The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Albert F. Cook, had a relationship with the Department of Corrections (DOC) at any time during the month of April, 1993, and if so, whether he was eligible to receive a retirement benefit for that month, as well.
Findings Of Fact The Petitioner was employed at times pertinent hereto by the Department of Corrections (DOC) at its Baker Correctional Institution facility. On February 19, 1993, he was notified of his transfer to the Florida State Prison, purportedly for disciplinary reasons. Upon learning of this eventuality, the Petitioner immediately went on sick leave. He maintains that it was duly- approved sick leave. No medical evidence to that effect was presented, but the Petitioner suggested that his illness might be of a psychiatric nature. He clearly was disgusted with the action taken by the DOC to transfer him. Subsequently thereto, he decided to apply for retirement, effective March 31, 1993. Shortly thereafter, he sought to have his retirement request rescinded or withdrawn; however, that request was denied. He was thereupon removed from the DOC payroll, effective March 31, 1993, essentially as a termination action. He received a retirement benefit check for the period of April 1-30, 1993 in the amount of $2,324.53 from the Division of Retirement. The Petitioner appealed the DOC employment action to the Public Employees Relations Commission and an administrative proceeding ensued. Ultimately, a settlement agreement was reached in that case which resulted in the Petitioner being allowed to resign, effective April 16, 1993, rather than suffer termination effective March 31, 1993. That agreement entered into by the parties in that case specifically stated that "the agency [DOC] will take whatever action is necessary to return the employee [Cook] to the payroll for the period between March 31, 1993 and April 16, 1993". The Division of Retirement was, of course, not a party to that agreement since it was not a party to the litigation involved. The agreement was incorporated into a Final Order issued by the Public Employees Relations Commission in Case No. CF-93-196, entered June 7, 1993. The Petitioner sent a letter to E.I. Perrin, the Superintendent of Florida State Prison, dated April 12, 1993, in which he stated "that if I am still on the payroll, I hereby resign my position with the Florida Department of Corrections effective April 16, 1993 . . .". According to attendance and leave reports signed by both the Petitioner and Marion Bronson, the Personnel Director of Florida State Prison, the Petitioner was on sick leave for the payroll period of March 26, 1993 through April 8, 1993. While the date of the Petitioner's signature on the relevant time sheet was April 8, 1993, the end of the pay period, the Petitioner testified that the time sheets had actually been submitted earlier. Attendance and leave reports for the following pay period indicated that the Petitioner continued on sick leave status through April 16, 1993. The time sheets for the latter period were not signed by the Petitioner but were signed by Marion Bronson. DOC ordered a manual payroll made up to record payment and to pay the Petitioner through April 16, 1993. He received a salary warrant for $1,234.43 for that period from April 1-16, 1993. That salary check and warrant reflects that retirement contributions were paid as to that April payroll period salary. Because he received additional retirement service credit and a new average final compensation as a result of being in a payroll status and being paid for the period of time in April 1993, the Petitioner's monthly retirement benefits actually now exceed what he would receive as retirement benefit payments had he not been compensated as an employee for his service through April 16, 1993. The Petitioner testified at hearing that he was terminated on March 31, 1993 and not re-hired. He further testified that he neither wanted nor expected payment from DOC for the period of March 31, 1993 through April 16, 1993 and that he "merely wanted to clear his name". Nevertheless, he entered into the settlement agreement which provided for him to be compensated and on payroll status through April 16, 1993, when he entered into the settlement with DOC in the proceeding before the Public Employees Relations Commission. He is presumed to have full knowledge of the content of that settlement agreement, and it reflects that he freely and voluntarily entered into it, as does his testimony. According to Mr. Bronson's testimony, during the relevant period from March 31, 1993 through April 16, 1993, the Petitioner was occupying an authorized and established employment position with DOC. His employment relationship continued with the Department, as a result of the settlement agreement, until April 16, 1993. Because Mr. Bronson and DOC are not parties to the present proceeding and have no financial interest in the outcome of this litigation, Mr. Bronson's testimony is deemed credible and is accepted insofar as it may differ from that of the Petitioner. The Respondent agency learned that a payroll had been prepared for the period of time in April of 1993 in question and that a salary warrant was issued on the basis of the settlement agreement extending the Petitioner's employment with DOC through April 16, 1993. The Division of Retirement thus temporarily reduced the Petitioner's retirement benefits to recover the amount of the resulting, unauthorized April retirement check. It was unauthorized because he remained employed for the period of time in April and was paid as though he were employed, as a result of the settlement agreement. Consequently, he was not entitled to retirement benefits for that period of time in April 1993 ending on April 16, 1993. Mr. Snuggs testified that every retirement applicant, such as the Petitioner, receives a form FRS-TAR, entitled "Retirement System Termination and Re-Employment". The Petitioner did not deny receiving that form (Respondent's Exhibit 4) which advises prospective retirees of their rights and obligations in terms of retirement and retirement benefits as it relates to re- employment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Retirement, temporarily reducing the Petitioner's retirement benefits, in the manner already proposed by that agency, until such time as his April 1993 retirement benefit, paid to him previously, has been reimbursed to the agency. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2292 Respondent's Proposed Findings of Fact 1-11. Accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Albert F. Cook Post Office Box 782 Sneads, Florida 32460 Robert B. Button, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 A.J. McMullian, III, Director Division of Retirement 2639 North Monroe Street, Bldg. C Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner, Timothy Green (Green), was born on April 19, 1941. Green was employed by Manatee County as a Highway Maintenance Technician on March 26, 1966. As a Highway Maintenance Technician, Green cleared ditches, brush and culverts. He also installed storm drainage pipe and operated chain saws and related tools. On September 24, 1984, Green was terminated from his job because of his inability to perform his assigned duties. Green referred to his termination as a "retirement." Having been promoted to Highway Maintenance Technician II, Green was earning $1,016.01 per month gross pay at the time he was terminated. He had accumulated 18.40 years of creditable service under the Florida Retirement System (FRS). Green is unable to read and has had no formal schooling other than the attendance of what he describes as "opportunity classes all his life." Green has not been found by any court to be incompetent to handle his personal affairs and generally paid his personal bills through money orders he purchased at convenience stores. However, Green's mental capabilities and ability to communicate are obviously quite limited, and his more complicated personal affairs were handled by his