The Issue Whether Petitioner is eligible to participate in the SUSORPS or whether he is a retiree for purposes of Florida's state retirement system.
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) and the State University System Optional Retirement Program (SUSORP). Petitioner, Tyler Smith, was employed by the University of Central Florida (UCF) from August 8, 2003, until he resigned his employment with UCF on or about August 22, 2005. When he was initially employed by UCF, Petitioner elected to join the SUSORP and selected TIAA-CREF as his provider company. During his initial employment, Petitioner's TIAA-CREF account was entirely funded by employer contributions. Petitioner did not make any personal contributions to the account. In August 2005, Petitioner resigned his employment with UCF effective August 22, 2005. On or about August 16, 2006, Petitioner took a distribution from his SUSORP TIAA-CREF account in the approximate amount of $6,772.23. Petitioner asserts that, while he requested the total amount to be distributed to him in 2006, the entire amount was not so distributed. Petitioner maintains that there remains a balance of $2,432.66 in his TIAA-CREF account. That testimony is unrebutted and is accepted. Petitioner became reemployed by UCF on or about August 8, 2010. Petitioner was advised by UCF that he was not eligible to rejoin the SUSORP and that if he disagreed with that determination, he could inquire with Respondent. On or about August 17, 2010, Petitioner requested that Respondent review his status and provide a determination of his eligibility to participate in a state-administered program. At the time of this request, Petitioner was 36 years old. Robert Henning is a Retirement Benefits Administrator for the Division. At hearing, he explained that if an employee takes a distribution upon termination from his employment, he is treated as a retiree. If that person returned to work prior to July 1, 2010, he would be eligible to rejoin the retirement system. However, if that person became re-employed after July 1, 2010, he would not be eligible to rejoin because of a change in the law. By letter dated August 27, 2010, Petitioner was notified of Respondent's determination that, because he had terminated his employment and taken a distribution from his SUSORP TIAA-CREF account, he was deemed a retiree. The letter reads in pertinent part: This letter is in response to your request for your account to no longer reflect that you have retired under a state administered retirement plan. Under s. 121.35(5), Florida Statutes (F.S.), "retiree" means a former participant of the optional retirement program who has terminated employment and has taken a distribution as provided in this subsection. The distributions permitted under s. 121.35(5), F.S., include a lump-sum distribution to the participant. Based upon the information provided by TIAA- CREF, you have taken a distribution as noted above and are properly reflected as a retiree within the definition provided in the statutes. Therefore, we are not able to comply with your request. The August 27, 2010 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 denying Petitioner's request to restore his eligibility to participate in SUSORP. DONE AND ENTERED this 23rd day of February, 2011, 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 23rd day of February, 2011. COPIES FURNISHED: Tyler W. Smith 1349 Maywood Avenue Deltona, Florida 32725 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System Deferred Retirement Option Program (DROP) when she submitted the DROP paperwork to her employer, but that paperwork was not submitted to Respondent within the timeframe set forth by statute or administrative rule. PROCEDURAL HISTORY On March 10, 2021, Respondent, the Department of Management Services, Division of Retirement (the Division), issued a letter to Petitioner, Celeste Lyons (Ms. Lyons or Petitioner), denying her application to participate in DROP because the Division did not receive her application to participate within the required time, pursuant to section 121.091(13)(a)2., Florida Statutes (2020), and no provision in Florida law would allow the Division to approve her for participation in DROP after the eligibility period.1 On April 7, 2021, Ms. Lyons filed an Amended Request for Formal Administrative Hearing with the Division. The Division transferred the matter to DOAH, where it was assigned and set for hearing. On June 28, 2021, Petitioner moved to amend her Request after discovering the Division was also relying on Florida Administrative Code Rule 60S-11.002(2) and (3)(a) to deny her participation in DROP. Petitioner was granted leave to amend her Petition for Formal Administrative Hearing, and this matter proceeded on the Second Amended Request for Formal Hearing submitted July 13, 2021 (Second Am. Req.). After three continuances, the final hearing was held on September 16, 2021. Petitioner presented her own testimony and the testimony of Kathy Gould, Bureau Chief of Retirement Calculations for the Division. Petitioner's Exhibits P1 through P34 and P36 were admitted into evidence. 1 All references to the Florida Administrative Code Rules and Florida Statutes are to the 2020 codifications. The Division presented the testimony of Garry Green, Policy Administrator for the Division. Respondent's Exhibits R2 through R5, R6-1, R6-2, R7, R10 through R13, R15, and R16 were admitted into evidence. At the outset of the hearing, the parties agreed to submit a joint stipulation of facts regarding the timeline of events. The Stipulation of Facts was filed on October 4, 2021, and is incorporated into this Recommended Order when appropriate. The Transcript of the hearing was filed on October 4, 2021. Both parties timely filed proposed recommended orders, which have been considered in the preparation of this Recommended Order.
