The Issue Whether Petitioners are entitled to, and should receive, survivor retirement benefits from the Florida Retirement System account of their deceased mother, Adrianna Davis, which are presently being paid to their sister, Earnese Davis?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Adrianna Davis was a public school teacher in Broward County for more than 35 years before her retirement in or about the end of January of 1991. She enrolled in the Teacher's Retirement System of Florida in 1955, when she started her teaching career. On the enrollment form that she filled out, she designated her father, Charles Williams, who is now deceased, as her beneficiary. Adrianna subsequently became a member of the Florida Retirement System. At the time of her death, Adrianna had two adult sons, Kevin and Eddie Davis, (the Petitioners in this case) and one adult daughter, Earnese Davis, (the Intervenor in this case), all three of whom lived with her in the house she and the children's aunt co-owned. Adrianna was the undisputed head of the household and its primary decision maker. Although Earnese lived under the same roof as her brothers, she did not have a good relationship with them. Shortly after the beginning of the 1990-91 school year, Adrianna was told by a physician that he suspected that she had cancer. In October or November, she underwent exploratory surgery. The surgery confirmed that she had cancer, which was determined to be inoperable. Following the exploratory surgery, Adrianna received chemotherapy and radiation treatment. Adrianna was admitted to Humana Hospital Bennett (now Westside Regional Medical Center and hereinafter referred to as "Humana") on December 6, 1990. She was brought to Humana by Earnese, who remained with her in the hospital during the entire period of her hospitalization. 1/ After a medical history was taken and a physical examination was conducted, the following initial "assessment" was made of Adrianna's condition by the admitting physician: "Lung carcinoma with dehydration post chemotherapy." Approximately two days prior to her December 6, 1990, hospitalization, Adrianna had asked Earnese to go to the Broward County School Board (hereinafter referred to as the "School Board") offices to obtain a Florida Retirement System Application for Service Retirement form (hereinafter referred to as a "Form 11). Form 11 has four sections that need to be filled out. In the first section of Form 11 (hereinafter referred to as "Section 1"), the following information has to be provided: the applicant's name; the applicant's social security number; the applicant's job title; the applicant's birth date; the applicant's present or last employer; the applicant's home address and home and work phone numbers; and the date of termination of applicant's employment. In the second section of Form 11 (hereinafter referred to as "Section 2"), the following information has to be provided: the name of the beneficiary designated by the applicant; the beneficiary's social security number; the relationship of the beneficiary to the applicant; the beneficiary's home mailing address; and the "option" selected by the applicant. 2/ The following advisement is printed at the top of Section 2: "All previous beneficiary designations are null and void." The third section of Form 11 (hereinafter referred to as "Section 3") contains the following statement, underneath which the applicant has to place his or her signature "in [the] presence of [a] notary:" "I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES." It also has a certificate that has to be completed and signed by the notary public in whose presence the applicant signs this section of the form. The fourth and last section of Form 11 (hereinafter referred to as "Section 4") contains the following certification that has to be completed, signed and dated by an authorized representative of the applicant's employer, "if termination was within the last 2 years:" "This is to certify that was employed by this agency and will terminate or has terminated on / / , with the last day worked on / / ." As her mother had asked her to do, Earnese went to the to the School Board offices at 1320 Southwest 4th Street in Fort Lauderdale to pick up a Form There she met with Victoria Moten, a School Board retirement specialist. 