The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
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.
The Issue Should the benefits of the Petitioner, Charles Bullock, under the Florida Retirement System Investment Plan, be forfeited due to his plea of no contest and adjudication of guilt to two felony counts of child abuse?
Findings Of Fact The Collier County Sheriff's Office employed Mr. Bullock as a law enforcement officer from 1994 through 2010. Due to his employment, Mr. Bullock was a member of the Florida Retirement System Investment Plan. Mr. Bullock worked in the sheriff's office's civil process unit. He and the other civil process deputies routinely met for coffee in the afternoon about 2:00 p.m., to discuss business. They usually met at the Starbucks in the Coastland Mall in Collier County. Sometimes they met at other locations to avoid drawing public attention and adverse comments. For the same reason, after some unfavorable television coverage, they often dispersed their cars in the parking lot, instead of parking together. Mr. Bullock usually did not wear a uniform, badge, gun, or anything else identifying him as a Collier County deputy or a law enforcement officer. On at least three occasions between November 2009 and February 2010, while on duty, Mr. Bullock went to the food court bathroom after these meetings. The evidence does not establish that Mr. Bullock was wearing a uniform, badge, gun, or anything else identifying him as a Collier County deputy or law enforcement officer on those occasions. On the first two of those occasions, Mr. Bullock sexually molested a male, under the age of 16, by forcing him to allow Mr. Bullock to perform oral sex. On the third occasion, Mr. Bullock was approaching the male minor by looking under and over the bathroom stall divider, when he was interrupted by a mall employee. The evidence does not establish that the minor knew on any of the occasions that Mr. Bullock was a deputy or law enforcement officer. The evidence does not otherwise establish that Mr. Bullock's position as a Collier County deputy facilitated, contributed to, provided the opportunity for, or otherwise played a role in his ability to commit the acts described on those three occasions. He committed the offenses in a public place during normal operating hours. His position as a deputy did not provide access to the food court bathroom that any citizen would not have had. As a result of the interruption of the third encounter and the information the mall employee was able to provide, law enforcement conducted an investigation of Mr. Bullock's conduct in the mall bathroom. The investigation culminated on April 19, 2010, in a warrant to arrest Mr. Bullock. The warrant charged Mr. Bullock with lewd or lascivious battery (violation of section 800.04(4)(a), Florida Statutes (2010)), a second-degree felony, and official misconduct (violation of section 838.022, Florida Statutes (2010)), a third-degree felony. On March 10, 2014, Mr. Bullock entered a plea of no contest to a different charge based upon his sexual molestation of the male under the age of 16. The offense to which Mr. Bullock entered a plea of no contest was child abuse, a violation of section 827.03, Florida Statutes (2010), a third-degree felony. At the time of his plea and in this proceeding, Mr. Bullock maintained that he was not guilty of the charges, but chose to plead no contest because of concerns that the nature of the charges would inflame jurors. The court adjudicated Mr. Bullock guilty of the charges to which he pled no contest. It imposed a sentence of two years' probation, prohibited contact with the victim, required payment of $151.00 in court costs, and required Mr. Bullock to give up his law enforcement certification. On March 20, 2014, the Board notified Mr. Bullock that his rights and benefits under the Florida Retirement System were forfeited as a result of his no contest plea to child abuse. This proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, State Board of Administration, enter a final order finding that the Petitioner, Charles Bullock, was not convicted of a specified offense as identified in section 112.3173, Florida Statutes, and directing that he not forfeit his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of September, 2014.
Findings Of Fact The Petitioner, C. DEAN LEWIS, was first employed on March 4, 1966 by the Lafayette County School Board and remained employed by that agency until September 1, 1975. From the time of his employment with that agency, Mr. Lewis was enrolled in the agency retirement system. On September 1, 1975, Petitioner was employed as County Attorney by Suwannee County, Florida. From the time of enrollment in 1966 until such time as the retirement system became non- contributory, sums were withheld from his salary for payment into the retirement fund. When Petitioner became County Attorney for Suwannee County in September 1975, he continued his enrollment in the Florida Retirement System. The evidence presented in the form of enrollment cards fails to show the exact date of enrollment or for what position of employment he was enrolled. However, it is quite clear that Petitioner was enrolled in the Florida Retirement System or its predecessor system continuously since the inception of his employment by a governmental agency. On July 1, 1979, the Division of Retirement issued new rules regarding membership in the Florida Retirement System contained in Section 22B-1.04(5)(6), Florida Administrative Code. On September 15, 1979, the Division of Retirement promulgated its Memorandum No. 79-20, to all Florida Retirement System reporting agencies outlining the new guidelines for enrollment. This memorandum specifically referred to attorneys and encouraged the agency to examine the employment status of attorneys to determine whether that individual was an employee of the agency or merely a contractor. Thereafter on February 26, 1981, the Division of Retirement sent out another memorandum, Number 81-38, again to all retirement system reporting units, which placed specific emphasis on those situations involving employees versus consultants/contractors. This situation clearly pertains to the situation of the Petitioner here. When these memoranda were received by Suwannee County, at least one was inserted in Petitioner's personnel file. At no time, however, was any consideration given to the Petitioner's situation nor was any mention made by the County to the Petitioner regarding these memoranda. In addition, at no time did any representative of the Florida Retirement System or the Division of Retirement have any contact with Petitioner either in person or through