Findings Of Fact Petitioner, Ms. Lyons, is a Fiscal Administrator for the Office of the State Attorney, Twentieth Judicial Circuit (SAO-20). Respondent, the Division, is a part of the Department of Management Services (Department). The Division is responsible for administering the retirement plans and programs under the Florida Retirement System (FRS). DROP is a retirement benefits program that entitles an eligible member of FRS to defer receipt of retirement benefits while continuing employment with the employer. § 121.091(13), Fla. Stat. The deferred benefits accrue with FRS on behalf of the member, with interest compounded monthly, for the specified period of DROP participation. Id. After the member terminates employment with the employer, the member receives the total DROP benefits and begins to receive the previously determined normal retirement benefits. Id. SAO-20 has been Ms. Lyons' employer for more than thirty years. Employees of SAO-20 participate in FRS and, if eligible, can choose to participate in DROP. SAO-20 obtained administrative services through the Justice Administrative Commission (JAC). JAC is a statutorily created "central state office" that provides "administrative services and assistance when possible to and on behalf of the state attorneys and public defenders of Florida, the capital collateral regional counsel of Florida, the criminal conflict and civil regional counsel, and the Guardian Ad Litem Program." § 43.16(5), Fla. Stat. These services include accounting, payroll, benefits, and retirement assistance to the above cited entities that participate in FRS. Although JAC was not Ms. Lyons' employer, it did have access to employees' personnel files. Moreover, the Division had trained JAC personnel on FRS and DROP, and the Division authorized JAC to accept DROP paperwork from various employers and submit it to the Division. JAC, however, was not part of the Department or the Division. Rather, JAC served as a conduit between SAO-20's human resources office and the Division for the processing of all the retirement benefit paperwork. MS. LYONS' DROP ELIGIBILITY AND PAPERWORK Ms. Lyons' normal retirement date was January 1, 2020. Ms. Lyons' 12-month eligibility window to elect to participate in DROP was between January 1 and December 31, 2020. § 121.091(13)(a)2., Fla. Stat. Before this date, in February and August 2019, Ms. Lyons requested estimates of her retirement benefits from the Division. These estimates were generated by the Division and sent directly to Ms. Lyons' home address. In the "Comments" section of the estimates created by the Division, it explicitly states, "If the DP-ELE is not received in our office by 12/31/2020, your eligibility to participate in DROP is forfeited." The August 2019 estimate projected that after 60 months, Ms. Lyons would have received $113,826.03 if she entered (or began participation in) DROP during her first month of eligibility, January 2020. In January 2020, Ms. Lyons continued to work for SAO-20 but filled out the Division's paperwork for participating in DROP with the help of Rosemarie Mitchell, Director of Human Resources for SAO-20. These forms included the following: Notice of Election to Participate in [DROP] and Resignation of Employment (DP-ELE); Application for Service Retirement and [DROP] (DP-11); Option Selection for FRS Member (FRS-11o); [FRS] Pension Plan Spousal Acknowledgment Form (SA-1); and [FRS] Pension Plan Retired Member and DROP Participant Beneficiary Designation Form. (FST-12). On these forms, Ms. Lyons certified she elected to participate in DROP and would resign her employment on the date she terminated from DROP. Ms. Lyons listed "January 1, 2020," as her DROP start date and "December 31, 2024," as her DROP termination resignation date. Petitioner's employer, SAO-20, also certified that Ms. Lyons would "be enrolled as a DROP Participant" on January 1, 2020, and that Ms. Lyons would "terminate ... her employment" on December 31, 2024. All of the above forms were filled out, signed by Ms. Lyons, and notarized on January 9, 2020. On January 9, 2020, Ms. Lyons submitted the above forms to Ms. Mitchell. On that same day, Ms. Mitchell emailed Ms. Lyons' DROP paperwork to the JAC Retirement Coordinator. Jessica Estes (formerly known as Jessica Liang), a Senior Human Resources Coordinator for JAC, acknowledged JAC's receipt of Ms. Lyons' DROP paperwork and requested two new FST-12 forms and more documentation verifying Ms. Lyons' date of birth. The requested information was not required to be eligible or participate in DROP. Ms. Estes' normal procedure was to forward DROP paperwork to the Division before the end of the month in which it was received. If she had followed this practice, she should have sent in Ms. Lyons' DROP paperwork to the Division on or before January 31, 2020. She did not. In fact, no one in SAO-20 or JAC forwarded Ms. Lyons' DROP paperwork to the Division before December 31, 2020. This mistake was not discovered until more than a year later. On February 25, 2021, JAC discovered it had failed to submit the DROP paperwork for Ms. Lyons to the Division. On February 26, 2021, after JAC contacted the Division, Ms. Estes emailed Petitioner's DROP paperwork, including Forms DP-ELE and DP-11, to Kathy Gould, Chief of the Bureau of Retirement Calculations at the Division. Again, there is no dispute this was outside of Ms. Lyons' 12-month eligibility window. On March 5, 2021, SAO-20 notified Ms. Lyons of JAC's failure to submit her DROP paperwork to the Division within the eligibility period. On March 10, 2021, the Division issued an Administrative Notice to Ms. Lyons denying her participation in DROP and informing her that she was not eligible to participate in DROP because the application and election were received outside her 12-month eligibility window (and past the December 31, 2020, deadline). Relying on sections 121.091(13)(a)2. and 121.021(29)(a), the Division informed Ms. Lyons that a member must "submit a form DP-ELE ... to