The Issue The issue for determination is whether Section 121.091, Florida Statutes (2001), authorizes Petitioner to participate in the Florida Retirement System (FRS) beginning on February 1, 2001, or precludes Petitioner from receiving retirement benefits prior to April 1, 2001. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is a retired member of the FRS. Petitioner resigned from the Florida Department of Revenue (the Department) on January 19, 2001. On January 12, 2001, Petitioner made her first inquiries regarding her retirement. Between January 12, 2001, and the first week in February 2001, Petitioner made approximately six telephone calls to a Ms. Sherrie Ferrell, the retirement coordinator for the Department. Sometime during the first week in February 2001, Ms. Ferrell promised to mail the documents needed by Petitioner to apply for retirement benefits. Petitioner received the documents sometime during the last week of February 2001. On February 28, 2001, Petitioner mailed an Option Selection Form and application for retirement benefits to the Department at its main office in Tallahassee, Florida. The Department received the documents on March 6, 2001, but lost the documents. Petitioner filed a second application for retirement benefits with the Department at its main office in Tallahassee. The Department forwarded the second application to Respondent on April 10, 2001. Florida Administrative Code Rule 60S-4.0035(3)(a), in relevant part, provides that the effective retirement date is the first day of the month following the month in which Respondent receives the member's application. Pursuant to Rule 60S-4.0035(3)(a), Respondent established May 1, 2001, as Petitioner's effective date of retirement. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order). The Department eventually found the first application that the Department received on March 6, 2001. By letter dated May 2, 2001, the Department requested that Respondent establish the effective retirement date as April 1, 2001. Pursuant to Rule 60S-4.0035(3)(a), Respondent correctly changed the effective retirement date to April 1, 2001. April 1, 2001, was the first day of the month following March 6, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for retirement benefits that begin on February 1, 2001. DONE AND ENTERED this 11th day of April, 2002, 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 11th day of April, 2002. COPIES FURNISHED: Mary Claire Janszen 360 Killarney Bay Court Winter Park, Florida 32789-2996 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin B. Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief General Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows: Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty. Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Ralph Miller, Esquire P.0. Box 112 DeFuniak Springs, Florida 32433 L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304
The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether the Petitioners are entitled to benefits as joint annuitants of the deceased employee.
Findings Of Fact Petitioners are the adult, nondependent children of the deceased, Leonora Chapin. Respondent is the state agency charged with the responsibility of managing the Florida Retirement System (FRS). Leonora Chapin was a vested member of the FRS with over ten years of service as a teacher with the Miami Dade County School District. The exact number of years of her service was not established nor is it dispositive of the issues of this case. In February of 1991, Ms. Chapin became extremely ill. This illness prevented her from returning to work but she did not formally retire. Instead, Ms. Chapin continued as an active member of the FRS until her death, April 14, 1991. At the time of her death, Ms. Chapin had designated "according to will" as her beneficiary to receive benefits, if any, which would be payable at her death. This Personal History Record form is the only record of any designation by the deceased received by the FRS. Based upon the foregoing designation, the Respondent determined that the deceased's two sons would share the deceased's personal contributions to the FRS account. This amount totaled $4,305.17. The Petitioners have disputed this determination and claim they are entitled to benefits as joint annuitants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioners' claim for benefits and returning the member's contributions in the amount of $4,305.17. DONE AND ENTERED this 14th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1999. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Robert Chapin 14014 Northwest Passage Unit 240 Marina Del Ray, California 90292 Stuart Chapin 10729 Westminster Avenue Los Angeles, California 90034 Barry M. Brant, C.P.A. Berkowitz, Dick, Pollack & Brant, LLP One Southeast Third Avenue, Suite 150 Fifteenth Floor Miami, Florida 33131
The Issue The general issue to be resolved in this proceeding concerns whether the Petitioner is entitled to modify her deceased husband's retirement benefit option by changing from "Option 1" to "Option 3". Embodied within that issue is the question of whether the Petitioner's deceased husband was competent to effect a change in his retirement option from service retirement "Option 3" to disability retirement "Option 1."