3/ Earnese told Moten about her mother's situation. She explained that her mother was ill and it looked like she was "not going to make it." 4/ Moten obtained a blank Form 11. After typing in the information that needed to be provided in Section 1 of the form, Moten handed the partially completed form to Earnese and indicated what further steps needed to be taken in order to complete the application process. After her visit with Moten, Earnese returned home and gave her mother the partially completed Form 11 (with only Section 1 filled in) that Moten had provided Earnese with earlier that day (hereinafter referred to as the "Designation Form"). Adrianna kept the Designation Form in her possession and took it with her (in a knapsack, along with other papers) to the hospital on December 6, 1990. She explained to Earnese that she wanted to have the Designation Form filled out while she was in the hospital. It was Adrianna, not Earnese, who brought up the subject. On the morning of December 10, 1990, while Adrianna was still in the hospital, she told Earnese that she wanted to designate Earnese as the sole beneficiary of her retirement benefits so that Earnese would be able to get her "life together" and she asked Earnese to fill out Section 2 of the Designation Form accordingly. 5/ Adrianna also requested Earnese to obtain the services of a notary public to assist in filling out Section 3 of the Designation Form. Earnese thereupon left her mother's hospital room (without the Designation Form, which remained with Adrianna) to find a Florida notary public in the hospital. Her search was successful. She made contact with Elizabeth Sarkissian (now Gassew), a registered nurse and a Florida notary public, 6/ who agreed to help in filling out Section 3 of the Designation Form. Earnese returned to her mother's room with Sarkissian. Earnese filled out Section 2 of the Designation Form in accordance with her mother's previous instructions. Sarkissian, upon entering the room, engaged in conversation with Adrianna, who was sitting up in her hospital bed. Adrianna was alert and oriented. She spoke clearly and responded appropriately to questions Sarkissian asked her. By all appearances, she was in no way mentally incapacitated. After Earnese had finished filling out Section 2 of the Designation Form, Adrianna signed Section 3 of the form in Sarkissian's and Earnese's presence. 7/ Sarkissian then completed and signed the notary certificate underneath Adrianna's signature (in Section 3 of the Designation Form), 8/ after which the form (now with Sections 1, 2 and 3 filled in) was returned to the knapsack in which Adrianna kept the papers she had brought with her to the hospital. Her presence no longer needed, Sarkissian left Adrianna's hospital room. Sarkissian's visit lasted approximately five or ten minutes. Later that day (December 10, 1990), in the evening, Adrianna underwent a surgical procedure involving the insertion of a vascular access port. Adrianna was discharged from the hospital on December 12, 1991. She took the knapsack which contained the Designation Form home with her. Adrianna kept the Designation Form in her possession until January 3, 1991, when she gave it to Earnese, with instructions that Earnese deliver it to Moten for filing. Earnese followed her mother's instructions. Later that same day (January 3, 1991), she went to Moten's office (without her mother) and handed Moten the Designation Form. Moten thereupon completed Section 4 of the form. The now fully completed form was then filed for processing. In June of 1991, Adrianna went into a coma and eventually died. At the time of her death, the Designation Form (which, in Section 2, designated Earnese as the sole Option 2 beneficiary of Adrianna's retirement benefits) was the most recent designation of beneficiary form executed by Adrianna. At no time subsequent to signing the Designation Form did she express to Earnese a desire to make any changes to Section 2 of the form, nor were any such changes made. It has not been shown that Adrianna's designation of Earnese as the sole beneficiary of her retirement benefits was the product of any fraud, misrepresentation, trickery, coercion, undue influence, active procurement, or suggestion on Earnese's part or that it was anything other than a decision made freely, voluntarily and knowingly by a woman who, although terminally ill, was in all respects capable of making such a decision 9/ and fully understood the consequences her decision. On or about July 18, 1991, through the submission of a completed Application of Beneficiary for Retirement Benefits form, Earnese requested that the Division begin to pay her Adrianna's retirement benefits. On the form, Earnese designated her brothers, Eddie and Kevin, as the first and second contingent beneficiaries, respectively, of these benefits in the event of her death. Earnese has received monthly payments from her mother's retirement account since July of 1991. 10/ She currently receives a monthly payment of $1,986.30.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division enter a final order refusing to grant Petitioners' request that it treat as a nullity Adrianna Davis' written designation of Earnese Davis as her sole beneficiary and, based upon such nullification, discontinue paying Adrianna's retirement benefits to Earnese Davis and instead pay them to Petitioners. 13/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1996.
The Issue The issue in this case is whether Petitioner’s husband’s selection of Option 1 for his pension plan benefits could be changed.
