., Fla. Stat.2/ The termination requirement is essential to the FRS maintaining its status as a qualified plan under IRS regulations. As a qualified plan, taxes on FRS benefits are deferred.3/ The Department’s position is that after an entity becomes a participating employer, all new hires within covered categories are “compulsory members” of the FRS. If an entity has a local pension plan, then that entity must either close the plan before joining FRS or keep the plan open for members who exercise their right to remain in that plan. However, even if the entity chooses to keep the local plan open for current members, the local plan is closed to new members. The City of Fruitland Park, Florida (“Fruitland Park”), became an FRS employer on February 1, 2015. The mayor and commissioners of Fruitland Park passed a resolution on November 20, 2014, providing in pertinent part, that: It is hereby declared to be the policy and purpose of the City Commission of Fruitland Park, Florida that all of its General Employees and police officers, except those excluded by law, shall participate in the Florida Retirement System as authorized by Chapter 121, Florida Statutes. All General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System so stated therein. (emphasis added). The Department notified Fruitland Park during its enrollment into FRS that all new hires were compulsory members of FRS for covered groups. Facts Specific to the Instant Case After graduating from the Central Florida Police Academy in 1985, Mr. Fewless began working for the Orange County Sheriff’s Office (“OCSO”) as a deputy sheriff and patrolled what he describes as “the worst area of Orange County.”4/ After five years, Mr. Fewless transferred into the detective bureau in OCSO’s criminal investigations division. Mr. Fewless received a promotion to corporal two years later and returned to patrolling.5/ Mr. Fewless soon received a transfer to OCSO’s special investigation’s division and worked in the gang enforcement unit.6/ It was not long before he was promoted to sergeant and sent “back to the road.” After 10 months, OCSO asked Mr. Fewless to take over the gang enforcement unit where he was promoted to lieutenant and ultimately to captain.7/ During his tenure as a captain, Mr. Fewless was in charge of OCSO’s internal affairs unit for five or six years. Mr. Fewless concluded his nearly 30-year tenure with OCSO as the director of the Fusion Center and the Captain of the criminal intelligence section.8/ In sum, Mr. Fewless’s service with OCSO was exemplary, and he was never the subject of any disciplinary actions. Mr. Fewless entered the DROP program on June 1, 2011. As a result, he was scheduled to complete his DROP tenure and retire on May 31, 2016. On June 1, 2011, Mr. Fewless signed a standardized FRS document entitled “Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment.” That document contained the following provisions: I elect to participate in the DROP in accordance with s. 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 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 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. Termination requirements for elected officers are different as specified in s. 121.091(13)(b)(4), F.S. I cannot add service, change options, change my type of retirement or elect the Investment Plan after my DROP begin date. I have read and understand the DROP Accrual and Distribution information provided with this form. Mr. Fewless realized by 2015 that he was not ready to leave law enforcement. However, he was scheduled to retire from OCSO by May 31, 2016. Mr. Fewless had several friends who left OCSO as captains and took police chief positions with municipalities in Florida. Therefore, in anticipation of a lengthy job search, he began looking for such a position in approximately March of 2015. Mr. Fewless applied to become Fruitland Park’s police chief on March 26, 2015, and was offered the job in June of 2015 by Fruitland Park’s city manager, Gary LaVenia. Mr. Fewless learned from Mr. LaVenia that Fruitland Park had joined FRS and told him that he could not work within the FRS system. Mr. LaVenia then erroneously told Mr. Fewless that he would not be violating any FRS conditions (and thus forfeiting his DROP payout) because Fruitland Park had a separate city pension plan into which Mr. Fewless could be enrolled. As noted above, Fruitland Park had passed a resolution mandating that “[a]ll General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System. ” While Mr. Fewless was pleased with what Mr. LaVenia told him, he called an FRS hotline on July 9, 2015, in order to verify that he would not be endangering his retirement benefits by accepting the police chief position with Fruitland Park. Mr. Fewless’s question was routed to David Kent, and Mr. Fewless described how he was going to work for Fruitland Park and that Fruitland Park was an FRS employer. Mr. Kent told Mr. Fewless that he could go to work for Fruitland Park immediately without violating any FRS requirements so long as he was not enrolled into the FRS system. Instead of being an FRS enrollee, Mr. Kent stated that Mr. Fewless could enroll into Fruitland Park’s pension plan or enter a third-party contract.9/ Mr. Fewless assumed that Mr. Kent was an FRS expert and remembers that Mr. Kent sounded very confident in the information he relayed over the telephone. On July 14, 2015, Mr. Fewless filled out and signed a form entitled “Florida Retirement Systems Pension Plan Deferred Retirement Option Program (DROP) Termination Notification.” The form indicates that Mr. Fewless would be ending his employment with OCSO on August 1, 2015. In addition, the form notified Mr. Fewless of the requirements associated with receiving his accumulated DROP and monthly benefits: According to our records, your DROP termination date is 08/01/2015. You must terminate all Florida Retirement System (FRS) employment to receive your accumulated DROP benefits and begin your monthly retirement benefits. You and your employer’s authorized representative must complete this form certifying your DROP employment termination. Termination Requirement: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or noncovered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. Reemployment Limitation: You may return to work for a participating FRS employer during the 7th – 12th calendar months following your DROP termination date, but your monthly retirement benefit will be suspended for those months you are employed. There are no reemployment limitations after the 12th calendar month following your DROP termination date. If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). If you void your retirement, your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new employment termination date. You must apply to establish a future retirement date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP.[10/] (emphasis in original). Mr. Fewless’s Reliance on the Representations Made to Him Mr. Fewless placed complete trust in the representations made during his July 9, 2015, phone call to the FRS hotline and during his discussions with Fruitland Park’s city manager. When he left OCSO and accepted the police chief position with Fruitland Park, Mr. Fewless took a $33,000.00 annual pay cut and stood to receive $70,000.00 less from his DROP payout. It is highly unlikely he would have accepted those circumstances if he did not have a good faith basis for believing he was utilizing an exception to the termination requirement. In the months preceding his departure from OCSO, Mr. Fewless’s wife was being treated for a brain tumor. Following her surgery in May of 2015 and subsequent radiation treatment, Ms. Fewless returned to work for a month or two. However, given that the retirement checks Mr. Fewless had begun to receive were roughly equivalent to what Ms. Fewless had been earning, she decided to retire in order to spend more time with their grandchildren. During this timeframe, Mr. and Ms. Fewless decided to build their “dream home,” and Ms. Fewless designed it. They used a $318,000.00 lump sum payment from FRS to significantly lower their monthly house payment. Those actions would not have been taken if Mr. Fewless had suspected that there was any uncertainty pertaining to his retirement benefits. The Department Discovers the Termination Violation In November of 2017, the Department’s Office of the Inspector General conducted an audit to assess Fruitland Park’s compliance with FRS requirements. This audit was conducted in the regular course of the Department’s business and was not initiated because of any suspicion of noncompliance. The resulting audit report contained the following findings: (a) Fruitland Park had failed to report part-time employees since joining FRS; (b) Fruitland Park had failed to report Mr. Fewless as an employee covered