Findings Of Fact The decedent, Elijah B. Hutchinson, was a teacher of math and science for the Calhoun County school district for some 31 years. In the early 1980's, his health had deteriorated significantly due primarily to diabetes mellitus, which caused a number of associated complications necessitating several hospitalizations during the early 1980's. In consideration of his deteriorating health, the decedent elected to retire in the spring of 1983. He filed an application dated May 27, 1983, seeking regular retirement benefits from the Florida Retirement System. See Exhibit 1 in evidence. In response to his application, the decedent received information from the Division advising him of his retirement benefits under the different retirement options he was entitled to select. On or about June 24, 1983, the decedent elected retirement Option 3. Option 3 retirement benefits include the retiree's entitlement to a reduced monthly retirement benefit during his lifetime with the same monthly retirement benefit being paid, after his death, to his "joint annuitant", in this case, his surviving spouse, the Petitioner. Thereafter, and before he received any benefit check from his initially-selected Option 3 retirement, the decedent appeared at the Division's offices and requested to change his type of retirement or option. On August 12, 1983, therefore, the decedent requested to change his type of retirement benefit from regular retirement to disability retirement. On that date, he requested to change his option selection from Option 3 to Option 1. See Exhibit 4 in evidence. An explanation of the benefits to be provided and the differences in the two options as to his benefits was given to the decedent by an employee of the Division. See Exhibit 4 in evidence. The decedent thereupon changed his option selection from Option 3 to Option 1. In 1983, a retirement system member receiving retirement benefits as the result of a disability could only receive benefits in accordance with either Option 1 or Option 2, if he chose to elect disability retirement. On September 16, 1983, the decedent was mailed a letter from the Division advising him that his application for disability retirement benefits had been approved by the State Retirement Director and acknowledging that he had elected Option 1 for disability retirement. Thereafter, the decedent received and cashed a number of State warrants representing payment of those retirement benefits under Option 1. See Exhibit 10 in evidence. The decedent died on March 8, 1991. The Petitioner had been unaware that he had changed from Option 3 benefits to Option 1 benefits, as delineated above. Upon learning of this, after the decedent's death, the Petitioner, on April 30, 1991, requested the Division to modify the benefits option selected by the decedent to Option 3 benefits. Her basis for requesting this change was that the decedent had not been mentally or physically competent to make an informed selection at the time he changed his Option 3 retirement benefits election to Option 1 and that, therefore, she should be allowed to modify and reinstitute his retirement election to Option 3 benefits, which would provide her the death benefits permitted under the Option 3 election. This request was denied by the Division by its "final agency action letter" dated May 21, 1991, by which the Division advised the Petitioner that based upon its records, the decedent, who had requested Option 1 retirement benefits, was added to the retirement payroll in that category for September, 1983 and that he had received benefit payments and negotiated the checks, so that, under the provisions of Rule 22B-4.002(3), Florida Administrative Code, the selection of the option could no longer be altered. The Petitioner's testimony and that of Phillip H. Hutchinson indicates that sometime in 1983, the decedent suffered a cerebral-vascular incident or "stroke". This testimony is borne out by the medical records in evidence as Petitioner's Exhibit 1, which, however, does not indicate when the stroke occurred. The Petitioner and her son maintain in their testimony that the stroke resulted in a deterioration in the decedent's mental faculties such that he could no longer manage his business affairs, pay bills, and handle financial matters in general. They maintain that this was evidenced also by a marked personality change whereby the decedent became extravagant with money, as evidenced by impulsively ordering and purchasing items which he observed advertised on television, sending money to television evangelists, and otherwise being free with donations. This was entirely different from his character and personality before he suffered the stroke, whereby he was known to be miserly with the family funds and very careful about not spending money unnecessarily. As a result of his stroke, he was no longer able to handle his business affairs; and his spouse, the Petitioner, had to assume the duties of paying family bills and otherwise handling financial and business matters for the family. When the decedent first decided to retire, he had explained to the Petitioner that he would select a retirement option which would give her something after he "passed"; and he showed her the retirement system booklet of allowable retirement options in discussing the matter with her. He never mentioned to her that he decided to or did change his option to Option 1 disability retirement. Although the Petitioner may have established that due to the stroke he suffered, the decedent may have, indeed, had difficulty attending to financial matters and overseeing and managing the family finances, the Petitioner failed to establish that at the time he made the election to select Option 1 retirement benefit, he did not possess the mental capacity to make a knowing and intelligent selection of that option and to waive his previously-selected Option 3 benefits. The evidence shows that he appeared at the Division's offices and, after an explanation of the option he chose to select, he freely and voluntarily selected that option and signed the pertinent documents attesting to it. It has simply not been demonstrated by substantial evidence that at the time the decedent made the second retirement option election, he did not understand the nature and consequences of that election, especially since it was not established by the Petitioner when he actually suffered the stroke, other than that it occurred sometime in 1983. As found above, the decedent made the election to chose Option 1 retirement benefits in August, 1983. Consequently, due to insufficient evidence, it cannot be found that the Petitioner's decedent was incompetent to knowingly and intelligently elect to receive Option 1 retirement benefits at the time he made the election.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Division denying the request of the Petitioner to modify the retirement benefits elected by the decedent from Option 1 retirement benefits entitlement to Option 3 retirement benefits entitlement. DONE AND ENTERED this 24th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrativ Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3870 Petitioner's Proposed Findings of Fact: Accepted. Accepted, except that the evidence does not support that the stroke actually occurred in mid 1983. 3-4. Accepted. Rejected, as not being demonstrated by the preponderant evidence of record. Accepted. Respondent's Proposed Findings of Fact: 1-14. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Phillip H. Hutchinson 4115 Tanglewood S., Apt. 570 Palm Beach Gardens, FL 33410 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, FL 32399-1560
The Issue Whether Petitioner is entitled to receive retroactive retiree health subsidy payments from the Florida Retirement System in addition to those already received.