Findings Of Fact Mrs. Renaud, who is deaf, was married to Mr. Renaud for approximately 40 years. Mr. Renaud was employed by the State of Florida as a correctional officer at all times relevant hereto. He entered the State retirement program (in the pension plan) in November 1994. Mr. Renaud was in the “special risk” category of retirement class based on his position as a correctional officer. On October 24, 2013, Mr. Renaud signed and submitted a “Florida Retirement System Pension Plan Application for Service Retirement” form to the Department, indicating his intent to retire. The application was signed and notarized; it designated Mrs. Renaud as the sole beneficiary of his retirement benefits. On the same day, Mr. Renaud signed an “Option Selection” form, wherein he designated which of four payment options he wanted to utilize for payment of his retirement income. He selected Option 1, which states: A monthly benefit payable for my lifetime. Upon my death the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. The form also contains the following statement: “I understand that I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options or change my type of retirement . . . once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins.” The option selection form was signed by Mr. Renaud and notarized by a certified notary public. Inasmuch as Mr. Renaud selected Option 1, it was necessary that he and his designated beneficiary (Mrs. Renaud) also fill out form SA-1, the “Spousal Acknowledgement” form. On the acknowledgement form, Mr. Renaud indicated that he was married. Mrs. Renaud then signed the “spousal acknowledgement” portion of the form. The acknowledgement statement included this statement: “I, Vivian Renaud, being the spouse of the above named member [Mr. Renaud], acknowledge that the member has selected either Option 1 or 2.” Option 2 provides for continued benefits during the retiring person’s lifetime. However, benefits to the person’s spouse will continue for only a 10-year period. If the retiring person dies within the first 10 years of retirement, the spouse would only receive benefits for the balance of the 10-year period starting at the retirement date. The benefits under Option 2 are, therefore, limited in nature. The state retirement system requires a person selecting Option 1 or Option 2 to have their spouse acknowledge that selection choice because those benefits have finite ending dates, whereas retirement benefits under the other options continue as long as either the retiree or his/her beneficiary is living. By letter dated October 30, 2013, the Department acknowledged receipt of Mr. Renaud’s retirement application. The letter referenced the date the application was received (October 24, 2013) and the option Mr. Renaud had selected (Option 1). The letter was mailed to Mr. Renaud’s address of record, the same address he listed in his retirement application. The letter was sent to Mr. Renaud some 30 days before the first retirement benefit check was deposited in his account. Mrs. Renaud does not remember seeing the letter, but inasmuch as it was addressed to Mr. Renaud, her recollection of its receipt is not relevant. After Mr. Renaud’s death, his family found numerous un-opened letters in his car; the acknowledgement letter from the Department could well have been in that group. Mr. Renaud retired on November 1, 2013. His first payment of retirement benefits was transferred to his bank by way of electronic fund transfer, commonly referred to as direct deposit, on November 27, 2013. The gross amount of his monthly retirement benefit was $1,987.85; the net amount was $1,937.75 after $30.09 had been deducted for taxes. At that time, Mr. Renaud had not signed form W4P, the form which showed how many dependents the retiree was claiming for tax purposes. After later filling out that form (in which he indicated he would prefer to file as “single” for tax purposes), his monthly net benefit was reduced to about $1,735. Mr. Renaud received a direct deposit of retirement benefits on December 31, 2013; on January 31, 2014; and again on February 28, 2014. Mr. Renaud passed away on March 26, 2014, only five months after commencing his retirement. In accordance with the provisions of Option 1, Mr. Renaud’s retirement benefits ceased at that time. His beneficiary was entitled to payment for the entire month that he expired, but was not to be provided any further retirement benefits. Thus, a final payment was deposited in Mr. Renaud’s account on March 31, 2014. Mrs. Renaud was provided notice of the cessation of retirement benefits due to Mr. Renaud’s death. She timely filed a protest, seeking to have the payment of benefits reinstated. The Department denied her request, resulting in the instant matter. It is clear from the evidence that Mr. Renaud selected Option 1, Mrs. Renaud acknowledged that Mr. Renaud had selected either Option 1 or Option 2, and that retirement benefits were directly deposited to Mr. Renaud’s bank account for several months. Mr. and Mrs. Renaud’s signatures were duly notarized and have a presumption of legitimacy. Mrs. Renaud disagrees as to whether Mr. Renaud’s selection of Option 1 was legitimate, legal, or proper under the circumstances as she views them. First, Mrs. Renaud contends