The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003.
Findings Of Fact John Wallace began service as a Sumter County school board member on January 1, 1959. (Joint Stipulation). On or about January 1, 1959, he completed a blue-top computer enrollment card (Petitioner's Exhibit 1), which also designated his wife Effie as his first beneficiary of his retirement benefits and his daughter, Mrs. Kindle Johnson, as the second beneficiary. (Joint Stipulation). Effie Wallace died January 22, 1963. (Joint Stipulation) John Wallace married Estell Loudin June 9, 1964. (Joint Stipulation). John Wallace executed an election to transfer to the Florida Retirement System, effective December 1, 1970. (Petitioner's Exhibit 2). (Joint Stipulation). John Wallace died September 8, 1975. (Joint Stipulation). On November 12, 1975, Betty Carruthers, an employee of the Sumter County School Board, notified the Division of Retirement of Mr. Wallace's death. Margie Smith in the Division of Retirement completed a form (Petitioner's Exhibit 4) setting forth the information she received from Betty Carruthers in the November 12, 1975, telephone conversation. Not having any beneficiary designation form in the School Board file, Carruthers simply advised Smith that petitioner was Wallace's second wife, his first wife, Effie, having predeceased him. Smith's quick check of the Division of Retirement records management section did not uncover Wallace's designation of beneficiary form. (Petitioner's Exhibit 1, 5). On March 9, 1977, the Division of Retirement received petitioner's FR- 11, an application (albeit on the incorrect form) for her deceased husband's benefits, along with certain supporting documents. In an April 13, 1977, letter (Petitioner's Exhibit 6) sent out over David Ragsdale's name but written and signed by a benefits calculation specialist trainee, petitioner was erroneously informed that she was the beneficiary of her husband's benefits, since he had designated his first wife Effie, who had predeceased him. But after the letter went out, it came to the attention of Marjorie Smith that the April 13, 1977 letter was incorrect since Wallace's original January 1, 1959 designation of beneficiary form designated Wallace's daughter, Mrs. Kindle [sic] Johnson, who is still living, as Wallace's second beneficiary. In a June 5, 1977, latter (Petitioner's Exhibit 7), again sent out over David Ragsdale's name but dictated by Marjorie Smith and signed by Ragsdale's secretary, petitioner was informed that respondent had located the designation of beneficiary card, signed by Mr. Wallace, designating his daughter, Mrs. Kindle [sic] Johnson, as his second beneficiary. On June 20, 1977, Randall Thornton, petitioner's attorney at the time, wrote a letter (Petitioner's Exhibit 8) to David Ragsdale, seeking a copy of the beneficiary card upon which the respondent based its decision in the June 15, 1977, letter to petitioner. On July 12, 1977, Mr. Thornton sent another letter to the respondent, attention Mrs. Ferguson (Petitioner's Exhibit 9), asking again for a copy of the beneficiary designation upon which its decision was based awarding Mr. Wallace's retirement benefits to his daughter. On the same date, respondent sent Mr. Thornton a letter (Petitioner's Exhibit 10), enclosing a copy of the original enrollment card. (Petitioner's Exhibit 1). Thornton's secretary called petitioner into the office on July 15, 1977, the day after Thornton received and reviewed respondents' July 12, 1977 letter. Petitioner looked at the copy of Wallace's designation of beneficiary form and stated that she did not believe her husband had written both his first wife's name and his daughter's name as first and second beneficiaries, respectively, at the same time. She did not, however, prove this at final hearing. Petitioner did not prove that there is or ever was another designation of beneficiary executed by Mr. Wallace other than Petitioner's Exhibit 1. Prior to 1972, if a member of the Florida Retirement System or any pension plan in existence prior to December 1, 1970, wanted to change his designated beneficiary, he would complete another blue-top enrollment card. In 1972, a new enrollment form, FRS-M10, was instituted consisting of three identical parts. If a member of the Florida Retirement System completed the form, the original would be sent to the respondent, with a copy to the agency employing the individual and a copy to the individual. (Carruthers deposition, p.4). Respondent has searched its records and has found no other designation of beneficiary form signed by Mr. Wallace apart from Petitioner's Exhibit 1. The files at the Sumter County School Board have been searched and no designation of beneficiary signed by Mr. Wallace found. (Carruthers deposition, p.3). Petitioner's attorney Randall Thornton has searched his files and found no designation of beneficiary signed by Mr. Wallace other than Petitioner's Exhibit (Thornton deposition, p.18)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration, Division of Retirement, enter a final order denying petitioner's request for benefits on the ground that she is not, in law and fact, entitled to benefits resulting from the death of her husband, John Wallace. RECOMMENDED this 9th day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 9th day of July, 1984.