Findings Of Fact The Division of Retirement (Division) is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Petitioner, Olga Magnusen, was employed by Florida International University (FIU) from February 18, 1974, until her retirement. FIU is an FRS-participating employer. Thus, by reason of her employment, Petitioner was enrolled in the FRS. Mrs. Magnusen requested an estimate of her retirement benefits in September 2003. In response to this request, the Division audited Petitioner’s account and sent her an "Estimate of Retirement Benefit" for purposes of the Deferred Retirement Option Program (DROP). The benefit estimate was mailed to Petitioner’s address of record which was 11441 SW 83rd Terr, Miami, Florida 33173-3617 (Miami address). Enclosed with Petitioner’s benefit estimate was an option selection document and an informational booklet or brochure entitled "Preparing to Retire," which reads in pertinent part as follows: THE RETIREE PACKET After your name is placed on the retired payroll to begin receiving monthly benefits, we will mail you a Retiree Packet. You should receive this packet around the same time you receive your first benefit payment. If you are a DROP participant, your name will not be placed on the retired payroll until your DROP participation ends and the Division receives a properly completed DROP Termination Notification, Form DP-TERM. Retiree Packets contain the following items: -An information letter This letter summarizes your retirement information and lists the contents of your Retiree Packet. It also highlights issues of importance to you as a new retiree. * * * Health Insurance Subsidy Certification, Form HIS-1. This form is used to apply for additional payment to assist you with some of the cost of maintaining health insurance. Please refer to the 'Health Insurance Subsidy' section on page 17 for eligibility information. * * * An After You Retire Booklet This booklet contains helpful information and answer [sic] questions you might have as a new retiree. You should review and retain this booklet. If you have questions related to your FRS benefit that are not addressed by this booklet, please contact the Division. * * * HEALTH INSURANCE SUBSIDY (HIS) The HIS is additional money available to eligible FRS retirees to help offset some of the cost of maintaining health insurance coverage. DROP participants are not eligible to receive HIS payments until after their DROP participation ends. . . . * * * The current subsidy is $5 per month for each year of creditable service at retirement. The minimum HIS payment is $30 per month and the maximum is $150 per month. A Health Insurance Subsidy Certification, Form HIS-1, will be included in the Retiree Packet mailed so you may apply for the HIS benefit. You will receive your packet around the time you receive your first monthly benefit payment. You must return a completed Form HIS-1 to the Division of Retirement within six months after your monthly retirement benefits start in order for the subsidy to be paid retroactive to your retirement date or, in the case of DROP retirees, to the month following your DROP termination date. If you do not return the form within this six month period, retroactive subsidy payments will be limited to a maximum of six months. You are responsible for obtaining certification of your health insurance coverage and applying for the HIS. The HIS benefit is included in your monthly FRS retirement benefit. (emphasis in original) A copy of the booklet and forms sent to Petitioner are not reflected in Petitioner’s file, as the Division does not place copies of forms or booklets sent automatically. Mrs. Magnusen completed the necessary forms to enter the DROP program and entered DROP on or about March 1, 2004. By letter dated April 14, 2004, the Division sent another letter to Mrs. Magnusen advising her of the completion of the final calculation of her monthly FRS DROP accrual for the retirement benefit option she selected. The letter provided in pertinent part: At the end of the DROP, your name will be placed on the regular retired payroll. You will receive information about withholding federal taxes from your retirement benefits, an application for the Health Insurance Subsidy and an application for the direct deposit of your monthly retirement benefit payment with the bank or financial institution of your choice. The above-referenced letter was again sent to Petitioner’s Miami address referenced in paragraph 3 above. By letter dated September 29, 2005, Petitioner notified FIU of her intention to terminate her employment effective on or about December 29, 2005. By letter dated October 20, 2005, FIU provided the Division with a copy of Petitioner’s resignation letter and requested that the Division begin processing Petitioner’s DROP termination. On October 24, 2005, the Division sent a letter with certain forms and informational material relevant to her DROP termination to Petitioner at the Miami address. The letter read in pertinent part as follows: When your name is added to the retired payroll, you will receive a 'retiree packet' that contains an information letter, 'After you Retire' booklet, W-4P 'Witholding Certificate for Pension Payments', Health Insurance Subsidy application, and Direct Deposit Authorization. The retiree packet is mailed approximately one week before you receive your first monthly benefit. By letter dated December 9, 2005, the Division acknowledged receipt of Petitioner’s DROP payout form in a letter mailed to Petitioner’s Miami address. The letter read in pertinent part as follows: After your name is added to the retired payroll, you will receive a ‘retiree