the Division ... within twelve months of the date you first bec[o]me eligible to participate," and because the Division "received [Ms. Lyons'] DP-ELE after the end of [her] eligibility period, [she was] not eligible to participate in DROP." The denial letter did not reference any administrative rule. The testimony established that the Division has accepted DROP paperwork after the eligibility period when there is a dispute about whether the paperwork has been received by the Division within the 12-month eligibility window. In these cases, the Division has, after an investigation, discovered that there was a technical mistake on the Division's end that prevented submission of the DROP paperwork within the statutory deadline. For example, in the past, the Division has accepted DROP paperwork as timely received when an FRS member submits DROP paperwork via facsimile, but it does not print out on the Division's end because of a technical issue; or where an email with DROP paperwork attached was sent by the member to the Division within the eligibility period, but did not upload or arrive in the Division's inbox until after the end of that period. That is not the case for Ms. Lyons. Her documentation was not sent to the Division within the statutory timeframe, and there was no technical (or human) error on the Division's end of the communication. Any error was on the part of JAC or SAO-20.
Conclusions For Petitioner: George T. Levesque, Esquire James Timothy Moore, Esquire Patrick Hagen, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 For Respondent: Gayla Grant, Esquire Thomas E. Wright, Esquire Whitney Rebecca Hays, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
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 denying Celeste Lyons from participation in DROP. DONE AND ENTERED this 2nd day of November, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 2nd day of November, 2021. COPIES FURNISHED: George T. Levesque, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Patrick Hagen, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Thomas E. Wright, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 James Timothy Moore, Esquire GrayRobinson, P.A 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Whitney Rebecca Hays, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Kristen Larson, Interim General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to a refund of retirement contributions for the period from February 1, 1960, through January 1975.
Findings Of Fact Until January 1975, the Florida Retirement System and its predecessor, the State and County Officers and Employees Retirement System (SCOERS), were contributory retirement plans, in which state employees contributed a portion of their wages toward their retirement benefits. In January 1975, FRS became a non-contributory retirement plan, in which the employer paid all contributions to the plan. On February 1, 1960, Petitioner, who was then known as Rebecca Jamis or James Lee, began her state employment at Florida State Hospital (FSH), located in Chattahoochee, Florida. During her employment, Petitioner was enrolled in the state’s retirement plan and contributed $2,188.01 to that plan. In 1980, Petitioner was convicted of a felony offense and was sentenced to prison. She began serving her sentence in state prison in June 1980. Due to her imprisonment, Petitioner’s employment at FSH terminated on July 29, 1980. At some unknown date, Respondent received form FRS-M81 requesting a refund of Petitioner's contributions to the state’s retirement plan. Pursuant to the state's document retention policy, the original form was destroyed many years ago with a microfilmed copy of the front of the form retained by DMS. The microfilmed copy of this form does not reflect the date the form was signed. Additionally, except for the agency number and various signatures, information contained in the refund request form was typed in. The date of termination of Petitioner’s employment was also typed on the form, indicating the form was completed after Petitioner was imprisoned. More importantly, the form was purportedly signed by Petitioner with the name she used at the time. However, the address on the request was not Petitioner’s residence but was the 1980 address of Florida State Hospital Credit Union. At the time, Petitioner had a loan at the credit union, although she denies having an account there. Petitioner also did not hear any more from the Credit Union about her loan and does not know what happened to it. The regularly kept records of the Division indicate that on November 4, 1980, pursuant to this request for refund, Respondent issued Warrant No. 264829 in the amount due Petitioner for a refund of her retirement contributions. The warrant was issued to Petitioner and mailed as instructed to the address of the credit union. Again due to the passage of time, a copy of this warrant is no longer available. Moreover, the credit union records are not available. However, Charlene Fansler performed a search of un- cashed state warrants for Warrant No. 264829. The warrant was not on the list of warrants that remained outstanding. Further, the warrant had not escheated to the State as abandoned property. As such, the evidence demonstrated that the warrant was paid by the State. In 1990, at the age of 60 and several years after her release from prison, Petitioner requested a refund of her retirement contributions. On May 24, 1990, Respondent denied Petitioner’s request based on the 1980 refund of those contributions. At the time, Respondent did not advise Petitioner of her chapter 120 hearing rights; and therefore, did not provide Petitioner with a clear point of entry for an administrative hearing. However, Petitioner was clearly aware that DMS claimed that she had been issued a refund of her contributions and was, therefore, not entitled to a further refund. Petitioner took no action in 1990 even though she did not personally receive the 1980 refund because and claimed