Findings Of Fact Petitioner, EVELYN S. WRIGHT, as an employee of Metropolitan Dade County and a member of the State and County Officers and Employees Retirement System, elected to transfer into the Florida Retirement System (FRS) effective December 1, 1970. (Exhibit 3) On April 10, 1972, Petitioner terminated her employment with Metropolitan Dade County and applied for FRS disability retirement benefits pursuant to Section 121.091(4), Florida Statutes, on May 22, 1972. (Exhibit 2) Petitioner's application for FRS disability retirement benefits was initially denied by the Administrator of the Florida Retirement System on August 21, 1972. (Exhibit 4) On January 6, 1975, Petitioner inquired of the Supervisor of the Respondent's Disability Determination Unit, Mr. David Ragsdale, as to the possibility of withdrawing the accumulated contributions in her retirement account. At this time, Petitioner, was advised by Mr. Ragsdale that a withdrawal of contributions would cancel her membership rights in the Florida Retirement System. (TR - p.9) Respondent forwarded to Petitioner, by letter dated January 7, 1975, the appropriate form for making application for a refund of accumulated retirement contributions. The transmittal letter specifically advised the Petitioner that, "Should you complete and return the enclosed card, M81, you would have no further rights or service credit with the Division of Retirement." (Exhibit 5) On January 14, 1975, Petitioner executed, and her employer verified, an application for refund of accumulated retirement contributions. The application form clearly stipulated: "I hereby make application for refund of my accumulated contributions in the Florida Retirement System. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement System." (Exhibit 6) Petitioner's application for refund of contributions was received by the Respondent on January 17, 1975. Respondent refunded to Petitioner her accumulated contributions in the amount of $3,056.02 by Voucher No. 237738, Warrant No. 0309435, dated January 28, 1975. (Exhibit 6) The attorney for Petitioner, John H. Abramson, was advised by the undersigned hearing officer by telephone that Leave to Take Deposition was granted. By letter from the said attorney the Division was notified that Petitioner's file was being closed.
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 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 issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985.
Findings Of Fact On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact. The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence. The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3. The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence. The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause. The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the 780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June 30, 1985. The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66. DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative 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 31st day of August, 1990.
The Issue Whether Petitioner, Judith Richards, is eligible for the health insurance subsidy offered to Florida Retirement System retirees.
Findings Of Fact In November 2011, Petitioner was hired by the Osceola County Sheriff’s Office to work as a crossing guard. The Osceola County Sheriff’s Office is an FRS-participating employer, and the position held by Petitioner was in the 2 It is well established that issues related to subject matter jurisdiction can be raised at any time during the pendency of a proceeding. 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). “Regular Class” of FRS membership. In 2011, newly hired eligible employees (members) of the Osceola County Sheriff’s Office were required to participate in either the FRS pension plan or the investment plan. Petitioner elected to participate in the investment plan. Generally, the pension plan offers eligible employees a formulaic fixed monthly retirement benefit, whereas an employee’s investment plan benefits are “provided through member-directed investments.” Pursuant to section 112.363, Florida Statutes, retired members of any state-administered retirement system will receive an HIS benefit if certain eligibility requirements are satisfied. Section 112.363(1) provides that a monthly subsidy payment will be provided “to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.” Section 112.363(3)(e)2. provides that beginning July 1, 2002, each eligible member of the investment plan shall receive “a monthly retiree health insurance subsidy payment equal to the number of years of creditable service, as provided in this subparagraph, completed at the time of retirement, multiplied by $5; … [and] an eligible retiree or beneficiary may not receive a subsidy payment of more than $150 or less than $30.” On July 18, 2019, Petitioner’s employment with the Osceola County Sheriff’s Office ended, and at that time she had 7.77 years of FRS creditable service.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the application for retiree health insurance subsidy submitted by Mrs. Richards. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Judith Richards 2337 Louise Street Kissimmee, Florida 34741 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner must forfeit and repay distributions he received from the Deferred Retirement Option Program and subsequent monthly retirement benefits received as a consequence of his election to the position of County Commissioner of Jefferson County within six months of terminating state employment.