that Mr. Renaud was not mentally well at the time he signed the option selection form. The basis for her contention is that Mr. Renaud had experienced some seizure-related behavior during the year prior to signing the form. He had driven his car north on US Highway 301 one day in July 2012, “heading to work,” but ended up in Georgia without remembering why or how he got there. He later apparently lost his driver’s license because of the seizures (although the testimony on that issue was not clear).1/ Mr. Renaud worked for approximately 15 more months after his inexplicable drive to Georgia. Mrs. Renaud also argued that Mr. Renaud’s signatures on the three different forms he signed on October 24, 2013, were not similar to each other, indicating in her mind that he was having some sort of medical or psychological difficulty at that time. Inasmuch as there could have been any number of reasons the signatures were different (whether he was in a hurry, what base existed under the paperwork, etc.), there is insufficient evidence to determine why the signatures did not match. Mrs. Renaud’s testimony regarding the signatures is not persuasive. Ed Renaud said Mr. Renaud had been forced to retire due to his medical condition, i.e., that he had lost his driver’s license due to having seizures and the Department of Corrections would not let him work if he could not drive. However, Ed Renaud also said Mr. Renaud was able to continue working even when he was “forced” to retire. Again, the testimony on these facts was not clear. Mrs. Renaud said she should have been provided an interpreter on the day she signed the acknowledgement form. She did not state whether she requested an interpreter or whether the agency employee who provided her the form was aware of her disability.2/ Again, no one from Mr. Renaud’s employer, the Department of Corrections, testified at final hearing as to what happened on the day the forms were signed. Mrs. Renaud stated that she could read and write English, so she knew what she was signing.3/ She did claim to be confused as to whether her husband had selected Option 1 or Option 2, but candidly admitted that Mr. Renaud never told her one way or the other which option he had chosen. He only told her that he would “continue to provide for her in the future.” She believed the amount which was to be deposited in their account each month under Option 2 would be approximately $1900. The first check was in that approximate amount (due to the fact that Mr. Renaud had not established the amount of taxes to be deducted from his check at that time). The next five checks were in a lesser amount, approximately $1700. There is no evidence that Mrs. Renaud questioned the amount of the later checks. However, once the first check had been deposited in Mr. Renaud’s bank account, he would not have been allowed to change his option anyway. Lastly, Mrs. Renaud said her husband’s medical and mental condition was not conducive to making the option selection in October 2013. However, there was no competent evidence to support her claim. There was no direct testimony as to Mr. Renaud’s condition on the day he signed, nor as to whether he was or was not capable of understanding what he was signing. The only statement about his condition that day was that he wanted to park the car far enough away from the building that his co-workers could not see that Mrs. Renaud had driven the car. Ed Renaud also pointed out the issue of Mr. Renaud’s three signatures that day looking different from each other, but his lay opinion is not evidence upon which a finding of fact can be made as to Mr. Renaud’s mental condition. On October 24, 2013, Mr. Renaud had not been adjudged mentally incapacitated and no guardian had been appointed. Ed Renaud said that Mr. Renaud still believed he could perform his work assignments at that time and did not want to retire. But, other than his wife, no one provided any evidence that Mr. Renaud did not understand what he was signing. Mrs. Renaud, however, could not say which option he had selected because he never told her. Her subsequent presumption that Mr. Renaud did not intend to choose Option 1 is not persuasive. It should be noted that selection of Option 1 by Mr. Renaud set his average pre-tax monthly benefit at around $1,900.00; had he chosen Option 2, the benefit would have been around $1,700. Thus, there was incentive to “roll the dice” and select Option 1, hoping that he would survive long enough to provide for his wife. In this case, sadly, that gamble did not pay off. The facts of this case are sad in that Mr. Renaud had every intention of providing for his wife financially as long as she lived. However, he either made a mistake when he selected his payment option or he attempted to tempt fate and hope for the best. In either case, once he made his selection and began receiving benefits, the die was cast. Based upon the facts as presented, there is no basis for overturning the Department’s denial of Mrs. Renaud’s requested amendment of the payment option.
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 denying Petitioner's request for entitlement to her husband’s retirement benefits following his untimely death. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 24th day of June, 2015.