correspondence to advise him that his status was under reconsideration and that he had an obligation to clarify his standing to the satisfaction of the Division. In early 1984 the Division of Retirement forwarded an employment relationship questionnaire to the Suwannee County Board of County Commissioners requesting that it complete the questionnaire as it pertained to Petitioner, the County Attorney. This questionnaire was completed by Jerry A. Scarborough, Clerk of the Circuit Court, who was responsible for maintaining the personnel records of Petitioner and most other county employees. On the basis of Mr. Scarborough's answers to various questions, the Division of Retirement on May 14, 1984, advised Petitioner of its intention to disenroll him from the Florida Retirement System. The Division listed some seven areas wherein Mr. Scarborough's answers indicated that Petitioner was a "consultant or other professional person" as defined in Rule 22B-6.01(12), rather than a true employee of the county. As such, Mr. Tom F. Wooten, Chief, Bureau of Enrollment and Contributions, Division of Retirement, concluded that Petitioner was, therefore, not eligible to participate as a member of the Florida Retirement System. Mr. Wooten further indicated the Division's intent to remove him from membership as of July 1, 1979. Thereafter, as was stated previously, on July 6, 1984, Mr. A. J. McMullian, III, State Retirement Director, by letter, advised Petitioner that he had considered his response to the original letter of intent but nonetheless, continued to conclude that he was not eligible to participate as a member of the Florida Retirement System. The July 6, 1984 letter by Mr. McMullian indicated the finality of the Division's decision. It is not now the Division's intention to disenroll Petitioner from the Florida Retirement System effective in 1979. Based on a recent decision of the Florida District Court of Appeals, the Division recognizes that it can reasonably disenroll him no earlier than the date he was first advised of the Division's concern regarding his status. That date is May 14, 1984, the date of the Division's initial letter of intent. The decision by the Division of Retirement to remove Petitioner and other professional contractors from the retirement system is based on its contention that the Petitioner and these other individuals are not bona fide employees of the agency under whose auspices they are enrolled in the system. It is not the position of the Division that only full-time employees can be enrolled. To the contrary, the agency is quite willing to accept that part-time employees are eligible for enrollment providing they meet the other criteria. With regard to the Petitioner and other professionals, primarily attorneys and physicians, it is the Division's contention that they are not true employees of the county but are independent-contractors or consultants who are not eligible for membership in the system. The factors leading to the conclusion drawn by the Division include such things as: Petitioner was not trained or schooled by the county in the professional work he performs; That he is not given instructions as to how the work is to be done; That he is not required to maintain regular office hours established by the county; That the county does not provide him with materials, tools, or equipment to perform his duties; That he is available to provide identical professional services to others in the county and in furtherance of that pursuit, maintains a business listing in the telephone book, and a trade journal to that effect as well as maintaining a private office for the practice of his profession; That he hires, pays, and supervises assistants who assist him in the performance of his law firm duties as well as those duties performed for the county; and That he is not eligible for annual or sick leave from the county. The Petitioner is hired by the county to advise the Board of County Commissioners, constitutional officers, and citizens of the county having business with the county referred to him by the Board. His private law firm also does additional work for the county in other areas for which it is compensated independently. Petitioner's yearly salary, which was recently increased from $6,000.00 to $8,000.00 per year is related solely to his performance of duties as county attorney. In that capacity he does not get involved in the county's litigation. His firm, as well as other firms in the area, is hired by the county separately for that function. Petitioner vehemently denies that any partner of his or any employee substituted or acted for him at meetings of the Board of County Commissioners in his capacity as county attorney. Whenever such partners or employees addressed the Board, they did so on work they were doing for the firm separately from that related to his position as county attorney. Petitioner contends that he spends an average of 10 hours per month on county business of which 80 percent is accomplished at the county courthouse. In addition to these 10 hours per month, citizens of the county, the press, and county officials contact him at home and at other places at all hours of the day and night regarding county business. He is not furnished an office in the county courthouse or any other county building. Though he contended that his seat in the county commission room is his office and the place where he accomplished most of his county related work, and though this contention was supported by the Clerk of Court, Mr. Scarborough, it is clear that in reality, Petitioner does not have an office furnished him by the county, and such work as he accomplished on the county's behalf is done primarily in the office of the official requesting it. It is also most likely that substantial correspondence and other clerical work is accomplished for the county by the petitioner in his private office and is accomplished by his own law firm employees. The county supplies him with some books and manuals including copies of various ordinances, codes, and attorney general opinions. The outside work which he does for the county, including, for example, such things as plat examinations, is billed to the county at a rate of $75.00 per hour. The amount he receives, however, never exceeds the amount received by the county for this service. In 1975, prior to his becoming county attorney, he discussed the potential for assuming this position with his predecessor and law partner, Mr. Airth. One of the major factors convincing him to accept the position of county attorney was the prospective retirement benefits he could expect after fulfilling a number of years in this job. Petitioner was hired