by FRS; (c) Mr. Fewless’s employment with Fruitland Park amounted to a violation of FRS’s reemployment provisions; and (d) Fruitland Park failed to correctly report retirees filling regularly established positions. Because he had failed to satisfy the termination requirement, the Department notified Mr. Fewless via a letter issued on August 15, 2018, that: (a) his DROP retirement had been voided; (b) his membership in FRS would be retroactively reestablished11/; and (c) he was required to repay $541,780.03 of benefits. Mr. Fewless’s Reaction to Learning That He Had Violated the Termination Requirement Mr. Fewless learned on June 25, 2018, of the Department’s determination that he was in violation of the termination requirement. He responded on July 5, 2018, by writing the following letter to the Department: On the evening of, June 25, 2018, I was notified by Mr. Gary LaVenia, the City Manager for Fruitland Park, that he was contacted by members of the State of Florida’s DMS Inspector General’s office regarding a problem with my current retirement plan. No additional information was shared during this initial telephone conversation and we scheduled a meeting for the following day. On June 26, 2018, I met with Mr. Gary LaVenia, Ms. Diane Kolcan, Human Resource Director and Ms. Jeannine Racine, the Finance Director regarding this matter. I was advised that members of the Department of the Florida Retirement System told them that I was in violation of receiving my current retirement benefits because I failed to take a six month break between my retirement with the Orange County Sheriff’s Office and joining the City of Fruitland Park. I explained to them that there must be some mistake because I am not currently enrolled in the Florida Retirement System through the City of Fruitland Park. The City enrolled me in their “City” pension plan. Mr. LaVenia agreed with me and we closed the meeting with me advising them I would do some additional research on the matter. * * * I then reached out to Mr. Chris Carmody, an attorney with the Gray/Robinson Firm, whom I worked with on legislative issues in the past. . . . I explained to him that according to the Inspector General’s report, I needed to have a six month separation between the Orange County Sheriff’s Office and the City of Fruitland Park, because both agencies participated in the Florida Retirement System. Mr. Carmody still did not feel that was a violation because I was not enrolled in the FRS Plan with the City of Fruitland Park, but rather their independent City pension plan. I felt the same way; however he wanted to continue to research the issue. A few hours later I received a telephone call from Mr. Carmody indicating the problem appears to be that the “City” participates in the FRS Pension Plan and even though I do not, I would be prohibited from working there for the six month period. After hearing this news, I immediately contacted Ms. Amy Mercer, the Executive Director of the Florida Police Chief’s Association. I explained the dilemma to her and just like the previously mentioned individuals she said “so what did you do wrong, that sounds ok to me. ” Ms. Mercer said she would reach out to the two attorneys that support the Florida Police Chief’s Association to get their opinion of the situation. The following morning, Ms. Mercer advised me that according to Attorney Leonard Dietzen my actions were in violation of the Florida Retirement Pension Plan Rules. Mr. Dietzen explained to her that I needed a six month separation from my employment with the Florida Retirement System and the City of Fruitland Park, because the City participated in the FRS Pension plan. Therefore, based on the above information [and] the realization that an innocent mistake had been made, please let me explain my actions: * * * In either June or July of 2015, I officially interviewed for the position of Police Chief for the City of Fruitland Park. . . . Approximately one week after the interviews, I was offered the position of Police Chief for the City of Fruitland Park. In July of 2015, I contacted the official FRS Hotline regarding my potential decision to join the Fruitland Park Police Department. I informed them that I was currently employed with the Orange County Sheriff’s Office and enrolled in DROP. I advised them that I was considering accepting the position of police chief with the City of Fruitland Park; however I wanted to confirm with them that I would have no issues with my retirement. I explained that the City of Fruitland Park was currently an FRS department; however they also had a separate “City” pension plan which I was going to be placed in. I wanted to confirm that this would not negatively impact my retirement benefits. I was advised that as long as I was enrolled in the “City” pension plan, I would be fine. The FRS employee also added that he heard other “new chiefs” were doing an “independent contract” with the City for a one year period, but he assured me either way would be fine. I concluded my telephone conversation and proceeded forward. I then began the employee benefits negotiations process with Mr. LaVenia. At the time of the negotiations, I realized I would be receiving my Florida Retirement check on a monthly basis and my wife was also employed as the vice-president of the Orlando Union Rescue Mission in Orlando, Florida. Therefore money was not my primary concern for this position and I surrendered my much larger salary with the Orange County Sheriff’s Office to become the Chief of Police for Fruitland Park for $70,000 per year. I officially accepted the position with the City of Fruitland Park, and informed Mr. LaVenia that I could not participate in the Florida Retirement System; however according to the FRS Hotline employee I could be placed in the city pension plan or sign a contract for a one year period. Mr. LaVenia recommended that I be placed in the city pension plan and had the appropriate paperwork completed. * * * It is important to recognize that I felt I took all the necessary steps to act within the guidelines of the Florida Retirement System. After all, I had worked for over thirty years with the Orange County Sheriff’s Office with an impeccable record and with the intent of securing a retirement package that would protect my wife and family for life. In conclusion, I feel I have been let down by the system in two very key areas regarding this matter: In July 2015, not only was I preparing for retirement and a new job; but my wife was experiencing serious medical issues that required surgery and radiation treatments for months at Shands Hospital. Although my mind was focused on her condition, I still felt it was extremely important to contact the FRS Hotline regarding my potential new position. My desire was to make sure I did not do anything that would jeopardize the retirement plan I worked for my entire career. The advice I was given by the FRS Hotline employee/professional apparently was terrible. Not only did he indicate I could go under the “City” pension plan, he further recommended that other chiefs have decided to do a “contract” with the city for a one year period to account for the separation from the FRS system. Clearly had this employee indicated by any means that the position with Fruitland Park would or possibly could jeopardize my retirement, I would have run away from this opportunity . . . * * * In July and August of 2015, while I was completing the hiring process with the City of Fruitland Park, management and/or staff should have cautioned me about the potential risk to my Florida Retirement Pension if I proceeded with the process. * * * Clearly, whoever made the decision to proceed with processing me was unaware of two things. (1) I would be violating the six month separation rule if I stopped my employment with the Orange County Sheriff’s Office on August 1, 2015 and began employment with Fruitland Park one day later on August 2, 2015. (2) The only pension plan available to new employees with the City of Fruitland Park had to be the Florida Retirement System. * * * I now understand from going through this procedure that there [was] an unintended error in how I officially retired from the Orange County Sheriff’s Office and began my employment with the Fruitland Park Police Department. It is important to mention that Sheriff Kevin Beary and Sheriff Jerry Demings chose me to command their Professional Standards Division on two separate occasions because they knew I was a man of integrity and would always “do the right thing.” I had no intent to skirt the system and/or do anything unethical. I can assure you nobody raised a red flag over this position prior to this incident; and I would have immediately stopped my efforts had I been aware of this rule. Mr. Fewless’s Current Situation While working as Fruitland Park’s police chief, Mr. Fewless’s salary and retirement