packet’ that contains an information letter, 'After you Retire' booklet, W-4P 'Witholding Certificate for Pension Payments', Health Insurance Subsidy application, and Direct Deposit Authorization. The retiree packet is mailed approximately one week before you receive your first monthly benefit. In late December 2005, Mrs. Magnusen and her husband moved from Miami to 2044 Darlington Drive, The Villages, 32162 (The Villages address.) While Petitioner did not expressly testify that she notified the Division of her change of address, Mrs. Magnusen and her husband "notified people and organizations about our address change and made provisions with the Post Office to forward our mail from the old to the new address." A state warrant dated January 6, 2006, in the amount of $51,483.36, Petitioner’s net lump sum DROP payment amount, was issued and mailed to Petitioner at the Miami address. The warrant was endorsed by Petitioner for deposit on or about January 18, 2006. It is presumed, therefore, that the warrant was forwarded to The Villages address. It is the Division’s practice to send each retiree added to the system a 'retiree packet' that includes, among other things, an application for the HIS and an explanation of the subsidy, as well as a booklet containing an explanation of all of the benefits available to retirees and beneficiaries under the FRS. The process of sending out retiree packets is automated, so that a packet is sent to every retiree and beneficiary when he or she are first entered into the system. Pursuant to this automated regular practice, Petitioner's retiree packet would have been sent in late January 2006. Included in the retiree packet was an informational letter which included the following: YOUR RETIREMENT PACKET INCLUDES: 'After You Retire' Brochure-PLEASE READ FOR ADDITIONAL INFORMATION * * * Health Insurance Subsidy Certification (Form HIS-1) * * * HEALTH INSURANCE SUBSIDY (HIS): It is your responsibility to obtain certification of health insurance coverage and apply for the HIS. The HIS is money added to your retirement benefit to help pay the cost of health insurance. The member or other payee who is the spouse or financial dependent of the member may be eligible if he/she has health insurance, Medicare, or CHAMPUS. Please read the instructions on Form HIS-1. If the HIS-1 form is not received by the Division within six months, retroactive subsidy payments will be limited to a maximum of six months. (Emphasis supplied in original) Also included in the retiree packet was an informational booklet entitled "After You Retire" which reiterated that it is the retiree’s responsibility to obtain health insurance coverage and apply for this benefit, and that a retiree will not automatically receive the HIS. Ms. Shirley Beauford is a Benefits Administrator in the retired payroll section of the Division. She has worked at the Division for approximately 19 and one-half years. According to Ms. Beauford, a report is generated each month when the payroll is approved, which indicates which retirees have not participated in the HIS. Ms. Beauford reviewed the "hardcopy documentation" of the June 2006 list of retirees not receiving the HIS and saw Petitioner’s name on the list. The Division automatically sends a reminder letter about five months after the beginning of a person’s retirement benefits to those retirees who have not applied for the HIS. Because Petitioner’s name appears on the June 2006 list, Ms. Beauford is confident that Petitioner was sent the reminder, as it is the standard practice of the Division to do so. There is no evidence that the Division deviated from its standard practice. The reminder would have been sent to Petitioner’s address of record in June 2006. The record is not clear whether Petitioner’s address of record was the Miami address or The Villages address at that time. Mrs. Magnusen does not recall receiving the packet and acknowledges that the nine-month period from the summer of 2005 to March 2006 was a tumultuous time for her and her husband. They moved, were affected by two hurricanes, and were confronted with some health problems. Mrs. Magnusen also recalls making numerous phone calls during that time regarding her husband’s health insurance coverage and premiums because of some confusion regarding his coverage. Mrs. Magnusen believes these calls were made to both FIU and the Division. However, the Division does not administer health insurance coverage for retirees. Twice a year, the Division automatically distributes a newsletter to all FRS retirees and beneficiaries. The HIS was specifically referenced in articles in the July 2007, January 2008, and July 2008 newsletters, including a reminder to retirees and beneficiaries to look under the summary of benefits and deductions on their statements for a "Health Ins. Subsidy" listing. Respondent mails retired members a Statement of Benefit Payments at the end of January and July each year, and any other time the retiree’s benefit changes. The Division sent statements to Petitioner’s address of record in February 2006, June 2006, July 2006, January 2007, April 2007, July 2007, December 2007, and January 2008. None of the statements has a Health Insurance Subsidy listing under the summary of benefits and deductions section. Additionally, the Division mails retired members an annual statement in January each year. These annual statements contain a category entitled "Health Ins. Subsidy." The amount of $0.00 is reflected on Petitioner’s 2006, 2007, and 2008 annual statements under the category "Health Ins. Subsidy." In contrast, the summaries reflect specific amounts under the category "Retirement