mother and sister. On September 28, 1984, Green sought out and met with Mr. A1 Chandler, Records Manager for Manatee County, at Chandler's office. Green thought that Manatee County already had "retired" him because of his disability and just wanted to get his retirement benefits. He did not understand the various optional benefits available to him as a member of the FRS. Green was able to communicate to Chandler only that he wanted to get all his money from retirement, or words to that effect. Chandler interpreted those words to mean that Green wanted to withdraw his contributions to the system. Based on his general familiarity with the FRS, Chandler discouraged Green from doing what he believed Green wanted to do (i.e.. withdraw his contributions from the system). Chandler believed intuitively that Green should not withdraw his contributions because he had accumulated 18.40 years of creditable service under the FRS. Chandler understood that Green's years of creditable service would entitle him to favorable benefits upon normal retirement at age 62. He therefore advised Green to wait and not to withdraw the contributions. Green, who never clearly understood the difference between getting his money (or benefits) out of the retirement system and withdrawing his contributions to the retirement system, decided that he did not want to wait as Chandler advised. Accordingly, Chandler gave Green a form to request a refund of his contributions to the FRS, and Green signed the form. The Request For Refund Form FRS-M81 Green signed contains the following information above his signature: TO THE DIVISION OF RETIREMENT: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. However, Green could not read the refund language. He did not think there was any reason to ask Chandler to read it to him, and Chandler did not read it or explain it to him. Neither Chandler nor anyone else fully explained to Green what optional benefits he might be entitled to as a member of the Florida Retirement System other than to wait until normal retirement or withdraw his contributions. Specifically, neither Chandler nor anyone else explained to Green that his request for refund of his accumulated contributions would eliminate his right to apply for disability retirement benefits. In fact, on that same day, September 28, 1984, Green began completing an application for disability retirement benefits. On October 2, 1984, Green's Statement Of Disability By Employer was received by Manatee County's Personnel Office. The form was completed by Green's former immediate supervisors. On October 3, 1984, Green's Request For A Refund Form FRS-M81 was mailed to Respondent, Department of Administration, Division of Retirement (Division) by Manatee County. Sometime between October 18, 1984 and November 20, 1984, Green's completed Florida Retirement System Application For Disability Retirement, with his Statement Disability By Employer, was sent to and received by the Division. On October 29, 1984 the Division sent Green the refund of his accumulated contributions totaling $1,686.52. Until Green received the refund, he expected to receive monthly checks. When he received the refund, Green realized for the first time that he would not be receiving monthly checks and that his lump sum check would be in the amount of only $1,686.52. Green never had any actual intent to relinquish his right to apply for disability retirement benefits from the FRS.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent Department of Administration, Division of Retirement: (1) enter a final order granting the Petition For Formal Proceedings in this case and determining that Petitioner, Timothy Green, has not waived his right to apply for disability retirement benefits: and (2) process the application of Petitioner, Timothy Green, for disability retirement benefits. RECOMMENDED this 4th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1985.
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 the Petitioner may withdraw from participation in the Deferred Retirement Option Plan (DROP)?
Findings Of Fact The Petitioner, Henry Gohlke, is a member of the Florida Retirement System (FRS), which is governed by Chapter 121, Florida Statutes (2003). The Petitioner is employed by the Department of Agriculture and Consumer Services. The Petitioner divorced his former spouse, Joanne Marie Gohlke, on October 29, 1997, and a Qualified Domestic Relations Order (QDRO) was entered which provided that Joanne Marie Gohlke was the alternate payee of the Petitioner's retirement benefits. See Exhibit J-10. Under the terms of the QDRO, when the Petitioner retired, his future retirement benefits would be incorporated into alimony payable to Joanne Marie Gohlke, beginning with the first monthly retirement benefit payment made to the Petitioner. The payment was fixed based upon the value of the Petitioner's pension at the time, and Joanne Marie Gohlke would receive $552.05 per month. DROP is a program which permits an employee, who has qualified for retirement, to retire; draw his retirement benefit based upon the retirement option he selected; and have the money paid into a non-taxed, interest-drawing account for up to five years while the employee continues to work. At the end of the five years or such other shorter time the employee elects, the employee may cease working and receive all or a part of the money in a lump payment paying the income taxes due on the amount, or roll the money over into an Individual Retirement Account (IRA) or similar program without paying income taxes until the money is withdrawn from that account. The Petitioner testified that he queried Eddie Tanner, who at that time was a paralegal working with the Division of Retirement, about the effect of the QDRO on his DROP deposits. There is conflicting testimony about what the Petitioner was told; however, Tanner testified concerning his customary advice to persons subject to QDROs. The Petitioner was advised to seek clarification from the domestic relations court to be certain. The Petitioner elected to participate in the DROP program in March of 2003. He may continue to participate in DROP until March 28, 2008. See Exhibit J-7. When he began to receive retirement benefits, a letter was sent to him on June 25, 1998, advising him that Joanne Marie Gohlke would qualify for a $552.05 per month share of the Petitioner's accrued DROP benefit as provided in the QDRO. The letter also advised that, upon the Petitioner's ceasing to work, the moneys due Joanne Marie Gohlke would be paid to her together with the accrued interest. This letter was sent to the Petitioner's old address, and he did not receive the letter. Eventually, the Petitioner learned that his DROP payments would be subject to the allocation of $552.05 each month to his ex-wife pursuant to the QDRO. This money would be payable to his ex-wife at the same time the Petitioner accessed his DROP money. The Petitioner questioned this payment to his ex-wife. The status of DROP benefits has been litigated, and the courts have determined that DROP benefits are retirement benefits and subject to QDROs. See Ganzel v. Ganzel, 770 So. 2d 304, 306 (Fla 4th DCA 2000). Based upon this precedent, the Respondent denied the Petitioner's request not to pay the proceeds from DROP to Joanne Marie Gohlke. Upon learning that his ex-wife would receive a portion of his DROP account, the Petitioner sought to withdraw from his participation in the DROP. Although an employee may elect to continue to work at the end of five years with the permission and written concurrence of his employer, he or she would automatically lose his or her DROP moneys by continuing to work past the five-year mark.1/ There is no administrative mechanism for withdrawing from DROP which would be analogous to "un-retiring." The Respondent properly denied the Petitioner's request to withdraw from DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition be dismissed. DONE AND ENTERED this 27th day of January, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2004.