to not have signed the refund request form. In 2012, 32 years after the 1980 warrant was issued and 22 years after the 1990 denial of her request for refund, Petitioner, at the age of 82, again requested a refund of her retirement contributions based on her claim that she did not sign the 1980 refund request form and the fact that she did not personally receive the refund warrant. Respondent submitted the microfilmed copy of the signed refund request form and known handwriting exemplars of Petitioner's signature to the Florida Department of Law Enforcement (FDLE) laboratory for analysis. Kesha White, a handwriting analyst with FDLE, analyzed the documents and concluded that they were more likely than not signed by the same person. Her finding was not conclusive due to the limits of analyzing signed documents preserved on microfilm. Indeed, the signatures on the refund form and the known handwriting samples of Petitioner's signature are very similar and appear to be by the same person. In this case, the better evidence demonstrates that Petitioner signed the 1980 refund request form and, due to the passage of time, has simply forgotten that she did so. By signing that form, Petitioner instructed Respondent to issue and mail the warrant to the address for the credit union listed on the form. Respondent complied with that request. Given these facts, Petitioner is not entitled to another refund of her retirement contributions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order finding that Petitioner was issued a refund of retirement contributions for the period from February 1960, through January 1975, and dismissing Petitioner's request for hearing. DONE AND ENTERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 21st day of May, 2013. COPIES FURNISHED: Rebecca Thomas 1929 Hamilton Street Quincy, Florida 32351 Thomas E. Wright, Esquire Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 Dan Drake, Director Division of Retirement Department of Management Services Division of Retirement Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services Division of Retirement Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue is whether to grant Petitioner's request that her deceased husband's selection under the Florida Retirement System be changed from Option 1 to Option 3.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Clara F. Holland, seeks to change her late husband's selection under the Florida Retirement System from Option 1 to Option 3 on the ground he was mentally incompetent to make a rational decision when the selection was made. Respondent, Division of Retirement (Division), has denied the request on the grounds that the late husband, William T. Holland (Holland), cashed or deposited his Option 1 retirement benefits from February 1993 until his death in December 1997, and that the law prohibits a change of options under these circumstances. Counting his state and military service, Holland accrued almost thirty years of creditable service with the Florida Retirement System between 1959 and early 1993, when he retired, due to a disability. In the spring of 1990, while employed at Florida State Hospital as a vocational instructor II, he first began contemplating retirement and contacted the Division requesting an estimate of benefits. In April or May 1990, Holland was sent an estimate of benefits, a pamphlet entitled "Preparing to Retire," and an "OPT FRS form," which explained in detail the various retirement options available. Among these were Options 1 and 3. In general terms, the first option paid the largest monthly benefits but terminated upon the death of the retiree. The third option paid smaller benefits, but if the retiree predeceased his spouse, the spouse would continue receiving benefits for her lifetime. This was fully explained in the form. On October 8, 1992, Holland was admitted to Tallahassee Community Hospital (TCC) suffering from recurrent transient ischemic attacks. After various tests were run, Holland underwent an emergency carotid endarterectomy to alleviate a blockage in his left carotid artery. During that surgery, he suffered a stroke, which, among other things, paralyzed his left side and temporarily confined him to a wheelchair. Immediately after the stroke, he could not speak or recognize family members, and he was totally dependent on others. Holland was eventually discharged from TCC on October 22, 1992, and referred to Capital Rehabilitation Hospital (CRH) for additional physical and speech therapy. At the time of discharge from TCC, his treating neurologist, who did not testify at final hearing, noted in the patient records, and without further explanation, that he had "returned to essentially his normal mental status." As a medical record, and an exception to the hearsay rule, this notation constitutes the only competent evidence of record from a medical doctor concerning Holland's mental status at that time. Holland remained at CRH until November 25, 1992, or the day before Thanksgiving. During his month-long stay at CRH, he was given a course of rehabilitation treatment which included physical therapy, occupational therapy, speech therapy, psychology, and recreation. In addition, his brain function was evaluated by a certified speech language pathologist, Linda Boynton, who presented expert testimony as a speech pathologist in this cause. Boynton had no independent recollection of Holland; instead, she based her deposition testimony on the evaluation and testing data she compiled in October and November 1992 while treating him. According to Boynton, because of a deficit in the right side of his brain, Holland was disoriented in terms of time and date; his brain could not interpret all of the images that it was picking up; he had difficulty with remembering, retaining, or recalling facts; and he had problems with the higher levels of mental activity. In addition, while he could read "chunks" of words, he could not read whole sentences. She also opined that at the time she