Benefit." There is no evidence of record to indicate that any of the statements or mailings of any kind from the Division to Petitioner were returned. Mrs. Magnusen called the Division on or about January 5, 2009, to inquire about changing banks for the direct deposit of her FRS payments. During this telephone conversation, the Division’s representative reminded Petitioner that she was not receiving the HIS benefit. As Petitioner’s insurance premiums were already being deducted, Petitioner’s HIS application was taken over the phone. Petitioner began receiving the $150 per month HIS benefit effective January 30, 2009 and a six-month retroactive HIS benefit of $900. On January 10, 2009, Mrs. Magnusen sent a letter to the Division requesting three years of retroactive HIS benefits retroactive to her DROP termination date. By letter dated January 16, 2009, the Division’s Director informed Petitioner that retroactive HIS benefits are limited by law to six months, citing Section 112.363(9), Florida Statutes, as authority. Petitioner sent another letter in response requesting further consideration of her request for a full retroactive HIS payment. By letter dated February 23, 2009, the Division informed Petitioner that a detailed review had been completed of her retirement account, again informed that the retroactive payments are limited to six months, and provided Petitioner with a point of entry into the administrative hearing process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order denying Mrs. Magnusen’s request for additional HIS benefits retroactive to the date of her termination of DROP. DONE AND ENTERED this 30th day of July, 2009, 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 30th day of July, 2009.
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
The Issue The issue is whether the correct retirement date was established for Petitioner.
Findings Of Fact Ms. Scurlock was employed as a secretary by the Public Defender of the 14th Judicial Circuit for 12 to 13 years, in Panama City, Florida. As such, and after becoming vested in the Florida Retirement System (FRS), she accrued certain rights under the FRS. The Division has over 900 employees and administers benefits for more than 700,000 members. The Division is charged with administering the FRS. Ms. Scurlock's performance while employed by the Public Defender deteriorated in 2004. As a result, she was discharged on October 27, 2004. She had been diagnosed as having multiple sclerosis prior to her discharge. She is currently medically unable to engage in gainful employment. Ms. Scurlock does not recall if the Public Defender provided her with information concerning retirement at the time of her discharge. Nevertheless, she was aware of the availability of disability retirement, and during February 2005 she completed Form FR-13, Application for Disability Retirement. She stated in the application that her disability was the result of multiple sclerosis, among other maladies. Ms. Scurlock was assisted in seeking disability retirement by her sister. Ms. Scurlock signed the FR-13 application, and it was sworn before a notary public on February 18, 2005. Ms. Scurlock believes her sister mailed the form. The FR-13 may have been addressed to the Florida Department of Health, but in any event, it was not received by the Division in 2005. Assisted by her sister, Ms. Scurlock telephonically contacted the Division on April 11, 2006, to inquire about her application for disability retirement. At that time, she avowed that the FR-13 had been sent in January 2005 to the Department of Health. Upon being advised that she needed to submit a new form in order to obtain benefits, she did so. An FR-13 was received by the Division on May 24, 2006. Attached to the application was a copy of the application sworn before the notary public on February 18, 2005. The Division found the FR-13 submitted on May 24, 2006, to be complete and sufficient to establish that Ms. Scurlock should be paid disability retirement benefits beginning June 1, 2006. Although Ms. Scurlock may have suffered some cognitive impairment as a result of being afflicted with multiple sclerosis, she was aided by her sister, who apparently has no cognitive impairment, when she first attempted to file in early 2005. Moreover, Ms. Scurlock adequately presented her case at the hearing, and to the extent that cognitive impairment might influence the outcome of this case, it is found that she is not so impaired that she could not timely file an application for disability retirement. For the reasons set forth below, whether she was physically or mentally able to file a FR-13, or whether the state or one of its agents failed to inform her of her rights, has no bearing on the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order affirming the establishment of June 1, 2006, as the beginning date of entitlement to disability retirement pay in the case of Marilyn Scurlock. DONE AND ENTERED this 18th day of December, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 COPIES FURNISHED: Marilyn Scurlock 3936 Scurlock Lane Panama City, Florida 32409 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2007. Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, as a surviving spouse, is entitled to a continuing benefit from the Florida Retirement System (FRS) based on the retirement account of her deceased husband, George S. Bohler. More specifically, it must be determined whether the forgery of the spousal acknowledgement form renders the member's election of the "Option 1" retirement benefit payment, which precludes a survivor's benefit for his spouse, invalid and void.
