The Issue On April 11, 1996, the undersigned Hearing Officer entered a Final Order in City of St. Petersburg v. Division of Retirement, Case No. 95-5089RU, finding that certain non-rule policies of the DIVISION OF RETIREMENT violated the provisions of Section 120.535, Florida Statutes. In light of legislation being considered by the 1996 Legislature, certain issues asserted by the Petitioner under Section 120.56, Florida Statutes, were not resolved at the time of the entry of the Final Order in Case No. 95-5089RU. The CITY OF PALATKA, the TOWN OF LANTANA, and the CITY OF LARGO (CITIES), Petitioners in the above-referenced consolidated cases now seek a determination that the Respondent, the DIVISION OF RETIREMENT (DIVISION), may not subsequently enforce the non-rule policies which in case No. 95-5089RU were found to be in violation of Section 120.535, Florida Statutes. Petitioners further seek a determination that such non-rule polices, having been determined to be rules within the meaning of Section 120.52(16), Florida Statutes, are invalid under the provisions of Section 120.56, Florida Statutes. The ultimate issues in these cases are: 1) whether certain agency statements made by the Respondent, DIVISION OF RETIREMENT, regarding the application of the provisions of Chapters 175 and 185, Florida Statutes, to pension plans for municipal firefighters and police officers are "rules" as defined by Section 120.52(16), Florida Statutes; and, 2) if so, whether the agency statements impermissibly enlarge, modify, or contravene the statutory provisions of Chapter 175 and 185, Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes. Specifically, the issues in these cases relate to the criteria required of local law pension plans by the Legislature to qualify for the distribution of premium tax monies. Chapters 175 and 185, Florida Statutes, provide for pension plans for firefighters and police officers, and authorize two types of pension plans. "Chapter plans" are created by state law, and "local law plans" are created either by special act of the Legislature or by municipal ordinance. The gist of the petitions filed by the CITIES in these cases is that the DIVISION is attempting to impose, without express statutory authority, the same requirements relating to terms, conditions, and benefits on local law plans that the DIVISION requires of chapter plans. Specifically, the alleged non-rule policies of the DIVISION of which the CITIES complain are: 1) the definition of "credited service"; 2) the definition of "average final compensation"; 3) the disallowance of a Social Security offset and worker's compensation benefit offset; 4) the interpretation of "disability retirement"; and 5) the prohibition on prospectively reducing pension benefits to coincide with future available funding. As set forth below, the requirements specified by the Legislature for local law plans to receive premium tax monies have been the subject of extensive litigation. In rejecting a challenge to the constitutionality of these statutes, the Court in City of Orlando v. State Department of Insurance, 528 So.2d 468 (Fla. 1st DCA 1988) stated: Chapters 175 and 185 create a purely voluntary program whereby municipalities may receive state-collected taxes, imposed on property and casualty insurance premiums, with which to fund retirement programs for local police and firefighters. In exchange for receipt of these funds, the legislature has established certain criteria under which the funds must be operated and managed. Id. at 469. The dispute in these cases once again focuses on ascertaining what specific criteria the Legislature has established for the operation and management of such local pension plans in order to determine whether a local law plan complies with the applicable statute for purposes of receiving state-collected tax funds. Petitioners, CITY OF PALATKA, TOWN OF LANTANA, and CITY OF LARGO, take the position that Respondent, DIVISION OF RETIREMENT, has made non-rule policy statements, and required compliance therewith, which go beyond the specific and express criteria established by the Legislature for participation in the program. Petitioners contend that such statements are "rules" which unlawfully enlarge, modify, or contravene the provisions of Chapters 175 and 185, Florida Statutes, and therefore violate the provisions of Section 120.56, Florida Statutes, because the statements constitute invalid exercises of delegated legislative authority. Petitioners further contend that even though the DIVISION pursuant to Section 120.535(5), Florida Statutes, has, subsequent to the filing of these cases, promulgated proposed rules embodying these non-rule polices, the polices nonetheless may not be retroactively applied to deny the Petitioners their premium tax monies for calendar year 1995 to which they are otherwise entitled. Respondent, DIVISION OF RETIREMENT, takes the position that the DIVISION has complied with the provisions of Section 120.535(5), Florida Statutes, and may apply the non-rule policy statements which are now proposed rules to require compliance from the Petitioners. The DIVISION further contends that the non- rule policy statements, which have now been promulgated as proposed rules, merely construe and apply the provisions of Chapters 175 and 185, Florida Statutes, in the manner intended by the Florida Legislature, and therefore are not invalid under Section 120.56, Florida Statutes. The validity of the proposed rules which were promulgated by the DIVISION on July 12, 1996, is the subject of two separate pending administrative challenges brought pursuant to Section 120.54, Florida Statutes, and filed on July 30, 1996, by the Florida League of Cities and the City of St. Petersburg in cases Nos. 96-3560RP and 96-3561.