was evaluating him, Holland would have been unable to remember the information contained in the four retirement options even if it was explained to him. Boynton conceded, however, that Holland's stroke was "mild," his comprehension was "adequate," and he scored "moderate" in the cognitive areas. She also confirmed that stroke victims could improve in a matter of days, and that everyone's recovery is different. She had no firsthand knowledge of Holland's mental status on November 7, 1992, the critical date in this dispute. Finally, Boynton was not a medical doctor, and her expertise was limited to speech pathology. For these reasons, her testimony has not been accorded the weight given to the notation in Holland's medical records during his stay at TCH. Shortly after being transferred to CRH, that facility began allowing Holland to go to his home in Sneads, Florida, on "weekend passes." While at home on November 7, 1992, a Saturday, Holland decided to make application for disability retirement with the State. The record does not reflect the person who actually obtained the retirement papers from the Division, but Holland's daughter carried them to his treating physicians so that they could verify in writing the nature of his disability. With the assistance of his wife, Holland completed Division Form FR-13 and selected Option 1, which extended retirement benefits for his lifetime only. In his wife's words, Option 1 was selected because "I don't think we knew we had a choice." At that time, Petitioner says her husband was still strapped in a wheelchair, he was mentally confused, and he could only briefly converse with others. Petitioner also signed the form since there is a requirement that if Option 1 is selected by a married retiree, the spouse must sign the form. Petitioner telephoned William "Bubba" Nelson, Jr., a second cousin who was chief of police in Sneads, and asked that he stop by the house that morning, witness Holland sign the form, and notarize the application. Nelson agreed and notarized the document as requested. The entire visit took no more than five minutes. At hearing, Nelson recalled that Holland used a walker to come into the den to sign the document; he did not appear to be "confused" when he signed the application; he did not ever lose his train of thought; he did not struggle to think of a word while speaking; his "mental capacity seemed to be not affected," and the two were able to engage in small talk for a minute or so. Petitioner then carried the papers to the Division's offices in Tallahassee on November 9, 1992, but was told that her husband needed to sign the form in one other place. Accordingly, she carried the form to CRH and obtained her husband's signature. A stamp on the document reflects that the fully executed document was later filed with the Division on November 13, 1992. When she filed the forms, Petitioner did not ask for any additional information regarding the various options; had she done so, counseling was available at the Division during normal business hours. When the application was filed, Holland had 1.84 years of military service; he also had refunded service from October 1959 to October 1961 and September 1963 to February 1966. Accordingly, on January 12, 1993, the Division advised Holland that $3,334.68 was due if he intended to claim that service. If he did so, his Option 1 benefits would increase almost $200.00 per month. The form requested that Holland notify the Division in writing only if he wished to retire with paid-on service, and not claim his military and refunded service. Finally, the form advised him in bold print as follows: YOU HAVE CHOSEN OPTION 1. YOUR OPTION SELECTION CANNOT BE CHANGED AFTER YOU CASH OR DEPOSIT ANY BENEFIT PAYMENT. The record does not specifically show if Holland opted to purchase his military and refunded service. However, it can be reasonably inferred that he did since the first benefit check described in Respondent's Exhibit 4 roughly equated to what his estimated benefits would have been under Option 1 if such service had been purchased, and there is no record of any written notice to the Division by Holland that he did not wish to purchase this service. Holland's first benefit check was issued on February 5, 1993, and mailed to him on February 9, 1993. That check, and all subsequent monthly checks until his death in December 1997, were cashed or deposited by Holland. They totaled $55,830.72, or more than his total deposits to the retirement system. Therefore, when he died, Petitioner was not due any refunded contributions or future monthly benefits. If Petitioner prevails in this action, however, she would be required to offset any future benefits by approximately $22,000.00, which represents the difference between the benefits payable under Options 1 and 3 during the lifetime of her husband. In August 1994, Holland received a new driver's license with the only restriction being that he had to drive a vehicle with an automatic transmission. He used his license to drive to Marianna for physical rehabilitation treatement. At no time was Holland ever adjudicated incompetent or incapacitated by a court. It is fair to state that he experienced gradual but continued improvement from the time of his release from the hospital until his death in December 1997.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request that her late husband's election of retirement benefits be changed. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1999. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Robert B. Button, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stanley M. Danek, Esquire 2114 Great Oak Drive, Suite 200 Tallahassee, Florida 32303
The Issue The issue in this case is whether Petitioner, a surviving beneficiary, is entitled to change the Florida Retirement System retirement benefits 1 All references to chapter 120 are to the 2019 version. payment option selected by her now-deceased spouse, a member of the Florida Retirement System.
