The Issue Whether Petitioner is entitled to participation in the State University Optional Retirement Program for the period August 1997 through December 1998.
Findings Of Fact Petitioner Jeffrey Bradshaw (Bradshaw) was employed by UWF as a Research Assistant from August 8, 1997, until December 1998. This position was eligible to participate in the ORP for the State University System as described in Section 112.35, Florida Statutes (1997). On August 18, 1997, Bradshaw signed a Form ORP-16, indicating his election to be a member of the ORP and indicating that he had signed the necessary contract with TIAA-CREF, an approved annuity provider. Bradshaw returned this form to UWF. Below Bradshaw's signature is a portion of the Form ORP-16 which is entitled, "To be completed by employer." Within that portion of the form, a signature appears in the signature line designated "Signature of University" beneath the following certification: "I certify that since their employment with the university, this employee has signed a contract(s) with the ORP carrier(s) as shown and is filling an eligible position." Following this certification and above the signature of the university representative appears the following in handwriting, "verbal by employee." This portion of the form indicates that it was signed by a representative of UWF on October 6, 1997. The fully executed form ORP-16 was forwarded to Respondent on or about October 6, 1997. Bradshaw recalls that he sent a copy of the executed contract directly to TIAA-CREF. UWF paid the employer's statutory portion of Bradshaw's salary to Respondent to participate in the ORP for the entire period from August 8, 1997 to December 31, 1998, for a total of $11,494.88. Respondent forwarded that money to TIAA-CREF. On June 2, 1998, Respondent sent a letter to Bradshaw in care of UWF which read in pertinent part as follows: Effective July 1, 1997, Section 121.35, F.S. was amended and now requires ORP participants that fail to select a provider company and execute an annuity contract within 90 days of eligibility, must be enrolled in the Florida Retirement System (FRS). Even though you selected a provider company within 90 days of becoming eligible for ORP, you have not completed the other required step in the process. According to the company, you do not have a contract with them. The Division will be forced to transfer your contributions from the company account to the FRS Trust Fund unless you act immediately. You will then be credited with the appropriate service credit under the FRS and your employer will be requested to begin reporting you under the FRS. In order that you may continue in the ORP, you must complete the establishment of your ORP Account. We therefore request that you provide the critical information requested by the company to establish a contract using their application form (enclosed). If you have any questions about this process, please call the special toll free number for the Service Plus Office, 800 842-7715. This should be done as soon as possible, but no later than 15 days from the date of this letter. Please send a copy of this letter along with your form. Otherwise, to revert your retirement membership to the regular class of the Florida Retirement System, please complete the enclosed Form FRS-M10, Personal History Record and return it to your employer within the next 15 days. Should you have any questions concerning enrollment in the FRS, please call our Enrollment Section at SUNCOM 278-8837 or (850) 488-8837. Please send a copy of this letter along with the form. (emphasis in original) Faye Borders is a Senior Personnel Representative with UWF. According to her files, UWF contacted Bradshaw by telephone when UWF received the June 2, 1998, letter and Bradshaw indicated that he sent the application directly to TIAA-CREF. It is not clear from the record the scope of the telephone conversation between the UWF representative and Bradshaw. The evidence of record does not establish that Bradshaw was sufficiently informed of the content of the June 2, 1998, letter, or of its consequences. Bradshaw does not recall that the telephone conversation took place. He believed he had done everything he needed to do and did not became aware that there was a question about his earlier membership in the ORP until he signed a new contract in October of 2000. What is clear is that Bradshaw did not receive a copy of the letter and never received any written correspondence from anyone inquiring as to his status in the ORP. As far as Bradshaw was concerned, he completed all forms necessary at the appropriate times. Bradshaw left employment with UWF in December 1998 and moved out of state. He returned to employment at UWF in 2000 and signed a new ORP-16 and a new contract with TIAA-CREF in October 2000, and is currently actively enrolled in the ORP with TIAA-CREF as his annuity provider. He became aware that there was an issue about his former membership in the ORP in a telephone call he placed to TIAA-CREF and when he received a letter informing him that the money from the time period of his earlier employment had been returned to UWF. At this point, he sought advice from UWF's office of human relations. Bradshaw and UWF sent letters to Respondent to clarify this issue. A letter dated November 17, 2000, from Faye Borders to Respondent reads in pertinent part as follows: Dear Hobe, Please see (attached) Mr. Jeffrey Bradshaw's letter regarding his status in the Optional Retirement Program during his prior employment with the University of West Florida. I am also attaching information from our files pertaining to Mr. Bradshaw's efforts to enroll in the Optional Retirement Program. Mr. Bradshaw is certain he sent the application directly to TIAA-CREF and has repeated that on several occasions. He has moved several times since his prior employment, thus the address we provided to TIAA-CREF on our attached copy of the fax sent to them may not have been current. TIAA-CREF's letter to Mr. Bradshaw states that the University of West Florida requested the institutional premiums be removed from the contract and placed in their Repurchase account at TIAA-CREF. I am unclear on this and as far as I know the University does not handle such transactions. Anything you can do to assist Mr. Bradshaw with his request will be greatly appreciated. Respondent responded directly to Bradshaw, again in care of UWF, with a letter dated March 30, 2001. The letter was written by David Ragsdale, Benefits Administrator, and reads in pertinent part as follows: Dear Mr. Bradshaw: This is in reference to your October 20, 2000 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires SUSORP participants that fail to select a provider company within 90 days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete and submit the ballot, Form ORP-16, within the ninety days window of eligibility in compliance with the law. As such, you will be a compulsory member of the FRS. Mr. Ragsdale acknowledges that the March 30, 2001, letter to Bradshaw was in error in that the Division had received the ORP-16 signed by Bradshaw in 1997. Mr. Ragsdale also explained that letters to Bradshaw were addressed to UWF because in 1997, and until sometime in 2001, Respondent did not maintain personal addresses for participants, but relied on the employing agencies to maintain addresses for their employees. On April 26, 2001, Sherell Hendrickson, Director of Human Resources at UWF, sent a letter addressed to Mr. Ragsdale which stated as follows: Dear Mr. Ragsdale: This is in reference to your March 30, 2001 letter denying Jeffrey Bradshaw's enrollment in the ORP in 1997. A copy of your letter is attached. This denial is based on Mr. Bradshaw's failure to complete and submit the ballot, Form ORP-16, within the ninety-day window of eligibility in compliance with the law. Mr. Bradshaw did complete and return his Form ORP-16. He was hired on August 8, 1997; the form ORP-16 was sent to the Division of Retirement on October 6, 1997, less than 60 days after his initial employment with UWF. On this form, he designated TIAA-CREF as his retirement annuity company and certified that he had signed a Florida ORP contract. Mr. Bradshaw sent his enrollment forms directly to TIAA- CREF. HR Benefits Clerk, Valerie Comparetta, notes that he sent the annuity contract to TIAA-CREF on the form ORP-16. Unfortunately, TIAA-CREF alleges that they did not receive his contract application and that after attempting to get in touch with him, they contacted UWF's Human Resources Department. He gave TIAA-CREF an address that may not have been current to contact Mr. Bradshaw. However, Mr. Bradshaw confirmed with us that he had completed and mailed the contract to TIAA-CREF. The University's institutional premiums of $11,496.88 were sent to TIAA-CREF during 1997-98. Mr. Bradshaw moved and did not hear anything else from either us or TIAA- CREF. He returned to employment at UWF on May 6, 2000. When he called TIAA-CREF, he was surprised to find out that his initial paperwork had never been located by TIAA- CREF and that UWF had requested that the institutional premiums "be removed from the contract and placed in their Repurchase account at TIAA-CREF." To my knowledge, and that of the Benefits Section in HR, no one in this office asked for this to be handled. We do not handle such transactions. I am requesting that you reconsider this issue. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, did not receive the notices sent to him by TIAA- CREF, and has stated on more than one occasion that he sent in his enrollment application to TIAA-CREF. The institutional funds were held by TIAA-CREF for two years. We believe that the institutional funds of $11,496.88 should be sent back to TIAA-CREF and into Mr. Bradshaw's ORP account. According to Ms. Hendrickson, her office has had problems in the past with TIAA-CREF losing documents or correspondence. Unlike other annuity providers, TIAA-CREF does not have a local representative at UWF. UWF deals directly with the TIAA-CREF office in Atlanta. Also according to Ms. Hendrickson, UWF's file indicates two instances when Bradshaw informed UWF that he provided a contract directly to TIAA-CREF. These are further explained in a June 13, 2001, memorandum from Hendrickson to Respondent which also references that UWF confirmed with TIAA- CREF in 1999 that the company had a completed application: Thank you for any additional consideration you might give to my April 26, 2001 letter to Mr. David W. Ragsdale concerning the ORP account of Mr. Jeffrey Bradshaw. Mr. Bradshaw is in the ORP, has selected TIAA-CREF for his contract, and did not receive the notices sent to him by TIAA- CREF. He has stated to the University of West Florida Office of Human Resources personnel on two (2) separate occasions that he sent in his enrollment application to TIAA-CREF. Our first contact with him about the TIAA-CREF application was in October 6, 1997. When we contacted him about the TIAA- CREF application, he stated that he had signed and sent in his TIAA-CREF application to the company. This is noted on our ORP-16 enrollment form for him. On our second contact with him on June 23, 1998, our notes reveal that he verified to our office that he had sent in his forms directly to TIAA- CREFF[sic]. In January 1999, we have a note in our files that we again confirmed with TIAA-CREF that he completed his TIAA-CREF application and sent it directly to the company. We also have a completed ORP-16 Form from him dated August 18, 1997 after his initial employment on August 8, 1997. Copies of these documents may be provided, if necessary. They were included in my April 26, 2001 letter. Based on the above information, we have every reason to believe that Mr. Jeffrey Bradshaw completed his TIAA-CREF application and mailed it to TIAA-CREF. Respondent responded to Ms. Hendrickson's April 26, 2001, letter on September 4, 2001, in a letter addressed to Bradshaw in care of UWF. This letter gave a different reason for rejecting Bradshaw's membership in the ORP for the period of his earlier employment: Dean Mr. Bradshaw: This is reference to your June 13, 2001 letter requesting the Division of Retirement allow you to participate in the State University System Optional Retirement Program (SUSORP) after the ninety-day eligibility period. Effective July 1, 1997, Section 121.35, F.S., was amended and requires ORP participants that fail to select a provider company within ninety days of eligibility to be enrolled in the Florida Retirement System (FRS). Based on the information submitted, it appears you did not complete an annuity contract with a provider company within the ninety-day window of eligibility. Therefore, you are not eligible for the SUSORP and you will be a compulsory member of the FRS. Should you have any questions, or need additional information, please contact David Ragsdale or Hobart Lawrance at SUNCOM 278- 8837 or (850) 488-8837. According to Mr. Ragsdale, Respondent does not get a copy of the contracts entered into between individuals and annuity providers. Respondent made the payments to TIAA-CREF on behalf of Bradshaw based on the ORP-16 that indicated on its face that a contract existed. No one involved in this proceeding appears to have a copy of the contract signed by Bradshaw in 1997. At that time, it was not unusual for UWF or Respondent to not have a copy of contracts between individual employees and annuity providers. On or about June 24, 1999, TIAA-CREF credited the $11,494.88 to a repurchase fund maintained on behalf of Respondent. Respondent transferred these contributions to the Florida Retirement Trust Fund. As a consequence, Bradshaw has received service credit for the number of months of his earlier employment period with UWF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letter of September 4, 2001, and sending Petitioner Bradshaw's contribution of $11,494.88 to TIAA-CREF, requesting that it be deposited into Bradshaw's ORP account or, in the alternative, refunding the $11,494.88 directly to Bradshaw. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002. COPIES FURNISHED: Julie L. Sheppard, Esquire Patricia D. Lott, Esquire University of West Florida 11000 University Parkway Building 10 Pensacola, Florida 32514-5750 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issue presented is whether Petitioners are entitled to Option 2 continuing retirement benefits following the death of Linda Prince, a Florida Retirement System member.
Findings Of Fact Linda J. Prince was employed by the Florida Department of Law Enforcement (hereinafter "FDLE") and was a vested, regular class member of the Florida Retirement System (hereinafter "FRS"). After she was diagnosed with a serious health condition, she was able to continue as a full-time employee by participating in the Department's sick leave pool. By November 2008 her family understood that she was terminally ill. About that time, she began alternating staying at the home of her son Brian Prince and at the home of her daughter and son-in- law Wendy and Harrison T. Rivers. During the first week of November 2008, her son, daughter, and son-in-law began discussing whether she should retire rather than remaining in full-pay status. Harrison T. Rivers asked his father Harrison W. Rivers for advice since his father was a retired member of FRS. His father told him that Linda Prince should retire right away under Option 2 since that would guarantee a 10-year payout. One of the persons that Harrison T. Rivers contacted for advice referred him to Annie Lamb, a Personnel Services Specialist at FDLE. He remembers asking her about Option 2 and understood her to tell him that Option 2 required having a spouse or other dependents. She does not recall the conversation. When Harrison T. Rivers conveyed his understanding to Brian Prince, Brian requested that a meeting be set up at FDLE's Personnel Office. The two men met with Samantha Andrews, a different FDLE Personnel Services Specialist, near the end of 2008. All three persons attending the meeting recall that they discussed the sick leave pool, and the two men were assured that there were enough donations to the sick leave pool to cover Linda Prince's continuing need. The attendees at the meeting have different recollections of the other matters discussed. The two men believe they discussed Option 2 and that Samantha Andrews called across the hall to Annie Lamb who confirmed that Option 2 required a spouse. Lamb recalls Andrews asking her a question but does not remember what the question was. Andrews does not recall asking Lamb a question and further does not recall discussing the retirement options at the meeting. At the final hearing, Andrews admitted that she did not understand the differences among the four retirement options until after Linda Prince's death and that before then she thought that one had to be a spouse or a dependent child to be a beneficiary. Andrews' impression of the meeting is that Linda Prince's children wanted to be sure she remained in full- pay status through the sick leave pool to increase her income and keep her benefits available and at a reasonable cost. After this meeting, Linda Prince remained on full-pay employment status. As a result, she received (1) her full salary rather than a reduced retirement amount, (2) health insurance at a cost of $25 bi-weekly, and (3) a $44,000 life insurance policy at the cost of $2 bi-weekly. If she had retired, she would have had to pay nearly $500 a month for the health insurance and would have lost her $44,000 life insurance policy. Instead, she would have had the option of purchasing either a $10,000 or $2,500 life insurance policy for $29.65 or $7.41 a pay period, respectively. On January 10, 2009, Harrison W. Rivers was visiting at his son's home while Linda Prince was staying there. In a conversation with her, he was surprised to learn that she had not retired as he had strongly advised two months earlier. When he later questioned his son as to why she had not retired, his son told him because she did not have a spouse. Harrison W. Rivers told his son that that information was not correct. On January 20, 2009, Harrison W. Rivers met with his own financial advisor David A. Wengert and relayed the information his son had given him. Wengert agreed with Rivers that the information about a spouse or dependent child was not correct but checked with a contact he had at the Department of Corrections. That person confirmed that the spouse or dependent child requirement did not apply to Option 2 and faxed the necessary forms for retiring under Option 2 to Wengert who gave them to Rivers. Harrison W. Rivers gave the folder from Wengert containing the correct information and required forms to his son and told his son to retire Linda Prince immediately. His son subsequently called Brian Prince, gave him the correct information, and told him that Linda Prince should retire. Brian Prince agreed but was out of town at the time. On February 11, 2009, Harrison T. Rivers drove Annie Lamb from FDLE to where Linda Prince was staying. The forms were completed and signed, and Lamb notarized Linda Prince's signature. The forms provided for Linda Prince to take early retirement under Option 2 with Brian Prince and Wendy Rivers as her equal beneficiaries. The forms were filed with Respondent, the Department of Management Services, Division of Retirement, the same day. The forms she signed selected February 28, 2009, as Linda