The Issue Whether deceased retiree's prior selection of Option One retirement benefit pay-out and his receipt and negotiation of retirement several checks should now be set aside, due to his wife's alleged forgery of her signature on the Spousal Acknowledgement (Form FR-11).
Findings Of Fact 1. Irvin M. Carpenter was born November 16, 1934, and died of cancer on November 18, 1997. Mr. Carpenter was employed by the Hillsborough County Aviation Authority as a police officer on September 10, 1984, and attained the rank of police sergeant at the time of his retirement. Mr. Carpenter was a member of the Florida Retirement System. 2. On January 20, 1991, Irvin M. Carpenter and Susan Ann Prescott were married. Susan Ann Carpenter is now, and has been at all time pertinent to these proceeding, employed by the Hillsborough County Aviation Authority as a police officer. Susan Carpenter is a member of the Florida Retirement System. 3. In October of 1996, Irvin Carpenter and Susan Carpenter separated and continued to live separately. Dissolution of marriage proceedings were initiated but was not finalized at the time of Irvin Carpenter's death in November 1997. At all times pertinent to these proceedings, Irvin Carpenter and Susan Ann Carpenter were husband and wife. 4. On July 8, 1997, Irvin Carpenter executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. One full page of the form provides an explanation of each option. By use of this form, Irvin Carpenter selected Option One retirement benefit payout plan. The explanation of Option One on Form FR-11 is as follows: Option 1: 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. 5. The FR-11 also contained the following information in bold lettering: THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2 MARRIED YES[ ] NO [ ] IF YES, YOUR SPOUSE MUST SIGN BELOW: SPOUSAL ACKNOWLEDGEMENT : I, (Signature) Susan A. Carpenter,’ being the spouse of the above named member, acknowledges that the member has elected either Option 1 or 2. (Signature Irvin Carpenter 11-27-96 Signature of Spouse Date If your spouse does not sign, you must attach a signed statement explaining why your spouse did not acknowledge your selection. 6. The "yes" or "no" blocks requesting marriage status were blank on the FR-11 submitted by the retiree to the Agency. The Spousal Acknowledgement block contained the signature of "Susan Ann Carpenter." Susan Carpenter alleged this signature to be a forgery. 7. The form FPR-11 also contained the following statement in capital letters: I UNDERSTAND 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 ADDITIONAL SERVICE, CHANGE OPTIONS, OR CHANGE MY TYPE OF RETIREMENT (REGULAR, DISABILITY AND EARLY) ONCE MY RETIREMENT BECOMES FINAL. MY RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED. 8. Between the date of his retirement and the date of his death, Irvin Carpenter received, cashed, or deposited a minimum of three retirement checks from the Florida Retirement System, pursuant to his selection of Option One benefit payout plan. 9. After the death of Mr. Carpenter, the Agency, by letter dated November 24, 1997, addressed to: FAMILY OF IRVIN M. CARPENTER, 3602 W. Tampa Circle, Tampa, Florida 33629, informed the family of the retirement benefit due beneficiaries for November and the income tax deduction therefrom. 10. By letter to the Agency dated July 13, 2000, Susan Carpenter stated: My Husband, Irvin M. Carpenter, DOB 11/16/34, SSN 263-42-0146, retired from the Tampa International Airport Police Department on 07/31/1997. At the time of his retirement, we were separated but still Married. He passed away less than three months later in November 1997. I inquired as to any benefits and informed by the Hillsborough County Aviation Authority, the parent organization of the Tampa International Airport Police Department, that he had changed his beneficiary to his daughter, Anita Carpenter. Just recently, I became aware of the Florida Retirement System provisions concerning retirement options. I ama police officer with the Tampa International Airport Police Department and these matters were covered in a pre-retirement briefing conducted by Human Resources. It is my understanding that if you are married and select option 1 or 2, the spouse must acknowledge that selection in writing. Since I had not signed any such acknowledgement, it occurred to me that my deceased husband's remaining options both provide for the joint annuitant. I posed this question to the HCAA Human Resources and was informed that my deceased husband did not retire. The Department announced his retirement, his name was added to the plaque listing retired officers and Department personnel files indicate a retirement date of 07/31/1999. I questioned my police captain and Chief of Police and both of them were emphatic that my husband retired on 07/31/1999. With my superiors providing information contrary to Human Resources, I have some doubt as to the status of my deceased husband with regards to the Florida Retirement System. Please confirm the status of Irvin M. Carpenter. Did he retire from FRS? If not, what was his status at the time he passed away? I am sure you understand the significance of my determining the correct status. Thank you for any assistance you can provide. 11. The Agency denied Susan Carpenter's request to void Irvin Carpenter's selection of Option One retirement pay-out. The Agency's letter of November 15, 2000, asserted the position that the selection cannot be changed since the retirement checks were cashed or deposited and cited the following portions of Section 121.091(6) (a), Florida Statutes: "The spouse of any member who elects to receive the benefit provided under subparagraph 1. or subparagraph 2. shall be notified of and shall acknowledge any such election." The law does not require the spouse to agree with the members' retirement option selection. The Form FR-11, Application for Service Retirement, submitted by Irvin Carpenter included Susan Carpenter's signature acknowledging that she was aware of the Option 1 selection. We receive numerous applications monthly and we do not investigate to determine if each signature is authentic. Although Mrs. Carpenter contends that her signature was forged, once a member cashes or deposits a check the option selection cannot be changed. The statutes do not require the spouse to agree with the members option selection, only to be made aware. Your request to void the Option 1 selection is denied. 