by the County Commission on an oral contract basis and has never had a written contract with the county. At the first commissioner's meeting of each year, the Board considers Petitioner's continued relationship with the county and confirms it. It could, at any time, decline to extend the relationship, though it has not yet done so. This arrangement differs from that of a normal consultant in that the relationship with a relationship is terminated automatically when the specific job for which the individual is hired has been completed. Petitioner's relationship has been continuous since 1975 and at the present time there appears to be no indication that it will be terminated in the foreseeable future. His compensation is reported to the Internal Revenue Service on a form W-2. That which was submitted for the year 1983 reflects that social security taxes were withheld but no federal income tax. Petitioner explains this on the basis that he claims four dependents and that, therefore, no tax should have been withheld. This explanation is questionable at best. Petitioner takes exception to several of the answers by Mr. Scarborough on the questionnaire submitted to the Division of Retirement. For example, at question 4b, Petitioner contends that he does in fact attend regularly scheduled meetings of the Board of County Commissioners and other agencies and is, therefore, required to follow daily routines. He contends that he is given the specific work which has to be done and the time in which it is to be accomplished and is, therefore, instructed as to how the work is `to be done by his employer. He contends that this same relationship makes him no different than any other county agency or section director who have authority to accomplish their work with some latitude and discretion. Petitioner also contends that he was hired for one year, not an indefinite period, though he has continued to work since 1975 and anticipates no change in his relationship in the future. He contends that the requirement to attend meetings on definite dates at certain times, which takes up to 60 to 80 percent of his time on the job, constitutes the fixed hours and certain times mentioned in the questionnaire. Further, he indicates that with regard to the determination of the hours when the work should be performed, this decision is made not by the employee as indicated on the questionnaire, but by his employer, the county. Petitioner also contends that such help as he utilizes in performing county business is received from public employees, not from his own law firm employees, and that most of his work is done in the courthouse. While Petitioner does not earn annual leave, sick pay, bonuses, or other benefits, he has been enrolled in the retirement system, was eligible to purchase county insurance, and was carried as any other employee on the county's workers' compensation policy. He is authorized to miss one commission meeting per year for vacation and others during the year as excused for illness. Taken in its totality, it becomes obvious that Petitioner's relationship with Suwannee County, Florida is little different from that of any other attorney-client relationship of long standing. It is clear that Petitioner's relationship with the county, though it may have been intended since May, 1984 to fall within the guidelines set forth by Use Division of Retirement, did not do so from 1975 to the latter date. It is clear that the Petitioner's primary employment was that of a private practitioner. One of his clients, and perhaps his largest client in terms of population, is Suwannee County, but the relationship is that of attorney-client, not that of employer- employee. While Petitioner no doubt is the Suwannee County Attorney, he performs that function as a private practitioner and not as a member of the county work force even though his salary is paid from the general salary and wages account.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Petitioner, C. DEAN LEWIS, be disenrolled from the Florida Retirement System effective May 14, 1984. RECOMMENDED this 1st day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of February, 1985. COPIES FURNISHED: William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303 C. Dean Lewis, Esquire c/o Airth, Sellers, Lewis & Decker Post Office Drawer 8 Live Oak, Florida 32060 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether James B. Anderson, a deceased retiree in the Florida Retirement System Pension Plan, selected Option 1 (maximum retiree’s monthly benefit without any spousal benefit after death of the retiree) or Option 3 (a reduced retiree’s monthly benefit with continued spousal benefit after death of the retiree).
Findings Of Fact On June 30, 2007, the named Petitioner, James B. Anderson, terminated his employment with the University of South Florida (USF) at the age of 69 years and 9 months. At the time, his tenure at USF spanned 27 years and entitled him to receive pension benefits under the Florida State Retirement System Pension Plan. Also on June 30, 2007, Mr. Anderson completed an application for retirement. By applying Mr. Anderson, who was USF’s Director of Insurance and Risk Management, acknowledged that he would not be able to add service, change options, change his type of retirement (regular, disability, and early) or elect the Investment Plan once his retirement became final, which would be when he cashed or deposited any benefit payment. Also on July 2, 2007, Mr. Anderson and his wife, Mitzi Anderson, executed a Statutory Official Form FRS 110 before a notary public. By doing so, they selected Option 1, which provides the maximum pension benefits to Mr. Anderson until his death and no pension benefits to his wife after his death. The form stated clearly, in bold print, that Option 1 did not provide a continuing benefit after Mr. Anderson’s death and that the selection of Option 1 would be final when Mr. Anderson cashed or deposited any benefit payment. The next day, Mr. Anderson faxed the executed form to the Division of Retirement, which mailed Mr. Anderson an acknowledgement of receipt of the executed form. The acknowledgement included a clear statement, in bold print, that Mr. Anderson would not be able to change his benefit option selection after retirement and that his retirement would become final when he cashed or deposited any benefit payment. Mr. Anderson had second thoughts about his benefit option selection and contacted Donna Pepper, a retirement specialist employed by USF, to discuss changing to Option 3, which would give him a reduced pension benefit that would continue and be paid to his wife after his death. On July 6, 2007, Ms. Pepper