Findings Of Fact George Bohler, the FRS member at issue, was employed, at times pertinent, as a Professor of Economics at Florida Community College in Jacksonville. The College is an FRS employer and Mr. Bohler was a member of the FRS retirement system. The Division of Retirement is an administrative agency charged with regulation and operation of the Florida retirement system, including calculation of and determination of entitlement to retirement benefits, under various options and member circumstances. On March 22, 1999, Mr. Bohler filed a completed Florida Retirement System Application for service retirement and the Deferred Retirement Option Program (DROP). This was accomplished through his filing of "Form DP-11." The Form provides a retiree with information pertaining to four options by which his retirement benefits may be paid. One full page of that form provides an explanation of each option. Mr. Bohler selected Option 1, a retirement benefit pay-out plan which provides the highest monthly benefit. The Option 1 selection provides that this highest monthly benefit is payable for the lifetime of the retiree only. Upon his death, the benefit would stop and his beneficiary, here his spouse, the Petitioner, would receive only a refund of any contributions the member might have paid into the FRS which exceeds the amount he had received in benefits. Option 1 provides no continuing or survivor benefit to a beneficiary or surviving spouse. The DP-11 Form filed with the retirement application contained an apparent spousal acknowledgement purportedly signed by Deborah T. Bohler, the spouse of member George Bohler. It appears to acknowledge that the member had elected either Option 1 or Option 2, which provide no survivor/spouse benefit. The DP-11 Form indicated to the Division that the member was married. The parties have stipulated, however, that the Petitioner's signature on the FRS application for service retirement and the DROP program was actually forged. George Bohler, the member, was an FRS member from August 19, 1968, to March 31, 2005. He received FRS retirement benefits based upon the above-referenced application from the Division from April 1, 2000, to October 31, 2007. The Form DP-11 contained a statement to the effect that the retiree member understood that he could not add additional service, change options, or change his type of retirement once his retirement became final. Mr. Bohler began participation in the DROP program on April 1, 2000. Thereafter, his last date of employment was March 31, 2005, and he passed away on October 18, 2007. He received FRS benefits from April 1, 2000, until October 31, 2007. For 28 years, until his death on that date, Mr. Bohler was legally married to the Petitioner, Deborah Bohler, during which time they were never separated or divorced. On March 10, 1999, Mr. Bohler executed the FRS Application for Service Retirement and the DROP program. He had his signature notarized as required for that form. Joint Exhibit 1, in evidence. Mr. Bohler designated the Petitioner as his primary beneficiary on the DROP Application. He elected to begin participation in the DROP program as of April 1, 2000, and to retire from state employment effective March 31, 2005, which he did. There are four options which an FRS member may select for his or her retirement benefits to be paid to the member or to the survivors/beneficiaries. Mr. Bohler selected "Option 1" on his DROP Application form. This results in a significantly higher retirement monthly benefit than does Options 3 or 4, which have survivorship rights. The acknowledgement section on the DROP Application form requires that a member's spouse be notified and must acknowledge a member's selection of Option 1 or Option 2 by signing that DROP Application form, so that the FRS is thus informed that the spouse made a knowing, intelligent waiver of survivorship rights to benefits. The spousal acknowledgement provision or section does not require that the member's spouse's signature be notarized. The form also does not require a member to swear under oath that the spouse was notified. The parties have stipulated that the Petitioner's apparent signature shown on Mr. Bohler's retirement application form was forged. The Petitioner had no knowledge that her name had been placed on the form by some other person, nor did she have any knowledge that Mr. Bohler had selected Option 1 prior to his death. The Petitioner first learned that her husband had selected Option 1 when she contacted the Respondent, after his death, to request that his retirement benefits now be paid to her. She believed that she was entitled to survivorship benefits. Her husband never informed her that he had selected a retirement option which would not pay her survivorship benefits, nor had they discussed the matter before or since his retirement. In their marital and family relationship, the Bohlers had divided certain duties in such a way that Mr. Bohler, the FRS member at issue, handled all financial matters himself. The Petitioner, Mrs. Bohler, dealt with any tax issues or filings the couple was required to make during the years of their marriage. The Petitioner is a certified public accountant. The Petitioner was simply aware that her husband received retirement benefits, and knew the amount of them, but did not know that they represented benefits for Option 1 rather than Option 3 or 4. The Petitioner's signature on the spousal acknowledgment section of the DROP Application form is stipulated to have been forged. The fact of the forgery, and the Petitioner's un-refuted testimony, establishes that she was never notified, nor did she ever acknowledge that her husband had selected Option 1. She was not aware that an attempt to waive or extinguish her survivor's benefits had been made. She believed, during his lifetime, that she was to be accorded survivor benefits. Testimony presented by the Respondent shows that the Respondent