Findings Of Fact Respondent, Department of Management Services, Division of Retirement, is the state agency charged under chapter 121, Florida Statutes (2002),2 with administering the Florida Retirement System ("FRS"). Petitioner is the spouse of James L. Williams, now deceased, who was employed by the School District of Palm Beach ("District) for 38 years, and was a member of the FRS. Williams retired from his employment with the District on August 23, 2002. At that time, he executed the Florida Retirement System Application for Service Retirement Form, Form FR-11. On Form FR-11, he designated Petitioner as his primary beneficiary and Jones as his contingent beneficiary. Williams signed this form, and his signature was notarized. Also on August 23, 2002, Williams executed the Florida Retirement System Option Selection for FRS Members Form, Form FRS-11o. On that form, he selected FRS retirement benefits payment Option 2, and designated that choice by writing an "X" on the line next to Option 2. Option 2 was described on Form FRS-11o as: A reduced monthly payment for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. 2 All references to chapter 121 are to the 2002 version of the Florida Statutes, which was in effect at the time that the retirement benefits application and option selection forms that have given rise to this proceeding were executed. Form FRS-11o contained a section, immediately below the description of Option 2, that was required to be completed by the spouse of a married FRS member who had selected Option 1 or Option 2. On August 23, 2002, Petitioner completed, signed, and dated that section, confirming that she was the legal spouse of Williams and acknowledging that she was informed that Williams had selected either Option 1 or Option 2. The purpose of that section on Form FRS-11o is to inform the spouse of the FRS member that, by the member's selection of either Option 1 or Option 2, the surviving spouse is not entitled to receive a continuing benefit for the rest of his or her life. The last sentence on Form FRS-11o, immediately above the space for the FRS member's signature, states in pertinent part: "[m]y retirement becomes final when any payment is cashed . . . [or] deposited." DeVonnia Jones was present with Williams at the time he was given Form FR-11 and Form FRS-11o to execute. Jones testified that when Williams arrived at the District office on August 23, 2002, Form FR-11 and Form FRS-11o already had been filled out by District staff, and were presented to him by his supervisor, who informed him that he needed to retire or he would be terminated. According to Jones, Williams did not wish to retire at that time. Jones asked District staff how much more Williams' monthly benefits would be if he did not retire for another year or two, and was told that Williams' benefits would be between $25 and $30 more per month. According to Jones, "my dad basically shed a couple tears. He was not comfortable, but he went ahead and signed it because I told him to, because they made it seem like he wasn't going to be eligible to get what he was supposed to get." Williams signed and dated Form FRS-11o on August 23, 2002, and his signature was notarized. On August 28, 2002, Respondent sent Williams a document titled "Acknowledgement of Service Retirement Application." This document stated, among other things, that Williams had selected FRS Option 2, and that his retirement was effective September 2002. At the bottom of this document was a standalone paragraph, in bold face type, that read: "ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE OR CHANGE OPTIONS. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED!" Also on August 28, 2002, Respondent sent Williams a document titled "Florida Division of Retirement Estimate of Retirement Benefit (Estimate only, subject to final verification of all factors)." This document provided information regarding the amount of the monthly benefits Williams would receive for the four options offered under the FRS. A statement in bold face type at the bottom of the document read: "Comments: You have chosen Option 2. Your option selection cannot be changed after you cash or deposit any benefit payment." Had Williams wished to change his retirement benefits payment option, he could have done so up to the time he cashed or deposited a retirement benefits payment. Williams began receiving his monthly FRS retirement benefits payments from Respondent on October 4, 2002. He cashed or deposited the first FRS benefits warrant (Warrant #0618275) that he received. Thereafter, Williams received monthly FRS retirement benefits payments until his death on April 26, 2010. Williams received a total of 92 monthly benefits payments before his death. All of the FRS retirement benefits payment warrants issued to Williams were deposited or cashed. On May 17, 2010, Respondent contacted Petitioner to inform her that she needed to complete a Florida Retirement System Pension Plan Application for Beneficiary of Monthly Retirement Benefits Form, Form FST- 11b, in order for her to receive monthly FRS retirement benefits payments as Williams' beneficiary. In the contact letter, Respondent informed Petitioner that "you will receive the same gross monthly benefits to which the member was entitled through August 31, 2012." Petitioner completed Form FST-11b on June 25, 2010, and began receiving FRS monthly benefits payments on June 30, 2010. Petitioner received a total of 28 FRS retirement monthly benefits payments. The last warrant issued to Petitioner (Warrant #0375196) was issued on August 31, 2012. All of the warrants issued to Petitioner were cashed or deposited. In sum, Williams and Petitioner collectively received a total of 120 FRS retirement monthly benefits payments, pursuant to Option 2. All of the warrants issued to Williams, and then to Petitioner, as his beneficiary, were deposited or cashed. Petitioner testified that beginning in 2003, she made numerous attempts, over a period of years, to contact the District and Respondent regarding changing the FRS retirement benefits payment option that Williams had selected on August 