sent an email to Mr. Anderson stating: “Here is another option selection form so that you can change your option.” The email attached a blank Statutory Official Form FRS 110. Ms. Pepper’s email also stated: “As we discussed, you may want to indicate that this form should supersede the previously submitted form.” It also advised the Petitioner to keep a copy for his records and send the original to the Division of Retirement as soon as possible. On July 20, 2007, at 12:53 p.m., a comment was entered on the Integrated Retirement Information System (IRIS) telephone log, documenting that Mr. Anderson was considering changing his benefit option selection and would “either FAX a form with a change of option on it or call to let them know he would not make the change.” The comment also documented that Jan Steller in retirement payroll was asked to hold Mr. Anderson’s first check until “this is resolved.” Later the same day, at 2:30 p.m., another comment was added to document that Mr. Anderson had called back to say he had decided to stay with Option 1 and that Jan Steller had been called back and asked “to release his check.” On July 31, 2007, an initial pension check was sent to Mr. Anderson in the amount of $4,188.45, in accordance with his selection of benefit Option 1, which was about $1,200 more than it would be under Option 3. This check was not immediately cashed. On August 31, 2007, a second Option 1 pension check in the same amount was sent to Mr. Anderson. On September 4, 2007, Mr. Anderson deposited the first two benefit checks into his Bank of America account. He continued to receive and cash or deposit monthly Option 1 benefit checks through January 2015. Mr. Anderson died on February 14, 2015. His wife notified the Division of Retirement, which stopped benefit payments in accordance with Mr. Anderson’s Option 1 selection. In March 2015, Mrs. Anderson found among her husband’s papers a copy of an executed Form FRS 110 that selected Option 3. Notwithstanding the telephonic communications with the Division of Retirement on July 20, 2007, the executed form indicates that it was notarized on July 23, 2007. Included in handwriting at the bottom of the executed form was the language, as suggested by Ms. Pepper: “This option supersedes option dated 7-02-07.” Mrs. Anderson also found a copy of Donna Pepper’s e-mail dated July 6, 2007, with instructions on how to change the selection of pension payments. Mrs. Anderson sent copies to the Division of Retirement and requested Option 3 spousal benefit payments. The Division of Retirement denied Mrs. Anderson’s request because it did not receive an Option 3 benefit selection before the copy Mrs. Anderson sent in March 2015. There was no evidence that the form was sent to the Division of Retirement before then. This, together with the fact that Mr. Anderson received and cashed or deposited seven and a half years’ worth of monthly Option 1 benefit checks, which were each over $1,200 more than the Option 3 benefit would have been, support a finding that Mr. Anderson actually selected Option 1 and never switched to Option 3. It is not clear from the evidence why Mr. Anderson kept a copy of an executed change from Option 1 to Option 3 after deciding not to send it to the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that Mr. Anderson selected benefit Option 1, finally and irrevocably and that Mrs. Anderson is not entitled to Option 3 spousal benefits. DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2016. COPIES FURNISHED: Nicholas E. Karatinos, Esquire Law Office of Karatinos Suite 101 18920 North Dale Mabry Highway Lutz, Florida 33540 (eServed) Joe Thompson, Esquire Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 (eServed) Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Ste. 160 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Petitioner was employed as a Police Sergeant with Metropolitan Dade County. He is 38 years old and has 13.83 years of creditable service under the Florida Retirement System. (Exhibit A) On February 16, 1973, Petitioner was involved in an automobile accident in Broward County, Florida while serving with a detached drug abuse unit. On February 25, 1974, Petitioner applied for disability retirement benefits under Section 121.091(4) and Section 121.021(13), Florida Statutes, stating: "I believe I am incapacitated for further service in Florida because of injuries received in an in-line-of-duty automobile accident that occurred on 16 February 1973." (Exhibit A) After considering the evidence submitted in support of Petitioner's application, the Administrator of the Florida Retirement System determined that insufficient information was submitted to substantiate a finding of total and permanent disability as provided by Section 121.091(4), Florida Statutes. As a result, Petitioner was notified on March 20, 1975 of the Administrator's intention to deny the subject disability retirement application. (Exhibit B) Notice of Petitioner's right to an administrative hearing pursuant to Chapter 120, Florida Statutes, was also provided at that time. On April 2, 1975, Petitioner notified the Respondent of his intention to Petition for an administrative determination of his disability application pursuant to Section 120.47(1), Florida Statutes. (Exhibit C) Whereupon, the Director of the Respondent requested that the Division of Administrative Hearings assign a hearing officer to conduct a hearing which was ultimately held at 1350 N.W. 12th Avenue, Miami, Florida on the 12th day of September, 1975. (Exhibit D) The first witness to appear at this hearing on Petitioner's behalf was Detective Pete Kreimes who is employed by Metropolitan Dade County. The witness testified that he was trained by the Petitioner for the narcotics section and the two later became personal friends. He has known Petitioner for about five (5) years. Mr. Kreimes testified that Petitioner was an outstanding investigator while employed by Metropolitan Dade County. While performing these duties, Petitioner participated in the physically demanding activities of a law enforcement officer. He related the circumstances surrounding Petitioner's accident of February 16, 1973, and the long range affects he felt the accident had on Petitioner's physical condition. This included Petitioner's apparent discomfort in walking, standing or sitting for extended periods of time. The witness also stated that Petitioner developed a serious drinking problem after the accident due to what he believed was the frustration of not being able to continue in police work and because of the financial problems being encountered. Mr. Kreimes felt there were no jobs available in the area of law