Prince's termination of employment date. A termination date of February 28, 2009, resulted in a March 1, 2009, retirement date. Linda Prince died on February 14, 2009. On that date, she was still in full-pay status since she had not terminated her employment and retired. Option 2 under the FRS system provides a reduced monthly benefit payable for the member's lifetime, but if the member dies within ten years after his or her retirement date, the designated beneficiary receives a monthly benefit in the same amount for the balance of the ten-year period, and then no further benefits are payable. Option 1 provides for monthly payments for the member's lifetime, and upon the member's death, no further monthly benefits are payable. It, therefore, pays no continuing benefits to a beneficiary. Options 3 and 4 provide for joint annuitants and reduced monthly benefits. Under Option 3, upon the member's death, the joint annuitant, who must be a spouse or a financial dependent, will receive a lifetime monthly benefit payment in the same amount, but there are limitations on the amount and length of those payments for a joint annuitant under 25 who is not a spouse. Option 4 provides an adjusted monthly benefit while the member and the joint annuitant are living, a further reduced monthly benefit after the death of either the member or the joint annuitant, with adjustments if the joint annuitant is under the age of 25 and not a spouse. No benefits are payable after both the member and the joint annuitant are deceased. Thus, only Options 3 and 4 require a spouse or financial dependent in order for continuing benefits to be paid after the member's death. Upon learning of her death, the Division of Retirement researched whether any benefits were due to Linda Prince or her beneficiaries. Since she had paid nothing into the FRS, there were no contributions to refund. Further, since she had not retired, no retirement benefits were payable to her or her beneficiaries. The Division also looked at the dates of birth of her beneficiaries to determine if a beneficiary would qualify as a joint annuitant, but both of her beneficiaries were over the age of 25. The only time that Linda Prince contacted the Division of Retirement was in 2002 when she sent an e-mail asking that her benefits be calculated as to what she would receive if she retired at age 62. The Division performed the calculations and sent her the information as to what her benefits would be under Options 1 and 2. Her file contains her e-mail, the benefits estimates sent to her, and a copy of an informational retirement brochure. Information on the FRS, including descriptions of the Options, has been available on the Division's website, in employee handbooks available from the Division, and was available in written form in FDLE's Personnel Office on the day that Brian Prince and Harrison T. Rivers met with Samantha Andrews. During that meeting, neither Brian Prince nor Harrison T. Rivers requested a copy of the employee handbook or any written materials describing the Options for retirement. Because of Petitioners' estoppel argument, the chronology in this case must be closely reviewed. At least until early November 2008, Linda Prince had made her decision to stay on full-pay status to receive her full salary and benefits rather than take early retirement. In early November, her son, daughter, and son-in-law became involved in that decision. In early November, her son-in-law understood an FDLE employee to say that Linda Prince needed a spouse or financial dependent to qualify for continuing retirement benefits, but his father, who was a retired member of FRS, told him that information was wrong and that Option 2 would provide a ten-year continuing benefit for her beneficiaries. No contact was made on her behalf with the Division of Retirement to ascertain which information was correct. On January 10, 2009, Harrison W. Rivers, upon learning that Linda Prince was still not retired, again told his son that she should be retired under Option 2 and that his son's understanding that she needed a spouse or financial dependent was wrong. Again, no contact was made with the Division of Retirement. On January 20, 2009, Harrison W. Rivers obtained the written information and required forms. Within a few days he gave the information and forms to his son and told him again to see to it that Linda Prince was retired immediately. Yet, the forms were not executed and filed with the Division of Retirement until February 11, 2009. Had Linda Prince or anyone on her behalf contacted the Division of Retirement to clarify which information was correct once they had conflicting information the first week of November 2008, she could have retired starting December 1. Had Linda Prince or anyone on her behalf submitted her application for retirement when Harrison W. Rivers provided the correct information and forms to use in January 2009, she could have retired then with a February 1 retirement date. Even though Petitioners offered evidence to show that they relied upon erroneous information conveyed by Harrison T. Rivers and even though they offered evidence that they received erroneous information from Samantha Andrews, it would have been clear to a reasonable person that such information conflicted with the information given by Harrison W. Rivers, who had gone through the process. Further, in January when Rivers gave them the correct written information and the forms to use, there was no basis for relying upon the erroneous information. If Petitioners had acted to clarify the previous conflicting information or had not delayed in having Linda Prince execute the forms when Rivers provided them, they would have retired her before her death and would have been entitled to continuing benefits. Whatever circumstances caused the further delay in the filing of Linda Prince's application for retirement and supporting documentation, the delay was not caused by the information, erroneous or not, provided by the FDLE employees. Accordingly, Linda Prince was still a full-time employee at the time of her death not as a result of erroneous information provided by FDLE employees as alleged by Petitioners, but as a result of delay in obtaining the easily- accessible correct information from the Division of Retirement and as a result of delay in acting on the correct information when it was provided to them. There are over 960 agencies, including state departments and local governments and school boards, which participate in the FRS. The employer and employee handbooks distributed to those agencies and their employees by the Division of Retirement clearly state that representatives of participating agencies are not the agents of the Division of Retirement but rather only act as a link between employees and the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioners ineligible for an Option 2 benefit from the FRS retirement account of Linda Prince. DONE AND ENTERED this 10th day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 10th day of August, 2009. COPIES FURNISHED: Brian Prince 1063 Walden Road Tallahassee, Florida 32317 Harrison Rivers 4211 Camden Road Tallahassee, Florida 32303 Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 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, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is eligible to participate in the Deferred Retirement Option Program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1976, a firefighter employed by Miami-Dade County and, as such, a Special Risk member of the Florida Retirement System. Petitioner's date of birth is September 19, 1937. Accordingly, on July 1, 1998, the effective date of DROP, Petitioner was 61 years of age and had approximately 22 years of creditable service as a Special Risk member of the Florida Retirement System. Petitioner was aware that he needed to file an application to join DROP within 12 months of July 1, 1998, but he opted not to file such an application because he believed that the retirement benefits he would receive if he joined DROP within this 12-month period would not be enough for him to "live on" after he stopped working.2 Petitioner thought that it would be in his best interest, instead, to wait until 2003 to retire (and enjoy higher retirement benefits). On June 7, 2001, Petitioner sent an e-mail to Governor Bush, which read, in pertinent part, as follows: Yesterday I met with the head spokesman of FL. State Retirement concerning my participation in the D.R.O.P. [and] he advised me to send this note. As you know it started in 1998 at which time I was offered a small window because of my age (unlawful discrimination) for which I was not able to get into because of the insignificant amount offered as permanent retirement. Since then, as anticipated, my retirement has increased from the high 30's to the low 60's due thanks to you . . . Now, I am asking, by special request, to be allowed to enter into the D.R.O.P. either to finish these two years or to be given an opportunity to go for the whole 5 years, which I doubt I would complete. . . . Petitioner's e-mail correspondence was referred to the State Retirement Director who, by letter dated June 8, 2001, advised Petitioner that Petitioner's "request to join DROP at this late date must be denied."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding that Respondent is not eligible to participate in DROP because he did not elect to do so within the time frame prescribed by Subsection (13)(a)2. of Section 121.091, Florida Statutes. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
The Issue Whether Petitioner can transfer service from the State University Optional Retirement Program to the Florida Retirement System Pension Plan.