Findings Of Fact Parties Petitioner, the CITY OF PALATKA, is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes, respectively. Petitioner, TOWN OF LANTANA is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes. Petitioner, CITY OF LARGO, is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes. Respondent, DIVISION OF RETIREMENT (DIVISION), is the agency of the State of Florida vested with the statutory authority to administer the voluntary program under which municipalities receive state-collected taxes imposed on property and casualty insurance with which to fund local plans pursuant to Chapters 175 and 185, Florida Statutes. Prior to 1993, the Florida Department of Insurance was the state agency responsible for the administration of Chapters 175 and 185, Florida Statutes. History Chapters 175 and 185, Florida Statutes, relating to pension plans for firefighters and police, authorize two types of retirement or pension plans. One type is called "chapter plans" and the other is known as "local law plans." Chapter plans are created under state law, and the provisions of Chapters 175 and 185, Florida Statutes, control the plans' terms, conditions and benefits. Local law plans are purely voluntary and are created either by special act of the Legislature, or by municipal ordinance. The special act or municipal ordinance contain the provisions relating to the terms, conditions, and benefits of the local law retirement plan. Both chapter plans and local law plans receive funds from the state-collected premium tax on property and casualty insurance. The Petitioner CITIES have voluntarily participated on a continuing basis in the program created under Chapters 175 and 185, Florida Statutes, whereby the CITIES have received state-collected taxes imposed on property and casualty insurance premiums with which to fund its local plans for firefighters and police. The CITIES have received such premium tax monies until calendar year 1995. In 1986 the Legislature significantly amended Chapters 175 and 185, Florida Statutes. See Chapters 86-41 and 86-42, Laws of Florida. Chapter 86-41 pertained to municipal firefighters; Chapter 86-42 pertained to municipal police officers. As indicated above, the constitutionality of these statutes was upheld in City of Orlando v. State Department of Insurance, supra. In Section 1 of each act, the Legislature added substantially the same legislative intent language: Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide a uniform retirement system for the benefit of firefighters as hereinafter defined, and intends, in implementing the provisions of s. 14, Art. X of the State Constitution as they relate to municipal firefighters' pension trust fund systems and plans, that such retirement systems or plans to be managed, administered, operated, and funded in such manner as to maximize the protection of the firefighters' pension trust funds. This chapter hereby establishes minimum standards for the operation and funding of municipal firefighters' pension trust fund systems and plans. After the enactment of Chapters 86-41 and 86-42, Laws of Florida, the Department of Insurance undertook rulemaking to implement the provisions of the acts. The City of St. Petersburg and the Florida League of Cities challenged the proposed rules under Section 120.54, Florida Statutes. The Department's proposed rules were upheld by the DOAH Hearing Officer. On appeal, the First District Court of Appeal reversed the order of the Hearing Officer, and held that the majority of the department's proposed rules were invalid because statutory provisions governing chapter pension plans, which were not made specifically and expressly applicable by the Legislature to local firefighter and police plans, did not preempt municipal power with respect to local law plans. Florida League of Cities, Inc. v. Department of Insurance, 540 So.2d 850 (Fla. 1st DCA 1989) review denied 545 So.2d 1367 (Fla. 1989), [hereinafter referred to as the "Rules Case"]. From 1988 to 1991, the Department of Insurance engaged in litigation with numerous municipalities regarding compliance of local law plans with the provisions of Chapters 175 and 185, Florida Statutes. The Department settled these cases and continued to distribute premium tax funds to these local law plans with the understanding that the disputed issues of statutory compliance would be better resolved through rulemaking. The Department of Insurance conducted staff workshops to discuss rulemaking; however, the Department did not thereafter initiate formal rulemaking under Chapter 120, Florida Statutes, with regard to any compliance requirements for local law plans under Chapters 175 and 185, Florida Statutes. In 1993 the Legislature transferred statutory responsibility for the administration of Chapters 175 and 185, Florida Statutes, from the Department of Insurance to the DIVISION. The legislative transfer effected a transfer of all programs as well as personnel. Since the legislative transfer in 1993, the DIVISION has made a continuous and good faith effort to present these issues to the Legislature for clarification and resolution. Indeed, during the 1996 Session, HB 1951 and SB 2484 were introduced which specifically addressed and clarified the issues presented in these cases. On October 19, 1995, the City of St. Petersburg in case No. 95-5089RU filed a Petition challenging certain non-rule policies of the DIVISION under Sections 120.535 and 120.56, Florida Statutes. On April 11, 1996, the Final Order was entered in case No. 95-5089RU, holding that the DIVISION's non-rule policies violated the provisions of Section 120.535, Florida Statutes. The Final Order did not resolve the Section 120.56, Florida Statutes, issues. On May 10, 1996, the City of St. Petersburg filed a Notice of Appeal in case No. 95-5089RU as to the Section 120.56, Florida Statutes, issues, and that matter is now pending before the First District Court of Appeal, in case No. 96-1817. As indicated above, HB 1951 and SB 2484, specifically addressing the issues raised in these cases, were introduced during the 1996 Session Florida Legislature. On April 30, 1996, HB 1951 was passed by the Florida House of Representatives, but died along with SB 2484 in the Florida Senate on May 4, 1996. The 1996 Legislature failed to enact any legislation addressing or otherwise clarifying the issues raised in these proceedings. On May 31, 1996, the DIVISION noticed a rules workshop addressing these issues in the Florida Administrative Weekly. On June 12, 1996, the DIVISION disseminated proposed rules. On June 21, 1996, the DIVISION conducted the rules workshop. On July 12, 1996, the DIVISION published proposed rules and amendments, 60Z-1.004, 60Z-1.006, 60Z-1.026, 60Z-1.027, 60Z-1.028, 60Z-2.017, 60Z-2.018, and 60Z-2.019, which address the issues raised in these cases. On July 30, 1996, the City of St. Petersburg, and the Florida League of Cities, pursuant to Section 120.54, Florida Statutes, filed Petitions challenging the DIVISIONS's proposed rules. The Section 120.54 Petitions are now pending before the Division of Administrative Hearings in cases Nos. 96-3560RP and 96-3561RP. Stipulated Facts The following facts are undisputed by the parties: The DIVISION takes the position that Sections 175.032 and 185.02, Florida Statutes, (Definitions), apply to local law plans, including the definitions of "aggregate years of service" and "salary." It is the position of the DIVISION that firefighters disabled from duties of a fireman as defined in Section 175.032, Florida Statutes, are eligible for disability benefits. It is the position of the DIVISION that local law plan benefits may not be offset by social security or workers compensation benefits. It is the position of the DIVISION that a municipality with a local law pension plan is prohibited from prospectively reducing pension benefits so as to coincide with available funding. The premium tax monies for calendar year 1995 are withheld from each of the Petitioner CITIES by the DIVISION. Prior to 1994 the DIVISION, or its predecessor agency, the Department of Insurance, have never withheld Chapter 175 or 185 insurance tax premium moneys from the CITIES. It is the position of the DIVISION that all municipal pension plans submitted for review must comply with the non-rule policies at issue in the present case in order to receive Chapter monies pursuant to Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that the pension plans of the Petitioner CITIES do not fulfill the requirements of Section 175.351, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the pension plans of the Petitioner CITIES do not fulfill the requirements of Section 185.35, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the term "credited years of service" as used in Section 175.351(4) and 185.35(1)(d), Florida Statutes, is to be defined in accordance with the term "aggregate number of years of service" and "aggregate number of years of service with the municipality" under Sections 175.032(1)(a) and 185(1)(b), Florida Statutes, respectively. It is the position of the DIVISION that it has the authority under Chapters 175 and 185, Florida Statutes, and Chapter 60Z, Florida Administrative Code, to withhold Chapter 175 and 185 premium tax money to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that it has the authority to release payment of Chapter 175 and 185 premium tax moneys to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes, provided the municipality is making good faith efforts to bring the violations into compliance.