enforcement wherein the Petitioner could render useful and efficient service on a full-time basis. The next witness to appear was one Dr. Gilbert. Dr. Gilbert is a Medical Doctor with specialties in Psychiatry and Neurology. He also holds a Ph.D.. degree in the field of Psychology. Dr. Gilbert detailed the neurological impairments to the cervical and lumbar areas of Petitioner's spine. The witness related that the Petitioner suffered from a post concussion syndrome following a brain concussion. The doctor also diagnosed a traumatic neurosis resulting from the pain and trauma of the accident and manifesting itself in tension and anxiety. The witness acknowledged Petitioner's allergies to various medications which might otherwise be used to alleviate muscle spasm, tension and some of the pain brought on by neurological probless. Dr. Gilbert felt that the combination of Petitioner's inability to alleviate pain in this manner and his various emotional problems led to the excessive use of alcohol. However, the witness did not feel that Petitioner's excessive use of alcohol was advisable; although, he did feel, considering Petitioner's allergies, that the only hope of Petitioner's dealing with his pain was by mental conditioning. Dr. Gilbert felt that the Petitioner had not reached maximum medical improvement, because he had not yet completed his diagnosis and work up on Petitioner's disability due to possible brain damage. However, he did feel that, due to the combination of Petitioner's post concussion syndrome, neurological and emotional problems, he was unemployable at this time, without regard to Petitioner's excessive drinking. Mr. Harold Dunsky also testified as an employment expert on behalf of the Petitioner. Mr. Dunsky holds B.A., M.A., and J.D. degrees and has worked in the area of job placement and vocational counseling for the State of Illinois and the U.S. Government for over twenty years. Mr. Dunsky testified that after interviewing the Petitioner and considering various unidentified medical reports, he felt the Petitioner was unemployable on a full-time basis. The final witness to testify was the Petitioner, Robert Barr. The Petitioner related his educational and employment experience which consisted of an in precriminology and approximately fourteen (14) years as a police officer with Metropolitan Dade County. Mr. Barr explained that the first indication of his allergy problems was in 1961 when his upper back, shoulders and arm began to ache while playing ball. As a result of his allergic reaction to the medication taken at this time, he suffered his first cardiac arrest. In 1966 the Petitioner suffered another cardiac arrest as a result of a penicillin shot administered during a bout with the flu. Another allergic reaction took place in a dentist's office in 1970 as a result of an injection of sodium penathol. The medical witnesses had been advised by Barr of his past allergic reactions. Petitioner next detailed the circumstances surrounding his accident in February of 1973. He also related his current physical limitations, his financial problems, his desire to return to the field of law enforcement and his frequent use of alcohol to alleviate his pains and problems. At this point the Deposition of Dr. William Scott Russell, Jr., Dadeland Medical Building, Suite 303, Miami, Florida, was made a part of the record. Dr. Russell is a neurologist who began treating the Petitioner on September 10, 1973. Dr. Russell testified that the Petitioner complained of shoulder and arm pain due to thoracic outlet syndrome. The witness stated that this could be caused by a so-called jerk-injury or as a secondary phenomena in association with muscle spasm produced by an underlying disc injury. Dr. Russell also explained an impairment to the lower lumbar region of Petitioner's spine. This was diagnosed as nerve roots irritation of the, S1 nerve root. (Dep. Russell, 20) The witness stated that the Petitioner had a history of low-back problems relating to an automobile accident which occurred several years prior to his accident in February of 1973. (Dep. Russell, p. 14) Dr. Russell stated that the Petitioner represented that the pain from his prior accident ceased over a period of eight (8) months. (Dep. Russell, p. 14 and 44) Dr. Russell stated that based upon Barr's statements to him Barr had apparently fully recovered from that accident. The witness also stated that the Petitioner had a congenital defect in the lower lumbar area of his spine. Dr. Russell however concluded that this congenital defect had not effected Barr prior to the February 1973 accident because Barr had not had any pain prior to that accident, and lack of pain would have been evidence of an absence of disease or problems with regard to the congenital defect. (Dep. Russell, p. 29) The witness testified further as follows: "Q. Doctor, do you have an opinion, based on the reasonable degree of medical probability, as to whether or not the laminectomy defect was, is related at all to the accident here? First of all, I don't think it is a laminectomy defect. I think a laminectomy implies a surgical defect. I think it is probably a bony, let's say a failure, of the bone to fuse over a specific area. Q. Does that contribute, Doctor, in your diagnosis of the disc, does that contribute to the pain and discomfort in the area that you found? A. By itself it should not but it can contribute to an unstable back which may, in turn, make it easier for that particular individual to have to sustain disc injury." (emphasis supplied) Dr. Russell also testified that the Petitioner had multiple and severe drug allergies. Dr. Russell testified that the Petitioner began consuming excessive amounts of alcohol as a substitute for various muscle relaxants. As a result of Petitioner's resort to alcohol he began experiencing episodes of alcoholic gastritis or peptic ulcer disease. (Dep. Russell, p. 38) When asked to express in layman's terms the extent of the Petitioner's physical limitations, Dr. Russell testified: "A. I don't -- I wouldn't consider him, at present, employable under any circumstances or under any quasi- responsible type position, either from the point of view of having to do any sort of physical activity or, I hate to say this, but from the point view of his reliability at this particular moment. Q. What do you mean by that, 'reliability'? A. I'm not certain that alcohol and reliability go hand in hand." (emphasis supplied)
The Issue The issue is whether the Department of Management Services, Division of Retirement, correctly excluded Petitioner from participation in the Florida Retirement System from August 18, 1995, through November 17, 1996.
