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
The Issue The issue in this proceeding is whether Petitioner is entitled to retirement service credit for the time period in which he was not employed with the State of Florida.
Findings Of Fact The Department of Management Services (DMS) is responsible for the administration of the Florida Retirement System (FRS) under Chapter 121, Florida Statutes. The Department of Transportation (DOT) is an agency of the State of Florida whose employees qualify for membership in FRS. Petitioner Richard L. Duley is an honorably discharged veteran. He began employment with DOT in 1991. At the same time, he became a member of FRS. Prior to 2001, then-Governor Jeb Bush directed state agencies to reduce their workforce by 25 percent over a five- year period beginning in 2001. The directive was known as the "Service First Initiative." In response to the Governor’s directive, DOT developed an Agency Organizational Efficiency Plan. On January 18, 2005, Petitioner was notified that his position was designated to be deleted under the Agency’s Organizational Efficiency Plan; his position was abolished on June 30, 2005. As a result, Petitioner was dismissed from state employment and was no longer receiving retirement service credit for FRS. However, Petitioner did not receive a clear point of entry to challenge either his termination or whether he was entitled to a veteran's preference by DOT. After his dismissal, Petitioner was hired by a private firm who had contracted with the State to perform the functions that Mr. Duley had previously provided as an employee of the state. The contract terminated in June or July of 2007, and was not renewed. As such, Mr. Duley became unemployed. On July 30, 2007, Petitioner filed a complaint with the Department of Veterans’ Affairs (DVA) alleging that DOT had denied him veteran’s preference in retention during the 2005 layoff. The DVA found that Petitioner's complaint had merit. On November 19, 2007, Petitioner filed a complaint with the Public Employees Relations Commission (PERC), which held an evidentiary hearing on the complaint. PERC is the administrative body that has jurisdiction to determine issues and remedies under the veteran's preference statute. In its Final Order issued April 8, 2007, PERC found that Petitioner was an honorably discharged veteran and was entitled to preferential treatment in employment. PERC also found that DOT violated the veteran’s preference law by not affording Petitioner special consideration in finding alternative employment after the layoff. As a remedy for its violation of the veteran's preference law, PERC ordered DOT to make Petitioner an offer of employment to an existing position comparable to that which he held prior to his layoff. PERC also awarded Petitioner attorneys’ fees and costs. However, and most importantly, PERC did not reinstate Petitioner to his former position because it had been abolished. Similarly, PERC did not rescind Petitioner's termination. Finally, PERC did not award back pay or benefits to Petitioner. As a consequence of the Final Order, neither Petitioner nor DOT paid contributions towards the Retirement Systems Trust Fund for the period that Petitioner was not employed with the State. Additionally, Petitioner was offered and hired into a new position by DOT and again began to accrue retirement service credit in FRS when he was hired by DOT in May of 2008. The PERC Final Order was not appealed and became res judicata on the issues litigated therein. Therefore, since Petitioner's termination was not rescinded and Petitioner was not reinstated by PERC and did not pay contributions into FRS, he is not entitled to receive credit for the time he was not employed by the State and this action should be dismissed.
Recommendation Based upon the foregoing, Finding of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a Final Order dismissing this action. DONE AND ENTERED this 23rd day of December, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 23rd day of December, 2010. COPIES FURNISHED: Richard L. Duley 5432 Pinderton Way Tallahassee, Florida 32317 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Kristin M. Klein, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's deceased wife, Dorothy Bazzel, made a valid selection of retirement "option 1" instead of "option 2"; whether that apparent selection was a mistake and, consequently, whether the Petitioner should be allowed to receive retirement survivors benefits in accordance with "option 2", as provided for under section 121.091(6), Florida Statutes.
Findings Of Fact The Petitioner, Joe Bazzel, is a resident of Blountstown, Florida, and is retired. His wife, now deceased, was Dorothy Bazzel. She was a longtime teacher in the Bay County school system, with more than 46 years continuous creditable service in the Florida Retirement System and as a teacher. She retired on July 1, 1988. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutes, embodied in Chapter 121, and related rules, by which operation of the Florida Retirement System, including determinations of entitlement to and payment of benefits, is accomplished. Mrs. Bazzel underwent surgery for breast cancer on January 11, 1987. She had been diagnosed by Dr. Dixon McCloy, of Panama City, with breast cancer sometime in January of that year. Her progress after surgery was satisfactory, and she kept all appointments, had required x-rays, examinations and mammograms thereafter, by which her physicians monitored her progress. She had expressed to several persons of her acquaintance a desire to retire by the end of the 1987-1988 school year. In order to prepare for that event, she contacted her brother-in-law, Ray Bazzel, who testified in this case, and asked him to contact the Division of Retirement in Tallahassee, Florida, to obtain an estimate of her expected retirement benefits. He made that request to Ms. Loreen Vause, an employee of the Division, on July 16, 1987, by telephone. The Division of Retirement has an ongoing program which automatically generates an estimate of benefits for members who have certain amounts of creditable service and are of a certain age. When Mr. Bazzel made his request for an estimate of benefits for Mrs. Bazzel, the Division was already in the process of preparing a benefit estimate for her through its routine program. That estimate was forwarded to Mrs. Bazzel on July 22, 1987, and it stated as follows: This is a routine audit of your account. Noting the many years of service you have, we are furnishing you an estimate of your benefits as if you terminate your employment on June 30, 1988, and retire effective July 1, 1988. This is furnished for informational purposes only. By means of that estimate, Mrs. Bazzel was informed as to the benefit amounts which she would receive under all four retirement options. See Respondent's exhibit 8 in evidence. Ray Bazzel would visit Mrs. Bazzel on occasion during his visits to Panama City. She was described by him in his testimony to be a very private person not given to talking much about her illness or the operation. She did discuss the possibility of her retirement on one occasion with him, sometime during the summer of 1987. They discussed all four retirement options, and he explained the options in detail to her. He advised her that she would have to make a decision as to which option she would take, but he was never advised by Mrs. Bazzel nor anyone else as to which option she had actually selected until after her death. He did not know that she had made application for retirement on January 14, 1988. Harold Bazzel is a nephew of the Petitioner. He testified that he did not know that Mrs. Bazzel had made an application for retirement and did not know what option she selected until after her death. Richard Locker was the personnel officer with the school board where she was employed and knew Mrs. Bazzel personally and professionally. He was the principal for six years at Cove Elementary School where both his wife, Nan Locker, and Mrs. Bazzel taught. Mr. Locker had a policy of discussing retirement issues with Florida Retirement Service members on his staff and advising them of correct procedures to follow, as to the paperwork involved, and as to the full retirement options which they could select. He advised all members who were employed at his school to call the Division of Retirement in Tallahassee for more information. He never advised anyone of which option they should take because each case is an individual case, and he did not