The Issue The issue in this matter is whether Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for employees of the City of Tampa (the “City”). Respondent was employed with the City from August 1, 1994, through March 16, 2009, when the City terminated his employment. Respondent worked as an Automotive Equipment Operator II in the City’s parks and recreation department. Respondent worked a total of 15 years for the City. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund. After six years of employment, Respondent vested in the pension plan. According to a Notice of Disciplinary Action, dated March 16, 2009, the City terminated Respondent based on a complaint that he had stolen City property. Specifically, in February 2009, the City received information that Respondent was in possession of a City-owned lawn mower at his residence. After receiving the complaint, the City notified the Tampa Police Department (“TPD”). TPD searched Respondent’s home. TPD did not find a City lawn mower. However, during its search, TPD did discover a spool of weed eater line on Respondent’s porch that he admitted belonged to the City. During a subsequent interview with TPD, Respondent confessed to taking the spool from the City’s supplies without permission. Respondent also divulged that he did occasionally take a lawn mower owned by the City and use it on his property. Following the TPD interview, Respondent was arrested and charged with theft of the City property under section 812.014, Florida Statutes. Respondent, however, was never prosecuted for the crime. After completing a pre-trial intervention program, Respondent’s theft charge was dismissed. The City, however, terminated Respondent’s employment based, in part, on his admission to stealing the weed eater line. Kimberly Marple, an Employee Relations Specialist Supervisor for the City, testified on behalf of the City and explained that the City maintains a zero tolerance policy for removal of or taking City property for personal use. Consequently, when the City learned of Respondent’s admission to TPD that he took City property, he was fired. At the final hearing, Petitioner admitted to “borrowing” the City lawn mower from time to time to use at his home. He expressed, however, that he always returned it to the City. Respondent claimed that he never considered permanently taking the lawn mower. Respondent did, however, confirm that he took the weed eater line from the City, without authority, for personal use and did not intend to return it. Respondent relayed that a spool of weed eater line costs approximately $80. Respondent voiced that he was an exemplary employee for the City during his 15 years of employment. Respondent represented that, prior to this incident, he had never received any disciplinary action from the City. Respondent’s testimony is supported by his annual performance evaluations which record that he dependably and diligently performed his responsibilities for the City parks and recreation department. Respondent’s performance was frequently marked as excellent or outstanding. Based on the evidence and testimony presented at the final hearing, the preponderance of the evidence establishes that the City terminated Respondent’s employment by reason of his admission to theft of City property. Therefore, the Fund met its burden of proving that Respondent must forfeit all rights and benefits to the Fund’s pension plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order finding that Respondent, Robert Ramshardt, a public employee who, by reason of his admitted commission of a “specified offense” under section 112.3173(2)(e), forfeited all rights and benefits in the pension plan administered by the Fund. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 22nd day of February, 2017.
The Issue The issue in this case is whether Willie Mae Miles is entitled to retirement credit for the period beginning March 1952 through August 1976 when she was employed at the Jackson Memorial Hospital in Miami, Florida (the "Hospital"). There is no dispute that Willie Mae Miles was employed at the Hospital during that time period. However, the Department of Administration (the "Department") contends that Ms. Miles received a refund of her employee retirement contributions of $5,475.39 in May 1977. Therefore, the Department contends that Respondent is not entitled to credit for that period of service. Ms. Miles claims that she did not apply for or receive a refund of retirement contributions. She also claims that she would only have accepted a lump sum refund if it included her contributions and the county and state contributions with interest. Since no such sum was received, she claims she is entitled to retirement credit for her employment at the hospital.
Findings Of Fact While Mrs. Miles has handled her case up to and including the hearing since she dispensed with the services of her attorney, her testimony and the nature of the exhibits indicate that she did not fully comprehend the meaning and intent of the documents that she signed requesting a refund of her retirement contributions and mistakenly believed that she still had funds in the Retirement Trust Fund from which a retirement benefit would be paid later upon her retirement. Her belief was erroneous. Under the State and County Officers and Employees' Retirement System (SCOERS), an employee and the employing agency each paid retirement contributions into the Retirement Trust Fund, and these contributions were credited to the employee's retirement account. Eventually, when the employee retired, the retirement benefit was paid from the total contributions paid into the Trust Fund, including investment earnings of the Fund. However, if the employee terminated employment before retirement, he could legally receive only a return of his personal contributions paid in and not the retirement contributions paid in by his employing agency. Mrs. Miles believed she was due and had a right to her own paid-in contributions, as well as the contributions paid in for her by her employing agency, and since she had received a refund of only a portion (her portion) of her retirement contributions, there were monies (retirement contributions made by her employer) still on deposit with the Division of Retirement that would provide for her retirement. Mrs. Miles did not understand that the return of her personal contributions would end any entitlement or vested right on her part to a future retirement benefit under the SCOERS. It is also evident from her testimony that no one with her employing agency advised her of this fact and that none of the information received from the Division of Retirement made this clear to her. The "Request for Refund" card stated the effect of a refund of personal contributions, but Mrs. Miles did not understand the instructions on the refund card. In April, 1989, the Division received an inquiry from Mrs. Miles advising that she was applying for her retirement benefits. This is further evidence that she believed she still had an active retirement account with the State of Florida. It is concluded that Mrs. Miles never had any actual intent to relinquish her right to apply for and receive a retirement benefit under the SCOERS.