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, John Nelson, was employed by the Department of Financial Services (DFS) from October 1977 through July 31, 2010. For the last five years of his employment with DFS, Petitioner participated in the Deferred Retirement Option Program (DROP). Prior to ending his DROP participation, Petitioner completed a DROP Termination Notification Form (DP-TERM Rev. 06/06) on April 23, 2010, confirming he would terminate employment on July 31, 2010. The DROP Termination Notification was also signed by a representative from FRS confirming Petitioner's employment termination date and reads in pertinent part: I understand that I cannot 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 including part-time, temporary, other personal services (OPS) or non-Division approved contractual services 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 me enrollment date in the DROP. The above-referenced version of the DP-TERM (Revised 6/06) has been incorporated by reference into Florida Administrative Code Rule 60S-9.001(ee). Due to significant statutory changes made by the Legislature, the Division sent to Petitioner a second DROP Termination Notification, (Form DP-TERM revised 04/10) which he signed on June 9, 2010. The wording in the revised form reflected statutory changes which would take effect July 1, 2010. The revised form states in pertinent part: If your DROP termination date is on or after July 1, 2010: Your termination requirement means you cannot remain employed or become re-employed with any Florida Retirement System (FRS) covered employer during the FIRST SIX calendar months following your DROP termination date. This includes but is not limited to: Part-time work, temporary work, other personal services (OPS), substitute teaching or non-Division approved contractual services. During the 7th-12th calendar months following your DROP termination date, you may return to work for a participating FRS employer but must suspend your retirement benefit for any of these months your[sic] are employed. There are no reemployment exceptions during the reemployment limitation period. After the 12th calendar month following your DROP termination date, there are no employment restrictions. If you fail to meet the termination requirements noted above, you will void (cancel) your retirement and DROP participation, you must repay all retirement benefits received including your DROP accumulation, and you must apply to establish a future retirement date. If you void your retirement your employer will be responsible for making retroactive retirement contributions and you will be awarded service credit for the period during which you were in DROP through your new termination date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP. (emphasis added). The revised form DP-TERM (Revised 04/10) has not yet been adopted as a rule. At the time of hearing, rulemaking had been initiated. Petitioner terminated his employment with DFS on the agreed termination date of July 31, 2010, and was no longer an employee of DFS after that date. Sometime between July 31, 2010, and November 2010, Petitioner was paid his accumulated DROP monies in the amount of $181,635.09, in the form of a direct rollover into an eligible retirement account. Petitioner was also paid monthly retirement benefits for the months of August through November 2010, in the total amount of $11,286.76. The Division deactivated Petitioner's monthly retirement benefits in December 2011. The total amount of retirement benefits paid to Petitioner after terminating employment with DFS is $191,921.85, which the Division seeks to recover. In April of 2010, at the urging of community members, Petitioner registered to run for public office in Jefferson County, Florida. He won the election and was sworn into office as a Jefferson County Commissioner on November 16, 2010. Tyler McNeill is the Chief Deputy Clerk and Human Resources Officer for Jefferson County. Following Petitioner's election as a County Commissioner, Mr. McNeill began to process a small packet of employment-related documents which he provides to elected officials. Mr. McNeill went to Petitioner's home on a Sunday evening to get the necessary papers signed. Prior to this meeting, Petitioner was unaware that Jefferson County participates in the FRS. Petitioner described his reaction to learning this as "shocking." When Mr. McNeill and Petitioner got to the FRS form, Petitioner did not want to sign it and informed Mr. McNeill of that. Mr. McNeill described Petitioner as appearing physically ill, shocked, and "so upset" upon learning that the County was an FRS participating employer. On November 22, 2010, Petitioner and Mr. McNeill called Ira Gaines, FRS Benefits Administrator, using a speakerphone. At the time they placed this call, Petitioner had not yet signed the employment documents