12. Susan Carpenter denies having signed the Form FR-11, Application for Service Retirement submitted by Irvin Carpenter. Susan Carpenter alleges that the signature, "Susan Ann Carpenter," appearing on the Form FR-11 is a forgery. 13. During the final hearing and in the presence of the undersigned, Susan Carpenter signed "Susan A. Carpenter" three times, Petitioner's Exhibit F. At the request of the undersigned Susan Carpenter signed "Susan Ann Carpenter" once. A review of the four signature samples provided by Susan Carpenter, the sample signature, "Susan Ann Carpenter," proved to the satisfaction of the undersigned evidence of the genuineness of the written signature in dispute. Accordingly, and as a finding of fact, the Form FR-11 signature "Susan Ann Carpenter" is not a forgery. 14. Susan Carpenter's assertion that the Agency is under legal obligation to contact each spouse or otherwise verify the signature of each spouse on the Form FR-11ls received in the Agency's normal course of business is without foundation in law and in fact. 15. Only the circuit court has jurisdiction and authority in dissolution of marriage cases to enter final orders determining property rights of marital assets. Petitioner proffered no such order as evidence. Accordingly, all testimony and evidence based on alleged spousal rights and entitlements pursuant to Chapter 61, Florida Statutes, are not considered
Conclusions For Petitioner: Scott W. Fitzpatrick, Esquire Southeast Building, Suite 1500 St. Petersburg, Florida 33703 For Respondent: Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building Cc 2639 North Monroe Street Tallahassee, Florida 32399-1560
Recommendation Based on the foregoing Findings of Fact an Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Susan Carpenter's request to change the retirement option 13 selected by Mr. Irvin Carpenter, including benefits due, and denying all such other relief. lo& DONE AND ENTERED this = day of July, 2001, in Tallahassee, Leon County, Florida. 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 J2% day of July, 2001.
The Issue Whether Petitioner’s employment with Respondent terminated on May 31, 2003, or whether Petitioner continued to be employed by Respondent during the next calendar month.
Findings Of Fact Petitioner Babu Jain was hired by Florida Agricultural and Mechanical University (FAMU) as a physics professor in September, 1967. He became an associate professor with tenure in 1979 and a full professor in 1996. The exact date of his last day of employment is a central issue in this case. In 1998, Dr. Jain learned of the DROP program. After reviewing written materials regarding DROP for nearly a year, Dr. Jain decided to join DROP in 1999. He executed Forms DP-11 and DP-ELE, indicating his election to participate in DROP. Form DP-ELE is entitled, "Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment." Form DP-ELE includes the following: "RESIGNATION FROM EMPLOYMENT TO PARTICIPATE IN THE DROP - I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes . . . and resign my employment on the date I terminate from the DROP." The form contains Dr. Jain’s notarized signature below the following: "I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S." Dr. Jain signed the form on October 12, 1999. The bottom portion of Form DP-ELE is to be completed by the agency head or designated representative. Within that portion of the form, the signature of Nellie Woodruff, Director of Personnel Relations at FAMU, appears following an acknowledgement: "I acknowledge that DROP participation for Babu L. Jain will begin on 06/01/1999, and I accept his resignation effective 05/30/2003 (the date the employee’s DROP participation will terminate)." This portion of the form indicates that it was signed by Ms. Woodruff on November 10, 1999. Sometime in the early part of 2003, Dr. Jain, for personal and financial reasons, decided that he wanted to relinquish his participation in DROP. He was aware that if he did so, he would forfeit all accumulated DROP moneys. Dr. Jain first relayed his desire to FAMU by verbally informing Dr. Henry Williams, the Assistant Dean of the College of Arts and Sciences, who was in charge of science departments. This conversation took place in approximately mid-February, 2003. On March 18, 2003, Dr. Jain sent a letter to Dr. Larry Rivers, Dean of the College of Arts and Sciences, which read in pertinent part as follows: This letter is in connection with my 1999 DROP application. I would like to inform you that I am finding my circumstances very unfavorable to accept the DROP at this time and, hence, I will not be taking the retirement in May 2003. Dr. Jain sent a copy to, among others, Dr. Gladys Lang, who was the Acting Provost and Vice President of Academic Affairs at that time. She did not take any action regarding Dr. Jain’s letter because it was her understanding and belief that no action was necessary. It was her understanding and belief that that Dr. Jain notified the University of his decision to withdraw from DROP and that no action was necessary on her part, "because I believed that the participants in DROP could make that decision that they wanted to continue to work and did not want to continue in the DROP program. I did nothing." She considered her decision not to take any action on Dr. Jain’s letter to be an acceptance of his decision. However, Dr. Lang acknowledged that had the letter been addressed to her, rather than her receiving a copy of it, she would have responded. Dr. Jain did not receive any response to his March 18, 2003, letter to Dr. Rivers. Because of this, Dr. Jain wrote again to Dr. Rivers on April 18, 2003, in