feel comfortable advising an employee or friend which option to take and then later have that person accuse him of advising the wrong option. Mr. Locker saw Mrs. Bazzel after her surgery and stated that after the surgery, she appeared to be in good health. He saw her in May of 1988 and stated that she was very optimistic and appeared capable of teaching the next year. She did not seem moody or depressed in any way to him. He believed that she exhibited an attitude that her treatment had been a success and that her health had been restored. He discussed with her the possibility of her retiring at the end of the 1987-88 school year, and he believed that she would retire at that time. In two telephone calls, he and Mrs. Bazzel discussed the four different retirement options. She appeared to know what he was talking about and to understand those options. He felt that she understood that option 1 would pay the highest benefit amount to her of the four options. He, however, did not really know what option she had chosen until after the Petitioner, her husband, informed him after Mrs. Bazzel's death. Based upon the testimony of Ray and Harold Bazzel and that of Richard Locker, concerning their contact and discussions with and advice to Mrs. Bazzel, it is found that Mrs. Bazzel was aware of the four options and the differences between them. She was aware that option 1 provided the highest benefit to the retiring member for the lifetime of that member and that it would cease at the death of the member with no further benefits being payable to any person. On January 14, 1988, the Petitioner, Joe Bazzel, drove his wife to the offices of the school board, where she completed the forms necessary for her retirement. She talked with Vicky Poole, the records clerk, who helped teachers and administrators complete necessary retirement forms as part of her job duties. Ms. Poole had worked at the school board offices for approximately seven years and had an established procedure for informing prospective retirees of all information needed to process retirement applications. As part of her instructions to them, she would ask each potential retiree to inform her of the option they wanted to select, who their beneficiary would be and where the checks were to be sent. She would inform them when they would start receiving checks, would discuss with them their sick leave balance "payoff", and what steps they needed to take to obtain social security benefits. This discussion with prospective retirees would take up to one-half hour if the retirement form had not been partially completed before the retiree came into the office, or about 15 minutes if the form had already been partially completed. If Mrs. Bazzel already understood the retirement options and had formed an opinion of what she wanted to do concerning retirement and the selection of an option, and if the form had already been partially completed, then the entire process on January 14, 1988 could have occurred in a few minutes. It was Ms. Poole's practice to sit next to the prospective retiree, obtain the necessary information, and type it on the retirement form at that time. She would then advise the member of the various options by referring to the back of the retirement form (Respondent's exhibit 12 in evidence) or to a pamphlet explaining the options issued by the Division of Retirement. Both of those documents contain a narrative description of the retirement options. Ms. Poole did not choose a retirement option or advise a prospective retiree of which option to choose. The retiree must choose his or her own option. Ms. Poole would never advise a person concerning which option to take and had been advised by the Division of Retirement never to give such advice on option selection. If Ms. Poole perceived that a prospective retiree was indecisive about option selection or did not appear to understand the options or the consequences of such election, she would advise that person to speak with someone else who was knowledgeable about the retirement system and about the retiree's financial situation, such as a friend or relative. If a prospective retiree was still indecisive or unsure of the meaning of options or which option to select, Ms. Poole would hold the form and not complete it without being sure in her own mind that the retiree understood the option and knew what it meant. In her standard procedure, she would go over each item on the form at least two and up to four times with a retiree. If they were very certain of the option they wanted to select, she would then finish the form and have the person sign it and give it to Ms. Bolinger to notarize. Ms. Poole realized that the choice of an option was an important decision and conducted her interview with the retiree accordingly. She testified in this regard as follows: If they said well I'm looking at 2 and 3, that's waivering. If they said I want option 1, I typed 1 in and I would say it several times as I typed it in. I mean I was very well aware that this selection was for the rest of their life and could affect someone else. I was very well aware of that. So, I would repeat it several times and when I was complete, when the form was complete, I'd give it back and go over it again, again reemphasizing the option. If they did waiver, I would briefly go over the options and there was time, I always mention, you know, there's time to do this, to choose your option, perhaps you want to talk to someone. I could not advise them. That's what I did. Ms. Poole remembered that Mrs. Bazzel came into the office but did not remember if the retirement forms had already been completed or partially completed prior to the visit. She testified that there was no doubt in her mind that Mrs. Bazzel chose option 1 and no doubt that she knew what option 1 meant. Ms. Bolinger began to work with the school board dealing with retirement applications in 1984. She is now the records clerk who handles retirement matters for teachers and school administrators. This is the same job that Ms. Poole performed in January of 1988. Ms. Bolinger notarized the retirement form of Mrs. Bazzel. Ms. Bolinger learned her job from Ms. Poole and testified that the retirement form was always completed in the office before a retirement clerk and was never sent to anyone. She stated that the clerk would ask the member if they understood each of the options, and the clerk would be sure that the member did understand them. It was the practice to ask such a retiring person if he or she was familiar with the options. If the retiree seemed the least bit confused, Ms. Bolinger testified that the clerk would discuss each option all over again with the prospective retiree, give him the form with the options listed on the back, and they would then discuss each one and make sure that the prospective retiree understood each option before continuing the process of executing the requisite forms. Thus, Ms. Poole and Ms. Bolinger or any school board clerk follows a routine practice of examining and discussing in detail each retirement option with a prospective retiree and makes sure that person understands the wording of the four options and what the four options mean before making a selection, answering any questions the prospective retiree might have and advising them to seek counsel from a qualified person if the prospective retiree remains unsure of which option to elect. After the forms are completed, the clerks, including Ms. Bolinger and Ms. Poole, when she was performing that function, examine the forms with the retiring member to make sure that all information is correct. "We wait until they check the whole thing and this is exactly what they want, and I watch them sign it." The signature is the last item which is placed on the retirement form. If the retiring member appears unsure about the options, Ms. Poole and Ms. Bolinger will ask them to go home and think about it and think it all through before they decide. Like Ms. Poole, Ms. Bolinger leaves the option selection up to the retiring member and does not attempt to advise persons about which option to select, merely giving them the information concerning the effect of selecting a particular option. In her capacity as a notary, Ms. Bolinger stated that if a person did not look like they knew what they were doing in executing the form, she would not notarize the form. If they did not appear to understand that they were applying for retirement, or which facet of it they were applying for, she would, likewise, not notarize the form. She would not notarize a