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
Findings Of Fact The Petitioner James H. Clendenin was elected to the office of Commissioner of the Canaveral Port Authority and served as a Port Commissioner from January 1, 1967 through December 31, 1982. The Petitioner was one of five Commissioners of the Authority. The Petitioner was not enrolled in the Florida Retirement System, Chapter 121, Florida Statutes, or any prior system until January 1, 1969. Prior to that date he was enrolled from January 1, 1969 through November 30, 1970, in the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. The Port Authority, the authorized governing body of the Canaveral Port District, is an autonomous public entity created and established by Chapter 28922, Laws of Florida, 1953. As a Commissioner, the Petitioner was paid monies for his service for calendar years 1967 and 1968 which were reported as income--to the Internal Revenue Service. Prior to January 1, 1969, the Petitioner was required to submit a voucher for expenses and was paid on a fee basis. He received $25 per day in per diem and was reimbursed through an expense account. In order to receive the $25 which was characterized as per diem pay under the special act, the approval of the other four Commissioners was required. The total per diem was paid to each Commissioner on a monthly basis. After January 1, 1969, salaries were authorized for Commissioners and the per diem system was abandoned. Thereafter, the Petitioner received a salary check without request or required attendance at the Authority's meetings. On January 1, 1969, Petitioner submitted an application for enrollment in the State Retirement System. His application was accepted and the Petitioner began to accrue retirement service credits. Upon Petitioner's retirement, he attempted to claim and purchase prior service credits for 1967-1968. However, Petitioner was denied the opportunity to pay retirement contributions for retirement service credits for those years, and monies he had paid to purchase the prior service period were refunded. Consequently, Petitioner was credited with only 13.30 total years of service instead of 15.30 years. The difference in benefits amounts to 18.78 per month.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Respondent permitting the Petitioner to purchase additional service as a Port Commissioner for 1967 and 1968 upon payment to the Retirement Fund of $496.68 and increase the Petitioner's retirement benefit to the amount originally calculated to be due him by the Division of Retirement, retroactive to the date the Respondent received from the Petitioner monies paid for the purchase of the additional service. DONE and ENTERED this 19th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984. COPIES FURNISHED: Robert T. Westman, Esquire STROMIRE WESTMAN LINTZ BAUGH McKINLEY AND ANTOON, P.A. 1970 Michigan Avenue, Bldg. C Post Office Hox 1888 Cocoa, Florida 32923 Augustus D. Aikens, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
The Issue Whether Petitioner is entitled to a refund of retirement contributions for the period from February 1, 1960, through January 1975.
Findings Of Fact Until January 1975, the Florida Retirement System and its predecessor, the State and County Officers and Employees Retirement System (SCOERS), were contributory retirement plans, in which state employees contributed a portion of their wages toward their retirement benefits. In January 1975, FRS became a non-contributory retirement plan, in which the employer paid all contributions to the plan. On February 1, 1960, Petitioner, who was then known as Rebecca Jamis or James Lee, began her state employment at Florida State Hospital (FSH), located in Chattahoochee, Florida. During her employment, Petitioner was enrolled in the state’s retirement plan and contributed $2,188.01 to that plan. In 1980, Petitioner was convicted of a felony offense and was sentenced to prison. She began serving her sentence in state prison in June 1980. Due to her imprisonment, Petitioner’s employment at FSH terminated on July 29, 1980. At some unknown date, Respondent received form FRS-M81 requesting a refund of Petitioner's contributions to the state’s retirement plan. Pursuant to the state's document retention policy, the original form was destroyed many years ago with a microfilmed copy of the front of the form retained by DMS. The microfilmed copy of this form does not reflect the date the form was signed. Additionally, except for the agency number and various signatures, information contained in the refund request form was typed in. The date of termination of Petitioner’s employment was also typed on the form, indicating the form was completed after Petitioner was imprisoned. More importantly, the form was purportedly signed by Petitioner with the name she used at the time. However, the address on the request was not Petitioner’s residence but was the 1980 address of Florida State Hospital Credit Union. At the time, Petitioner had a loan at the credit union, although she denies having an account there. Petitioner also did not hear any more from the Credit Union about her loan and does not know what happened to it. The regularly kept records of the Division indicate that on November 4, 1980, pursuant to this request for refund, Respondent issued Warrant No. 264829 in the amount due Petitioner for a refund of her retirement contributions. The warrant was issued to Petitioner and mailed as instructed to the address of the credit union. Again due to the passage of time, a copy of this warrant is no longer available. Moreover, the credit union records are not available. However, Charlene Fansler performed a search of un- cashed state warrants for Warrant No. 264829. The warrant was not on the list of warrants that remained outstanding. Further, the warrant had not escheated to the State as abandoned property. As such, the evidence demonstrated that the warrant was paid by the State. In 1990, at the age of 60 and several years after her release from prison, Petitioner requested