benefits totaled $12,000.00 a month. In order to avoid accumulating more penalties, Mr. Fewless retired from his police chief position with Fruitland Park on August 31, 2018. Mr. Fewless has not received any FRS benefits since September 1, 2018. There was a three-month period when he was receiving no money. Mr. Fewless has been employed by the Groveland Police Department since March 4, 2019. Mr. Fewless describes his current financial situation as “dire” and says he and his wife are “wiped out.” They may need to sell their “dream house,” and they borrowed $30,000.00 from their daughter in order to litigate the instant case. In addition, the contractor who built the Fewless’s dream home failed to pay subcontractors for $93,000.00 of work. While the Department notes that Mr. Fewless stands to receive a higher monthly benefit, he disputes that he is somehow in a better position: No, I am not in a better position. The $542,000 that will be taken away from me because of what clearly could have been handled with one phone call from a representative of FRS – the difference in pay between my former retirement salary and my new retirement salary based on the recalculations will go from $6,000 to $7,000 a month. That means in order for me to recoup the $542,000 that the state was referring to, I would have to work 542 months. I don’t think I’ll live that much longer, No. 1. And No. 2, that doesn’t take into consideration interest and everything else that was part of that, if that makes sense. Mr. Fewless has filed a lawsuit against Fruitland Park. Ultimate Findings of Fact12/ Mr. Fewless’s testimony about his July 9, 2015, phone call to the FRS hotline is more credible than Mr. Kent’s. Mr. Fewless’s descriptions of that phone call are very consistent, and the Department has not directed the undersigned to any instances in which an account of that phone call by Mr. Fewless differed from his testimony or his July 5, 2018, letter to the Department.13/ This finding is also based on Mr. Fewless’s demeanor during the final hearing. Moreover, Mr. Fewless was not attempting to “game the system.” Given Mr. Fewless’s exceptional record of public service, it is very unlikely that he would knowingly and intentionally attempt to engage in “double dipping” by violating the termination requirement. It is equally unlikely that Mr. Kent can accurately remember what he told Mr. Fewless during a single phone call on July 9, 2015. Rather than questioning Mr. Kent’s veracity, the undersigned is simply questioning his ability to recall the content of a single phone call that appears to have been unremarkable.14/ It is also difficult to believe that Mr. Fewless would accept the police chief position with Fruitland Park and build an expensive “dream house” after being told by Mr. Kent that he would be violating the termination requirement.15/ Mr. Fewless’s reliance on Mr. Kent’s statement was entirely reasonable given that the arrangement described by Mr. LaVenia sounded like an imminently plausible exception to the termination requirement. Mr. Fewless’s subsequent actions in reliance of that statement were extremely detrimental to himself and his family. Finally, the circumstances of the instant case are analogous to other cases in which appellate courts have held that the enhanced requirements for estopping the government had been satisfied. In other words, Mr. Kent’s misrepresentation amounted to more than mere negligence, the Department’s proposed action would result in a serious injustice, and the public interest would not be unduly harmed by Mr. Fewless retaining the retirement benefits he earned through his public service with OCSO.
Conclusions For Petitioner: Ryan Joshua Andrews, Esquire Brian O. Finnerty, Esquire Johana E. Nieves, Esquire The Law Offices of Steven R. Andrews, P.A. 822 North Monroe Street Tallahassee, Florida 32303 For Respondent: Thomas E. Wright, Esquire Sean W. Gillis, Esquire Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
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 rescinding its proposed action that Michael A. Fewless’s FRS DROP retirement be voided and that he be required to repay all retirement benefits as provided in Florida Administrative Code Rule 60S- 4.012. DONE AND ENTERED this 18th day of July, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of July, 2019.
The Issue The issue in the case is as set forth in the Notice of Forfeiture of Retirement Benefits dated November 10, 2005, and issued by the Department of Management Services, Division of Retirement (Respondent), to Richard Brandenberger (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Orange County Board of County Commissioners as a correctional officer at the county jail and participated in the Florida Retirement System (FRS). The Respondent is the state agency charged with administering the FRS. The applicable position description for employment by Orange County as a correctional officer included, in relevant part, the following description of the job duties: Supervises inmates to prevent altercations, intimidation, undesirable or illegal acts, intercedes when necessary, and to ensure the safety of the facility, other Correctional staff and the inmates. On or about October 29, 2003, a grand jury issued a one-count indictment against the Petitioner as follows: On or about July 3, 2003, in Orange County, Florida, defendant knowingly and intentionally possessed with intent to distribute and distributed Methylenedioxymethamphetamine ("MDMA") commonly known as "ecstasy", and marihuana, controlled substances listed in Schedule I of 21 U.S.C. Section 812, all in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D). The Petitioner was subsequently arrested. He then retired from employment in December 2003 and began receiving benefits from the FRS the following January. On or about January 29, 2004, the Petitioner, represented by legal counsel, entered a plea of guilty to the indictment and executed a written plea agreement that stated in material part as follows: Count Pleading To The defendant shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with possession with intent to distribute and distribution of MDMA and marihuana, in violation of 21 U.S.C. Sections 841(a)(1). * * * Elements of the Offense The defendant acknowledges understanding the nature and elements with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: That defendant knowingly possessed or distributed MDMA or marihuana as charged; and Second: That defendant possessed the substance with the intent to distribute it. * * * Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order stating that the Petitioner has forfeited his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner’s employment with Respondent terminated on May 31, 2003, or whether Petitioner continued to be employed by Respondent during the next calendar month.
Findings Of Fact Petitioner Babu Jain was hired by Florida Agricultural and Mechanical University (FAMU) as a physics professor in September, 1967. He became an associate professor with tenure in 1979 and a full professor in 1996. The exact date of his last day of employment is a central issue in this case. In 1998, Dr. Jain learned of the DROP program. After reviewing written materials regarding DROP for nearly a year, Dr. Jain decided to join DROP in 1999. He executed Forms DP-11 and DP-ELE, indicating his election to participate in DROP. Form DP-ELE is entitled, "Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment." Form DP-ELE includes the following: "RESIGNATION FROM EMPLOYMENT TO PARTICIPATE IN THE DROP - I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes . . . and resign my employment on the date I terminate from the DROP." The form contains Dr. Jain’s notarized signature below the following: "I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S." Dr. Jain signed the form on October 12, 1999. The bottom portion of Form DP-ELE is to be completed by the agency head or designated representative. Within that portion of the form, the signature of Nellie Woodruff, Director of Personnel Relations at FAMU, appears following an acknowledgement: "I acknowledge that DROP participation for Babu L. Jain will begin on 06/01/1999, and I accept his resignation effective 05/30/2003 (the date the employee’s DROP participation will terminate)." This portion of the form indicates that it was signed by Ms. Woodruff on November 10, 1999. Sometime in the early part of 2003, Dr. Jain, for personal and financial reasons, decided that he wanted to relinquish his participation in DROP. He was aware that if he did so, he would forfeit all accumulated DROP moneys. Dr. Jain first relayed his desire to FAMU by verbally informing Dr. Henry Williams, the Assistant Dean of the College of Arts and Sciences, who was in charge of science departments. This conversation took place in approximately