Division will not accept a retirement application form, or process it, if a member fails to complete the spousal acknowledgement section or, alternatively, to submit a signed statement explaining why that section is left blank, or the signature of the spouse has not been obtained. The fact that the Division will not accept a retirement or DROP Application form or process the related benefits if the acknowledgement section is unsigned or blank establishes the mandatory nature of the requirement that a spouse acknowledge a member's election to receive benefits under an option which would preclude a spouse's survivorship benefits. The acknowledgement is thus not an optional requirement. In fact, the legislature clearly placed that requirement in the statute, Section 121.091(6)(a), Florida Statutes, as a mandatory requirement so a spouse would know of any such attempt to waive the spouse's survivorship rights and benefits. It is an acknowledgement that the spouse has a vested or property right in such benefits, which must be knowingly and intelligently waived. The Statute says, in fact, that the spouse of any member "shall be notified of and shall acknowledge any such election." Therefore, obtaining a spouse's signature is not the only desired result set forth by the legislature (and under the rule adopted pursuant thereto) because it requires actual notification of the spouse, not merely the obtaining of a spouse's signature, whether genuine or forged. Actual notification is what must be accomplished. The required notification and indeed the obtaining of the Petitioner's signature was not accomplished in the facts of this case. In light of these facts, the act of declaring and accomplishing retired status, and selection of the related benefit option, was never completed. The Option selection was obviously a nullity and void ab initio because the mandatory condition precedent never was accomplished by the member.
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 State of Florida, Department of Management Services, Division of Retirement, awarding the Petitioner retirement benefits based upon her status as a surviving spouse and joint annuitant, in the manner described above, adjusted to reflect re-calculation and recoupment of overpayment based upon the amount of benefits already paid from the subject retirement account pursuant to Option 1. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2009. COPIES FURNISHED: Elizabeth Regina Stevens, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32327 T. A. Delegal, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 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 Should Petitioner Alma Slocum receive either the Option 3 or Option 4 retirement benefits retroactive to the death of Clyde Slocum in March 1975?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Clyde Slocum (Slocum), deceased, was a member of the State and County Officers Retirement System (SCOERS) under Chapter 122, Florida Statutes. Slocum was employed by the Suwannee County School Board as a school bus driver until he became physically unable to work in June 1970. Slocum married Alma Sanchez in October 1934, and was continuously married to her until his death on March 30. 1975. By letter dated May 6, 1968, Slocum made an inquiry to the Division regarding the benefits he would be eligible for if he retired from his employment as a school bus driver with the Suwannee County School Board. Slocum noted in the letter that he was not ready to quit work but wanted to know what benefits would be available, if and when he retired. The Division, by letter dated June 20, 1968, notified Slocum of the amount of his contributions on file and the benefits he would be eligible for under Options 1 through 4. It was pointed out that Options 3 and 4 would provide a smaller monthly benefit. However, these options would provide survivor benefits for his wife. It was also stated that proof of age for Slocum and his wife, Alma Slocum, would be required, if he selected Option 3 or 4. The following information was provided to Slocum: (a) Option 1 would provide $43.60 a month, but upon his death, no further benefits would be paid; (b) Option 2 would be 13 cents lower at $43.47, but in the event he died, his beneficiary would receive any balance of the amount of his contribution ($1,006.81) not paid; (c) Option 3 would provide a reduced monthly payment of $35.58 and one-half of that amount ($17.79) to his wife upon his death; and (d) Option 4 would provide for a payment of $30.08 and the same benefit to the wife upon his death. By letter dated August 5, 1970, Lavada Reuthinger, daughter of Slocum, sought information on the three different ways that Slocum could receive his retirement benefits. By letter dated August 7, 1970, Elizabeth Smith, Supervisor, Benefits Section, notified Slocum of the availability of an option election that would provide benefits for his wife after his death. The letter also notified Slocum that proof of his age was required, and if he chose benefits for his wife, then proof of her age was required as well. An estimate, dated September 22, 1970, of benefit amounts, similar to the estimate sent to Slocum in 1968, was prepared by the Division, and sent to Slocum. This estimate of benefits was for Options 1 an 2 only, and did not set forth a benefit amount for Options 3 and 4. The letter stated: "Only the first two options apply in your case." Apparently, the Division assumed that Slocum was retiring under disability. By letter dated October 2, 1970, the Division was notified by Dr. G. L. Emmel that Slocum was disabled and was not able to work. Elizabeth Smith notified Dr. Emmel of the statutory language requirement for an application for disability. Using a form provided by the Division, Slocum, on October 10. 