which he reiterated that he did not want to retire in May 2003. Dr. Jain received a Termination Notification Form, Form DP-TERM, from the Division of Retirement in February 2003. Form DP-TERM specifies that it must be completed by both the DROP participant and the employer. It reads in pertinent part as follows: According to our records, your DROP termination date is 05/31/03. This form must be completed by both you and your employer and returned to the Division of Retirement in order to receive your DROP benefits and your monthly retirement benefits. In order to collect DROP, you must agree to the following statements. I understand that I cannot accept work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity . . . during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to my enrollment date in DROP. I understand that if I forfeit my DROP benefit, my employer will be responsible for making retroactive retirement contributions and I will instead be awarded service credit for the time period during which I was in DROP. I will be eligible for a service retirement benefit based on my new termination date. I will be responsible for submitting an Application for Service Retirement. My retirement benefit will be based on my creditable service and salary, including such service and salary earned while in DROP. Dr. Jain did not sign Form DP-TERM. It is not clear from the record whether FAMU was even aware that Dr. Jain received this form. In any event, the portion of the form which is to be completed by the employer certifying that the employee has or will terminate employment is not signed by anyone from FAMU. Dr. Bill Tucker is a faculty member of the physics department and is president of the FAMU chapter of the United Faculty of Florida. On or about April 19, 2003, Dr. Tucker met with Dr. Rivers regarding Dr. Jain’s intention not to retire. Dr. Tucker left that meeting with the impression that Dr. Rivers had accepted Dr. Jain’s decision to remain a faculty member at FAMU and not retire in May 2003. Following that meeting, Dr. Jain wrote a letter dated April 21, 2003, to Dr. Rivers thanking him for his support and understanding the he, Dr. Jain, had decided not to retire. The letter also reminded Dr. Rivers that Dr. Mochena had not yet given him his 2003-2004 assignment of responsibilities, and requested that Dr. Rivers ask Dr. Mochena to do so at his earliest opportunity. Dr. Rivers did then call Dr. Mochena regarding preparing a schedule for fall semester for Dr. Jain. Dr. Mochena described the call as a "very quick call." As a result of that call, Dr. Mochena issued an Assignment of Responsibility Form on April 23, 2003, for Dr. Jain for the fall 2003 semester. While Dr. Rivers insisted at hearing that his intention was that Dr. Jain be assigned teaching duties on an adjunct basis, he acknowledged, and Dr. Mochena confirmed, that the assignment of responsibilities for Dr. Jain for fall of 2003 was not of a type that would have been given to an adjunct professor. Sometime after April 23, 2003, Dr. Jain asked Dr. Mochena to assign him teaching responsibilities for the summer of 2003. Dr. Mochena had already made his summer teaching assignments. He assumed, however, that since Dr. Jain was being assigned fall classes, that it was it would be appropriate to assign summer classes to Dr. Jain as well. On May 2, 2003, Dr. Mochena issued an Assignment of Responsibility Form for Summer Term "C" 2003, which was for 12 weeks. This was signed by Dr. Jain and Dr. Mochena on May 2, 2003. While Dr. Mochena's assignment of summer teaching responsibilities to Dr. Jain was as a result of Dr. Jain’s request and not at the request of the Dean’s office, Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, and Dr. Larry Rivers signed the Assignment of Responsibility Form for Summer Term "C" for Dr. Jain on May 5 and 6, 2003, respectively. Dr. Williams and Dr. Rivers also signed two forms on May 5 and 6, 2003, respectively, regarding Dr. Jain entitled "Recommendation for Faculty Employment." One was for the period of employment designated May 12, 2003 to June 30, 2003. The second was for the period July 1, 2003 to August 1, 2003. These recommendations went to the new Provost, Dr. Robinson. Dr. Larry Robinson became Provost and Vice President of Academic Affairs of the University on May 5, 2003. On May 20, 2003, Dr. Robinson signed two employment contracts regarding Dr. Jain for Summer Term "C." The first contract period was May 12, 2003 to June 30, 2003. The period of the second contract was July 1, 2003 until August 1, 2003. There were two contracts covering the summer term because the "C" summer term during which the physics courses were taught, extended into the next fiscal year. There is a section on the two summer contracts entitled "Tenure Status." There is an "X" beside the designation "Tenured." On May 21, 2003, Nellie Woodruff sent a memo addressed to Dr. Robinson which stated as follows: SUBJECT: DROP Termination Date for Babu L. Jain We are requesting your intervention in bringing closure to the subject employee’s request to withdraw from the DROP and continue his employment with the University subsequent to May 31, 2003. Enclosed are copies of the documents which were received in this Office from both Dr. Jain and the Division of Retirement. Please advise this office by May 30, 2003, regarding the appropriate action to take relative to Dr. Jain’s request for withdrawal from the DROP and remaining an employee of the University. According to Dr. Robinson, Ms. Woodruff’s May 21, 2003, memorandum to him was the first time he "officially" became aware of the issue regarding Dr. Jain. That is, he was generally aware of the fact that several employees were approaching their retirement date and entering DROP. Dr. Jain’s designated retirement date was a month earlier than the other FAMU DROP participants who had a June 30, 2003, DROP termination date. Whether Dr. Robinson had unofficial knowledge of Dr. Jain's retirement date or of his desire to withdraw from DROP at the time he signed the two summer