mid-February, 2003. On March 18, 2003, Dr. Jain sent a letter to Dr. Larry Rivers, Dean of the College of Arts and Sciences, which read in pertinent part as follows: This letter is in connection with my 1999 DROP application. I would like to inform you that I am finding my circumstances very unfavorable to accept the DROP at this time and, hence, I will not be taking the retirement in May 2003. Dr. Jain sent a copy to, among others, Dr. Gladys Lang, who was the Acting Provost and Vice President of Academic Affairs at that time. She did not take any action regarding Dr. Jain’s letter because it was her understanding and belief that no action was necessary. It was her understanding and belief that that Dr. Jain notified the University of his decision to withdraw from DROP and that no action was necessary on her part, "because I believed that the participants in DROP could make that decision that they wanted to continue to work and did not want to continue in the DROP program. I did nothing." She considered her decision not to take any action on Dr. Jain’s letter to be an acceptance of his decision. However, Dr. Lang acknowledged that had the letter been addressed to her, rather than her receiving a copy of it, she would have responded. Dr. Jain did not receive any response to his March 18, 2003, letter to Dr. Rivers. Because of this, Dr. Jain wrote again to Dr. Rivers on April 18, 2003, in which he reiterated that he did not want to retire in May 2003. Dr. Jain received a Termination Notification Form, Form DP-TERM, from the Division of Retirement in February 2003. Form DP-TERM specifies that it must be completed by both the DROP participant and the employer. It reads in pertinent part as follows: According to our records, your DROP termination date is 05/31/03. This form must be completed by both you and your employer and returned to the Division of Retirement in order to receive your DROP benefits and your monthly retirement benefits. In order to collect DROP, you must agree to the following statements. I understand that I cannot accept work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity . . . during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to my enrollment date in DROP. I understand that if I forfeit my DROP benefit, my employer will be responsible for making retroactive retirement contributions and I will instead be awarded service credit for the time period during which I was in DROP. I will be eligible for a service retirement benefit based on my new termination date. I will be responsible for submitting an Application for Service Retirement. My retirement benefit will be based on my creditable service and salary, including such service and salary earned while in DROP. Dr. Jain did not sign Form DP-TERM. It is not clear from the record whether FAMU was even aware that Dr. Jain received this form. In any event, the portion of the form which is to be completed by the employer certifying that the employee has or will terminate employment is not signed by anyone from FAMU. Dr. Bill Tucker is a faculty member of the physics department and is president of the FAMU chapter of the United Faculty of Florida. On or about April 19, 2003, Dr. Tucker met with Dr. Rivers regarding Dr. Jain’s intention not to retire. Dr. Tucker left that meeting with the impression that Dr. Rivers had accepted Dr. Jain’s decision to remain a faculty member at FAMU and not retire in May 2003. Following that meeting, Dr. Jain wrote a letter dated April 21, 2003, to Dr. Rivers thanking him for his support and understanding the he, Dr. Jain, had decided not to retire. The letter also reminded Dr. Rivers that Dr. Mochena had not yet given him his 2003-2004 assignment of responsibilities, and requested that Dr. Rivers ask Dr. Mochena to do so at his earliest opportunity. Dr. Rivers did then call Dr. Mochena regarding preparing a schedule for fall semester for Dr. Jain. Dr. Mochena described the call as a "very quick call." As a result of that call, Dr. Mochena issued an Assignment of Responsibility Form on April 23, 2003, for Dr. Jain for the fall 2003 semester. While Dr. Rivers insisted at hearing that his intention was that Dr. Jain be assigned teaching duties on an adjunct basis, he acknowledged, and Dr. Mochena confirmed, that the assignment of responsibilities for Dr. Jain for fall of 2003 was not of a type that would have been given to an adjunct professor. Sometime after April 23, 2003, Dr. Jain asked Dr. Mochena to assign him teaching responsibilities for the summer of 2003. Dr. Mochena had already made his summer teaching assignments. He assumed, however, that since Dr. Jain was being assigned fall classes, that it was it would be appropriate to assign summer classes to Dr. Jain as well. On May 2, 2003, Dr. Mochena issued an Assignment of Responsibility Form for Summer Term "C" 2003, which was for 12 weeks. This was signed by Dr. Jain and Dr. Mochena on May 2, 2003. While Dr. Mochena's assignment of summer teaching responsibilities to Dr. Jain was as a result of Dr. Jain’s request and not at the request of the Dean’s office, Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, and Dr. Larry Rivers signed the Assignment of Responsibility Form for Summer Term "C" for Dr. Jain on May 5 and 6, 2003, respectively. Dr. Williams and Dr. Rivers also signed two forms on May 5 and 6, 2003, respectively, regarding Dr. Jain entitled "Recommendation for Faculty Employment." One was for the period of employment designated May 12, 2003 to June 30, 2003. The second was for the period July 1, 2003 to August 1, 2003. These recommendations went to the new Provost, Dr. Robinson. Dr. Larry Robinson became Provost and Vice President of Academic Affairs of the University on May 5, 2003. On May 20, 2003, Dr. Robinson signed two employment contracts regarding Dr. Jain for Summer Term "C." The first contract period was May 12, 2003 to June 30, 2003. The period of the second contract was July 1, 2003 until August 1, 2003. There were two contracts covering the summer term because the "C" summer term during which the physics courses were taught, extended into the next fiscal year. There is a section on the two summer contracts entitled "Tenure Status." There is an "X" beside the designation "Tenured." On May 21, 2003, Nellie Woodruff sent a memo addressed to Dr. Robinson which stated as follows: SUBJECT: DROP Termination Date for Babu L. Jain We are requesting your intervention in bringing closure to the subject employee’s request to withdraw from the DROP and continue his employment with the University subsequent to May 31, 2003. Enclosed are copies of the documents which were received in this Office from both Dr. Jain and the Division of Retirement. Please advise this office by May 30, 2003, regarding the appropriate action to take relative to Dr. Jain’s request for withdrawal from the DROP and remaining an employee of the University. According to Dr. Robinson, Ms. Woodruff’s May 21, 2003, memorandum to him was the first time he "officially" became aware of the issue regarding Dr. Jain. That is, he was generally aware of the fact that several employees were approaching their retirement date and entering DROP. Dr. Jain’s designated retirement date was a month earlier than the other FAMU DROP participants who had a June 30, 2003, DROP termination date. Whether Dr. Robinson had unofficial knowledge of Dr. Jain's retirement date or of his desire to withdraw from DROP at the time he signed the two summer contracts is unclear based upon his testimony. As a result of learning of Dr. Jain’s situation, Dr. Robinson sent a certified letter to Dr. Jain dated May 27, 2003, which read as follows: This comes in response to your request to void your participation in the Deferred Retirement Option (DROP) program. It appears from your correspondence of April 18, 2003, addressed to Dr. Larry Rivers, Dean of the College of Arts and Sciences, that you believe the decision to void your participation is a unilateral one. On the contrary, the decision to void your participation in DROP is a mutual one, requiring the University’s assent. The University is not in agreement with your decision to void your participation in DROP. I call your attention to two documents, Form DP-ELE and Form DP-11, which are on file with your signature. Specifically, Form DP- ELE reads in relevant part as follows: "I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated above and resign my employment on the date I terminate from the DROP." Additionally, Form DP-11 reads in relevant part as follows: "I have resigned my employment on the date stated above and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.).” Regrettably, the University must inform you that it will follow the guidelines for DROP as outlined in the aforementioned Florida Statutes and cannot support your request to void your application in DROP. I also