1970, also under the assumption that he was retiring on disability, elected to receive benefits under Option 2. At this point, Slocum had been advised by the Division that neither Option 3 or Option 4 were available to him. Dr. Emmel provided the Department with the requested documentation that Slocum was permanently disabled. On October 26, 1970, Elizabeth Smith requested that Slocum submit proof of his age. By letter dated November 13, 1970, Elizabeth Smith advised Slocum that he had failed to furnish proof of his age, but instead he had furnished his wife's birth certificate. Slocum's wife's birth certificate was returned by letter dated November 13, 1970. By letter dated November 21, 1970, Elizabeth Smith advised Slocum that he could not retire under disability because he had reached normal retirement age, but that he could retire under Option 3 or Option 4 which would provide monthly payments to his wife upon his death, if he accepted a reduction in the amount of benefits. Smith further advised Slocum that he would need to furnish proof of his wife's age if he selected Option 3 or Option 4. Smith further stated that: "It was thought you were retiring under disability when proof [of your wife's age] was returned to you." Smith also advised Slocum that if he waited until June 30, 1970, he would receive the five-year average. The letter does not indicate what the payment amounts would be for the four different options, and the letter does not indicate that a option election form was included with the letter. Furthermore, the letter does not refer to the Option 2 selection form that Slocum had previously submitted to the Division. Slocum responded to Smith's letter on November 30, 1970, and enclosed a copy of his wife's birth certificate. Slocum also requested "the necessary forms concerning his retirement." Additionally, he notified the Division that since he had not worked since June 1970 he wanted retirement benefits to be paid as soon as possible. The Division did not comply with Slocum's request for the "necessary forms concerning his retirement." A warrant was mailed to Slocum on December 31, 1970, for retirement benefits from July 1, 1970, through December 31, 1970, at $59.17 a month. This benefit amount was the Option 2 retirement benefit amount furnished to Slocum on September 22, 1970, by the Division when it was assumed that he was retiring under disability. No explanation was given to Slocum if, or that, the Division was using Option 2 benefit selection that Slocum had signed and submitted to the Division on October 1970, prior to the time the Division had notified Slocum that he could choose Option 3 or Option 4. Slocum and his wife were both under the impression that since Slocum had furnished the Division a copy of his wife's birth certificate that she would receive retirement benefits after his death. Slocum died on March 30, 1975, five years after he retired. The Division advised Alma Slocum by letter dated May 19, 1975, that her husband had retired under Option 2 and, therefore, no benefits would be paid to her. A copy of his option election and the computation of his monthly benefits were enclosed in the May 19, 1975, letter from the Division. Thereafter, Petitioner repeatedly inquired of the Division why she was not entitled to retirement benefits as Slocum's widow. These inquires were made from the time of Slocum's death in 1975 through the present. In response to each inquiry the Division replied that Slocum had selected Option 2, and no benefits were payable to Petitioner under that option. In February 1999, Petitioner and her granddaughter, Theresa L. Crosby, visited the Division's office in Tallahassee, Florida and reviewed Slocum's file. After they reviewed the file, it was their position that Petitioner was entitled to receive survivor benefits and made a demand on the Division for Petitioner to receive those benefits. At no time prior to February 1999, had the Division advised Petitioner that she was entitled to a formal hearing on the matter. A final agency action letter dated March 26, 1999, was mailed to Petitioner which pointed out that her husband elected and received Option 2 benefits from 1970 until his death in March 1975 and there was no provision under SCOERS, Chapter 122, Florida Statutes, to change the option choice at this time. This letter is the first written notice to Petitioner that she was entitled to request a formal hearing if she disagreed with the Division's decision. A Petition for Formal hearing contesting the Division's denial of a survivor's benefit for Petitioner was received by the Division on April 19, 1999. When Slocum made the selection for Option 2 retirement benefits he did so because he was advised by the Division that only Option 1 or Option 2 were available to him since he was retiring under disability. Once Slocum became aware that his wife could receive retirement benefits after his death, it is clear that he intended to select an option which would provide his wife with benefits after his death. Furthermore, after it was determined that he could not retire under disability, which had limited his options, the Division failed to give Clyde Slocum an opportunity to make a selection of the options offered for retirement benefits, either initially in writing or verbally by telephone with a follow-up written option, notwithstanding any testimony to the contrary which, lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order finding Alma Slocum eligible to receive retirement benefits under Option 3 retroactive to Clyde Slocum's death on March 30, 1975, making adjustments for the higher rate paid Clyde Slocum during the years 1970 through his death in 1975, and any adjustments for interest that may be applicable to the benefits paid Clyde Slocum or those benefits that should have been paid to Alma Slocum. DONE AND ENTERED this 29th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1999. COPIES FURNISHED: Sandra E. Allen, Esquire 314 West Jefferson Street Tallahassee, Florida 32301 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