Recommendation It is RECOMMENDED that the Petitioner not be credited with any creditable service under the provisions of Chapter 121, Florida Statutes, for the period from March 1952 to May 1977. DONE and ORDERED this 30 day of March 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 30 day of March 1990. APPENDIX TO RECOMMENDED ORDER 89-4834 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the proposed findings of fact submitted by the Respondent in this case. Petitioner's submittal was a mixture of argument, conclusions and facts which have been carefully considered in the preparation of this Recommended Order. However, specific ruling on proposed findings of fact by the Petitioner is not possible given the format of her proposal. Rulings on Respondent's Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. The first sentence is adopted in substance in Findings of Fact 5. The remainder of the proposal is rejected as unnecessary. Subordinate to Findings of Fact 7. Adopted in substance in Findings of Fact 8 and 10. Adopted in substance in Findings of Fact 11 and 12. Adopted in substance in Findings of Fact 14 and 16. COPIES FURNISHED: Willie Mae Miles 10220 S.W. 170th Terrace Miami, Florida 33157 Larry Scott, Esquire Division Attorney Office of General Counsel Department of Administration Room 440 Carlton Building Tallahassee, Florida 32399-1550 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issue in the case is as set forth in the Notice of Forfeiture of Retirement Benefits dated November 10, 2005, and issued by the Department of Management Services, Division of Retirement (Respondent), to Richard Brandenberger (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Orange County Board of County Commissioners as a correctional officer at the county jail and participated in the Florida Retirement System (FRS). The Respondent is the state agency charged with administering the FRS. The applicable position description for employment by Orange County as a correctional officer included, in relevant part, the following description of the job duties: Supervises inmates to prevent altercations, intimidation, undesirable or illegal acts, intercedes when necessary, and to ensure the safety of the facility, other Correctional staff and the inmates. On or about October 29, 2003, a grand jury issued a one-count indictment against the Petitioner as follows: On or about July 3, 2003, in Orange County, Florida, defendant knowingly and intentionally possessed with intent to distribute and distributed Methylenedioxymethamphetamine ("MDMA") commonly known as "ecstasy", and marihuana, controlled substances listed in Schedule I of 21 U.S.C. Section 812, all in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D). The Petitioner was subsequently arrested. He then retired from employment in December 2003 and began receiving benefits from the FRS the following January. On or about January 29, 2004, the Petitioner, represented by legal counsel, entered a plea of guilty to the indictment and executed a written plea agreement that stated in material part as follows: Count Pleading To The defendant shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with possession with intent to distribute and distribution of MDMA and marihuana, in violation of 21 U.S.C. Sections 841(a)(1). * * * Elements of the Offense The defendant acknowledges understanding the nature and elements with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: That defendant knowingly possessed or distributed MDMA or marihuana as charged; and Second: That defendant possessed the substance with the intent to distribute it. * * * Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order stating that the Petitioner has forfeited his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether the Petitioner's rights and benefits under the Florida Retirement System ("FRS") have been forfeited as set forth in the Notice of Forfeiture of Retirement Benefits dated August 26, 2004.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, on the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system as defined by Florida law. It provides benefits to local and state employees, including teachers, state legislators, and local public officials. Mr. Childers was employed as a school teacher in Escambia County from 1955 to 1957, and this employment continued for approximately two and one-half years. During this time, Mr. Childers was a member of the Teacher Retirement System, which later became part of the FRS. His two and one-half years of service as a teacher is credited service under the FRS. In November 1970, Mr. Childers was elected to serve as a member of the Florida Legislature, and he continued to serve as a state legislator until November 2000, when he left office as a result of term limits. As a state legislator, Mr. Childers was a member of the FRS class of State Elected Officials, and his 30 years of service is credited service under the FRS. In November 2000, Mr. Childers was elected to serve as a member of the Escambia County Board of County Commissioners. In this position, Mr. Childers was a member of the FRS class of County Elected Officials, and his years of service as a County Commissioner is credited service under the FRS. On or about June 17, 2002, Mr. Childers was charged by indictment with one count of money laundering, a second-degree felony pursuant to Section 896.101(3)(a)1. and 2.a. and (5)(b), Florida Statutes (2002)1; one count of bribery, a third degree felony pursuant to Section 838.015, Florida Statutes2; and one count of receipt of unlawful compensation or reward for official behavior, a third degree felony pursuant to Section 838.016(1), Florida Statutes.3 The charges in the June 17, 2002, indictment were based solely on activities allegedly occurring subsequent to November 2000 and arising out of Mr. Childers's service as a member of the Escambia County Board of Commissioners. Mr. Childers was tried and found guilty by a jury of two counts in the indictment, bribery and unlawful compensation or reward for official behavior.4 On or about May 16, 2003, Mr. Childers was adjudicated guilty of these two crimes and was sentenced to 42 months in prison, to be followed by 18 months probation. Mr. Childers has not, to date, applied for retirement benefits under the FRS. Mr. Childers was a public officer who was adjudicated guilty of two offenses specified in Chapter 838, Florida Statutes, which arose out of his service as a member of the Escambia County Board of Commissioners. None of the actions related to his service as a state legislator or as a teacher in Escambia County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that W.D. Childers committed specified offenses, as defined in Section 112.3173(2)(e), Florida Statutes, prior to his retirement from public service and ordering that, pursuant to Section 112.3173(3), Florida Statutes, W.D. Childers forfeit all his rights and benefits under the Florida Retirement System, except for the return of any accumulated contributions. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of August, 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that HRS did not discriminate against Keith Woods on the basis of age, but exercised its legal rights under the then applicable statute. Therefore, this petition should be dismissed. DONE and ORDERED this 11th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank C. Lawson, Esquire 244 Bal Bay Drive Bay Harbour, Florida 33154 James G. Mahorner, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301 Julia M. Giller, Esquire 1177 Kane Concourse Miami Beach, Florida 33154
The Issue Whether Petitioner has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).