signature after the fact of the signature being placed on the form. Ms. Bolinger was shown a copy of Petitioner's exhibit 7, in evidence, which is a copy of the retirement form that did not have her notary signature. She observed that her notary stamp was on that copy but that her name had merely been signed in the wrong place, possibly because she was new to those duties concerning retirement clerk matters. She testified, however, that her signature was correctly placed on the form, she believes, that same day. See pages 17 and 37 of Petitioner's exhibit 7, in evidence. On January 14, 1988, Mrs. Bazzel completed two forms: FR-11, "Application for Service Retirement", and FR-9, "Request for Audit", (see Respondent's exhibits 9 and 10, in evidence). Both of those forms contain Mrs. Bazzel's signature and are dated with the same date, January 14, 1988. The FR- 11 form had that date written on it in three places. The two forms were then filed with the Division of Retirement. They were acknowledged by the Division as being received on the next day, January 15, 1988, according to the form FST- 40C, "Acknowledgment of Retirement Application", which has January 15, 1988 as the received date. See Respondent's exhibit 11 and the testimony of Stanley Colvin, in evidence. The Petitioner testified that he believes the retirement application forms referenced above were suspect as to accuracy because, according to his testimony, he took his wife to the school board offices on a Friday to sign the forms after the end of the teaching day on either January 8th or January 15th, and states that generally he remembers that it was a Friday because that was the day they had the habit of leaving the Panama City area to visit relatives for the weekend. However, the forms are dated January 14, 1988 in several places. The forms in evidence and the testimony of Ms. Colvin establish that the application documents were received on January 15th in the offices of the Respondent agency. Thus, they could not have been signed on Friday, January 15th. If they had been signed on Friday, January 8th, the record leaves no explanation as to why all of the forms were dated January 14th. The Hearing Officer can only logically find that, indeed, the forms were signed by Mrs. Bazzel on January 14, 1988 and received in the offices of the Division in Tallahassee, Florida, on January 15, 1988. The date of January 20, 1988, appearing on the documents, was established to be the date they were received in the bureau within the department which actually performs benefit calculations, not the date it was first received by the department. The evidence establishes that Mrs. Bazzel selected option 1, the retirement option which provides no survivor's benefits. None of the exhibits in evidence can support a finding that she chose or intended to choose option 2, which provides survivor's benefits. The application for service retirement shows an election for option 1 and the acknowledgment of receipt of that retirement application, FST-40C, shows that option 1 was selected, as well as the letter that informed Mrs. Bazzel that she was being added to the retirement payroll in the category of option 1 benefits. On August 1, 1988, the day after the first retirement warrant would have been received by Mrs. Bazzel, Ray Bazzel called the offices of the Division of Retirement to state that Mrs. Bazzel had checked the wrong number of income tax exemptions and wanted to change them. In order to know how many exemptions she had, he would have had to see the stub from that first retirement warrant. The stub would have depicted the gross amount of the benefit, which was the same amount as that provided for option 1, and not the gross amount attributable to option 2. See FST-40C form, in evidence as Respondent's exhibit 8. Additionally, in a conversation with one of her closest friends, Nan Locker, Mrs. Bazzel led Ms. Locker and friends at school to believe that her surgery had alleviated her medical problem with cancer and that she was in good health. During a conversation they had approximately nine months before Mrs. Bazzel's death, Mrs. Bazzel, in talking about retirement with Ms. Locker, who was also contemplating retirement, made a comment as follows: "Well, I've got my retirement and Joe's got his." This comment was made sometime in the fall of 1989 before Mrs. Bazzel's death in July of 1990. Although the Petitioner introduced exhibits 1, 2 and 4 in an attempt to show that his wife meant to select option 2 and that some mistake was made by the school board or the Division in preparing and submitting the documentation setting up Mrs. Bazzel's retirement benefit situation; in reality, those exhibits merely show that Mrs. Bazzel possibly did some calculations as to the difference in monthly amounts between option 1 and option 2. The exhibits can only show that she may have been aware of the difference in monthly benefit amounts between the two options, but they do not show that she intended to select option 2. Indeed, the evidence and testimony, considered in its totality, shows that her selection of option 1 was a voluntary, knowing selection. The evidence also shows that Mrs. Bazzel was mentally and medically competent to make that selection, freely and voluntarily. Her visits with Dr. McCloy, her treating physician, in the first half of 1988, to monitor her health situation after the cancer surgery, were normal and showed nothing unusual as far as any recurrence of cancer was concerned. Her chest x-rays were negative for recurrent cancer. On June 3, 1988, she was diagnosed as having a small duodenal ulcer, but no indication of recurrent cancer was present. Dr. McCloy treated her for the ulcer with medication; and by August 10, 1988, her symptoms attributable thereto had largely been alleviated. Her visits to Dr. McCloy were routine for the remainder of 1988 and 1989, with normal results. It was not until March of 1990 that she was diagnosed with a spot on the left rib, which proved to be recurrent cancer, probably attributable to the original breast cancer. She deceased as a result of this condition on July 9, 1990. Dr. McCloy testified that he never advised Mrs. Bazzel that her cancer was terminal because he believed that it had been successfully treated after the surgery and for a long period of time thereafter he had no evidence of its recurrence. Therefore, he had not advised her that she was terminally ill during the period of time she was making the retirement decisions, applying for and receiving her first retirement check during essentially the first half of 1988. Dr. McCloy's testimony further establishes, without doubt, that Mrs. Bazzel was alert, possessed her full intelligence and faculties, and understood the significance of his medical instructions, and understood his advice as to her health status. Accordingly, it has been established that Mrs. Bazzel did not have a recurrence of cancer until it was diagnosed in March of 1990, long after she had made the relevant retirement decisions pertinent hereto, and that she knew and was fully aware of her medical condition during the process of applying for her retirement benefits. She, therefore, understood the steps she took for retirement application and benefit receipt purposes, and was not medically or mentally impaired to make those decisions. It was established that she began her teaching career as a member of the Teacher Retirement System, pursuant to Chapter 238, Florida Statutes. She subsequently transferred into the Florida Retirement System under Chapter 121, Florida Statutes, during an open enrollment period. While a member of the Teacher Retirement System, she paid $12,870.33 in total contributions, plus interest, which accumulated on those contributions in the amount of $8,561.97, for a total on deposit in her account of $21,432.30. During the period of her retirement before her death, Mrs. Bazzel received total benefits in the amount of $49,551.95. She, therefore, received $28,119.65 more in benefits than she had paid into the Teacher Retirement System in contributions, plus accumulated interest. It was proven that the distance to the residence or places of business of the deponents, whose depositions were admitted into evidence, comports with the standard of Rule 1.330, Florida Rules of Civil Procedure. Since the locations of the deponents as potential witnesses accorded with the 100 mile standard, their depositions were admitted in lieu of live testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Joe Bazzel, is not entitled to have the retirement option selected by Dorothy Bazzel changed from option 1 to option 2. DONE AND ENTERED this 15th day of September, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5774 Petitioner's Proposed Findings of Fact 1-5. Rejected as not being in accord with the preponderant weight of the evidence. 6. Accepted but not itself materially dispositive. 7-11. Rejected as not being in accord with the preponderant weight of the evidence. Respondent's Proposed Findings of Fact 1-25. Accepted. 26-30. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Mr. Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Joe Bazzel P.O. Box 46 Blountstown, FL 32424 Stanley M. Danek, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street, Bldg. C Tallahassee, FL 32399-1560