contracts is unclear based upon his testimony. As a result of learning of Dr. Jain’s situation, Dr. Robinson sent a certified letter to Dr. Jain dated May 27, 2003, which read as follows: This comes in response to your request to void your participation in the Deferred Retirement Option (DROP) program. It appears from your correspondence of April 18, 2003, addressed to Dr. Larry Rivers, Dean of the College of Arts and Sciences, that you believe the decision to void your participation is a unilateral one. On the contrary, the decision to void your participation in DROP is a mutual one, requiring the University’s assent. The University is not in agreement with your decision to void your participation in DROP. I call your attention to two documents, Form DP-ELE and Form DP-11, which are on file with your signature. Specifically, Form DP- ELE reads in relevant part as follows: "I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated above and resign my employment on the date I terminate from the DROP." Additionally, Form DP-11 reads in relevant part as follows: "I have resigned my employment on the date stated above and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.).” Regrettably, the University must inform you that it will follow the guidelines for DROP as outlined in the aforementioned Florida Statutes and cannot support your request to void your application in DROP. I also call your attention to Florida A&M University Rule 6C-10.211(2)(c), Florida Administrative Code which is enclosed with the aforementioned forms. Thank you for your many years of service to the University. The Division of Retirement issued a letter, dated May 5, 2003, to Dr. Jain with Form DP-VOID enclosed. Dr. Jain insists he did not receive it in the mail and, therefore, went to the Division of Retirement on May 29, 2003, to pick it up. In any event, he signed the DROP-VOID form on May 29, 2003, and took it to FAMU in an attempt to get it executed by Dr. Rivers or Dr. Robinson. The DROP-VOID form contains a section entitled "Employer Certification" which reads as follows: This is to certify that the (agency name) has rescinded the resignation of the above named member, and the member will continue working in a regularly established position with FRS ceverage. We understand the member’s DROP participation will be null and void, the membership in the FRS Pension Plan will be reestablished to the date the member joined the DROP and we will begin immediately reporting the correct retirement plan and contributions to the Division of Retirement. FRS will adjust previous payrolls reported under DROP based upon the member not having joined the DROP. In addition, we understand that contributions, plus interest, may be required. Future payrolls should reflect the retirement plan of active membership. Despite Dr. Jain’s efforts on May 29 and 30, 2003, to get this form signed, the DROP-VOID form was not signed by anyone at FAMU. On either May 29 or 30, 2003, Dr. Mochena received a call from Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, who instructed Dr. Mochena to end Dr. Jain’s summer employment and to reassign Dr. Jain’s classes to another instructor. Dr. Mochena assigned Mr. Jay Jackson to teach Dr. Jain’s classes beginning Monday, June 2, 2003. Dr. Robinson wrote a second letter to Dr. Jain on May 30, 2003, which read in pertinent part as follows: Dear Dr. Jain: This letter is to inform you that the two Summer Semester Employment Contracts, May 12, 2003 to June 30, 2003, and July 1, 2003 to August 1, 2003, were issued in error to you due to the fact that your DROP retirement date is May 31, 2003. As a result, you will be paid through May 30, 2003 for your services to the University and the University will consider you to have retired as of May 31, 2003. On Monday, June 2, 2003, Dr. Jain arrived at his classroom where Mr. Jackson was teaching. Dr. Jain left the classroom and went to see Dr. Mochena. Dr. Jain learned from Dr. Mochena that he had been instructed by the Dean prior to Saturday, May 31, 2003, to replace Dr. Jain with another instructor. Dr. Jain continued to go to his office for several days after June 2, 2003, "doing things I usually do. Do some research, study, read." He did not teach any classes in June 2003. Each department submits a payroll certification indicating the number of hours that an employee worked during a pay period. The payroll certification signed by Dr. Mochena on June 4, 2003, for the pay-period May 23 through June 5, 2003, initially indicated that Dr. Jain worked 79.3 hours. However, the 79.3 was crossed out and replaced with 47.58. The 47.58 was in handwriting, not typed as the rest of the numbers on the certification sheet which included the entry of 79.3 hours. The record is not clear as to who made the correction or when it was made. According to Ms. Woodruff, however, it is not the practice of the payroll section to change any certifications after the fact. Additionally, once an employee in a salaried position is added to the payroll, he/she is automatically issued a paycheck based upon the contract, unless some action occurs. In any event, the payroll section did not make an adjustment in Dr. Jain’s pay for the pay-period May 23 through June 5, 2003. Dr. Jain’s received an Earnings Statement reflecting a "pay date" of June 13, 2003, and a pay-period of 05/23/2003- 06/05/2003 reflecting regular wages of $3,266.11. Subsequently, the payroll office at FAMU completed a Refund for Overpayment of Salary form and submitted it to the Office of the Comptroller, Bureau of State Payrolls. In the section entitled, Reason for Adjustment, the payroll office wrote, "DROP end date 5/30/03." A salary refund in the amount of $898.33 was deducted from Dr. Jain’s sick leave payout on June 20, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letters of May 27 and 30, 2003, and reinstating Petitioner to employment effective June 1, 2003, including all salary and benefits for that period of time.1/ DONE AND ENTERED this 17th day of May, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2004.