Findings Of Fact Respondent was a participant in Petitioner’s retirement benefits fund. The retirement fund qualifies as a public retirement system. Respondent was hired by Petitioner on February 16, 1998, and at the time of his termination from employment he worked as a sewer operations team leader in Petitioner’s wastewater collections department. According to the Notice of Disciplinary Action dated July 8, 2010, Respondent’s employment with the City of Tampa was terminated based on the following: During the course of an investigation by the Tampa Police Department, report #2010-900187, you admitted to the following violations of City of Tampa policy: Using a City issued cellular phone for non- City related phone calls which furthered illegal activity; and using a City issued vehicle to participate in activities not related to your employment; both of which are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(c)(9), Neglect of Duty, Use of City equipment, including vehicles, for any unauthorized purpose. Wearing a City issued uniform while conducting unauthorized and illegal activities, violating City of Tampa Personnel Manual, Discipline Administration, B28.2,3(b)(8), Insubordination, Inappropriate use of City identification, including uniforms. Further, your behaviors as revealed in the investigation by the Tampa Police Department, are incompatible with the moral and ethical standards expected of City of Tampa employees and these behaviors are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(d)(9), Moral Turpitude, Engaging in any employment, activity or enterprise which is illegal, incompatible or in technical conflict with the employee’s duties and responsibilities as a City employee. The instant proceeding, as noted in Petitioner’s PRO, does not focus on whether Respondent’s conduct violated the City of Tampa’s “moral and ethical standards,” but instead focuses on whether Respondent, during the course of an investigation by the Tampa Police Department, admitted to wearing his city-issued uniform, and using his city vehicle and cell phone in furtherance of illegal activity.1/ Background In 2010, Detective Korey Diener of the Pinellas County Sheriff’s Office, was involved in a long-term investigation involving counterfeit checks. As part of the investigation, Detective Diener was monitoring a suspect by the name of Shannon Edwards (Edwards). During a circuit court probation hearing on February 24, 2010, Edwards, who was acquainted with Respondent because they hung out in the same neighborhood, presented a State of Florida, Department of Corrections, Public Service Hours form, which indicated that he (Edwards) had completed his court-ordered community service hours. Another detective, who was also involved with the case, was present in the courtroom and knew that the form was falsified based, in part, on a surveillance conversation he heard between Edwards and his girlfriend, Chelsea Niles (Niles). During the surveilled conversation, Edwards asked Niles to contact Respondent so that he could secure for Edwards a form showing that Edwards had performed the required community service hours, when in actuality he (Edwards) had not. According to Petitioner, Edwards, while using Niles as his agent, reached out to Respondent because Respondent, as a city employee, “knew somebody” who could prepare the needed community service form. Mr. Edwards did not testify during the disputed-fact hearing, and his statement is not being accepted for the truth of the matter stated therein. Ross Fabian (Fabian) was Respondent’s contact person for securing the fraudulent form. Respondent’s undisputed, credible testimony is that he knew Fabian because as a juvenile, Respondent had gotten into trouble and performed his ordered community service hours under Fabian’s supervision. Respondent maintained a relationship with Fabian throughout the years, but there is no evidence that the relationship between the two was in any way connected to Respondent’s employment with the city. Petitioner seeks to infer from Edwards’ statement that Respondent was a “city employee that knows somebody,” the existence of a nexus between Respondent’s employment and the securing of the fraudulent form. The evidence is insufficient to support such an inference. Police Interview The predicate for the instant action lies in that portion of the Notice of Disciplinary Action which provides that during the course of an investigation by the Tampa Police Department, Respondent “admitted” to “[u]sing a City issued phone for non-City related phone calls which furthered illegal activity, using a City issued vehicle to participate in activities not related to your employment, and [w]earing a City issued uniform while conducting unauthorized and illegal activities.” The evidence of record does not establish that Respondent admitted to the conduct as alleged. On June 16, 2010, Respondent was interviewed by Detective Mike Victor of the Tampa Police Department and Detective Korey Diener of the Pasco County Sheriff’s Office. A transcript of the audio recording was admitted into evidence. During the interview, Respondent was asked about the phone that he used when speaking with Edwards about the fraudulent community service hours. In response to the question, Respondent informed the detectives that he used his personal phone when speaking with Edwards. At no point during his interview with law enforcement did Respondent admit to using a city-issued cell phone as part of the transactions related to the fraudulent form. Furthermore, in reviewing the transcript of audio recording, Respondent was never asked if he used his city truck or was wearing his city-issued uniform while interacting with Edwards, Fabian, Niles, or anyone else who may have been involved with the execution of the fraudulent community service form. Succinctly stated, the transcript of Respondent’s recorded interview does not in any way indicate that Respondent admitted to using his city truck, or to wearing his city-issued uniform while completing the transactions related to the execution of the fraudulent community service form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order: Finding that there is no nexus between Respondent’s conduct and his public employment; Finding that forfeiture of Respondent’s benefits under the retirement plan is not authorized pursuant to section 112.3173, Florida Statutes; and Dismissing the petition for forfeiture, with prejudice. DONE AND ENTERED this 8th day of February, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of February, 2017.
The Issue The issue in this case is whether Buford M. Arthur's rights and benefits under the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund should be forfeited pursuant to Section 112.3173(3), Florida Statutes(1995).