Findings Of Fact Petitioner was hired by Dixie County on August 18, 1995, to work the roll-off site in Jena, Dixie County, Florida. At the time of his hiring, Petitioner's position was described as "Temporary Roll-Off Site Fill In." A roll-off site is where people take their garbage which is then transferred to the main facility for disposal. A "Temporary Roll-Off Site Fill In" is defined as someone who is called to work as needed. According to the Dixie County Payroll Records, Petitioner was employed as a "Temporary Roll-Off Site Fill In" from August 19, 1995, until November 18, 1996, when he became a "Part-Time Fill In Roll-Off" with an 80-hour biweekly schedule, until a permanent position could be filled. In July 1998, Petitioner's position became classified as permanent and his position description was changed to "Full Time Roll-Off Site." Testimony from Howard Reid, the road superintendent who was Petitioner's supervisor at the Jena roll-off site during the time period of August 18, 1995, to November 17, 1996, was that Petitioner was employed to fill the full-time position of Houston O. ("Hugh") Markham who had been fired from his employment with Dixie County in August 1995. Mr. Reid testified that Petitioner was employed in a regularly established position during this time period. No documentation was produced to substantiate the claim that Petitioner worked in a regularly established position from August 18, 1995, to November 17, 1996. Respondent's records show that Houston O. Markham was employed by Dixie County during the period of August 18, 1995, to November 17, 1996. Houston Markham was paid by Dixie County until December 1, 1996. December 1, 1996 is the pay date for the period beginning November 18, 1996. Based upon the payroll records, Petitioner began working 80 hours, biweekly, on November 18, 1996. This date coincides with Respondent's records for the last pay date of Houston Markham. The only time records in evidence for Petitioner are for the time period of November 3, 1996, to July 26, 1998. For the pay date of November 3, 1996, Petitioner was paid for 42 hours of work. For the pay date of November 17, 1996, Petitioner was paid for 53 hours of work. Thereafter, for the next 43 pay periods, Petitioner was paid for 80 hours of work biweekly (with one exception, the pay date of July 13, 1997, for which he was paid 76 hours). Petitioner's other witnesses, Joseph Ruth and Arthur Bellot, were not in a supervisory position over Petitioner from August 18, 1995, to November 17, 1996, and could not attest to Petitioner's employment during that time. Membership in the Florida Retirement System is compulsory for any person who fills a regularly established position, as defined by statute. A person filling a temporary position, as defined by statute, is not eligible to participate in the FRS. The agency would not report the temporary employee's work to Respondent. The first time Dixie County ever reported Petitioner for retirement purposes was in January 1998. After review, Respondent found that Petitioner was eligible to participate in the FRS effective November 18, 1996, based upon a Payroll Change Notice from Dixie County. The number of hours a state employee works is not dispositive of the issue of whether he or she is an employee in a regularly established position. An employee who works only two days a week, for example, would be a participant in the FRS if employed in a regularly established position. Based upon the documentation in its possession, Respondent enrolled Petitioner in the FRS effective November 18, 1996. Respondent requested that Petitioner submit tax documentation to demonstrate that he had worked full-time for Dixie County during the August 18, 1995, to November 17, 1996, period, as he claimed. Respondent submitted no documentation to support his claim to have been either a full-time employee or an employee in a regularly established position.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioner's request for participation in the Florida Retirement System for the period of August 18, 1995, through November 17, 1996. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 November, 2004. COPIES FURNISHED: Spencer Kraemer, Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Joseph Lander, Esquire Lander & Lander, Attorneys at Law Post Office Box 2007 Cross City, Florida 32628 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether Petitioner qualifies for retirement benefits as a joint annuitant of the late Roy Hartley, Jr.