a refund of her retirement contributions. On May 24, 1990, Respondent denied Petitioner’s request based on the 1980 refund of those contributions. At the time, Respondent did not advise Petitioner of her chapter 120 hearing rights; and therefore, did not provide Petitioner with a clear point of entry for an administrative hearing. However, Petitioner was clearly aware that DMS claimed that she had been issued a refund of her contributions and was, therefore, not entitled to a further refund. Petitioner took no action in 1990 even though she did not personally receive the 1980 refund because and claimed to not have signed the refund request form. In 2012, 32 years after the 1980 warrant was issued and 22 years after the 1990 denial of her request for refund, Petitioner, at the age of 82, again requested a refund of her retirement contributions based on her claim that she did not sign the 1980 refund request form and the fact that she did not personally receive the refund warrant. Respondent submitted the microfilmed copy of the signed refund request form and known handwriting exemplars of Petitioner's signature to the Florida Department of Law Enforcement (FDLE) laboratory for analysis. Kesha White, a handwriting analyst with FDLE, analyzed the documents and concluded that they were more likely than not signed by the same person. Her finding was not conclusive due to the limits of analyzing signed documents preserved on microfilm. Indeed, the signatures on the refund form and the known handwriting samples of Petitioner's signature are very similar and appear to be by the same person. In this case, the better evidence demonstrates that Petitioner signed the 1980 refund request form and, due to the passage of time, has simply forgotten that she did so. By signing that form, Petitioner instructed Respondent to issue and mail the warrant to the address for the credit union listed on the form. Respondent complied with that request. Given these facts, Petitioner is not entitled to another refund of her retirement contributions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order finding that Petitioner was issued a refund of retirement contributions for the period from February 1960, through January 1975, and dismissing Petitioner's request for hearing. DONE AND ENTERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2013. COPIES FURNISHED: Rebecca Thomas 1929 Hamilton Street Quincy, Florida 32351 Thomas E. Wright, Esquire Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 Dan Drake, Director Division of Retirement Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
The Issue Whether the Petitioner is entitled to a refund of amounts contributed to the State and County Officers' and Employees' Retirement System.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division of Retirement is the state agency charged with the responsibility for administering the State and County Officers' and Employees' Retirement System. Section 122.13, Florida Statutes. Ms. Cook worked as a nurse's aide for Jackson Memorial Hospital from November 1960 until September 1968, when she resigned. As an employee of Dade County, Ms. Cook participated in the state retirement system under the State and County Officers' and Employees' Retirement System, which is governed by Chapter 122, Florida Statutes, and she made employee contributions to the Retirement System Trust Fund. In October 1968, the Division of Retirement received a "Request for Refund" card bearing Ms. Cook's name, social security number, and address and bearing what purported to be Ms. Cook's signature in two places on the card. On October 23, 1968, the state issued warrant number 66611 in the amount of $904.95, drawn from the State Retirement Trust Fund against Ms. Cook's retirement contributions; on December 15, 1968, the state automatically issued warrant number 106270 in the amount of $42.08 drawn from the State Retirement Trust Fund against Ms. Cook's retirement contributions, which closed her retirement account. In December 1997, Ms. Cook contacted the Division requesting information regarding retirement benefits under the Florida Retirement System. She was told that she was not a vested member of the system and that she was not eligible for retirement benefits. She was also advised by the Division that its records showed that her accumulated contributions of $947.03 were paid to her in 1968. Ms. Cook denied signing the "Request for Refund" card, and she denied receiving either of the two refund checks. The address on the "Request for Refund" card submitted on October 1968 is listed as "6600 NW 1st Place, Miami, Fla." Ms. Cook currently resides at that address and has resided at that address continuously since in 1968. The signatures on the 1968 "Request for Refund" card differ in some respects from the signatures appearing on the letters and pleadings from 1997 and 1998 that are part of the record in this case. However, there are also substantial similarities between the signatures on the "Request for Refund" card and the signatures appearing on documents in the record of this case. The evidence presented in this case is not sufficient to establish that Ms. Cook is now entitled to a refund of contributions she made to the state retirement system between 1960 and 1968.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying the request of Audrey Cook for a refund of contributions she made to the state Retirement Trust Fund from 1960 to 1968. DONE AND ENTERED this 13th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Larry D. Scott, Senior Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399 Audrey P. Cook 6600 Northwest 1st Place Miami, Florida 33150 Mr. A. J. McMullen, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
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 The issue in this case is whether Petitioner can rescind his election to join the Deferred Retirement Option Program and return to the status quo ante such election so that he can opt instead to participate in the Public Employee Optional Retirement Program.