The Issue The issue for consideration in this matter is whether Peter McRedmond, the deceased, should have been permitted to change the beneficiary on his state retirement plan to elect an annuity for the benefit of his estate and the Intervenor, Martin Horton.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Division of Retirement, was the state agency responsible for the control, operation and monitoring of the State Retirement System. Petitioner, Eugene McRedmond, is the surviving brother of Peter McRedmond, deceased, a former member of the Florida Retirement System. Intervenor, Martin V. Horton, is the former live-in friend and companion to Peter McRedmond and the individual who claims an interest in Peter's retirements benefits. For some period prior to 1988, Peter McRedmond was employed at Manatee Community College as a psychology professor and as such was a member of the Florida Retirement System, (FRS). He was so employed until he retired for disability in early 1990. Before that time, however, in August or September, 1988, he was diagnosed as having AIDS by Dr. Warren D. Kuippers, a physician with the Community Migrant Health Center. Tests taken at or around that time indicated he was suffering from toxoplasmosis, a disease of the brain in which significant portions of that organ are eaten by parasites, resulting in intermittent periods of impaired judgement and reasoning ability. He also suffered numerous other medical problems including weight loss, a wasting syndrome, general weakness and fatigue. Notwithstanding the seriousness of his illness, because Mr. McRedmond wanted to qualify for retirement under the FRS system, he continued to work for another year to meet the minimum requirements for retirement. On April 27, 1990, he made application for disability retirement to be effective July 1, 1990. As a part of that application, Mr. McRedmond selected Option 1 under the FRS as the method under which he desired his benefits be paid and named the Intervenor, Mr. Horton, as his designated beneficiary to receive any benefits legally due after his death. Mr. McRedmond could have elected to receive benefits under either Option 1 or Option 2 of the plan. Option 3 was not available to him because of his marital status. Under Option 1, he would receive payments of $639.33 per month for the remainder of his life, regardless of how long he lived. Under Option 2, he would have been paid a slightly lesser monthly sum, $587.51, for the rest of his life, but not less than 10 calendar years, and if he were to die before 10 years were up, the payments would go to his designated beneficiary. In May, 1990, consistent with the procedure then in effect within the Division, Mr. McRedmond was sent a second Option selection form to give him as much information as was possib1e and to make sure he understood what he was doing as it related to his option selection. Mr. McRedmond again selected Option 1, had his signature notarized, and returned the executed form to the Division. The individual who performed the notary service did not recall the transaction but indicated her routine practice was not to notarize a document for anyone who did not appear to know what he was doing. Peter McRedmond died on August 23, 1990 from the disease with which he was afflicted. Several months before his death, in mid June, 1990, Mr. McRedmond and Mr. Horton discussed finances and what Horton could expect after McRedmond's death. It is clear that Mr. McRedmond wanted to make arrangements for Mr. Horton to finish his education without having to work while doing so. At that time, McRedmond's life insurance policy, in the face amount of $60,000.00, had Horton as the beneficiary. Shortly before his death, however, upon the prompting of his brother, Eugene, Petitioner herein, Peter McRedmond directed the policy be changed to make his estate the beneficiary. This was done by Eugene through a power of attorney. There was also some discussion of an additional $500.00 per month which was to go to Mr. Horton, but no one, other than Mr. Horton, recalls this. Also shortly before his death, Mr. McRedmond and Mr. Horton travelled to the family home in Connecticut for several weeks. During that time, Mr. McRedmond had at least one major seizure and family members noticed that while he was sometimes forgetful, for the most part his thinking was rational and normal. There can be little doubt that Mr. McRedmond had deep feelings for Mr. Horton and wanted the latter to be provided for after his death. Friends of both relate the numerous comments McRedmond made to that effect and are convinced that at the time he made the contested election, Mr. McRedmond was not of sound mind sufficient to knowingly make the choice he made. To be sure, the ravages of his disease had taken its toll and there were numerous occasions on which he was not lucid or competent to determine issues such as here. On the other hand, the benefits administrator with whom McRedmond talked at the time he selected his retirement plan option was totally satisfied that at that time, he fully understood the nature and effect of the option he selected and was choosing that which was consistent with his desires at the time. By the same token, the notary, whose testimony was noted previously herein, also was satisfied he knew what he was doing at the time of the second election. In its final configuration, Mr. McRedmond's estate includes all his assets, including the proceeds of the insurance policy previously designated to go to Mr. Horton, for a total of approximately $120,000.00. According to the terms of the will, the estate is to be put into a trust from which Mr. Norton is to receive $1,000.00 per month for his lifetime, as well as all his medical expenses. Since Mr. Horton has tested HIV positive, these can be expected to be extensive. Eugene McRedmond is the executor of the estate. Petitioner and Mr. Horton claim that since the trust contains all of Peter's assets existing at his death, the only other source of the additional $500.00 per month would be the benefits from the FRS. Both cite this as evidence of Mr. McRedmond's intent that the option selection providing for payment after death was his intention. This does not necessarily follow, however. Notwithstanding what Petitioner and Intervenor state were his intentions, Mr. McRedomnd took no action to make the change in option selection which would have effectuated them. Instead, he went out of town to visit family for several weeks, and even after receipt of the first retirement check, received on July 31, 1990, still took no action to make the change. During this period, after the return from Connecticut, Mr. McRedmond's condition deteriorated to the point he was often bedridden and was periodically unaware. However, there is ample evidence to indicate that he was often lucid during this period and still took no action to change his retirement option. During this time, Mr. Horton conducted come of Mr. McRedmond's business affairs for him pursuant to specific instructions. These included making bank deposits and as a part of one of these deposits, when Horton was to deposit two checks as requested by McRedmond, he also deposited the first retirement check. Horton and Eugene McRedmond both claim that at no time did Peter McRedmond ask or authorize him to do so. In a visit that Petitioner made to his brother in early August, 1990, just weeks prior to Peter's death, according to Petitioner his brother explained he had selected the wrong retirement option and requested that Eugene attempt to change the election. Peter gave Eugene a Power of Attorney with which he was to do this as well as to change the beneficiary on the life insurance policy. Consistent with those instructions, Eugene wrote a letter to the Division