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue The issue is whether Petitioner is eligible to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, the following findings of fact are made: Petitioner is now, and has been since December 19, 1974, an employee of the State of Florida. By virtue of her employment with the State of Florida, Petitioner is an active, regular class member of the FRS. Petitioner was considered “vested” for purposes of the FRS when she completed 10 years of creditable service with the State of Florida. The “normal retirement date,” for regular class members, is defined, in pertinent part, as the first day of the month following the date on which the member attains 62 years of age, with six or more years of creditable service,1/ or the date on which the member reaches 30 years of creditable service, regardless of age. § 121.021(29)(a), Fla. Stat. Petitioner was born on June 6, 1944 and reached the age of 62 on June 6, 2006. She reached 30 years of creditable service in November 2004. Petitioner’s “normal retirement date” for purposes of the FRS was established as December 1, 2004, by virtue of reaching 30 years of creditable service in November 2004. Petitioner was aware that her “normal retirement date” had been established as December 1, 2004. An active member becomes eligible to enter the DROP upon reaching his or her “normal retirement date.” A member must elect to participate in the DROP within 12 months of the date on which he or she first attains his or her normal retirement date. A member who fails to make an election within such 12-month limitation period forfeits all rights to participate in the DROP. § 121.091(13)(a), Fla. Stat. Petitioner’s period of eligibility to enter the DROP began on December 1, 2004 and ended on November 30, 2005. Petitioner requested DROP retirement benefit estimates from the Division on three separate occasions. On November 25, 2003, Petitioner asked Respondent to send her the first DROP retirement benefit estimate. On December 2, 2003, Respondent sent Petitioner the first DROP retirement benefit estimate. The Comments section of the document advised that the estimate was based on the assumption that Petitioner would enter the DROP effective 12/1/2004. Accordingly, the DROP Estimated Benefit Accrual Calculation section provided for a 12/2004 “DROP Begin Date,” an 11/2009 “DROP End Date,” and 60 “Months in DROP.” The first DROP retirement benefit estimate makes no reference to Petitioner’s normal retirement date. On December 1, 2004, Petitioner asked Respondent to send her a second DROP retirement benefit estimate. On December 1, 2004, Respondent sent Petitioner the second DROP retirement benefit estimate. The Comments section of the document advised that in order for Ms. Campbell to retain a 12/2004 DROP retirement date, she must complete and return the enclosed DROP application materials within 30 days of the date the second estimate was mailed. Again, the DROP Estimated Benefit Accrual Calculation section provided for a 12/2004 “DROP Begin Date,” an 11/2009 “DROP End Date,” and 60 “Months in DROP.” The second DROP retirement benefit estimate makes no reference to Petitioner’s normal retirement date. On October 24, 2005, Petitioner asked Respondent to send her a third DROP retirement benefit estimate. On October 25, 2005, Respondent sent Petitioner the third DROP retirement benefit estimate. Again, she was advised in that mailing that in order for Petitioner to retain a 10/2005 DROP retirement date, she must complete and return the enclosed DROP application materials within 30 days of the date the third estimate was mailed. The Comments section also advised that Petitioner’s 50 months of DROP participation would be from 10/01/2005 to 11/30/2009. Accordingly, the DROP Estimated Benefit Accrual Calculation section was changed to provide for a 10/2005 “DROP Begin Date,” an 11/2009 “DROP End Date,” and 50 “Months in DROP.” The third DROP retirement benefit estimate makes no reference to Respondent’s normal retirement date. Petitioner alleged at final hearing that she was confused by the language Respondent used in the third DROP retirement benefit estimate. Petitioner presumed that Respondent had changed her normal retirement date to 10/2005, and therefore she believed she had an additional 12 months to elect to participate in the DROP. There is no indication in Respondent’s records that Petitioner ever contacted Respondent’s personnel to express confusion about or to ask questions about any of the DROP retirement benefit estimates provided to her. Respondent’s standard practice is to enclose an informational brochure, entitled “Deferred Retirement Option Program,” when it sends DROP retirement benefit estimates. Petitioner also testified at final hearing that she was confused by certain language Respondent used in the DROP Brochure to her to explain when a member could begin the DROP, specifically: The earliest you may begin participation in DROP is the month you reach your normal retirement date based upon your age, or the month after the month you reach your normal retirement date based upon your years of service. Petitioner claim of confusion is not credible in view of the fact that the above language is followed by an example designed to help those members who may have difficulty understanding the meaning of the language: If you are vested (have at least 6 years but less than 30 years of service credit), and attain age 62 on May 22nd; your normal retirement date would be May 1st. Or, if you will complete 30 years of service in May, your normal retirement date is June 1st. (Exhibit R-10). Finally, the DROP Brochure was intended to put statutory language into laymen’s terms for the FRS membership. The DROP Brochure includes a disclaimer on the first page after the cover page which states: If questions of interpretation arise as a result of the attempt to make these retirement provisions easy to understand, Chapter 121, Florida Statutes, Chapter 60S, Florida Administrative Code, and the Internal Revenue Code shall remain the final authorities. There is no indication in Respondent’s records that Petitioner ever contacted Respondent’s personnel to express her confusion about the wording of the DROP Brochure or to ask questions about when she could begin DROP or her DROP participation eligibility. Petitioner possesses both Bachelor’s and Master’s Degrees in Education. In addition, she formerly possessed a Florida Teaching Certificate. On the basis of her educational achievements and teaching certification, Petitioner is a well- educated individual. Petitioner’s former employer, the Division of State Group Insurance, was in the process of privatizing during 2005, and was therefore laying off some of its employees. Petitioner also feared lay-off and decided to delay filing her application materials for the DROP. Respondent received Petitioner’s Application for Service Retirement and the Deferred Retirement Option Program (Form DP-11) on January 5, 2006. Petitioner signed the Form DP- 11 on December 22, 2005. Petitioner’s employer certified the Form DP-11 on December 29, 2005. Petitioner’s Form DP-11 also included the following acknowledgement: I . . . elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement. (Exhibit R-5). On January 5, 2006, Respondent also received Petitioner’s Notice of Election to participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment (Form DP-ELE). Petitioner signed the Form DP-ELE on December 22, 2005. Petitioner’s employer certified the Form DP- ELE on December 