Findings Of Fact Petitioner is currently employed as a professor of philosophy and religion at Florida Agricultural and Mechanical University (FAMU). He was first employed as an Assistant Professor at FAMU in 1971. During Petitioner's employment with FAMU, he became an associate professor and was given years toward tenure in 1980, after filing an action with the Office of Civil Rights.2/ Petitioner has published a dozen books, has been awarded the Teacher Incentive Program Award and the Professorial Excellence Program Award, and has been a National Endowment for the Humanities Scholar at Boston University, New York University, and the University of Chicago. By stipulation, the parties agreed that Petitioner accrued retirement benefits under FRS and the Division of Retirement has credited Petitioner's service as a participant in FRS during the academic years 1971-72, 1972-73, 1974-75, 1975- 76, 1978-79, 1980-81, 1981-82, 1982-83, and 1983-84. Note that this stipulation is silent as to the academic years 1973-74, 1976-77, 1977-78, and 1979-80. During the period from August 1984 through the present, Petitioner has been considered by the Division of Retirement to be a participant in ORP, and ORP has been credited with employer contributions for Petitioner's service at FAMU accordingly. The Division of Retirement stipulated that if Petitioner had not undertaken acts which, in its opinion, constituted an election to participate in ORP, Petitioner's service, which has been credited in ORP, would have qualified for the continued accrual of benefits under FRS. In 1984, Petitioner became aware that he could make an election to join ORP, a retirement option created that year by the legislature, and that he must make his election to join that program by June 1, 1984, or he would be forever barred from utilizing ORP. The effective date of salary contributions was July 1, 1984. In 1984, it was necessary for a state employee to work 10 years in a FRS position in order for his or her retirement to vest. Effective July 1, 2001, the requirement changed to six years of creditable service for those members actively employed on that date.3/ Other Personal Services (OPS) is a category of temporary employee which does not accrue creditable time toward FRS retirement benefits. Petitioner's pre-1980 employment contracts with FAMU had not indicated whether he was in FRS, as opposed to being an OPS employee, but there is no evidence to suggest this information was provided on anyone else's contract, either. There is no direct evidence whether Petitioner's FAMU salary warrants and/or pay-stubs, throughout all the years, indicated withholding for social security, although that is probable (See Finding of Fact 52). If they did, it would go to show that Petitioner always had monthly or bi-weekly notice of whether or not he was a regular employee. It is also probable that his FAMU warrants throughout all the years, as they do now, showed a fund code, a class code, and his type of retirement contributions. At all times material, Petitioner at least knew he had been in FRS his first two years at FAMU. This would seem to be academic years 1971-72 and 1972-73. Petitioner was "laid off" for the 1973-74 academic year. Petitioner was refunded all his FRS accruals up to that date. This meant that those FRS accruals would have to be paid back to FRS in order for Petitioner to be able to count those academic years toward retirement in FRS, but it is not clear when Petitioner knew this was the result of his withdrawal of the accruals. The record is unclear as to whether he has paid back these accruals.4/ Under FRS, he would have had the option to pay them back anytime before retirement. When Petitioner applied for promotion at FAMU in 1978, he had been told by FAMU officials that he could not be promoted because he was in the OPS category. However, after settling his civil rights action in 1980, he knew he was put in a permanent position, as associate professor with the promotion he had been denied, and had been given years towards tenure since 1978. Apparently, he did not comprehend that this adjustment also resulted in his receiving FRS credit for all those years. In 1984, Petitioner somehow believed that he had only been credited with FRS membership for 1980 through 1984. In June 1984, Petitioner already had a tenured contract for the following year, which, per the parties' stipulation, would have been his tenth year in FRS, with vesting. Cf. the collective endnotes. Petitioner found out about the option to join ORP in the spring of 1984. Petitioner testified that he had not wanted to elect ORP in 1984 unless he could find out how many years of credited service he had in FRS. This was because he understood the illustrations provided with the ORP election literature to indicate that if an employee had only one, two, or three years of credit in FRS, making the election to participate in ORP might be advisable, whereas the election should not be made by one who had eight or nine years of FRS credit. The ORP election literature itself was not offered in evidence. Petitioner first testified that he had sought clarification of his number of years in FRS from both the FAMU Personnel Office and the Division of Retirement prior to the June 1, 1984, deadline for making an ORP election. However, the attempts he related amounted to filling out a form in the payroll section of the FAMU Personnel Office requesting his work history, which form he thought would be forwarded to the Division of Retirement; and filling out a form to make an appointment with a FAMU Personnel Officer to discuss his situation. His testimony is confused and contradictory as to whether he personally made direct contact with the Division of Retirement during this period, and upon the evidence as a whole, it is concluded that he did not. Nonetheless, Petitioner completed a Division of Retirement Ballot/Enrollment Form, also known as an ORP-16 Form, to participate in ORP. The instructions attached to the form read, in pertinent part: As an employee eligible to participate in the ORP you have the option to reject or elect membership in the ORP. If you reject the ORP, you will be a member of the FRS. If you choose not to participate, so indicate in the space provided for rejecting the ORP and include the date. If you reject the ORP, it will not be necessary to complete the remainder of the Enrollment Form. If you elect to participate, please complete the following: Percent of salary to be contributed by your employer to each plan (the total must equal 6%). Percent of salary to be deducted from your salary as an employee contribution (the total cannot exceed 6%) and to which plan(s). Name of company or companies you have selected. Read the three statements carefully, sign and date the Enrollment Form. The form contains an admonition that ORP election is irrevocable. Also on this Ballot/Enrollment Form, under "I elect to become a member of the ORP and have signed necessary contracts as follows," Petitioner filled in the investment provider name of TIAA-CREF, the State employer's contribution percentage, and the date of May 15, 1984. He did not fill in an employee contribution percentage. He did not sign in either the "elect to participate" or the "elect not to participate" portion of the form. FAMU certified this form as described infra. Petitioner also completed an ORP Enrollment/Change Form, selecting, as his investment provider, TIAA-CREF. This form provided, "If you have elected participation in TIAA-CREF under the Florida Optional Retirement Program (ORP), please complete this form when enrolling in or making a change to TIAA- CREF noncashable Retirement Annuity or