Findings Of Fact Roy Hartley, Jr., died on June 11, 1994, with more than ten years of service as a member of the Florida Retirement System (FRS). Mr. Hartley was employed as a police officer with the Metro Dade Police Department. His Social Security Number was 267-70-3906. At the time of his death, Mr. Hartley had personally contributed the sum of $655.38 to the FRS. On October 29, 1993, Mr. Hartley designated Petitioner as the beneficiary of his retirement benefits on FRS Form M-10. After Mr. Hartley's death, Petitioner applied to the State of Florida, Division of Retirement, for benefits as Mr. Hartley's designated beneficiary. To be entitled to monthly retirement benefits, Petitioner must establish that she was a dependent of Mr. Hartley so as to qualify as a joint annuitant of his monthly retirement benefits. Section 121.091(7)(g), Florida Statutes (1994), contains the option that Petitioner seeks to exercise: (7)(g) The designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to the completion of 10 years of credible service but prior to actual retirement may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his death and the age the member would have attained on the commencement date of the deferred benefit elected by his beneficiary, paid in accordance with option 3 of paragraph (6)(a). Section 121.021(28)(c), Florida Statutes, contains the definition of the term "dependent beneficiary" that is pertinent to this proceeding: (28) Dependent beneficiary means any person designated by the member to receive a retirement benefit upon the member's death who is either: * * * (c) A person who is financially dependent for no less than one-half of his support from the deceased at retirement or at time of the death of such member, whichever occurs first. Rule 60S-6.001(34), Florida Administrative Code, defines the term "joint annuitant" as follows: JOINT ANNUITANT -- Means . . . any other person who is financially dependent where the other person is someone who is receiving one-half or more of his support from the member or is eligible to be claimed as a dependent or exemption on the Federal income tax return of the member. Petitioner and Mr. Hartley were not married, but they were living together at the time of his death. Except for a relatively short breakup, they had lived together for thirteen years. Petitioner was not claimed as a dependent on Mr. Hartley's federal income tax return. At the times pertinent to this proceeding, Petitioner worked part-time as a bartender. Respondent requires a person who is claiming to be a dependent of a deceased member pursuant to Section 121.021(28)(c), Florida Statutes, to document that the member contributed more than half of the alleged dependent's support. Stanley Colvin, the administrator of Respondent's retirement section, established that the Respondent typically reviews financial data for the year preceding the member's death in determining whether the deceased member contributed half of the alleged dependent's support. In making this determination, the Respondent determines the amount that the alleged dependent has to contribute to his or her own support and thereafter requires the alleged dependent to establish that the member contributed an amount equal to or more than that amount. Since the member died in June of 1994, Respondent in this case examined the W-2 statements for Petitioner and for Mr. Hartley for several years proceeding his death and for the year 1994. The 1993 W-2 statements reflect that Mr. Hartley had income from his employment of $67,360.23 while Petitioner had income from her employment of $9,450.00. Based on the differences between their earnings, it did not appear that there would be a problem with Petitioner's claim when Respondent's staff first reviewed the claim. The house in which Petitioner and Mr. Hartley lived at the time of his death was titled solely in the name of the Petitioner. This house was purchased in 1992. The fact that Petitioner owned the house only in her name caused Respondent's staff to question this claim. After learning about the house, Respondent's staff asked Petitioner to document that Mr. Hartley contributed more than half of her support and requested that she provide copies of cancelled checks and tax returns. In response to that request, Petitioner provided copies of certain cancelled checks and copies of her tax returns for 1992 and 1993. 1/ Mr. Hartley and Petitioner routinely gambled at Seminole Bingo. The down payment for the house came from their bingo winnings. Although they both gambled at bingo, Petitioner usually sat in the chair so that she would be the one to claim any bingo winnings. These winnings were reported on Petitioner's income taxes for the years 1992 and 1993. For 1992, Petitioner claimed bingo winnings in the amount of $60,531 and wagering losses in the amount $45,850. For 1993, Petitioner claimed bingo winnings in the amount of $21,860 and wagering losses in an equal amount. Petitioner's federal income tax return for 1993 reflected an adjusted gross income of $31,508. This sum included bingo winnings of $21,860. Petitioner testified, credibly, that they did not go to bingo as frequently in 1994 because Mr. Hartley had become interested in racing automobiles, but there was no evidence as to whether Petitioner or Mr. Hartley won at bingo during 1994 prior to Mr. Hartley's death. After reviewing the documentation provided by Petitioner, the Respondent denied monthly benefits to her. Respondent's denial was based on its interpretation of its rule that all income, including gambling winnings, should be considered as being available for the support of a person claiming to be a dependent of a member of the FRS. 2/ Respondent is not concerned with whether the alleged dependent loses his or her winnings at bingo or uses the winnings to pay bills. Respondent allocated the house payments, household expenses, and grocery costs paid by Mr. Hartley to have been one-half for Petitioner's support and the other half for his own support. 3. Respondent determined, correctly, that the documentation did not support a findings that Mr. Hartley contributed more than half of Petitioner's support when the bingo winnings were considered. Respondent advised Petitioner that she was entitled to a refund of Mr. Hartley's contribution to the FRS in the amount of $655.38. Petitioner established that Mr. Hartley paid the house payment ($683.00 per month in 1994), that he paid most of the household expenses, and that he routinely gave Petitioner cash for food, clothes, and miscellaneous expenses. The only bill routinely paid by Petitioner was the utility bill. She also paid her car bill and her auto insurance bill. Mr. Hartley occasionally assisted her with those bills. Based on the totality of the evidence, 4/ including the discrepancy between Mr. Hartley's earned income and Petitioner's earned income, 5/ the fact that Mr. Hartley paid the housing expenses, except for utilities, and the fact that he routinely gave Petitioner cash to use for her support, it is found that Mr. Hartley contributed more than $10,000 a year toward Petitioner's support. The evidence does not, however, support a finding that Mr. Hartley contributed more than $31,000 a year toward Petitioner's support. 6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and approves Petitioner's application for monthly benefits as a joint annuitant of Roy Hartley, Jr. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 1st day of August, 1996.