Findings Of Fact Petitioner Dennis Valdez ("Valdez") began working for Miami-Dade County ("County") as a paramedic/firefighter in 1979. As a county employee, he became a member of the Florida Retirement System, which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). Firemen such as Valdez are assigned to the Special Risk Class, whose members are eligible for enhanced retirement benefits under the FRS. One advantage of being in the Special Risk Class is that the member's normal retirement date arrives after 25 years of service, rather than 30. Each year the County sends its employees a statement showing the value of their employment benefits, including retirement benefits. Valdez received such a statement for 2004. The statement informed him, among other things, that the County offered "pre-retirement counseling" to help "plan for those years ahead." In pertinent part the statement explained: Miami-Dade offers you assistance in applying for retirement with the Florida Retirement System, in reviewing your options and in selecting appropriate payment options for your Deferred Compensation account. Contact the Employee Benefits Unit . . . before you expect to retire to request an estimate of your FRS benefit. Early in 2004, Valdez began thinking about retirement because he would have 25 years of service at the end of July 2004. He decided to make an appointment for pre-retirement counseling through the County's Employee Benefits Unit. It was arranged for him to meet with Marti Garcia ("Garcia"), a Senior Employee Benefits Specialist, on April 15, 2004. When Valdez met with Garcia as scheduled on April 15, he was a participant in the defined benefit program ("Pension Plan") of the Florida Retirement System.1 He was also eligible to participate, upon reaching his normal retirement date, in the Deferred Retirement Option Program ("DROP"). A member who elects to participate in the DROP is allowed to continue working (and drawing his salary) for up to 60 months after his retirement date, during which time the member's pension is paid into a trust fund where it earns interest at a fixed statutory rate. At the conclusion of the member's participation in the DROP, the Division distributes to him the retirement benefits that have accrued. Valdez told Garcia that he was concerned about providing for his family, including his wife, who is younger than he, and their young children. Though Valdez had just turned 53, he advised Garcia that he did not want to remain employed as a fireman for much longer. He also asked Garcia if he could control the investment of his retirement benefits. Garcia explained to Valdez that, if he entered the DROP, he would be able eventually to invest his DROP benefits, when he terminated his employment with the County, at which point the Division would distribute the funds which had accumulated for his benefit while he was in the DROP. In Garcia's presence on April 15, 2004, Valdez signed an application to participate in the DROP, using the Division's required Form DP-11. The application specified a DROP begin- date of August 1, 2004, and a DROP termination-date of July 31, 2009. At the same time, Valdez executed a notice of election to participate in the DROP, using the Division's Form DP-ELE. The notice likewise specified a DROP begin-date of August 1, 2004, and a DROP termination-date of July 31, 2009. Valdez signed the application and the notice before a notary public (Garcia). Each form required Valdez to acknowledge that he could not "add additional service, change options, or change [his] type of retirement after the DROP begin date." Garcia counter-signed both instruments and submitted them to the Division. Thereafter the Division sent Valdez an Acknowledgement of DROP Application and/or Notice of Election Form confirming the Division's receipt of his DROP application paperwork on April 21, 2004. Valdez entered the DROP in August 2004. Valdez claims that some months later, he discovered that the Florida Retirement System offers another plan that provides participants a menu of market-based investment products and options in which they can invest their retirement benefits. Valdez decided that he preferred this plan——which is called the Public Employee Optional Retirement Program ("Investment Plan")——to the Pension Plan and the DROP. Therefore, in November 2004, Valdez wrote a letter to Garcia requesting that he be allowed to quit the DROP and switch to the Investment Plan. Garcia responded in writing to Valdez's letter, telling him that what he had requested was not an available option. Valdez then took his case directly to the Division, which turned him down as well. The Division's denial of Valdez's request to rescind his decision to participate in the DROP is the preliminary agency action that opened the door to this formal administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Valdez's request to rescind his election to participate in the DROP. DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2005.