23, 2002. During this time, Williams and Petitioner continued to cash or deposit the benefits payment warrants they received from Respondent. In this proceeding, Petitioner does not claim that Williams accidentally selected Option 2, or that he intended to select another option, when he signed Form FRS-11o on August 23, 2002. Rather, she asserts that at the time Williams retired, he suffered from confusion and memory loss such that he did not understand the option he chose—effectively, that he lacked the mental capacity to have chosen Option 2 as his retirement benefits payment option. Alternatively, Petitioner contends that because Williams was forced to retire under threat of termination from his employment, he was under duress when he chose Option 2 on Form FRS-11o. On these grounds, Petitioner asserts that she should be permitted to change Williams' choice of retirement benefits payment option.3 3 Here, Petitioner, has requested that she be allowed to "change" Williams' choice of Option 2 on the FRS retirement option selection forms. She did not identify, or present evidence, Petitioner's impassioned testimony at the final hearing shows that she fervently believes her husband was wrongly treated by the District when it required him to retire in 2002, against his desire to continue to work.4 However, as was explained to Petitioner at the final hearing, the purpose of this proceeding was not to determine whether the District wrongly forced Williams out of his employment; rather, it is to determine whether there is any factual or legal basis for changing the retirement benefits option that Williams selected when he executed Form FRS-11o nearly 18 years ago. The evidence does not support Petitioner's argument that Williams lacked the mental capacity to adequately understand the option that he chose on Form FRS-11o. Although Petitioner testified that Williams had been treated by a neurologist, no direct medical evidence was presented establishing that Williams was mentally incapacitated at the time he executed Form FRS-11o. Additionally, at the time Williams signed the form, he was accompanied by his daughter, who, after speaking to District staff regarding his options, advised him to sign the form. Petitioner herself also was present at the District office and signed Form FRS-11o, expressly acknowledging that she understood Williams had chosen Option 2. Thus, to the extent that Williams may not, on his own, have fully appreciated his choice of options on Form FRS-11o—and there is no competent direct evidence showing that to be the case—both his daughter and wife were present with him when he executed Form FRS-11o, his daughter told him to sign the form, and his wife expressly acknowledged that she understood his choice of Option 2. These circumstances do not support a finding that Williams lacked the mental capacity to understand, or did not adequately regarding which specific option she would choose, if permitted to change Williams' selected FRS benefits option. 4 The evidence indicates that the District required Williams to retire because he began having difficulty with his job as a mail carrier. According to Petitioner, Williams had an accident in a District vehicle and did not report the accident to the District, and that when he was transferred to the mail room, he had difficulty remembering to do certain required tasks. understand, the consequence of choosing Option 2 when he executed Form FRS-11o. The evidence also does not support a finding that Williams' choice of Option 2 should be changed, due to duress. There is no direct evidence establishing that Williams was under duress when he chose Option 2. Although Jones testified, credibly, that her father was upset about being forced to retire when he wanted to continue working, her testimony that he was under duress was based on her subjective conclusion. Furthermore, even if Williams was emotionally distressed when he signed the FRS benefits options forms, there is no evidence showing that as result of such distress, he chose Option 2 instead of a different option. It also is noted that Form FR-11 and Form FRS-11o both expressly informed Williams that once his retirement became final—which would occur when any benefit payment was cashed or deposited—his retirement benefits option selection would become final and could not be changed. Further, Williams received two more pieces of correspondence from Respondent—both containing statements in bold face type—expressly informing him that once any FRS retirement benefits payments were cashed or deposited, his retirement benefits option choice could not be changed. As noted above, Williams could have changed his FRS benefits option at any time before he cashed or deposited a benefits payment; however, he did not do so. Thus, pursuant to the express terms of Form FR-11 and Form FRS-11o, when Williams cashed or deposited the first benefits payment, his selection of Option 2 became final and could not be changed. In sum, the evidence does not establish any factual basis for permitting Petitioner to change Williams' selection of Option 2 as his FRS retirement benefits payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner's request to change the FRS retirement benefits payment option selected by her husband, an FRS member, when he retired. DONE AND ENTERED this 4th day of March, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 4th day of March, 2020. COPIES FURNISHED: Ladasiah Jackson Ford, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) Deloris Williams 1219 West Ninth Street Riviera Beach, Florida 33404 (eServed) Nikita S. Parker, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed) David DiSalvo, Director Division of Retirement Department of Mangement Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) Sean Gellis, General Counsel Office of the General Counsel Department of Mangement Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
The Issue Whether the Department of Management Services, Division of Retirement (“the Department”) should be equitably estopped from requiring Michael A. Fewless to return $541,780.03 of retirement benefits.