cashable Supplemental Retirement Annuity (SRA) contracts. This form applies only to TIAA-CREF contributions under the ORP." Petitioner checked "enrollment" under "Reason for submitting form." He filled out all parts of the form concerning the State's contributions, including inserting the effective date of "7/1/84." He signed the form and dated it "5/15/84." Petitioner also signed a contract with TIAA-CREF as his investment provider, dated "May 17, 1984." This document bears a certification by FAMU that his passport proved Petitioner's identity on that day. Petitioner left the foregoing three 1984 forms with a FAMU Personnel Office employee. Petitioner testified that he had an agreement with the unnamed FAMU Personnel Office employee to the effect that only if Petitioner came in and signed the unsigned documents was he electing ORP, and that if Petitioner did not come in to sign by June 1, 1984, the forms should be destroyed. However, this testimony is only Petitioner's understanding of the agreement. No one from the FAMU Personnel Office testified, and there is no evidence that there was ever a meeting of the minds on this "understanding." On May 17, 1984, a FAMU official dated and certified Petitioner's unsigned Ballot/Election form (see P-4 and Findings of Fact 18-20) and forwarded it to the Division of Retirement. The FAMU certification on this document was to the effect that Petitioner had executed a contract with a provider, which, in fact, Petitioner had. (See R-4 and Finding of Fact 22.) The FAMU certification read, in whole part, "I certify that this employee has signed a contract(s) with the ORP carrier(s) as shown above and is filling a fulltime position." The certifier checked the box for "enrollment." FAMU then forwarded the unsigned but certified Ballot/Enrollment Form to the Division of Retirement. The Enrollment/Change Form, signed by Petitioner, may or may not have gone to the Division, but the contract between Petitioner and TIAA-CREF was forwarded by FAMU to TIAA-CREF. In 1984, as now, if anyone in the Division of Retirement had noticed that Petitioner had not signed the Ballot/Election Form, it was Division policy to write the employee and ask him to completely fill out a new form and sign it. Then the Division would honor the employee's election of ORP, even if the correctly completed form were received after the election deadline or the first payroll deduction. Apparently, in 1984, due to the necessity of processing a huge quantity of ORP Ballot/Election forms between the June 1, 1984 election deadline and the dates of the electing employees' first July bi-weekly or monthly paycheck(s), no one in the Division of Retirement noticed the absence of Petitioner's signature on the Ballot/Election Form, and no letter was written to him. Instead, based upon the certified unsigned Ballot/Election Form, and probably the Enrollment/Change Form, the Division of Retirement treated Petitioner as enrolled in ORP as of the June 1, 1984 deadline. However, Both Ms. Smith, Administrator of the Enrollment Section of the Bureau of Enrollment and Contributions, and Mr. Henning, Administrator of the Optional Retirement Program and Optional Annuity Program Section, of the Division of Retirement, testified that if they had seen Petitioner's certified but unsigned Ballot/Enrollment Form in 1984 or today, they would have assumed the Petitioner had elected to be enrolled in ORP, because all the required information was there, including the certified information that he had signed a binding contract with the carrier/provider TIAA- CREF. In August 1984, the employer began paying the maximum allowable State contributions to TIAA-CREF for Petitioner's ORP retirement benefits. In August 1984, Petitioner received, from TIAA-CREF, a copy of the contract he had signed with that ORP provider. Although Petitioner claimed that he only asked to get out of ORP in 2002 when his number of years in FRS was finally revealed to him by a social security account calculation,5/ he simultaneously and inconsistently maintained that he went to the FAMU personnel office in August 1984 and orally complained that he did not want to be in ORP. However, Petitioner was consistent throughout his testimony that a FAMU personnel office employee told him in August 1984 that the FAMU employee had telephoned the Division of Retirement and that the Division of Retirement had "said" that Petitioner's decision to join ORP was irrevocable. Sometime in 1984, after being advised by FAMU's Personnel Office that his prior election to go into ORP was irrevocable, Petitioner sought the advice of an attorney, but he ultimately chose not to formally contest his membership in ORP. Petitioner testified that, based on his prior civil rights action, he was not anxious to jump into an expensive lawsuit without knowing what his damages were and that his damages depended upon the number of years of accrued service he had in FRS as of June 1, 1984, which accrued service he believed he had lost by the election of ORP. Then, as now, state employees frequently presented issues contesting their appropriate retirement fund or account to the Division of Retirement by phone or letter. Once an oral request for review of the account is presented in written form to the Division, it is reviewed and a decision made. The decision is reduced to a letter, which constitutes the (proposed) final agency action. Petitioner's testimony that he repeatedly from 1984 until 2003 tried to obtain his FRS history from FAMU strains credulity, but his claim that between 1984 and 1989 he had twice tried, without success, to secure information from the FAMU Personnel Office about how many years in FRS he had lost is credible. He claimed to have sent certified letters concerning his years of service, apparently to FAMU, but there is no documentation at the Division of Retirement that anyone telephoned or wrote the Division of Retirement at any time prior to 2002 with any information that could be linked to Petitioner by social security number or his personnel file. From 1984 to 1989, the employer's maximum contribution to TIAA-CREF was transmitted as requested by Petitioner's 1984 Ballot/Election and Ballot/Change Forms. A member of ORP is allowed to make supplemental employee contributions. 39. In 1989, 1993, 1998, and 1999, Petitioner made employee contributions to his ORP provider company TIAA-CREF, utilizing Division of Retirement Ballot/Enrollment forms, also known as ORP-16 forms. After the 1984 enrollment period, ORP-16 forms have been used for employees already in ORP to change their contribution amounts, as the respective maximum amounts the State and the employee were permitted to contribute were raised by statutory amendments. ORP-16 forms could also be used to request divisions of the maximum percentages of the employer's and the employee's contributions between several ORP investment providers or to change from one ORP investment provider to another. Changing providers or adding providers would require that the employee also execute a new contract with the new provider. After June 1, 1984, ORP-16 forms could not be used by anyone employed and eligible on that date to initially elect to be in ORP because their deadline to elect ORP had been June 1, 1984. However, other persons becoming employed later had later election deadlines for ORP membership and could use the same ORP-16 forms to meet their later election deadlines. Employer certifications to the Division that valid provider contracts had been executed to cover all funds transmitted were still required. On his 1989 ORP-16 Form, Petitioner signed under the words, "I elect not to participate in ORP," and inserted