Findings Of Fact Respondent, Buford M. Arthur, began employment with the City of Ocala Police Department (hereinafter referred to as the "Police Department") in late 1965 or 1966. Mr. Arthur terminated his employment with the Police Department in the early 1970s. Mr. Arthur was re-employed by the Police Department on January 2, 1975, and remained employed by the Police Department until his retirement. While employed by the Police Department, Mr. Arthur reached the rank of Corporal. After being re-employed by the Police Department in 1975, Mr. Arthur served as the Police Department's Forfeiture Officer. As part of his duties as Forfeiture Officer, Mr. Arthur was responsible for depositing certain funds into a Police Department Trust Fund or a trust fund of a joint task force of the Police Department and the Marion County Sheriff's Office (hereinafter referred to as the "Sheriff's Office"). Funds provided to Mr. Arthur for deposit in the Police Department Trust Fund included funds seized as evidence by, and in the custody of the Police Department. Funds provided to Mr. Arthur for deposit in the joint task force trust fund included funds seized as evidence by, and in the custody of the task force. The task force was formed by the Sheriff's Office and the Police Department pursuant to a Special Voluntary Cooperation Agreement (hereinafter referred to as the "Cooperation Agreement") between the Police Department and the Sheriff's Office. The Police Department and Sheriff's Office entered into the Cooperation Agreement pursuant to the Florida Mutual Aid Act, Chapter 23, Florida Statutes. Pursuant to the Cooperation Agreement, the Police Department and Sheriff's Office established the "Ocala-Marion County Narcotics and Vice Task Force" (hereinafter referred to as the "Task Force"). The Cooperation Agreement specified how operations of the Task Force were to be funded by the Police Department and the Sheriff's Office. The Cooperation Agreement also provided that forfeited cash and the proceeds from the sale of forfeited property, after expenses, were to be distributed 60% to the Sheriff's Office and 40% to the Police Department. All cash and forfeited property seized by the Police Department or the Task Force was held for at least sixty days. If not claimed within sixty days after the conclusion of the criminal proceedings against the individual from whom the property was seized, the seized property was sold. Cash from sales of forfeited property and seized cash held at least sixty days by the Task Force was distributed by the Fiscal Manager of the Sheriff's Office 60% to the Sheriff's Office and 40% to the Police Department. At times Mr. Arthur was responsible for such funds and cash considered forfeited to the Police Department as Forfeiture Officer. Forfeited funds received by Mr. Arthur were to be deposited into the Law Enforcement Trust Fund or the Task Force Trust Fund. On or about June 15, 1994, Mr. Arthur received $1,204.00 for deposit into the Task Force Trust Fund. Mr. Arthur admits that he took these funds. Included in the total funds Mr. Arthur received and kept were the following amounts involving the following cases and individuals: Case Number Defendant Amount 0-93-09-1974 Hanson Collins $ 20.00 S93-30856 Robert Ringold 250.00 Hanson Collins was charged with two felony counts. A Judgment was entered regarding Mr. Collins' case on January 31, 1994. Robert Ringold was charged with ten felony counts. A Judgment was entered regarding Mr. Ringold on March 14, 1994. On or about July 8, 1994, Mr. Arthur received $810.00 for deposit into the Task Force Trust Fund. Mr. Arthur admits that he took these funds. Included in the total funds Mr. Arthur received and kept were the following amounts involving the following case and individual: Case Number Defendant Amount S93-23897 Richard Bursey 50.00 Richard Bursey was charged with three felony counts. A Judgment was entered regarding Mr. Bursey on April 11, 1994. On or about January 20, 1995, Mr. Arthur received $1,267.00 for deposit into the Task Force Trust Fund. Mr. Arthur admitted that he took these funds. Included in the total funds Mr. Arthur received and kept were the following amounts involving the following cases and individuals: Case Number Defendant Amount S94-18809 Teresa Martin $ 60.00 S94-18838 David Lane 20.00 Teresa Martin was charged with two felony counts. A Judgment was entered regarding Ms. Martin on September 13, 1994. David Lane was charged with four felony counts. A Judgment was entered regarding Mr. Lane on July 28, 1994. The funds seized from Hanson Collins, Robert Ringold, Richard Bursey, Teresa Martin, and David Lane were turned over to Mr. Arthur, an employee of the Police Department, more than sixty days after Judgments were entered in their cases. The Police Department was ultimately entitled to receive 40% of these funds. Mr. Arthur began taking funds meant for deposit into the Law Enforcement Trust Fund in June of 1994 and continued to do so through approximately January of 1995. Mr. Arthur admits that he took approximately $3,200.00 to $5,000.00. On February 29, 1996, Mr. Arthur retired from the Police Department. After his retirement, Mr. Arthur began receiving retirement benefits from the City of Ocala Employee's Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund. Mr. Arthur continues to receives benefits from these public retirement plans. After retiring from the Police Department Mr. Arthur was charged with Grand Theft. This charge arose as the result of Mr. Arthur's theft of funds entrusted to him for deposit into the Task Force Trust Fund. By letter dated October 22, 1996, the Chairman of Board of the City of Ocala Police Officers' Supplemental Pension Fund provided Mr. Arthur with a copy of Section 112.3173, Florida Statutes. Mr. Arthur discussed the letter and the statute with his attorney, James Reich. The evidence failed to prove that any representative of the City or the Boards discussed Section 112.3173, Florida Statutes, with Mr. Arthur or gave him any assurances that he would not be subject to its provisions if he entered a plea of nolo contendere to the charges against him. On January 29, 1997, Mr. Arthur signed a Waiver of Rights and Agreement to Enter Plea. Mr. Arthur agreed to enter a plea of nolo contendere to the change of Grand Theft upon certain terms set out in the agreement. In particular, the agreement provided, in relevant part, that adjudication would be withheld; that Mr. Arthur would be sentenced to two years probation; that he would pay court costs; and that he would make restitution to the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund. On January 29, 1997, Mr. Arthur entered a plea of nolo contendere consistent with the Waiver of Rights and Agreement to Enter Plea. Mr. Arthur's plea and the terms of the agreement to enter plea were accepted by the Court. Petitioner's Exhibits 3 and 4. Mr. Arthur made restitution in the amount of $11,825.95, although Mr. Arthur asserts that he did not take more than $3,200.00 to $5,000.00. Mr. Arthur is married to Intervenor, Rosemary Arthur. They were married November 20, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Boards of Trustees of the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund finding that Buford M. Arthur has forfeited all rights and benefits under the City of Ocala Employees' Retirement Plan and the City of Ocala Police Officers' Supplemental Pension Fund and dismissing the petitions of Buford M. Arthur and Rosemary Arthur. DONE AND ENTERED this 30th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1997. COPIES FURNISHED: William H. Phelan, Jr., Esquire Bond, Arnett and Phelan, P.A. Post Office Box 2405 Ocala, Florida 34478-2405 Leonard H. Klatt, Esquire POE and KLATT 7753 Southwest State Road 200 Ocala, Florida 34476-7049 H. Lee Dehner, Esquire Christiansen and Dehner, P.A. 2975 Bee Ridge Road, Suite C Sarasota, Florida 34239
The Issue The issue in this proceeding is whether Petitioner, as a surviving spouse, is entitled to the monthly benefits of his deceased wife pursuant to Chapter 121, Florida Statutes (1995). (All chapter and section references are to Florida Statutes (1995) unless otherwise stated.)