supplied to him by Mr. McNeill, and Petitioner informed Mr. Gaines of this. During this conversation, Petitioner expressed his willingness to resign from office and refuse to accept payment from the County for his newly elected position. According to Mr. McNeill, Petitioner was not yet eligible to receive compensation from the County because the employment papers had not yet been processed. Mr. McNeill testified that he would have been able to discard the documents. During this telephone conversation, Mr. Gaines advised that Petitioner was legally a person employed by the County by virtue of his being sworn into office on November 16, 2010. Mr. Gaines equated bring sworn into office as being an employee. At hearing, Mr. Gaines reiterated his position: that he did not know any way Petitioner could not be enrolled in FRS when occupying an elected position. As a result of this telephone conversation with Mr. Gaines and in reliance on Mr. Gaines' advice, Mr. McNeill processed Petitioner's employment papers including the FRS reenrollment form. Mr. Gaines then began receiving salary payments for being a county commissioner. On December 6, 2010, Mr. Gaines sent a letter to Petitioner stating that his election to the position of County Commissioner had voided his DROP participation, and consequently, Petitioner would have to repay $181,635.09 for the DROP payment, and $11,286.76 in monthly retirement benefits. The letter further informed that Petitioner will continue to earn credit as an elected official in the Elected Officer's Class of FRS membership and that Petitioner's retirement account would be adjusted to reflect service from August 2005 through July 2010 (his DROP period) which he estimated would increase Petitioner's retirement benefits by $1,200 per month. In response to the December 6, 2010 letter, Petitioner appealed the voiding of his DROP participation. By letter dated February 1, 2011, the Division denied the request. The February 1, 2011 letter also informed Petitioner of his right to request a hearing, which gave rise to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Retirement enter a final order rescinding the February 1, 2011, notification letter requiring reimbursement of Petitioner's DROP distribution and reimbursement of Petitioner's monthly retirement benefits from August 2010 through December 2010 when those benefits were discontinued; reinstating those monthly benefits beginning six months following the completion of Petitioner's DROP period, and nullifying Petitioner's reenrollment in the Elected Officers' Class of FRS membership. DONE AND ENTERED this 8th day of March, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2012.
Findings Of Fact Petitioner retired from employment with the State of Florida effective January 1, 1976, and began drawing retirement benefits on that date. During 1979, she worked for the South Florida State Hospital, her former employer, on a temporary basis while continuing to receive retirement compensation of $235.46 monthly. At the request of the South Florida State Hospital, Petitioner worked from June 7 through August 10, and September 7 through December 6, 1979. On September 28, she reached five hundred hours of employment for the calendar year. Therefore, Petitioner exceeded five hundred hours of state employment during the months of September, October, November, and December, 1979. Respondent seeks return of retirement compensation for the last three days of September and for all of the months of October, November and December, plus ten percent annual interest. This amounts to $729.93 in retirement compensation plus $36.04 interest through April 30, 1980.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner be ordered to repay the State of Florida retirement compensation in the amount of $729.93 plus ten percent interest compounded annually. RECOMMENDED this 12th day of August, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Department of Administration Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-1777 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1980. COPIES FURNISHED: Mrs. Sarah H. Hoyle 1201 S.W. 17th Street Fort Lauderdale, Florida 33315 Augustus D. Aikens, Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Christopher M. Rundle, Esquire South Florida State Hospital 1000 S.W. 84th Avenue Hollywood, Florida Mr. A. J. McMullian, III State Retirement Director Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303
The Issue Whether Petitioner is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
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 benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 2001
The Issue Whether at the time of his father's death, Armando Martinez, Jr., was a "dependent beneficiary" of his father, a vested member of the Florida Retirement System, so as to be entitled to his father's retirement benefits?