call your attention to Florida A&M University Rule 6C-10.211(2)(c), Florida Administrative Code which is enclosed with the aforementioned forms. Thank you for your many years of service to the University. The Division of Retirement issued a letter, dated May 5, 2003, to Dr. Jain with Form DP-VOID enclosed. Dr. Jain insists he did not receive it in the mail and, therefore, went to the Division of Retirement on May 29, 2003, to pick it up. In any event, he signed the DROP-VOID form on May 29, 2003, and took it to FAMU in an attempt to get it executed by Dr. Rivers or Dr. Robinson. The DROP-VOID form contains a section entitled "Employer Certification" which reads as follows: This is to certify that the (agency name) has rescinded the resignation of the above named member, and the member will continue working in a regularly established position with FRS ceverage. We understand the member’s DROP participation will be null and void, the membership in the FRS Pension Plan will be reestablished to the date the member joined the DROP and we will begin immediately reporting the correct retirement plan and contributions to the Division of Retirement. FRS will adjust previous payrolls reported under DROP based upon the member not having joined the DROP. In addition, we understand that contributions, plus interest, may be required. Future payrolls should reflect the retirement plan of active membership. Despite Dr. Jain’s efforts on May 29 and 30, 2003, to get this form signed, the DROP-VOID form was not signed by anyone at FAMU. On either May 29 or 30, 2003, Dr. Mochena received a call from Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, who instructed Dr. Mochena to end Dr. Jain’s summer employment and to reassign Dr. Jain’s classes to another instructor. Dr. Mochena assigned Mr. Jay Jackson to teach Dr. Jain’s classes beginning Monday, June 2, 2003. Dr. Robinson wrote a second letter to Dr. Jain on May 30, 2003, which read in pertinent part as follows: Dear Dr. Jain: This letter is to inform you that the two Summer Semester Employment Contracts, May 12, 2003 to June 30, 2003, and July 1, 2003 to August 1, 2003, were issued in error to you due to the fact that your DROP retirement date is May 31, 2003. As a result, you will be paid through May 30, 2003 for your services to the University and the University will consider you to have retired as of May 31, 2003. On Monday, June 2, 2003, Dr. Jain arrived at his classroom where Mr. Jackson was teaching. Dr. Jain left the classroom and went to see Dr. Mochena. Dr. Jain learned from Dr. Mochena that he had been instructed by the Dean prior to Saturday, May 31, 2003, to replace Dr. Jain with another instructor. Dr. Jain continued to go to his office for several days after June 2, 2003, "doing things I usually do. Do some research, study, read." He did not teach any classes in June 2003. Each department submits a payroll certification indicating the number of hours that an employee worked during a pay period. The payroll certification signed by Dr. Mochena on June 4, 2003, for the pay-period May 23 through June 5, 2003, initially indicated that Dr. Jain worked 79.3 hours. However, the 79.3 was crossed out and replaced with 47.58. The 47.58 was in handwriting, not typed as the rest of the numbers on the certification sheet which included the entry of 79.3 hours. The record is not clear as to who made the correction or when it was made. According to Ms. Woodruff, however, it is not the practice of the payroll section to change any certifications after the fact. Additionally, once an employee in a salaried position is added to the payroll, he/she is automatically issued a paycheck based upon the contract, unless some action occurs. In any event, the payroll section did not make an adjustment in Dr. Jain’s pay for the pay-period May 23 through June 5, 2003. Dr. Jain’s received an Earnings Statement reflecting a "pay date" of June 13, 2003, and a pay-period of 05/23/2003- 06/05/2003 reflecting regular wages of $3,266.11. Subsequently, the payroll office at FAMU completed a Refund for Overpayment of Salary form and submitted it to the Office of the Comptroller, Bureau of State Payrolls. In the section entitled, Reason for Adjustment, the payroll office wrote, "DROP end date 5/30/03." A salary refund in the amount of $898.33 was deducted from Dr. Jain’s sick leave payout on June 20, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letters of May 27 and 30, 2003, and reinstating Petitioner to employment effective June 1, 2003, including all salary and benefits for that period of time.1/ DONE AND ENTERED this 17th day of May, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2004.
The Issue The issue is whether Petitioner is entitled to receive survivor benefits from a joint and survivor annuity, under Option 3 of the Florida Retirement System (FRS) defined benefit plan, following the death of her spouse, Anne M. Birch, who, as an FRS member, elected Option 1 in 2012 when Florida law would not allow Ms. Birch to elect Option 3 or 4 and designate the joint annuitant as Petitioner, whom she lawfully married after electing Option 1.
Findings Of Fact Ms. Birch, who was born on September 12, 1950, and Petitioner, who was born on August 26, 1956, fell in love and began to live together in 1992. They jointly owned all significant property, including their primary residence, with a right of survivorship and were jointly liable for household expenses and debt, including the mortgage note on their primary residence. On January 31, 2001, Ms. Birch executed a will that left any remaining property to Petitioner and named her as the personal representative of the estate.1/ Ms. Birch designated Petitioner as her primary beneficiary for employee benefits that authorized such designations. On October 11, 2002, Ms. Birch and Petitioner signed an Amended Declaration of Domestic Partnership, pursuant to the Broward County Domestic Partnership Act of 1999, to register themselves as domestic partners under Broward County Ordinance 1999-18. Fully vested and having accrued substantial benefits from having worked for Broward County in an FRS-covered position for nearly 30 years, on October 23, 2012, Ms. Birch entered DROP, effective October 1, 2012. At that time, Ms. Birch elected Option 1 for the payment of her benefits, checking the "no" box in response to the question of whether she was married. As described in the Conclusions of Law, Option 1 is the maximum benefit and is payable for the life of the retiree. Ms. Birch's monthly Option 1 benefit was $3039.25. The monthly Option 3 benefit, which, as described below, is payable until the latter death of the FRS member or her surviving spouse,2/ would have been nearly $1000 less than the monthly Option 1 benefit.3/ Respondent implemented Ms. Birch's election by paying Ms. Birch's Option 1 benefits into her DROP account. In August 2013, Ms. Birch became ill with cancer. She eventually had to quit working and terminated DROP, at which point Respondent paid Ms. Birch her Option 1 benefits directly. On June 16, 2014, Ms. Birch and Petitioner were lawfully married in Massachusetts. Almost two years later, on May 24, 2016, Ms. Birch died, at which time all payments under Option 1 ended. When Ms. Birch and Petitioner registered as domestic partners in Broward County, no state allowed or recognized same- sex marriage, often pursuant to a "Defense of Marriage Act" (DOMA). Continuously since 1997, Florida law banned the allowance and recognition of same-sex marriage, even if performed in a jurisdiction where such a marriage were legal, and restricted "marriage" to a legal union between a man and a woman and "spouse" to a member of such a union. § 741.212(1) and (3); Ch. 97-268, § 1, at 4957, Laws of Fla. (Florida DOMA).4/ Massachusetts was the first state to allow and recognize same-sex marriage, effective in 2004. Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941 (Mass. 2003) (decision stayed 180 days to allow legislature to enact law consistent with the court's ruling). Three or four years after Goodridge, Ms. Birch and Petitioner visited Massachusetts, but did not exercise their right to enter into a lawful marriage at that time. A series of court decisions invalidated the federal and state DOMAs, including the Florida DOMA. On June 26, 2013, the U.S. Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), held that the federal DOMA, as applied to federal tax law, was unconstitutional. By order entered August 21, 2014, in Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014) (Brenner I), Respondent was enjoined from enforcing or applying the Florida DOMA, although the court stayed its injunction. The U.S. Supreme Court lifted the stay,5/ as reported by the district court in Brenner v. Scott¸ 2016 U.S. Dist. LEXIS 91969 (N.D. Fla. 2016) (Brenner II), in which, on March 30, 2016, the court issued a summary judgment on its injunction in Brenner I. Between Brenner I and Brenner II, on June 26, 2015, the U.S. Supreme Court held that state DOMAs were unconstitutional in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Petitioner testified that she and Ms. Birch would have been lawfully married by October 2012, when Ms. Birch retired, but for the Florida DOMA. This testimony is credited. Long prior to 2012, Ms. Birch and Petitioner organized their financial affairs as though they were lawfully married, sharing assets and liabilities equally. Petitioner testified credibly that she and Ms. Birch always "played by the rules": thus, Ms. Birch and Petitioner would have been deterred from getting married prior to Ms. Birch's retirement, such as when they were visiting Massachusetts in 2007, due to the legal futility of attempting to obtain recognition in Florida of a marriage lawfully performed elsewhere. Less persuasive is Petitioner's testimony that, in October 2012, Ms. Birch would have elected Option 3, if this option had been available to her, and it is impossible to find on this record that she would have done so. There is no evidence that Ms. Birch and Petitioner rearranged their financial affairs to achieve, to the extent possible, an Option 3 election. Household income was $1000 per month greater under Option 1 than Option 3, so life insurance on Ms. Birch or an annuity for Petitioner could have mitigated Ms. Birch's inability to choose Option 3 when she retired. Prior to retiring, Ms. Birch did not attempt to elect Option 3 in writing or orally. Even after retiring, as noted below, Ms. Birch displayed ambivalence about whether she wanted to change her election. As a named defendant in Brenner I, on April 14, 2015, Respondent responded to the injunction against its enforcement or application of the Florida DOMA by issuing Information Release #2015-184 (Release). Sent to FRS members who retired prior to January 2, 2015, and elected Option 1 or 2, the Release states: . . . FRS retirees and . . . DROP participants who were in legally-recognized same-sex marriages at the time they retired or began DROP participation and chose Option 1 or Option 2 will have an opportunity to change benefit payment options in light of . . . Brennan. These retirees will be able to change their retirement payment option from their current selection to Option 3 or Option 4 to provide a continuing monthly benefit to their spouse. The retirees impacted by this change have an effective retirement date or DROP begin date on or before January 1, 2015. The Release provides that an eligible retiree interested in a second election must contact Respondent in writing, identify the retiree's spouse, and certify that the retiree and spouse were married in a state or country that allowed same-sex marriage when the FRS member retired. The Release states that Respondent will respond with an estimate of the new benefit payment under the option that the retiree intends to select and provide the retiree with the paperwork necessary to make the second election. Available on Respondent's website,6/ the Release provides the opportunity of a second election of Option 3 or 4 to any FRS member7/ who retired prior to January 2, 2015; chose Option 1 or 2 when she retired; and was in a same-sex marriage when she retired. The Release places no limit on how far in the past the retirement took place.8/ The thrust of Petitioner's case is directed toward backdating her lawful marriage to Ms. Birch to a point prior to Ms. Birch's retirement. As noted above, the timing of the lawful marriage is a problem under the Release, which requires a lawful marriage at the time of retirement, but another problem under the Release is the fact that the Release provides to the FRS retiree, not her surviving spouse, the opportunity for a second election, nor, as discussed immediately below, is this a technical requirement that can be overcome by Petitioner's serving as a representative of Ms. Birch--the second election is extended only to living FRS retirees. The virtue of the Release for Petitioner is that it confers the opportunity of a second election without any proof that, at the time of the first election, the FRS member would have elected Option 3 or 4. If Petitioner does not rely on the Release, she must also prove that Ms. Birch would have elected Option 3 or 4, which, as noted above, she has failed to prove. By limiting the second election to the FRS retiree, the Release limits the potential of adverse selection in allowing a second election, possibly years after the first election.9/ There are three possibilities at the time of the second election: both spouses are alive, only the FRS retiree is alive, and only the surviving spouse is alive. The Release's restriction of the right to make the second election to the FRS retiree means that the second and third possibilities do not result in second elections: respectively the FRS retiree would not reduce her payment to provide an annuity to a spouse who is already deceased10/ and a surviving spouse has no right to make an election under the Release. The couple may gain a minor financial advantage by the opportunity to revisit the payment option several years after the retirement of the FRS member, so that they may be better informed of the health of each of them. But the surviving spouse would gain a significant financial advantage by the opportunity to revisit the payment option after the death of the FRS member. Shortly after Respondent issued the Release, Ms. Birch filed with Respondent a Spousal Acknowledgement Form that she had signed on May 8, 2015. This form indicates that Ms. Birch is married, but nothing else. At about the same time, though, Ms. Birch contacted Respondent by telephone to discuss the Release and any choices that she may now have under the Release. By letter dated May 26, 2015, Respondent calculated monthly benefit amounts under Options 1 through 4, but the letter warns: "Your benefit option will not be changed unless you complete and return the required forms noted in this letter" and indicate a choice of repaying in a single payment or installments the excess benefits of Option 1 over the smaller benefits paid under Option 3 or 4. The May 26 letter requires further action on Ms. Birch's part and predicates any right to a second election upon a lawful marriage at the time of retirement. The record provides no basis for finding that any of Respondent's representatives misstated the lawful-marriage condition. To the contrary, in at least one conversation with Ms. Birch, Respondent's representative insisted on verification of a lawful marriage as of October 2012. Additionally, Ms. Birch was not requesting a right to make a second election; at most, she was gathering information to prepare to decide whether to ask to change her election. By June 26, 2015, pursuant to a note documenting a telephone conversation between Ms. Birch and a representative of Respondent, Ms. Birch decided to keep Option 1 rather than make a second election of Option 3.11/ In May 2016, Ms. Birch finally made a clear attempt to change her election to Option 3. By letter dated May 12, 2016, Ms. Birch stated that she was lawfully married to Petitioner on June 12, 2012, and asked for "the change in beneficiary for my pension, due to the one time option given" in the Release. Even at this late date, Ms. Birch was not yet ready to elect Option 3 because the letter concludes: "I would like to see the breakdown of monetary options to make an informed decision." However, on May 20, 2016, during a telephone call with a representative of Respondent, Ms. Birch provided the date of birth of Petitioner and asked Respondent to expedite her request because she did not have long to live. On the same date, Ms. Birch signed an Option Selection form electing Option 3. By letter dated July 18, 2016, Respondent acknowledged the death of Ms. Birch and informed Petitioner that all pension benefits ended at that time. By letter dated September 22, 2016, Petitioner asked for reconsideration and supplied copies of various documents, the relevant provisions of which have been referenced above. By letter dated October 20, 2016, Respondent denied the request for reconsideration.
Recommendation It is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under Option 3 from Ms. Birch's FRS account and dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of January, 2018.
The Issue The issue in this case is whether Daniel Maddox, a deceased retiree in the Florida Retirement System Pension Plan, selected Option 1 (maximum retiree’s monthly benefit without any spousal benefit after death of the retiree) or Option 2 (a reduced retiree’s monthly benefit with continued spousal benefit after death of the retiree, if within a period of ten years after retirement for the balance of the ten-year period).