Findings Of Fact Mrs. Betty Thomas began participation in the Florida Retirement System ("FRS") on December 19, 1970, when the public school system that employed her as a teacher converted its retirement program from the Florida Teachers Retirement Program to the FRS. At the time, Mrs. Thomas had approximately six years of previous service for which she received credit in the FRS. The designated beneficiaries of Mrs. Thomas in 1970 were Mr. Johnny Brown, her husband at the time, and the couple's dependent children, Shauna Jackson, Peguena Brown, and Romina Brown. The three daughters were born, respectively, in 1961, 1962, and 1969. The FRS did not become noncontributory until 1975. By 1972, Mrs. Thomas had received $2,322.75 in three separate refunds representing part of the personal contributions and accrued interest that she made prior to 1975. Mrs. Thomas and Mr. Brown divorced in 1972. Mrs. Thomas met Petitioner sometime in 1975, and the two married in 1990. They remained together until Mrs. Thomas died on September 21, 1996. At the time of her death, Mrs. Thomas was actively employed as an assistant principal with 28.2 years of creditable service in the FRS. If her creditable service had not been reduced by previous refunds of personal contributions, Mrs. Thomas would have held 31.8 years of creditable service. On May 31, 1992, Mrs. Thomas changed her designated beneficiary. She deleted Mr. Johnny Brown, her former husband, and designated her three adult daughters as her beneficiaries using the From M-10 (the "M-10") required by Respondent for such purposes. Mrs. Thomas did not designate Petitioner as a beneficiary. From the time Mrs. Thomas executed the M-10 on May 31, 1992, and thereafter, none of the daughters of Mrs. Thomas qualified as a "joint annuitant" or a "dependent beneficiary" within the meaning of Section 121.021(28). None of the daughters was under age 25, physically or mentally disabled or incapable of self-support, or otherwise financially dependent on Mrs. Thomas for at least one-half of their support. From the time Petitioner married Mrs. Thomas in 1990, Petitioner qualified as a "joint annuitant" within the meaning of Section 121.021(28)(a). He was the spouse of a member of the FRS and is now the surviving spouse. Shortly after the death of Mrs. Thomas on September 21, 1996, Petitioner requested the monthly benefits of his deceased wife. By letter dated November 1, 1996, Respondent advised Petitioner that the "only benefit" available was a refund of personal contributions. In relevant part, the letter stated: Unless one of the beneficiaries qualified as a joint annuitant of the member at the time of death . . ., a refund of retirement contributions is the only benefit payable from this account. (emphasis supplied) Each beneficiary is entitled to an equal portion of the $2,354.05 on deposit and should complete Form FST-11g, APPLICATION OF BENEFICIARY FOR REFUND. (emphasis not supplied) If all the designated beneficiaries wish to disclaim interest in this account, you, as the surviving spouse would qualify as a joint annuitant. You would be eligible to receive the Option 3 monthly retirement benefit. The monthly benefit would be payable for your lifetime and is estimated to be $1,617.95 effective October 1, 1996. (emphasis supplied) For you to receive this benefit, we need the following (emphasis supplied): Forms DIS-1 completed by Shauna B. Jackson, Peguena Brown, and Romina Brown. Disclaimer forms must be filed and recorded in Circuit Court within two years of the member's date of death. . . . The daughters of Mrs. Thomas did not disclaim their interest in the personal contributions that remained in the FRS account of their deceased mother. Rather, they applied for a refund. On December 9, 1997, Respondent refunded the remaining personal contributions of Mrs. Thomas to her three daughters. Petitioner continued his attempts to obtain the monthly benefits of his deceased wife. By letters dated January 30 and May 2, 1997, Respondent provided Petitioner with responses substantially the same as the response contained in the letter dated November 1, 1996. On July 17, 1998, Petitioner filed an Application of Beneficiary for Retirement Benefits. Respondent advised Petitioner that the "benefits" had already been paid to the three daughters of Mrs. Thomas, and Respondent requested an administrative hearing. The purpose of the M-10 signed by Mrs. Thomas was to designate beneficiaries of the retirement benefits earned by Mrs. Thomas during her years of service. The M-10 executed by Mrs. Thomas on May 31, 1992, stated, in relevant part: . . . I CHOOSE TO HAVE BENEFITS PAID . . . AS FOLLOWS . . . 3. . . . JOINTLY . . . BENEFITS SHALL BE DIVIDED AND PAYABLE AS INDICATED BELOW. . . . Shauna Brown Jackson Daughter 11/15/61 F Peguena Brown Daughter 12/10/61 F Romina Brown Daughter 3/9/69 F The term "benefits" is not defined in Section 121.021. However, Respondent's own rule, in relevant part, defines the term to mean a "monthly payment." Florida Administrative Code Rule 60S-6.001(10). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) After Mrs. Thomas died on September 21, 1996, Respondent did not pay "benefits" to anyone, as Respondent defines the term "benefit" in Rule 60S-6.001(10). On December 9, 1997, Respondent distributed three lump sum payments totaling $2,354.05, to the designated beneficiaries who were entitled to the personal contributions of Mrs. Thomas pursuant to Section 121.091(7)(b)2. Respondent distributed one lump sum payment of $784.69 to Ms. Romina Brown and two equal lump sum payments of $784.68 to Ms. Peguena Brown and Ms. Shauna Brown. Section 121.091(7)(b)2 authorizes Respondent to pay only the personal contributions of Mrs. Thomas to her designated beneficiaries who do not qualify as joint annuitants within the meaning of Section 121.021(28). However, nothing in Chapter 121 or the evidence of record requires Respondent to withhold monthly benefits from a surviving spouse who is entitled in Section 121.091(8) to receive retirement benefits. The attempt by Mrs. Thomas to designate beneficiaries on the M-10 was, in part, effective and, in part, ineffective. It was an effective attempt to designate the beneficiaries entitled to a refund of her personal contributions. However, it