29, 2005. Petitioner’s Form DP-ELE also included the following acknowledgement: I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below. . . . I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, . . . . (Exhibit R-6). On January 11, 2006, Respondent issued an initial agency action letter which advised Petitioner as follows: To participate in the Deferred Retirement Option Program (DROP), you were required to submit a Form DP-ELE (Notice of Election to Participate in the DROP and Resignation of Employment) within twelve months of the date you first became eligible to participate in the DROP. If the Form DP-ELE is not received within this twelve month period, the right to participate in DROP is forfeited. Your dates of eligibility to elect participation in the DROP was [sic] from 12/01/2004 to 11/30/2005. We received your Form DP-ELE and Form DP-11, Application for Service Retirement and DROP, in our office on 01/05/2006. Because the Division received the DP-ELE after the ending eligibility date, you are not eligible to participate in the DROP. The DP-ELE and DP- 11 forms are considered null and void. (Exhibit R-7). On March 6, 2006, Respondent issued a final agency action letter which advised Petitioner as follows: Section 121.091(13)(a)(2), Florida Statutes, gives all active Florida Retirement System (FRS) members the right to elect participation in the DROP provided that: “Election to participate is made within 12 months immediately following the date on which the member first reaches normal retirement date. . . A member who fails to make an elections [sic] within such 12-month limitation period shall forfeit all rights to participate in the DROP “ (emphasis added). You first became eligible to participate in the DROP on 12/01/2004, after earning 30 years of service credit in 11/2004. Therefore, your Form DP-ELE, Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment and Form DP-11, Application for Service Retirement and the Deferred Retirement Option Program (DROP) must have been received no later than 11/30/2005 for you to be eligible to participate in the DROP. Your Forms DP-ELE and DP-11 were received in the Division of Retirement on 01/05/2006. Since the Forms DP-ELE and DP-11 were not submitted and received by the Division within the 12-month limitation period, you have forfeited your right to participate in the DROP. The Forms DP-ELE and DP-11 you submitted are null and void. It is unfortunate that your eligibility period to begin participation in DROP has expired, however because the 12-month eligibility period stated above is a statutory requirement and we have no authority to waive the law, we must deny your request for DROP participation. (Exhibit R-8)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order denying Petitioner’s application to participate in the DROP. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S DON W. 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 13th day of September, 2006.
The Issue Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes. Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.
Findings Of Fact Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2) Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties) Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)
Recommendation That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Theron J. Owen 818 San Juan Boulevard Orlando, Florida 32807 L. Keith Pafford, Esquire Division Attorney Division of Retirement Department of Administration Cedars Executive Center2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302
Findings Of Fact The Petitioner, Robert Gilmour, was employed by the Dade County School Board until July 2, 1984, when he terminated his employment effective June 15, 1984. Mr. Gilmour terminated his employment by placing a telephone call to his supervisor. At the time of the telephone call, Mr. Gilmour was out of the Miami area on vacation. Mr. Gilmour did not return from vacation until August 8, 1984. On August 9, 1984, Mr. Gilmour went to the Office of Personnel Retirement Section, of the Dade County School Board, where he executed an application for early retirement. Mr. Gilmour's application for retirement was received by the Benefits Calculation Section of the Division of Retirement on August 15, 1984, in Tallahassee, Florida. The Division of Retirement assigned to Mr. Gilmour an effective date of retirement of September 1, 1984, the first day of the month following the date on which the Division of Retirement received his application for retirement. In May, 1984, Mr. Gilmour, placed a telephone call to Louise Syrcle, an employee of the School Board in the Office of Personnel, Retirement Section. Mr. Gilmour was considering retirement and wanted to discuss the matter with Ms. Syrcle. At the time of the telephone call, Ms. Syrcle was on her vacation and then was subsequently on sick leave because of a broken back. Ms. Syrcle was absent from employment from April 23, 1984 until June 25, 1984. In the course of the telephone call, Mr. Gilmour was told of Ms. Syrcle's broken back and was told that appointments were being made only for those teachers who had already decided to retire. Because he had not yet made that decision, he did not make an appointment. Further Mr. Gilmour did not seek to speak with any other personnel in that office. Art Miles Ms. Syrcle's supervisor, and other personnel were available in the Dade County School Board's Office of Personnel to respond to retirement requests and they did process numerous retirement requests during Ms. Syrcle's absence. At no time did Mr. Gilmour seek, read or receive a copy of the Summary Plan Description brochure which was admitted as Respondent's Exhibit C. Additionally, at no time did Mr. Gilmour make inquiry of anyone at the Division of Retirement regarding his retirement options. Instead, Mr. Gilmour relied on information gleaned from casual conversations with colleagues, which information was not correct. At all time relevant hereto, the Division of Retirement has maintained a staff of counselors who are available to consult with members and agencies on matters concerning retirement, including deadlines for filing applications. As a result of Mr. Gilmour's July 2, 1984, telephone call, in which he terminated his employment, the Dade County School Board sent a certification of service and earnings, Form FT4A, on July 2, 1984. This form was received by the Division of Retirement on July 9, 1984. While this form may have indicated that Mr. Gilmour had terminated his employment with the Dade County School Board, no information contained in that form indicated his intent to retire. When Mr. Gilmour went to the Office of Personnel, Retirement Section, of the Dade County School Board on August 9, 1984, he first learned that the rules of the Division of Retirement required that the application for retirement be filed within 30 days of the termination date in order for the retiree to receive retirement benefits retroactive to the date of termination. Because Mr. Gilmour failed to file his application for retirement until August 15, 1984, he did not receive retirement benefits for the months of July and August, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement enter a Final Order denying Robert Gilmour retirement benefits for the months of July and August, 1984, and establishing Mr. Gilmour's effective date of retirement to be September 1, 1984, the first day of the month following his application for retirement. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985.