explaining the situation and that the check had been deposited by mistake. On August 13, 1990, Eugene telephonically contacted the Division where he spoke with Melanie White. During this conversation, in which he again spelled out the circumstances which he believed constituted the mistaken election, he was told to file a power of attorney. When he did this, the Division would not honor it claiming that since it had been executed in May, 1990, some three months earlier, it was not current. Subsequent to the death of Peter McRedmond and the filing of the claim against the Division, Eugene McRedmond and Martin Horton have entered into an agreement whereby any sums recovered from the Division will be split with 25% going to Mr. Horton and 75% going to the Trust. Upon the death of Mr. Horton, any sums remaining in the trust will be split by Eugene McRedmond and another brother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's and Intervenor's claims for retirement benefits under Option 2 of the Florida Retirement System retirement plan, on behalf of Peter McRedmond, be denied. RECOMMENDED in Tallahassee, Florida this 29th day of July, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Buildi5g 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clark of the Division of Administrative Hearings this 29th day of July, 1991 APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-7104 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER AND INTERVENOR: Accepted and incorporated herein. Accepted and incorporated herein. First two sentences accepted and incorporated herein. Third sentence not proven. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted that Peter McRedmond had numerous conversations with friends about providing for Mr. Horton, but it was not established that he mentioned using his retirement benefits for that purpose. & 9. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not necessarily following from the facts. Rejected as speculation not supported by fact, except that Petitioner claims Peter desired to change the option selection. First sentence accepted. Second sentence accepted in so far as it asserts Peter told Horton he would receive a monthly sum of $1,000.00. Balance rejected. Accepted and incorporated herein. Rejected as speculation and conclusion except for first sentence and first clause of second sentence. Accepted and incorporated herein. 17.-20. Accepted and incorporated herein. 21. First and second and last sentences accepted. 22.-24. Accepted. Accepted and incorporated herein. Accepted. & 28. Accepted. 29. Irrelevant. FOR THE RESPONDENT: 1-4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. 8.-10. Accepted. Ultimate finding accepted. On the date he filed his application, Peter McRedmond was capable of understanding what he was doing and the implications thereof. & 13. Rejected as comments of the evidence and not Findings of Fact. First four sentences accepted. Remainder rejected except that McRedmond wanted Horton to get at least $1,000.00 per month for life, and more if possible. & 16. Accepted except for last two sentences of 16. Accepted except for last sentence which is a comment on the evidence and not a Finding of Fact. Accepted. & 20. Accepted and incorporated herein. Accepted. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. COPIES FURNISHED: Edward S. Stafman, Esquire Stafman & Saunders 318 North Calhoun Street Tallahassee, Florida 32301 Stanley M. Danek, Esquire Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III Director Division of Retirement Cedars Executive Center, Bldg. C 1639 North Monroe Street Tallahassee, Florida 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue Whether Petitioner is entitled to the retirement benefits of her late husband, Frederick Griffith.
Findings Of Fact Frederick Griffith was employed with the Broward County School System from January 4, 1971, until his death on June 9, 1996. Frederick Griffith was enrolled with the State of Florida Retirement System at the time of his death. Frederick Griffith separated from his first wife, Ruth Griffith, in 1976, and they were divorced on October 25, 1989. Frederick Griffith and Petitioner, Joyce Griffith, were married on November 25, 1989, after having been together for approximately 12 years. Joyce and Frederick Griffith were married at the time of his death. Joyce Griffith applied for her husband's benefits as the surviving spouse. The Respondent, Division of Retirement (Division), denied Joyce Griffith benefits as surviving spouse, stating that the beneficiary of record was Ruth Griffith. The Division advised Joyce Griffith that they would recognize her as surviving spouse and pay her a monthly benefit if Ruth Griffith would disclaim her rights as the designated beneficiary. Ruth Griffith refused to disclaim her rights and applied for the benefits as the designated beneficiary. The Division paid her $4,373.94. Because Ruth Griffith was not dependent on Frederick Griffith at the time of his death, she was entitled only to the lump sum amount that Mr. Griffith had paid into the retirement system. On February 2, 1992, Mr. Griffith submitted Retirement Information Request, Form FR-9, to the Division for a calculation of total years of creditable service and the amount due to purchase his creditable military service. On June 15, 1995, the Division replied to the FR-9 request by issuing Form FRS-40, Estimate of Retirement Benefits. The information provided to Mr. Griffith was calculated based on the assumption that Mr. Griffith would retire with a retirement effective date of February, 1997. The Estimate of Retirement Benefits advised Mr. Griffith that there was an apparent discrepancy with the beneficiary listed on his FR-9 and his named beneficiary listed in the Division's official records. Specifically, Mr. Griffith was advised: The spouse listed on the Retirement Information Request, FR-9, and used for this estimate is not your primary beneficiary. If you intend to change your beneficiary designation, please complete a personal history record, FRS-M10, in your personnel office. Mr. Griffith did not file a revised FRS-M10 in response to the advice given by the Division in the June 15, 1995, FRS-40. After Mr. Griffith received the FRS-40, Joyce Griffith insisted that he call the Broward County School Board to verify that she was the designated beneficiary. Joyce Griffith gave her husband the number to call. The school board personnel assured Mr. Griffith that Joyce Griffith was his beneficiary. Apparently, Mr. Griffith called the department which dealt with life insurance benefits and not retirement benefits. Joyce Griffith was the beneficiary of her husband's employer-provided life insurance policy for $150,000. Mr. Griffith had designated her as his beneficiary on a change of beneficiary form dated August, 1990. Mr. Griffith had completed a form entitled Application for Service Retirement designating Joyce Griffith as his primary beneficiary. The form was notarized on November 25, 1995. Mr. Griffith did not indicate a retirement date on the form and never filed the form with either the Division or his employer. After Mr. Griffith's death, Joyce Griffith found an employee copy of a FRS-10 form among Mr. Griffith's military papers. The form was dated November 19, 1991, and signed by Mr. Griffith. The form was not filed with either the School Board of Broward County or the Division. Neither the school board nor the Division have any record of the form being filed. The form was not correctly completed. In the area of the form entitled Designation of Beneficiaries, the employee is supposed to complete only one of three sections. On the form signed by Mr. Griffith, the first section was checked, and the other two sections were filled out with the names of Joyce Griffith and the children of Mr. Griffith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for the retirement benefits of Frederick T. Griffith. DONE AND ORDERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Connie L. Hiaasen, Esquire Regina S. Bushkin, Esquire SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997. 707 Southeast Third Avenue, Suite 101 Fort Lauderdale, Florida 33316 Augustus D. Aikens, Jr., Esquire Department of Management Services Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner, a surviving beneficiary, is entitled to change the Florida Retirement System retirement benefits 1 All references to chapter 120 are to the 2019 version. payment option selected by her now-deceased spouse, a member of the Florida Retirement System.