the date "1/9/89". He also signed under the words, "I elect to become a member of ORP and have signed necessary contracts…" He inserted "11%" for his employee contributions, the TIAA-CREF name, and the same date in this portion of the form. He did not indicate the new 11% employer contribution on this ORP-16 Form, because that percentage was statutorily defined. This ORP-16 Form was certified by FAMU to the Division of Retirement on 1/11/89, in the language set out above in Finding of Fact 24. The certifier could have checked the boxes for "enrollment" or "plan change," but he or she checked the box for "other". The Division of Retirement transmitted the employer's maximum contribution and Petitioner's requested employee contribution to TIAA-CREF as requested by Petitioner's 1989 ORP-16 Form until 1993. Ms. Smith and Mr. Henning testified that they would not have understood Petitioner's 1989 ORP-16 Form as a request to get out of ORP, because an employee could not change ORP contribution percentages unless he or she was already in ORP; because an employee in Petitioner's class could not elect for or against ORP after June 1, 1984; and because the form was certified by the employer. On September 18, 1989, Petitioner signed an Application for TIAA-CREF Supplemental Retirement Annuity (SRA) and an Enrollment Memo for an ORP and Tax Deferred Annuity Program (TDA). On this latter item, Petitioner marked "already participating" beside the printed words, "ORP employer contributions"; checked the box for "voluntary ORP employee contributions"; and checked the box for "new contract" under "Supplemental retirement annuity (SRA) contracts." These forms were sent to TIAA-CREF. On October 1, 1989, TIAA-CREF issued Petitioner his SRA and TDA. On the 1993 ORP-16 Form, Petitioner did not sign a new portion added to the form which allowed a certain class of employee to state, "In lieu of participating in the ORP, I elect to participate in FRS." Petitioner did not fall in this classification of employee, anyway. He did, however, increase his employee's contribution to ORP via TIAA-CREF, and signed and dated the ORP-16 Form "September 27, 1993," in the section under, "I elect to become a member of the ORP and have signed necessary contracts. . ." This ORP-16 Form also was certified by FAMU to the Division of Retirement in the usual language, and the box for "contributions change" was checked. The Division of Retirement transmitted the employer's maximum contribution and Petitioner's employee contribution to TIAA-CREF as requested by Petitioner's 1993 ORP-16 Form until 1998. On November 3, 1996, Petitioner signed a Request for a TIAA Traditional Transfer Payout Annuity to TIAA Real Estate and/or CREF. This document was sent to TIAA-CREF. On the 1998 ORP-16 Form, Petitioner again did not sign the portion which allowed a different class of employee to state, "In lieu of participating in the ORP, I elect to participate in FRS." He did, however, again increase his employee's contribution to ORP via TIAA-CREF, and signed and dated the ORP-16 Form, "Nov. 30, 1998," in the section under, "I elect to become a member of the ORP and have signed necessary contracts. . ." This ORP-16 Form also was certified by FAMU to the Division of Retirement, in the usual language, and the box for "contributions change" was checked. The Division of Retirement transmitted the employer's maximum contribution and Petitioner's employee contribution to TIAA-CREF as requested by Petitioner's 1998 ORP-16 Form until 1999. The 1999 ORP-16 Form states at one point that the employer's contribution must equal 10.14% of salary and the employee's contribution cannot exceed 10.14%, and then also states that if the employee chooses to have up to 11.57% of his adjusted gross taxable salary deducted, other issues including other investment funds must be considered. (See Finding of Fact 50.) On the 1999 ORP-16 Form, Petitioner did not sign the new portion which allowed a different class of employee to state, "In lieu of participating in the ORP, I elect to participate in FRS." He did, however, decrease his employee's contribution to ORP via TIAA-CREF, and signed and dated this ORP-16 Form "6/11/99" in the section under, "I elect to become a member of the ORP and have signed necessary contracts. . ." This ORP-16 Form also was certified by FAMU to the Division of Retirement in the usual language, and the box for "contributions change" was checked. Since that date, The Division of Retirement has continued transmitting the employer's maximum contribution and Petitioner's employee contribution to TIAA-CREF as requested by Petitioner's 1999 ORP-16 Form. Petitioner testified that he used the 1989-1999 ORP-16 forms and the TIAA-CREF contracts to set up supplemental accounts while protesting against being in ORP at all. The reason Petitioner gave for executing the four changes in contribution to ORP itself was that he had unilaterally concluded that he could not use any investment companies used in conjunction with FRS supplemental accounts. In fact, Petitioner could not purchase his TIAA-CREF ORP-SRA and ORP-TDA without already being in ORP. Therefore, logically, his execution of the SRA and TDA documents described at Finding of Fact 43, further signify or ratify Petitioner's earlier election of ORP. Also, Mr. Henning testified that at no time was there any impediment via ORP to Petitioner's setting up a regular 403b tax shelter annuity or a 457 tax-deferred compensation account outside ORP. Petitioner also could have set up such plans if he had remained in FRS, but if he had remained in FRS, he would not have been able to run these plans through the ORP process. Mr. Henning's testimony is competent, expert, and unrefuted. Moreover, information concerning a 457 plan is included on each ORP-16 Form, immediately above the signature line for the "I elect to become a member of the ORP and have signed necessary contracts. . ." portion, by way of cautioning the employee that it is the employee's responsibility to be sure that in listing/changing any amount to be deducted for ORP, the employee must take into consideration that all payroll deductions, including credit unions, the 457 plan, or other supplemental accounts are fully funded. From 1984 through the present, Petitioner has received quarterly statements from TIAA-CREF, reflecting his earnings in ORP. In 2002, Petitioner received a calculation from the Federal Social Security Administration, which showed that he had been employed and that some employer(s) (not necessarily FAMU) had paid deductions in every year from 1971 to the present, with the exception of 1977. Petitioner then interpreted this to mean that he was in OPS with FAMU that year and was in FRS every other year between 1971 and 1984.6/ Only in 2002 did he contact the Division of Retirement. Petitioner's calculations show that if he had stayed in FRS, he could expect approximately three times the annual retirement benefit that he can now expect via TIAA-CREF.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order, which determines Petitioner to have been a valid member of ORP since June 1, 1984, denies his request to retroactively transfer into FRS, and dismisses his Petition. DONE AND ENTERED this 6th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October 2003.
The Issue Whether or not the Respondent, State of Florida, Department of Administration, Division of Retirement, was in error in refusing to allow the Petitioner, John S. Forster, Jr., a/k/a John S. Forster to repay his contributions to the Florida Retirement Systems after he had requested and been granted a refund of his contributions made to the Florida Retirement Systems.