Findings Of Fact Armando Martinez, Jr., was born on February 22, 1974, to Natalie M. Martinez and the late Armando Martinez, Sr. In 1992, when Armando, Jr., was eighteen years old, Mr. and Mrs. Martinez were divorced. The following year, 1993, less than two weeks after Armando, Jr.'s, nineteenth birthday, Armando Martinez, Sr., died. The cause of death was liver cancer, a disease from which Ms. Martinez presently suffers. At the time of his death on March 7, 1993, Mr. Martinez was a vested member of the Florida Retirement System. A municipal employee, he had been a bus operator. At some point close to commencement of his employment, slightly more than ten years prior to his death, Armando Martinez, Sr., had executed a Form M-10. The form named his wife, Natalie, as his primary beneficiary. Armando, Jr., the only child of Armando, Sr., and Natalie Martinez, was named as the sole contingency beneficiary. Following Mr. Martinez, Sr.'s death, Ms. Martinez disclaimed Florida Retirement System benefits. She did so in order for Armando, Jr., as the contingent beneficiary, to be able to receive the benefits. On February 17, 1997, the Division of Retirement denied Armando, Jr., survivor benefits. Had Mr. Martinez, Sr., died one-year and several weeks earlier, that is, prior to Armando, Jr.'s eighteenth birthday, the Division would have approved distribution of survivor benefits to him. But, although he was still a high school student, since he was older than nineteen by a few days at the time of his father's death, the Division required proof that Armando, Jr., had received half of his support from his father at the time of his father's death. No such proof was provided to the Division prior to or at the time of its preliminary denial. In fact, in his 1992 tax return, Mr. Martinez did not claim his son Armando, Jr., as a dependent. In this formal administrative proceeding, however, Armando Martinez, Jr., provided such proof, proof which was lacking until hearing. The year 1992 was very difficult for Armando Martinez, Jr., and his family. His parents separated, Armando, Jr., lived with his mother. Armando, Sr., lived elsewhere. Prior to his death, divorce proceedings were finalized. In the meantime, Ms. Martinez had lost her job. She remained unemployed for the entire year and in early 1993 as well. Armando, Jr., was still in high school at the time of his father's death. During the 1992-93 school year, to support himself and his mother, he obtained work part-time while he remained in school. Ms. Martinez paid the rent for their apartment at a rate of between $370 and $500 per month. The monthly phone bill of Ms. Martinez and Armando, Jr., was approximately $50; utility payments $70; groceries $300; gasoline $10, automobile insurance $100; and school supplies $40. There were other expenses, clothes, for example, that occurred from time-to-time. In addition to minimal government support to Ms. Martinez and Armando, Jr.'s, part-time employment income, Armando, Jr., was supported by cash payments provided by his father. Two or three times a month, Armando's father and a girl friend, Karen Jones, would drive to the front of the house. Because of his illness, Mr. Martinez remained in the car while Ms. Jones brought cash, usually between two and five hundred dollars in an envelope to the front door. On more than one of these occasions, Ms. Jones, the envelope, and the cash were observed by friends of the family at the moment of delivery. Ms. Martinez log of the estimates of these payments totals approximately $8,500, an amount in excess of Mr. Martinez's income reported in his 1992 tax return filed before his death in 1993 to be $6,389.00. But, Mr. Martinez, Sr. had access to other means of support and other monies including proceeds from insurance policies. The $8,500 provided to Armando, Jr., by Armando Martinez, Sr. constituted more than half of Armando, Jr.'s, support for the year 1992 and up until Mr. Martinez, Sr.'s, death in early 1993.
Recommendation Accordingly, it is hereby recommended that the Division of Retirement recognize Armando Martinez, Jr., to have been the dependent beneficiary of Armando Martinez, Sr., at the time of Mr. Martinez, Sr.'s, death, and therefore entitled to retirement benefits. DONE AND ORDERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Natalie Martinez Suite 3811 3801 Northgreen Avenue Tampa, Florida 33624 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 A.J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