Findings Of Fact Respondent, Department of Management Services, Division of Retirement, is the state agency charged under chapter 121, Florida Statutes (2002),2 with administering the Florida Retirement System ("FRS"). Petitioner is the spouse of James L. Williams, now deceased, who was employed by the School District of Palm Beach ("District) for 38 years, and was a member of the FRS. Williams retired from his employment with the District on August 23, 2002. At that time, he executed the Florida Retirement System Application for Service Retirement Form, Form FR-11. On Form FR-11, he designated Petitioner as his primary beneficiary and Jones as his contingent beneficiary. Williams signed this form, and his signature was notarized. Also on August 23, 2002, Williams executed the Florida Retirement System Option Selection for FRS Members Form, Form FRS-11o. On that form, he selected FRS retirement benefits payment Option 2, and designated that choice by writing an "X" on the line next to Option 2. Option 2 was described on Form FRS-11o as: A reduced monthly payment for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. 2 All references to chapter 121 are to the 2002 version of the Florida Statutes, which was in effect at the time that the retirement benefits application and option selection forms that have given rise to this proceeding were executed. Form FRS-11o contained a section, immediately below the description of Option 2, that was required to be completed by the spouse of a married FRS member who had selected Option 1 or Option 2. On August 23, 2002, Petitioner completed, signed, and dated that section, confirming that she was the legal spouse of Williams and acknowledging that she was informed that Williams had selected either Option 1 or Option 2. The purpose of that section on Form FRS-11o is to inform the spouse of the FRS member that, by the member's selection of either Option 1 or Option 2, the surviving spouse is not entitled to receive a continuing benefit for the rest of his or her life. The last sentence on Form FRS-11o, immediately above the space for the FRS member's signature, states in pertinent part: "[m]y retirement becomes final when any payment is cashed . . . [or] deposited." DeVonnia Jones was present with Williams at the time he was given Form FR-11 and Form FRS-11o to execute. Jones testified that when Williams arrived at the District office on August 23, 2002, Form FR-11 and Form FRS-11o already had been filled out by District staff, and were presented to him by his supervisor, who informed him that he needed to retire or he would be terminated. According to Jones, Williams did not wish to retire at that time. Jones asked District staff how much more Williams' monthly benefits would be if he did not retire for another year or two, and was told that Williams' benefits would be between $25 and $30 more per month. According to Jones, "my dad basically shed a couple tears. He was not comfortable, but he went ahead and signed it because I told him to, because they made it seem like he wasn't going to be eligible to get what he was supposed to get." Williams signed and dated Form FRS-11o on August 23, 2002, and his signature was notarized. On August 28, 2002, Respondent sent Williams a document titled "Acknowledgement of Service Retirement Application." This document stated, among other things, that Williams had selected FRS Option 2, and that his retirement was effective September 2002. At the bottom of this document was a standalone paragraph, in bold face type, that read: "ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED!" Also on August 28, 2002, Respondent sent Williams a document titled "Florida Division of Retirement Estimate of Retirement Benefit (Estimate only, subject to final verification of all factors)." This document provided information regarding the amount of the monthly benefits Williams would receive for the four options offered under the FRS. A statement in bold face type at the bottom of the document read: "Comments: You have chosen Option 2. Your option selection cannot be changed after you cash or deposit any benefit payment." Had Williams wished to change his retirement benefits payment option, he could have done so up to the time he cashed or deposited a retirement benefits payment. Williams began receiving his monthly FRS retirement benefits payments from Respondent on October 4, 2002. He cashed or deposited the first FRS benefits warrant (Warrant #0618275) that he received. Thereafter, Williams received monthly FRS retirement benefits payments until his death on April 26, 2010. Williams received a total of 92 monthly benefits payments before his death. All of the FRS retirement benefits payment warrants issued to Williams were deposited or cashed. On May 17, 2010, Respondent contacted Petitioner to inform her that she needed to complete a Florida Retirement System Pension Plan Application for Beneficiary of Monthly Retirement Benefits Form, Form FST- 11b, in order for her to receive monthly FRS retirement benefits payments as Williams' beneficiary. In the contact letter, Respondent informed Petitioner that "you will receive the same gross monthly benefits to which the member was entitled through August 31, 2012." Petitioner completed Form FST-11b on June 25, 2010, and began receiving FRS monthly benefits payments on June 30, 2010. Petitioner received a total of 28 FRS retirement monthly benefits payments. The last warrant issued to Petitioner (Warrant #0375196) was issued on August 31, 2012. All of the warrants issued to Petitioner were cashed or deposited. In sum, Williams and Petitioner collectively received a total of 120 FRS retirement monthly benefits payments, pursuant to Option 2. All of the warrants issued to Williams, and then to Petitioner, as his beneficiary, were deposited or cashed. Petitioner testified that beginning in 2003, she made numerous attempts, over a period of years, to contact the District and Respondent regarding changing the FRS retirement benefits payment option that Williams had selected on August 23, 2002. During this time, Williams and Petitioner continued to cash or deposit the benefits payment warrants they received from Respondent. In this proceeding, Petitioner does not claim that Williams accidentally selected Option 2, or that he intended to select another option, when he signed Form FRS-11o on August 23, 2002. Rather, she asserts that at the time Williams retired, he suffered from confusion and memory loss such that he did not understand the option he chose—effectively, that he lacked the mental capacity to have chosen Option 2 as his retirement benefits payment option. Alternatively, Petitioner contends that because Williams was forced to retire under threat of termination from his employment, he was under duress when he chose Option 2 on Form FRS-11o. On these grounds, Petitioner asserts that she should be permitted to change Williams' choice of retirement benefits payment option.3 3 Here, Petitioner, has requested that she be allowed to "change" Williams' choice of Option 2 on the FRS retirement option selection forms. She did not identify, or present evidence, Petitioner's impassioned testimony at the final hearing shows that she fervently believes her husband was wrongly treated by the District when it required him to retire in 2002, against his desire to continue to work.4 However, as was explained to Petitioner at the final hearing, the purpose of this proceeding was not to determine whether the District wrongly forced Williams out of his employment; rather, it is to determine whether there is any factual or legal basis for changing the retirement benefits option that Williams selected when he executed Form FRS-11o nearly 18 years ago. The evidence does not support Petitioner's argument that Williams lacked the mental capacity to adequately understand the option that he chose on Form FRS-11o. Although Petitioner testified that Williams had been treated by a neurologist, no direct medical evidence was presented establishing that Williams was mentally incapacitated at the time he executed Form FRS-11o. Additionally, at the time Williams signed the form, he was accompanied by his daughter, who, after speaking to District staff regarding his options, advised him to sign the form. Petitioner herself also was present at the District office and signed Form FRS-11o, expressly acknowledging that she understood Williams had chosen Option 2. Thus, to the extent that Williams may not, on his own, have fully appreciated his choice of options on Form FRS-11o—and there is no competent direct evidence showing that to be the case—both his daughter and wife were present with him when he executed Form FRS-11o, his daughter told him to sign the form, and his wife expressly acknowledged that she understood his choice of Option 2. These circumstances do not support a finding that Williams lacked the mental capacity to understand, or did not adequately regarding which specific option she would choose, if permitted to change Williams' selected FRS benefits option. 4 The evidence indicates that the District required Williams to retire because he began having difficulty with his job as a mail carrier. According to Petitioner, Williams had an accident in a District vehicle and did not report the accident to the District, and that when he was transferred to the mail room, he had difficulty remembering to do certain required tasks. understand, the consequence of choosing Option 2 when he executed Form FRS-11o. The evidence also does not support a finding that Williams' choice of Option 2 should be changed, due to duress. There is no direct evidence establishing that Williams was under duress when he chose Option 2. Although Jones testified, credibly, that her father was upset about being forced to retire when he wanted to continue working, her testimony that he was under duress was based on her subjective conclusion. Furthermore, even if Williams was emotionally distressed when he signed the FRS benefits options forms, there is no evidence showing that as result of such distress, he chose Option 2 instead of a different option. It also is noted that Form FR-11 and Form FRS-11o both expressly informed Williams that once his retirement became final—which would occur when any benefit payment was cashed or deposited—his retirement benefits option selection would become final and could not be changed. Further, Williams received two more pieces of correspondence from Respondent—both containing statements in bold face type—expressly informing him that once any FRS retirement benefits payments were cashed or deposited, his retirement benefits option choice could not be changed. As noted above, Williams could have changed his FRS benefits option at any time before he cashed or deposited a benefits payment; however, he did not do so. Thus, pursuant to the express terms of Form FR-11 and Form FRS-11o, when Williams cashed or deposited the first benefits payment, his selection of Option 2 became final and could not be changed. In sum, the evidence does not establish any factual basis for permitting Petitioner to change Williams' selection of Option 2 as his FRS retirement benefits payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner's request to change the FRS retirement benefits payment option selected by her husband, an FRS member, when he retired. DONE AND ENTERED this 4th day of March, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2020. COPIES FURNISHED: Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Deloris Williams 1219 West Ninth Street Riviera Beach, Florida 33404 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Mangement Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Mangement Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether the effective retirement date of Petitioner as determined by Respondent is correct.