was an ineffective attempt to name a beneficiary entitled to the monthly benefits that accrued independently of any personal contributions. An ineffective attempt to designate a beneficiary who is entitled to monthly benefits fails to name a beneficiary entitled to those benefits. When no beneficiary is named, Petitioner, as the surviving spouse, is the beneficiary designated in Section 121.091(8) who is entitled to the monthly benefits. When Respondent refunded $2,322.75 in personal contributions to Mrs. Thomas in 1972, the refund reduced the monthly benefit from $1,617.95 to $1,279.54. The refund resulted in a reduction in monthly benefit of approximately $338.41. There is no evidence that a $2,354.05 refund of the remaining contributions in 1997 should have any different effect on the monthly benefit. In the absence of some legal reason not to do so, a refund of $2,354.05 in 1997 should reduce the monthly benefit in the same proportion that the previous refunds in 1972 reduced the monthly benefit. The $2,354.05 refund in 1997 should reduce the monthly benefit of $1,279.54, by $341.79, to $937.75. Sections 121.091(7)(e) and (f) authorize a surviving spouse to modify monthly benefits by repaying contributions refunded to the member. Petitioner can restore the monthly benefit either to $1,279.54 or to $1,617.95 by electing to pay either $2,354.05 or $4,676.05 in personal contributions previously refunded plus accrued interest at the statutorily prescribed rate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order awarding to Petitioner, for the remainder of his life, the monthly benefits earned by Mrs. Thomas during 31.8 years of service in an amount that may range from $937.75 to $1,617.95, depending on the amount of personal contributions repaid by Petitioner, and shall include a lump sum payment of all monthly benefits plus accrued interest from October 1, 1996, to the date of the first payment. DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 29th day of April, 1999. COPIES FURNISHED: Robert B. Button, Senior Attorney Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Granville E. Petrie, Esquire 1105 North Duval Street Tallahassee, Florida 32303 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner, Heike Stoll (f/k/a Heike Bybee), has standing to assert a claim or right to any portion of her former husband’s Florida Retirement System (“FRS”) benefits as an “innocent spouse” pursuant to Article II, Section 8(d) of the Florida Constitution, and section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Mr. Bybee is a member of the FRS Investment Plan by virtue of his former employment as a deputy with the Sarasota County Sheriff, an FRS participating employer. On October 6, 2017, in Sarasota County Circuit Court Case Number 2017CF001018, Mr. Bybee was found guilty by jury verdict of the following felonies under Florida law: Kidnap- Commit or Facilitate Commission of Felony; Crimes Against Person-Exploitation Elderly or Disabled Adult $20,000 to $100,000 dollars; Fraudulent Use of Personal Identifying Information (8 counts); and Computer Crime to Defraud or Obtain Property (3 Counts) (referred to collectively as the “felony convictions”). On October 6, 2017, judgment was entered against Mr. Bybee adjudicating him guilty of the felony convictions. The SBA notified Mr. Bybee that his felony convictions required forfeiture of his FRS benefits under section 112.3173(2)(e), Florida Statutes. Mr. Bybee did not file a petition for hearing to challenge the Notice of Forfeiture or otherwise assert that his felony convictions did not warrant forfeiture of his FRS benefits under the forfeiture statute. Mr. Bybee’s interest in his FRS benefits is subject to forfeiture due to his commission of the crimes, and his felony convictions. Ms. Stoll was married to Mr. Bybee on August 27, 1994. On or about May 9, 2017, Ms. Stoll filed her Petition for Dissolution of Marriage in Manatee County (Circuit Court Case Number 2017-DR-2067) asserting her interest in, inter alia, Mr. Bybee’s FRS benefits. On December 8, 2017, Ms. Stoll filed an “FRS Investment Plan Petition for Hearing” asserting her claim of entitlement to her spousal share of Mr. Bybee’s FRS benefits as an “innocent spouse.” On February 26, 2018, Mr. Bybee and Ms. Stoll executed a Marital Settlement Agreement. As to retirement accounts, Mr. Bybee and Ms. Stoll agreed to the following: Retirement Accounts/Pension. Wife shall receive as her sole property, and all equity and value therein, all retirement accounts and/or pensions in the Husband’s sole name, in the joint name of the parties, and/or in the Wife’s sole name, free and clear of any claims or interest which Husband may have thereto. Specifically, Husband has a pension and/or retirement account through the County of Sarasota Sheriff’s Department, State of Florida. Wife shall receive as her sole property, and all equity and value therein, in said pension and/or retirement account, free and clear of any claims or interest which Husband may have thereto. Further, Husband assigns, transfers, and relinquishes any legal or equitable claims, causes of action, or remedies of any nature against the pension and/or retirement account through the County of Sarasota Sheriff’s Department, State of Florida; and Husband shall fully cooperate with Wife in any and all respects as necessary for Wife to pursue any such legal or equitable claims, causes of action, or remedies related any manner said pension and/or retirement account. Ms. Stoll was not charged with or convicted of any crimes related to Mr. Bybee’s felony convictions. Ms. Stoll’s testimony was credible that she was unaware of Mr. Bybee’s crimes, and had not benefited from them in any fashion. On April 16, 2018, a Final Judgement of Dissolution of Marriage was entered in Manatee County Circuit Court Case Number 2017-DR-2067 that “approved, ratified and incorporated” the marital settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner is not entitled to her former husband’s retirement benefits, because he was a public employee convicted of specified offenses; and pursuant to section 112.3173, he forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account upon committing the crimes. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 May, 2018.