Findings Of Fact John S. Forster, Jr. applied for a job with the University of North Florida, Jacksonville, Florida. That application was under the name John S. Forster. He was given employment by the University and commenced the job. His position was as Store Keeper II. That job involved the receiving and distribution of incoming materials which the University was purchasing. Sometime in the middle to late part of February, 1976 the Petitioner suffered an injury in his employment and was required to be away from his work. During the course of the treatment of the Petitioner and subsequent contact by the employer, it was discovered that the Petitioner had on several occasions given false answers on his employment applications and medical questionnaires. Specifically, in answering questions propounded to him about former serious illness or operations, he had answered in the negative when in fact he had had a back condition which required surgery. This finding is borne out by the Respondent's Exhibits 2, 3 and 4, admitted into evidence, which are employment questionnaires and medical questionnaires completed by the petitioner. After the discovery of the false answers and subsequent to the Petitioner having been away from his employment for an extended period of time, a decision was made to terminate the Petitioner from his employment with the University of North Florida. Upon receiving the notice of termination the Petitioner had no further contact with the University of North Florida and did not attend any form of exit interview, as is the policy of the University. However, prior to his employment, the University had given an orientation session in which he was made familiar with the right that he had under the Florida Retirement Systems, to include the distribution of certain brochures of information. It is not clear how the Petitioner obtained the form, but he did obtain a form which is a form utilized for requesting refund of contributions to the Florida Retirement Systems. This form may be found as Respondent's Exhibit 1, admitted into evidence. The form was completed in its entirety by the Petitioner, with the exception of the portions which are to be completed by the last Florida employer. The portions to be completed by the Florida employer were not completed. effectively what the form did was to instruct the, Petitioner that his application for refund would waive, for him, his heirs and assignees all rights, title and interest in the Florida Retirement Systems. This waiver constitutes a waiver in law on the question of any rights the Petitioner, his heirs and assignees would have under the Florida Retirement Systems. The waiver becomes significant because the Petitioner went to a social security office and discovered that he would possibly be entitled to certain benefits due to the injury he suffered on the job with the University of North Florida, and those benefits would accrue to the Petitioner as a member of the Florida Retirement Systems. Notwithstanding that possible right to recovery, the Petitioner may not recover any compensation from the Florida Retirement Systems, due to his voluntary withdrawal from the Florida Retirement Systems by his refund request dated May 7, 1976. This withdrawal was made without coercion and without the knowledge of the University of North Florida and without the responsibility on the Dart of the University of North Florida or the Florida Division of Retirement to give any instructions on the implications of such a refund being granted. The Petitioner now has received his contributions from the Florida Retirement Systems and is not entitled to further relief as petitioned for.
Recommendation It is recommended that the Petitioner, John S. Forster, Jr. also known as John S. Forster, be denied any right to repay his contributions into the Florida Retirement Systems as a means to receiving compensation on the injury received while employed by the University of North Florida. DONE AND ENTERED this 17th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John S. Forster, Jr. 11615 Jonathan Road Jacksonville, Florida 32225 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-C - Box 81 Tallahassee, Florida 32303
The Issue WHETHER CHARLES OTERO'S EMPLOYMENT AS A PART TIME TEACHER FOR THE HILLSBOROUGH COUNTY SCHOOL BOARD BETWEEN 1965 AND 1972 IS CREDITABLE SERVICE UNDER THE FLORIDA RETIREMENT SYSTEM. There was some discussion at the commencement of the hearing as to whether Otero's petition for formal hearing properly raised his claim that his service is creditable both as "past" and as "prior" service. The terms "past," "prior" and "previous" service are each separate terms of art defined in Rule 225-6, Florida Administrative Code. While Otero's petition requests permission to purchase Florida Retirement System ("FRS") credit for "prior" service, his petition also frames the ultimate issue in the broader terms as expressed above. (See Petition, paragraphs 4 and 5.) The Division's unilateral Pre-hearing Statement filed on October 29, 1986, paragraph f., states: "At issue is whether or not Petitioner should be permitted to purchase the requested employment time as creditable service in the Florida Retirement System." The Division has not suggested that a more specific request for "past" credit would have resulted in any different response. The broader issue is, therefore, considered here in the interest of economy.
Findings Of Fact In 1965, Charles Otero was an inspector for the Tampa Police Department. Through a joint effort of the Police Department and the Hillsborough County School District a unique high school course curriculum was developed to assist youths who were interested in pursuing careers in law enforcement. A survey was conducted and some preliminary recruiting revealed sufficient student interest to include the course as an elective at Leto Comprehensive High School in Tampa, Florida. The curriculum was divided into two levels: Law Enforcement I and Law Enforcement II. A student enrolling in Law Enforcement I had to be in 11th grade and be free of any physical impediments to a future law enforcement career. Law Enforcement I consisted of two hours instruction a day (one hour in the classroom and one hour of physical education), five days a week. The students who successfully completed this level were expected to go on to Law Enforcement II in the 12th grade. This course was conducted one hour a day, five days a week. Students were required to complete the first level before enrolling in Law Enforcement II. (Testimony of Otero and Farmer.) Charles Otero was hired as a part-time instructor for the Hillsborough County School District in September 1965. He began teaching the new course, Law Enforcement I, at Leto Comprehensive High School, two hours a day, five days a week for the entire school year. The following year, he taught both Law Enforcement I and II, for a total of three hours a day, five days a week. Without interruption, Otero continued teaching the courses at Leto through the 1968/1969 school year. He taught the same courses at Blake High School during the 1969/1970 school year, and from August 1970 until June 1974, he taught the same courses at the Hillsborough County Evening Vocational Center. He resigned in 1974 to become Police Chief for the City of Tampa. (Testimony of Otero, Mahin, Farmer and Scaglione). For each school year from 1965 until 1974, Charles Otero was hired under an annual part-time contract for instructional staff. The three contracts placed in evidence as Petitioner's Exhibits #4, #5 and #6 are typical of the forms used by Hillsborough County School District during the relevant period. Each contract specifies an hourly rate and provides that the hours of instruction are based upon the classes offered for which the teacher is qualified and assigned to teach by the county superintendent or his designee. The contract also provides for termination at will by either party upon written notice to the other. This option was not exercised during the relevant period. Otero was certified only as a part-time law enforcement teacher. (Testimony of Otero and Dobbins, Petitioner's Exhibits #4, #5 and #6). Otero's wages for teaching were paid from a Hillsborough County School District wages and salary account commonly used to pay part-time, adult education teachers. The adult education account was separate from the regular teachers' account. Otero was not paid from an OPS (other personnel services) account. (Testimony of Mann.) At the time that he was hired in 1965, both Otero and the Hillsborough County School District anticipated that the law enforcement courses would continue for at least two years, based on the survey and recruitment responses, and based on the expectation that the Level I students would go on to take the Law Enforcement II course. Since these were elective courses, the students were not required to enroll and if an insufficient number had enrolled, then Otero's courses would not have been taught. In fact, the courses continued and still continue today, with full-time teachers. (Testimony of Otero, Farmer, Scaglione and Dobbins.) Prior to December 1, 1970, full time instructional staff of the Hillsborough County School District participated in the teacher's retirement system under Chapter 238, Florida Statutes. On December 1, 1970, the FRS was created and the existing systems were closed out. Otero never participated in the teacher's retirement system, nor was he eligible for that system as a part- time teacher. In January 1972, he became a member of the FRS when the Hillsborough County School District commenced contributions on his behalf. Otero was re-employed by the Hillsborough County School Board in 1979, as Supervisor of Security and has been continually employed in that capacity on a full-time basis. He has likewise participated continually in the FRS since 1979. Otero conceded that his application to the Division indicating that he was seeking purchase of "refunded service" was in error. He had no "refunded service" under an existing system or the FRS. (Testimony of Otero and Sansom.) In June 1984, Charles Otero applied to the Division for an audit of his employment with the Hillsborough County School District to determine how much of his service would be creditable under the FRS. In July 1985, the Division responded that his employment as a part-time teacher from 1965 through 1971 is not creditable. (Testimony of Otero and Sansom, Petitioner's Exhibits #7 and #8.) The Division of Retirement is statutorily charged with administering the FRS and with determining what service may be claimed by a member as cieditable service in calculating that member's retirement benefits. Ruth Sansom has been Chief of the Division's Retirement Calculations Bureau since October 1980. She has been employed in some capacity in calculating retirement benefits for the teachers' retirement system and the FRS for 23 years. She is intimately familiar with the Division's policies. She has interpreted retirement laws and has assisted in policymaking and rulemaking for the Division. She is likewise familiar with Charles Otero's request and she testified regarding the bases for the Division's denial. The Division considered Otero's circumstances as similar to part-time adult education instructors who are paid on an hourly basis and whose students enroll on a voluntary basis. Those teachers who are hired with no contractual expectation of continuation are considered "temporary" instructional personnel and are not considered eligible for participation in the FRS. When examining a request for purchase of service, the Division applies the rules in effect at the time the request is made. The Division, however, applies those rules just as they would to an individual seeking enrollment in the FRS. The Division looks at the employment contract and legitimate expectations of the parties at the time of hire, rather than at the actual length of time the individual was employed. In other words, while the rule is applied retroactively, the employment circumstances of the individual are examined in a prospective manner. An individual is considered "temporary," even if employed for many years, so long as the employment relationship described at its commencement is merely temporary. A "part-time" teacher is not automatically "temporary." (Testimony of Sansom.) In making a determination regarding an individual's service credit the Division applies Chapter 121, Florida Statutes, Rules 225-1, 2 and 6, Florida Administrative Code, Memorandum 81-60 (Respondent's Exhibit #3) and a memorandum dated February 1, 1982 from A.J. McMullian, III. (Petitioner's Exhibit #9.)(Testimony of Sansom.)