Findings Of Fact Ms. Heim was employed by the Department of Corrections. She was a regular member of the Florida Retirement System (FRS) with 16.34 years of creditable service. Her date of birth is September 5, 1945. Ms. Heim terminated employment from the Department of Corrections in July 1999, at the age of 53. At the time of her separation from employment, Ms. Heim did not receive instructions on her eligibility to apply for early retirement from the Department of Corrections or from the Division of Retirement. She did not receive any misinformation or erroneous information regarding her retirement from either the Division of Retirement or the Department of Corrections. Had Ms. Heim known about early retirement, she would have elected to retire in 1999, and her retirement (assuming she timely filed her application) would have been August 1999. Had she retired in 1999, her benefits would have been statutorily reduced by five percent for each year she was under the age of 62, resulting in approximately a 30 percent reduction in the current amount of her benefit. There are approximately 800 employers participating in FRS with approximately 600,000 active members of FRS and 200,000 retirees. When a member terminates employment, the Division is not informed by the member’s employer. It is the responsibility of the member to inform the Division of his or her retirement since leaving state employment does not necessarily mean the person is retiring or desires to receive his or her retirement benefits. The Division periodically sent benefit estimates to Ms. Heim after her termination. However, the estimates were sent to the wrong address and were not received by Petitioner until April 2002. At that point, the Division learned of her termination and sent her a letter advising her of her ability to elect early retirement. When Ms. Heim learned of her early retirement option, she contacted the Division. The Department of Management Services, Division of Retirement, sent Ms. Heim an application for retirement in April 2002. The Petitioner, upon receiving the application for retirement, submitted the required paperwork on July 2, 2002. The Division, pursuant to its statutes and rules, determined that Ms. Heim’s effective date of retirement was May 1, 2002, and has offered her benefits based on that date. There was no evidence which demonstrated that the May 1 date was incorrect. Ms. Heim believes her retirement date should be August 1, 1999, because she was not at fault for not applying for retirement in 1999. However, as indicated, it is the member's responsibility to notify the Division about that member's retirement. In this case, the Division complied with the statutes and rules governing the Florida retirement system. Finally, Ms. Heim believes that, should her effective retirement date be changed, her benefit should not be reduced as the Division's statutes and rules require. She objects to her benefit being reduced because of her desire “to punish the Division of Retirement” for not giving her clear information about early retirement or being aware of her correct address. The problem with Petitioner’s argument is that the agency responsible for Ms. Heim’s employment and retirement was the Department of Corrections and not the Division. The other problem is that there is no factual or legal bases in law or equity to grant such relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order confirming Petitioner’s retirement date as May 1, 2002. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 19th day of December, 2003. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Mantana Heim 2664 Radford Church Road Moneta, Virginia 24121-4496 Alberto Dominguez, Esquire General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner may purchase retirement credit for the period of time from his suspension date to his reinstatement date as creditable service in the Florida Retirement Service.