Findings Of Fact Daniel Maddox was an employee of Pinellas County and a vested member of FRS. Petitioner is Mr. Maddox’s wife. Mr. Maddox retired under the early retirement provisions of FRS in June 2015, and received benefits until his death in December 2016. When Mr. Maddox applied to retire, he submitted an application that included an unexecuted option selection form that had a mark by Option 2. After being notified of the deficiency on two occasions by Respondent, Mr. Maddox submitted an executed option selection form on July 30, 2015, on which he selected Option 1. Option 1 provides the maximum benefit for the life of the member of FRS with no continuing benefit after the member’s death. Option 2 provides a reduced benefit for the lifetime of the member of FRS, but should the member die before 120 payments have been made, the remainder of the first 120 payments will be made to the member’s designated beneficiary. Petitioner signed a Spousal Acknowledgement Form acknowledging that Mr. Maddox selected either Option 1 or 2, rather than an Option 3 benefit, which would have provided a lifetime reduced benefit for her. Mr. Maddox’s signature on the Option Selection for FRS Members form selecting Option 1 was properly notarized. The purpose of the Spousal Acknowledgement Form is to inform the spouse that he/she will not be receiving a lifetime benefit. It does not give control over which option the FRS member selects. That decision is the sole choice of the member. Petitioner testified that she and her husband completed the forms together, with Mr. Maddox selecting Option 2 since he was disabled at the time and on medication. Mr. Maddox took the forms to their bank to have them notarized, but returned without the Option Selection for FRS Members form notarized. While Mr. Maddox was taking his forms to the bank for execution, Petitioner executed the Spousal Acknowledgement Form in the presence of a notary and submitted it to Respondent. She believed her husband had executed the required forms and selected Option 2. Her testimony concerning this sequence of events is credible. Mr. Maddox received a letter entitled “Acknowledgement of Service Retirement Application” from Respondent dated May 15, 2014. That letter confirmed that Option 2 had been selected and included an Estimate of Retirement Benefits spreadsheet. Based upon this letter, Petitioner believed that her husband had selected Option 2 and that the selection was in force. The Acknowledgement of Service Retirement Application, stating that Option 2 had been selected, required two additional pieces of information from Mr. Maddox: verification of his birthdate; and a notarized Option Selection for FRS Members form, since the one that was submitted (selecting Option 2) had not been executed. When Mr. Maddox submitted the notarized Option Selection form, he had selected Option 1. Respondent relied upon the executed selection in making its determination that Option 1, not Option 2, had been selected by Mr. Maddox. Respondent did not provide an additional Spousal Acknowledgement Form to Petitioner when it received the notarized form selecting Option 1 since its processing people deemed the file complete once all the required forms for retirement had been received. Petitioner testified that she believed she should have been provided a new Spousal Acknowledgement Form when Mr. Maddox selected Option 1 since her acknowledgement signed previously had been executed under the impression her husband had selected Option 2 in her presence and was taking that election to the bank to be notarized. She believes that a Spousal Acknowledgement Form signed several months before and based upon her husband’s election of Option 2 should have been re-sent to her since a different selection was made by Mr. Maddox. She further testified that her husband was disabled and on heavy medication and may have gotten confused when he went to the bank a second time to sign the selection form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner’s request for Option 2 retirement benefits on behalf of Daniel Maddox. DONE AND ENTERED this 25th day of August, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2017. COPIES FURNISHED: Anne L. Maddox 1579 Jeffords Street Clearwater, Florida 33756-4408 (eServed) Thomas E. Wright, Esquire Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 (eServed) Elizabeth Stevens, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether the Petitioner, Thelma H. Dampier, is entitled to consideration of her second application for disability retirement benefits based on the submission of new medical information.
Findings Of Fact Thelma H. Dampier was a member of the Florida Retirement System (FRS), Chapter 121, Florida Statutes, and had more than ten years of creditable service. She terminated her employment in August, 1988. In October, 1988, Ms. Dampier applied for in-line-of-duty disability retirement under FRS. By its final action letter received by Ms. Dampier on July 27, 1989, the Division denied her application for disability benefits. Under the applicable procedural rules, Ms. Dampier had 21 days to file a petition for an administrative hearing before the State Retirement Commission. She failed to request a hearing on the denial of benefits and her right to a hearing ceased. On September 8, 1990, Ms. Dampier filed a second application for in- line-of-duty disability retirement benefits. The application included medical records from Doctors Evans, Andrews, Barrow, and Chance. The medical records of Doctors Evans and Andrews had been submitted with and considered in connection to the first application. The medical records of Doctors Chance and Barrow were submitted for the first time with the second application. The report of Dr. Barrow opines that Ms. Dampier is permanently and totally disabled, but it does not reflect her condition at the time she terminated employment or any connection between her condition and her employment. The report of Dr. Chance, a chiropractic physician, relates to neck, shoulder and lower back pain. The report does not state that Ms. Dampier is totally and permanently disabled. Instead, it states that Ms. Dampier suffers only mild degenerative changes. It also does not relate that opinion to the date on which her employment terminated. The Division has a policy set forth in a Memorandum for Record dated July 17, 1990, regarding handling of reapplications for disability benefits. The policy specifies that reapplications will be considered "only when the member presents information of the existence of a medical condition that existed prior to termination of employment--unknown at the time of the initial application." This policy is reasonable and consistent with the Chapter 121.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Division of Retirement enter a Final Order denying consideration of Thelma H. Dampier's second application for in-line-of-duty disability benefits. DONE and ENTERED this 11th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 ofAdministrative Hearings this 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Retirement Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Proposed findings of fact 5 and 6 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is repetitive and unnecessary. COPIES FURNISHED: Thelma H. Dampier Post Office Box 342 Melrose, FL 32666 Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 A. J. McMullian III, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue Whether Petitioner is entitled to receive retroactive retirement benefits from the Florida Retirement System account of her late husband for the period September 1999 through February 28, 2003.