The Issue Whether Petitioner transferred to the Florida Retirement System (FRS) Investment Plan from the FRS Pension Plan, pursuant to section 121.4501, Florida Statutes (2012).1/
Findings Of Fact Petitioner is a 32-year-old former employee of the Florida Department of Corrections. Petitioner was employed as a correctional officer at the Northwest Florida Reception Center in Washington County, Florida from June 14, 2004, until he resigned on July 23, 2012. Petitioner is a fully vested member of the State of Florida Retirement System (FRS). Respondent, State Board of Administration, is the agency with the duty and responsibility to administer the State of Florida Retirement System Investment Plan. See § 121.4501(8), Fla. Stat. In mid-2011, Petitioner decided to look for other employment and began researching his retirement options. Petitioner discovered he needed to be employed by the State for six years to be fully vested in the FRS and have the option to transfer from the FRS Pension Plan (a defined benefit plan) to the FRS Investment Plan (a defined contribution plan). Sometime between May 1 and 10, 2012, Petitioner accessed the FRS website, either downloaded or printed the FRS “second election form” –- the paperwork required to transfer his retirement account to the Investment Plan -- and completed the form. Although Petitioner does not remember the exact date, Petitioner approached Ms. Charity Pleas, Secretary Specialist for the Chief of Security, and asked her to file his second election form for him by facsimile transmission (fax). Ms. Pleas testified she faxed the document to the number on the form. Petitioner observed Ms. Pleas place the paperwork into the fax machine, dial a fax number, complete the fax transmission, and retrieve a fax transmission confirmation report. Ms. Pleas handed the confirmation report to Petitioner. Petitioner cannot be certain what became of the confirmation report or his original second election form. Petitioner did not contact anyone with the Florida Retirement System to confirm receipt of his second election form. Ms. Pleas often sends faxes on behalf of employees at the Reception Center where she has been employed since 2007. Ms. Pleas occasionally receives complaints from employees that a fax she has sent on their behalf was not received by the other party. Sometimes this happens despite the fact that she has received a fax confirmation report. Petitioner began employment in the private sector with Power South on July 30, 2012. In early August 2012, Petitioner contacted the FRS to find out if the retirement funds were available to move into a 401K account with his new employer. He spoke with someone named “Jason” who said there was no record of a second election having been made by Petitioner. An investigation ensued. Aon Hewitt is the Plan Choice Administrator for the FRS Investment Plan. Aon Hewitt provides services to the SBA in connection with the Investment Plan, including processing enrollments and second elections. Lynette Murphy is Benefits Operations Manager for Hewitt Associates, LLC, a division of Aon Hewitt. Ms. Murphy researched the issue of whether Petitioner’s second election form was received by Aon Hewitt. She conducted several searches of the company’s files, including a search by Petitioner’s name (both first and last names) and social security number. In case the second election form had been received without a member name or social security number, Ms. Murphy also conducted a search on the numbers “99” and “90,” the codes assigned to forms received which are unidentifiable. Ms. Murphy’s search included not only forms received between April 1, 2012 and July 30, 2012, but also all dates covering the life of Petitioner’s eligibility and enrollment in the FRS. Ms. Murphy was unable to find any record of a second election form filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order denying the relief requested in Petitioner’s Petition for Hearing. DONE AND ENTERED this <day> day of <month>, <year>, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 <day> day of <month>, <year>.
The Issue The issues are whether Petitioner's employment as a substitute teacher is creditable service under the Florida Retirement System, entitling her to retirement benefits and whether she may purchase retirement credit for out-of-state and federal service prior to vesting.
Findings Of Fact Petitioner, aged 53, applied for retirement benefits from the Florida Retirement System (FRS) on October 20, 2003. Petitioner has 4.53 years of creditable service with the FRS due to her employment as a full-time teacher with the Alachua County School Board (School Board). She worked for the School Board from sometime in the early 1970s through May 1977. In May 1977, Petitioner terminated her employment with the School Board. She then joined the military, serving four years of active duty. After completing her military service in 1981, Petitioner worked out of state as a civil service employee with the Federal government. She also worked for a period of time in the private sector. In the 1990s, Petitioner returned to Alachua County, Florida. She worked as a substitute teacher for the School Board for approximately four years, from November 21, 1999 through February 14, 2002. Before beginning her employment as a substitute teacher/temporary employee in 1999, Petitioner signed a document entitled "Acknowledgement of FRS Status and Alternative Plan." This document clearly advised Petitioner that her employment as a substitute teacher was not covered under FRS. Petitioner was not employed by a participating employer in a regularly established position on July 1, 2001. She needs an additional 1.47 years of credible service in order to vest in FRS with six years of credible service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to FRS benefits. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Robert R. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Carolyn Johnson-Rollins Apartment N118 2701 Northwest 23rd Boulevard Gainesville, Florida 32605 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