Findings Of Fact Petitioner, Philip J. Cobb, was employed by the Pinellas County Board of County Commissioners (County) in May 1985, as a property manager. As a permanent employee of the County, Petitioner was enrolled as a member of the regular class of the Florida Retirement System (FRS). In order to vest and be eligible to receive retirement benefits under state law, Petitioner needed to complete ten years of creditable service. Petitioner continued to work for the County until he was terminated on August 1, 1992. The reason Respondent terminated Petitioner was because he allegedly failed to support his supervisor and was insubordinate. At the time Petitioner's employment with the County was terminated, he had earned approximately seven years and two months of creditable service and was thirty-four months short of vesting in the FRS. Petitioner challenged his termination by instituting legal proceedings against the County, alleging that his termination was illegally motivated by age discrimination. The lawsuit, Case No. 94-1054-CIV-T-21C, was filed in June 1994, in the U. S. District Court for the Middle District of Florida, Tampa Division, and sought Petitioner's reinstatement to his former position. At the time of his termination, Petitioner was sixty-seven years old, and at the time of this proceeding he was one day shy of being seventy-three years old. After discovery had been undertaken and prior to the case being set for trial, the Court ordered the parties into mediation. During settlement negotiations, the parties specifically discussed the importance of Petitioner purchasing credit in the FRS as necessary for vesting. In light of this consideration, before of the Agreement was finalized, counsel for Petitioner contacted Respondent regarding the cost of Petitioner's purchasing the service credit required to vest in the FRS. In a letter dated November 30, 1995, from Maurice Helms, Chief, Bureau of Retirement Calculations, to counsel for Petitioner, Mr. Helms noted that Petitioner had only 7.25 years of creditable service in the FRS, not the ten years required to vest. Nevertheless, the letter stated, "If [Petitioner] were eligible to purchase the service credit required to vest and then retire, we estimate the cost would be $30,273.69". This projected amount was considered in negotiations and was represented in the settlement amount. In January 1996, as a result of the mediation, Petitioner and the County entered into a Settlement Agreement, Release and Disclaimer (Agreement), in exchange for Petitioner's dismissing his lawsuit. Paragraph Two of the Agreement provides that the County would make a lump sum payment distribution of $64,000.00 to Petitioner. Of the total amount, $34,000.00 was designated as back pay and liquidated damages. The remaining $30,00.00 was for "fees and other costs associated with the above-captioned case." Further, the County agreed to rescind Petitioner's termination, convert the termination to a suspension without pay, and reinstate Petitioner to his former position. Finally, the Agreement included a provision that Petitioner would resign from that position on the date he was reinstated. Paragraph Three of the Agreement provides that the $64,000.00 is not a "mere recital, but is the cash consideration for this Agreement and the full and final release affected thereby." Notwithstanding the provision in the Agreement that the $34,000.00 is for back pay and liquidated damages, Paragraph Three of the Agreement expressly states that the settlement amount paid by the County and accepted by Petitioner was not to compensate Petitioner for back wages, benefits, or other forms of compensation. Rather, the settlement amount was part of the compromise to settle and compromise the matter. In this regard, Paragraph Three of the Agreement provides in pertinent part the following: ...The parties hereto recognize that substantial questions of law and of fact exist as to any possible claim or claims by Cobb for any compensation, back pay, forms of compensation, benefits or damages, liquidated/compensatory or otherwise, interest and any other claim for relief; therefore, [this settlement is being made purely on a compromise basis in order to avoid further trouble, litigation and expense, and the settlement amount is considered to be a part of the compromise, paid by Defendant and accepted by Cobb not to compensate Cobb for back wages, benefits or other forms of compensation, but to settle and compromise the matter relative to the trouble, interference, damage, and expense which would have been and would otherwise continue to be claimed and/or associated therewith]. [Emphasis supplied.] Paragraph Eleven of the Agreement addresses changes in Petitioner's employment status and delineates the method by which the County would accomplish these changes. That paragraph provides the following: The parties hereto further agree that, without any waiver of the sufficiency of the grounds and cause for Cobb's termination, and [in settlement of all claims of Cobb as set forth hereinabove, a personnel action form will be prepared changing Cobb's termination action on July 31, 1992, to a suspension without pay through the date this Agreement is signed. Additionally, a personnel action will be issued reinstating Cobb to paid status effective the date this Agreement is signed.] Cobb agrees to sign and submit the attached letter of resignation, effective the date he signs this Agreement, and further agrees to waive any pay and/or benefits to which he may be entitled from Defendant since July 31, 1992. [Emphasis supplied.] After the Agreement was executed and pursuant to the terms thereof, the County prepared and processed the required paperwork which effectively rescinded Petitioner's termination, changed the termination to a suspension without pay, and reinstated Petitioner to paid status. Petitioner did not return to work with the County, but resigned on the day he was reinstated. Petitioner's resignation was consistent not only with the terms of the Agreement, but with Petitioner's intentions at the time he was being considered for employment by the County. At or near the time Petitioner was initially employed by the County, he indicated to County officials that he was committed to remaining with the County for ten years so that he could vest in the FRS. Based on his understanding of the Agreement, Petitioner did not intend to return to work with the County after the Agreement was executed. Petitioner believed that the County's action of rescinding his termination, changing his status to suspension without pay, and reinstating him provided him with more than the thirty-four months he needed to vest in the FRS. Had Petitioner not been terminated by the County, he would have vested in the FRS in May 1995, and would have thereupon retired. Although the Agreement provided that Petitioner would resign, there is no indication that the County was opposed to Petitioner's returning to work. In fact, one of the negotiators for the County, testified that "I am not sure that Pinellas County didn't want Mr. Cobb to return to employment. We wanted to settle the lawsuit that was pending. " After the Agreement was finalized, in a letter dated February 12, 1996, Petitioner provided Respondent with a copy of the executed Agreement and "copies of personnel actions completed in accordance therewith." The letter requested that Respondent do the following: (1) reinstate Petitioner in FRS in accordance with Section 121.011(3), Florida Statutes, and Rule 60S-2.016, Florida Administrative Code; and (2) provide Petitioner "with the amount of his required contributions for retirement credit for his period of suspension up to and including the date of his vesting." Petitioner was prepared to pay into the State Retirement Fund the contribution required to receive retirement credit. On March 5, 1996, Respondent issued a letter to Petitioner denying him the right to make contributions for retirement for the period of suspension without pay, July 31, 1992, through the date of his reinstatement, January 22, 1996. The denial letter stated that the purported "reinstatement" did not occur. As rationale for its position, Respondent found that: (1) after being "reinstated", Petitioner never performed work in a regularly established position and, therefore, was not compensated for services or work performed; (2) the County never intended to reinstate Petitioner "to employment with pay, nor was there an expectation of Petitioner to be "made whole" by the County; and (3) Petitioner and the County never intended to "enter into an employer and employee relationship retroactively for the period in question." Respondent stated that the purported reinstatement of Petitioner "was more in the nature of a ruse or sham to achieve a goal other than gainful employment." Moreover, Respondent believed that "neither the member nor the employer intended to enter into a regular employer and employee relationship." Respondent thus concluded that the reinstatement was not "bona fide" and was solely for the purpose of allowing Petitioner to vest in FRS and obtain retirement benefits. Respondent also objected to the form of Petitioner's reinstatement of employment with the County, declaring that it was not a "bona fide" as signified by his failure to receive back pay for the period of suspension and his failure to enter into an employer-employee relationship with the County for the equivalent of one calendar month. Respondent acknowledged that once Petitioner's termination was changed to a suspension without pay Rule 60S-2.016, Florida Administrative Code, applies to the case. This rule is interpreted by Respondent to require that for reinstatement to occur, an individual must work in a regularly established position for at least one calendar month following the suspension. Respondent admits that the "one calendar month" requirement is not contained in either Section 121.011(3)(e), Florida Statutes (1991), or in Rule 60S-2.016, Florida Administrative Code, both of which govern retirement credit for periods of suspension without pay. Nevertheless, Respondent's interpretation of Rule 60S-2.016, Florida Administrative Code, is that a person must work thirty days after a suspension without pay to be deemed "reinstated". Respondent derives this interpretation by applying language from the rule that governs granting credit for leaves of absence. Respondent's interpretation of "reinstatement," as it relates to members who have been suspended without pay, is not evident from the language of the applicable statute or rule and may be ascertained only upon reviewing individual member files. The Florida Retirement System currently has 600,000 active members and 140,000 retirees, for a total of 740,000 files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order that awards Petitioner retirement credit for the period of time from his date of suspension to his date of reinstatement subject to his purchasing retirement credit for that period of time. DONE and ENTERED this 30th day of October, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1996. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675-0638 Stanley M. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 Paul A. Rowell General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