Recommendation Based upon the foregoing, it is RECOMMENDED that: So long as the required contributions are made, Charles Otero's request to purchase "prior service" in the FRS for the period September 1965 to December 1970, be approved. Charles Otero's request for the period December 1970 until his enrollment in the FRS in 1972, be denied. DONE and RECOMMENDED this 5th day of December, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2487 The following constitutes my specific rulings on the proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS OF FACT 1-3. Rejected as irrelevant. Adopted in paragraph 6. Adopted in paragraph 8. 6-10. Adopted in paragraph 6. 11. Adopted in paragraph 2. 12-13. Adopted in paragraph 1. Rejected as unnecessary. Adopted in paragraphs 1 and 2, except that the record establishes that he was hired effective September 28, 1965. (Petitioner's Exhibit 1.) Adopted in paragraph 5. 17-28. Adopted in summary form in paragraph 2. 29-35. Rejected as irrelevant. 36-38. Adopted in paragraph 4. 39-44. Adopted in summary form in paragraph 3. 45-46. Adopted in substance in paragraph 2. 47-49. Rejected as unnecessary. 50. Adopted in part in paragraph 2. The record is not clear that the Hillsborough County Evening Vocational Center was a "high school classroom." 51-56. Rejected as unnecessary. (See Conclusion of Law 7.) 57. Adopted in paragraph 2. 58-59. Adopted in substance in paragraph 5. 60-63. Adopted in paragraph 6. Rejected as unnecessary. Adopted in paragraph 7. 66-67. Adopted in paragraph 8. 68. Rejected as cumulative and unnecessary. 69-70. Adopted in substance in paragraph 8. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-3. Adopted in paragraph 2. Adopted in paragraph 6. Adopted in paragraph 5. Adopted in paragraph 3. Adopted in paragraph 5. Adopted by implication in paragraphs 3 and 5. 9-13. Adopted in paragraphs 3 and 5. Adopted in part in paragraph 5 (as to continual nature of the course); otherwise rejected as unsubstantiated by the record. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 6. 18-21. Adopted in paragraphs 2 and 6. 22-23. Adopted in paragraph 7. Adopted in "Background" portion of the recommended order. Adopted in paragraph 8. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Edward M. Chew, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Stanley M. Danek, Esquire William A. Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street, Suite 207 Tallahassee, Florida 32303 Andrew J. McMullian, III, Director Division of Retirement Department of Administration Cedars Executive Center, Bldg. C Tallahassee, Florida 32303 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether Petitioner is eligible to participate in the SUSORPS or whether he is a retiree for purposes of Florida's state retirement system.
Findings Of Fact The Division of Retirement (Division) is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida Retirement System (FRS) and the State University System Optional Retirement Program (SUSORP). Petitioner, Tyler Smith, was employed by the University of Central Florida (UCF) from August 8, 2003, until he resigned his employment with UCF on or about August 22, 2005. When he was initially employed by UCF, Petitioner elected to join the SUSORP and selected TIAA-CREF as his provider company. During his initial employment, Petitioner's TIAA-CREF account was entirely funded by employer contributions. Petitioner did not make any personal contributions to the account. In August 2005, Petitioner resigned his employment with UCF effective August 22, 2005. On or about August 16, 2006, Petitioner took a distribution from his SUSORP TIAA-CREF account in the approximate amount of $6,772.23. Petitioner asserts that, while he requested the total amount to be distributed to him in 2006, the entire amount was not so distributed. Petitioner maintains that there remains a balance of $2,432.66 in his TIAA-CREF account. That testimony is unrebutted and is accepted. Petitioner became reemployed by UCF on or about August 8, 2010. Petitioner was advised by UCF that he was not eligible to rejoin the SUSORP and that if he disagreed with that determination, he could inquire with Respondent. On or about August 17, 2010, Petitioner requested that Respondent review his status and provide a determination of his eligibility to participate in a state-administered program. At the time of this request, Petitioner was 36 years old. Robert Henning is a Retirement Benefits Administrator for the Division. At hearing, he explained that if an employee takes a distribution upon termination from his employment, he is treated as a retiree. If that person returned to work prior to July 1, 2010, he would be eligible to rejoin the retirement system. However, if that person became re-employed after July 1, 2010, he would not be eligible to rejoin because of a change in the law. By letter dated August 27, 2010, Petitioner was notified of Respondent's determination that, because he had terminated his employment and taken a distribution from his SUSORP TIAA-CREF account, he was deemed a retiree. The letter reads in pertinent part: This letter is in response to your request for your account to no longer reflect that you have retired under a state administered retirement plan. Under s. 121.35(5), Florida Statutes (F.S.), "retiree" means a former participant of the optional retirement program who has terminated employment and has taken a distribution as provided in this subsection. The distributions permitted under s. 121.35(5), F.S., include a lump-sum distribution to the participant. Based upon the information provided by TIAA- CREF, you have taken a distribution as noted above and are properly reflected as a retiree within the definition provided in the statutes. Therefore, we are not able to comply with your request. The August 27, 2010 letter also informed Petitioner of his right to request a hearing, which gave rise to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Retirement enter a final order denying Petitioner's request to restore his eligibility to participate in SUSORP. DONE AND ENTERED this 23rd day of February, 2011, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2011. COPIES FURNISHED: Tyler W. Smith 1349 Maywood Avenue Deltona, Florida 32725 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 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 Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950