Findings Of Fact Petitioner Angela Roberts is the widow of Florida Retirement System (FRS) member Robert Randall Roberts. Mr. Roberts was employed by the Walton County Board of Commissioners and had approximately 25 years of creditable FRS service at the time of his death. Mr. Roberts died on August 20, 1999. At the time of his death, Mr. Robert’s most recent beneficiary designation on file with the Division of Retirement (Division) was made on August 15, 1980. That designation named Terri L. Roberts, who was married to Mr. Roberts at the date the designation was made. Sometime prior to June 25, 1997, Mr. Roberts and Terri L. Roberts were divorced. On June 25, 1997, Mr. Roberts and Petitioner were married. There is no dispute that at the time of his death, Mr. Roberts was married to Petitioner. According to the Division’s telephone records, Terri Ward, f/k/a Terri Roberts, contacted the Division and informed the Division that she and Mr. Roberts had divorced and that he remarried prior to his death. After being contacted by Terri Ward, Division employees contacted the Walton County Board of Commissioners and were given the last known address of Mr. Roberts: 718 Adams Street, Laurel Hill, Florida 32567. However, Petitioner and her five children were forced out of the Laurel Hill residence by her deceased husband’s father, Frank Eugene Roberts, shortly after the death of her husband. Frank Eugene Roberts also provided incorrect information to Evans Funeral Home in Florala, Alabama, regarding his son’s marital status at the time of his death. Because of this incorrect information, the death certificate indicated that Mr. Roberts was divorced at the time of his death. On December 7, 1999, Respondent sent a letter to Petitioner at the Laurel Hill address which read in pertinent part as follows: We are sorry to learn of the death of Robert Roberts on August 20, 1999. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order for us to determine the beneficiary and the benefits payable from this account, we need a copy of your Marriage Certificate. We cannot take any further action until this is received. If you have any questions, you may call the Survivor Benefits Section at (850) 488-5207. At the time the letter was sent to her, Petitioner was no longer residing at that address and did not receive the December 7, 1999, letter. In May 2001, Petitioner received a hand-written letter from her former step-daughter, Nichole Roberts, dated May 10, 2001, informing her that Nichole received a call from the Division regarding Mr. Roberts’ retirement money. Her step- daughter informed Petitioner that Petitioner needed to call the Division if she still wanted to receive her deceased husband’s retirement money or to notify the Division if she did not. Petitioner contacted the Division by telephone on May 17, 2001. Petitioner informed the Division that her late husband’s death certificate was incorrect regarding his marital status at the time of this death. She was informed that she would have to get the death certificate changed. The Division gave Petitioner the phone number of the local circuit court. The Division’s record of the phone conversation indicates that Petitioner would call the Circuit Court to inquire as to how to get the death certificate changed. On August 24, 2001, the Division sent Petitioner a letter to an address in Saint Mary, Georgia, informing her of what documentation was required to begin receiving benefits effective September 1, 1999, the date of Mr. Roberts' death. The letter read in pertinent part as follows: This is in reference to the retirement account of Robert R. Roberts. According to our records, Terri L. Roberts is the designated beneficiary. However, under present law, you would become the beneficiary if your marriage to the member occurred after the date the beneficiary was designated. In order to determine the beneficiary, we need a copy of your marriage certificate. If it is determined that you are the beneficiary, you would be entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $585.43 effective September 1, 1999. To receive the Option 3 benefit, the following documents are needed: Copy of member’s death certificate. Proof of member’s date of birth. Proof of your date of birth. Completed application, Form FST-11B. Copy of your marriage certificate. The Division sent another letter to Mrs. Roberts on December 19, 2001, to the Saint Mary, Georgia address. That letter was entitled, "Request for Survivor Benefits Information" and again requested the same five documents that were referenced in the August 24, 2001, letter. A copy of the August 24, 2001, letter is also referenced as enclosed with the December 19, 2001, letter. No response was received by the Division to the letters of August 24 or December 19, 2001. Neither letter informed Petitioner of any deadline by which the information needed to be received by the Division. The Division sent another letter to Mrs. Roberts on March 15, 2002. That letter again requested the same five documents that were requested in the two previous letters and indicated that copies of the two previous letters were enclosed. Unlike the two previous letters, the March 15, 2002, letter also included a 30-day deadline if she wanted to receive retroactive benefits: If you will furnish this information within 30 days from your receipt of this letter, you may choose to have benefits paid retroactive to September 1, 1999. Otherwise, it will be your responsibility to contact us when you wish benefits to begin. Benefit payments will not be retroactive, but will be effective the month following receipt of the requested information. Ms. Stanley Colvin is the Benefits Administrator of the Survivor Benefits Section of the Division. She has worked at the Division for approximately 31 years. According to Ms. Colvin, when a letter is sent from the Division to members or beneficiaries indicating any missing form is needed, that blank form is automatically generated and sent to the recipient as an enclosure. Accordingly, a blank application form should have been included with the August 24, 2001, December 19, 2001, and March 15, 2002, letters sent to Mrs. Roberts. Mrs. Roberts acknowledges receiving the March 15, 2002, letter, but insists that no application form was enclosed. Further, Mrs. Roberts asserts that she and her friend, Nichole Tuttle, called the Division soon after Petitioner received the March 15, 2002, letter, using a speaker phone. Both Mrs. Roberts and Ms. Tuttle assert that Mrs. Roberts verbally received a two-year extension from an unidentified person at the Division in which to file the requested documentation. Ms. Tuttle’s telephone record does reflect a call that was made to the Division on April 30, 2002, which is not reflected in the Division’s records. Petitioner did not have the means to accomplish the task of correcting the death certificate on her own. She attempted to hire an attorney to get the death certificate corrected. However, Mrs. Roberts had serious financial difficulties as a result of having five children and, when able to find work, has not been able to maintain a good income. She also found it difficult to find an attorney who had not represented the deceased’s family. Because of these obstacles, she was unable to retain an attorney until January 23, 2003. Ms. Colvin acknowledges that extensions are sometimes given to people for filing documents but the longest extension granted is for 60 days. However, there is no record of a phone call or any other documentation in the Division’s records that a two-year extension was given. Only Ms. Colvin has the authority to grant such extensions. Ms. Colvin has a distinctive voice. Neither Mrs. Roberts nor Ms. Tuttle recalls hearing Ms. Colvin’s voice prior to the hearing. The next contact the Division had with Mrs. Roberts was a telephone call from Mrs. Roberts’ stepmother on February 24, 2003. The caller requested that the Division call Mrs. Roberts at a particular phone number,as Mrs. Roberts could not make long-distance calls from her phone. At this time, the caller supplied a new address for Mrs. Roberts in Bay Minette, Alabama, and informed the Division that Mrs. Roberts has an attorney attempting to get the death certificate corrected. A Petition to Correct Death Certificate was filed with the Walton County Circuit Court on or about March 10, 2003. An Order was signed by Judge Lewis Lindsey on March 24, 2003, directing the Bureau of Vital Statistics to correct the death certificate. On March 20, 2003, the Division sent a letter to Mrs. Roberts requesting a copy of her marriage certificate and the death certificate. No reference is made in this letter to any other document. Mrs. Roberts again called the Division on March 24, 2003, informing the Division that her attorney was still waiting to receive the corrected death certificate and that she was in possession of a marriage certificate indicating her marriage to Mr. Roberts. Mrs. Roberts also inquired about the retroactive payment of the retirement benefits. On April 14, 2003, Mrs. Roberts sent a letter to the Division requesting benefits retroactive to September 1, 1999. On April 14, 2003, the Division received the required proof of birth for Petitioner and for Mr. Roberts. On May 14, 2003, the Division sent another letter to Mrs. Roberts. This letter included the following: As the surviving spouse and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. This benefit is payable for your lifetime and is approximately $561.35 effective March 1, 2003. To receive the Option 3 benefit, we need the following: Completed application, Form FST-11b. (Emphasis supplied) A completed application Form FST-11b was received by the Division on May 21, 2003. Mrs. Roberts was added to the retirement payroll effective March 1, 2003. Ms. Colvin became involved in this case in May 2003 for the purpose of reviewing the file to see if retroactive benefits were appropriate. According to Ms. Colvin, Mrs. Roberts was added to the payroll effective March 1, 2003, instead of June 1, 2003 (the month following receipt of the completed application), because of the phone call Mrs. Roberts made to the Division on February 24, 2003. Ms. Colvin explained that she "bent the rule" in Mrs. Roberts’ favor by looking at the February 26, 2003, phone call as "starting a new folder." Ms. Colvin determined that retroactive benefits were not in order because the March 15, 2002, letter gave a 30-day deadline and the Division did not receive any of the required documents until approximately a year later. She did not find anything in the file to justify any change to the effective date. Some benefit recipients purposefully defer payments for a number of reasons, e.g., eligibility for public assistance programs. Mrs. Roberts never indicated to the Division that she wanted the benefits deferred. Mrs. Roberts was not aware that the Division would have accepted the requested documents in piecemeal fashion, but focused on getting the death certificate corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Roberts’ request for an effective benefit date of September 1, 1999. DONE AND ENTERED this 27th day of April, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2004. COPIES FURNISHED: James C. Campbell, Esquire James C. Campbell, P.A. 4 Eleventh Avenue, Suite 2 Shalimar, Florida 32579 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