Findings Of Fact The following findings are based on witness testimony, exhibits, and information subject to official recognition. FRS and the Termination Requirement FRS is a qualified plan under section 401(a) of the Internal Revenue Code and has over 500,000 active pension plan members. The Department administers FRS so that it will maintain its status as a qualified pension plan under the Internal Revenue Code. Section 121.091(13), Florida Statutes (2018),1/ describes the benefits available to FRS members through the “Deferred Retirement Option Program (“DROP”): In general, and subject to this section, the Deferred Retirement Option Program, hereinafter referred to as DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the Florida Retirement System on behalf of the member, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the member shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Section 121.091 specifies that “[b]enefits may not be paid under this section unless the member has terminated employment as provided in s. 121.021(39)(a). ” Section 121.021(39)(a) generally provides that “termination” occurs when a member ceases all employment relationships with participating employers. However, “if a member is employed by any such employer within the next 6 calendar months, termination shall be deemed not to have occurred.” § 121.021(39)(a)2., Fla. Stat. Moreover, the employee and the re-employing FRS agency will be jointly and severally liable for reimbursing any retirement benefits paid to the employee. § 121.091(9)(c)3., Fla. Stat.2/ The termination requirement is essential to the FRS maintaining its status as a qualified plan under IRS regulations. As a qualified plan, taxes on FRS benefits are deferred.3/ The Department’s position is that after an entity becomes a participating employer, all new hires within covered categories are “compulsory members” of the FRS. If an entity has a local pension plan, then that entity must either close the plan before joining FRS or keep the plan open for members who exercise their right to remain in that plan. However, even if the entity chooses to keep the local plan open for current members, the local plan is closed to new members. The City of Fruitland Park, Florida (“Fruitland Park”), became an FRS employer on February 1, 2015. The mayor and commissioners of Fruitland Park passed a resolution on November 20, 2014, providing in pertinent part, that: It is hereby declared to be the policy and purpose of the City Commission of Fruitland Park, Florida that all of its General Employees and police officers, except those excluded by law, shall participate in the Florida Retirement System as authorized by Chapter 121, Florida Statutes. All General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System so stated therein. (emphasis added). The Department notified Fruitland Park during its enrollment into FRS that all new hires were compulsory members of FRS for covered groups. Facts Specific to the Instant Case After graduating from the Central Florida Police Academy in 1985, Mr. Fewless began working for the Orange County Sheriff’s Office (“OCSO”) as a deputy sheriff and patrolled what he describes as “the worst area of Orange County.”4/ After five years, Mr. Fewless transferred into the detective bureau in OCSO’s criminal investigations division. Mr. Fewless received a promotion to corporal two years later and returned to patrolling.5/ Mr. Fewless soon received a transfer to OCSO’s special investigation’s division and worked in the gang enforcement unit.6/ It was not long before he was promoted to sergeant and sent “back to the road.” After 10 months, OCSO asked Mr. Fewless to take over the gang enforcement unit where he was promoted to lieutenant and ultimately to captain.7/ During his tenure as a captain, Mr. Fewless was in charge of OCSO’s internal affairs unit for five or six years. Mr. Fewless concluded his nearly 30-year tenure with OCSO as the director of the Fusion Center and the Captain of the criminal intelligence section.8/ In sum, Mr. Fewless’s service with OCSO was exemplary, and he was never the subject of any disciplinary actions. Mr. Fewless entered the DROP program on June 1, 2011. As a result, he was scheduled to complete his DROP tenure and retire on May 31, 2016. On June 1, 2011, Mr. Fewless signed a standardized FRS document entitled “Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment.” That document contained the following provisions: I elect to participate in the DROP in accordance with s. 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. Termination requirements for elected officers are different as specified in s. 121.091(13)(b)(4), F.S. I cannot add service, change options, change my type of retirement or elect the Investment Plan after my DROP begin date. I have read and understand the DROP Accrual and Distribution information provided with this form. Mr. Fewless realized by 2015 that he was not ready to leave law enforcement. However, he was scheduled to retire from OCSO by May 31, 2016. Mr. Fewless had several friends who left OCSO as captains and took police chief positions with municipalities in Florida. Therefore, in anticipation of a lengthy job search, he began looking for such a position in approximately March of 2015. Mr. Fewless applied to become Fruitland Park’s police chief on March 26, 2015, and was offered the job in June of 2015 by Fruitland Park’s city manager, Gary LaVenia. Mr. Fewless learned from Mr. LaVenia that Fruitland Park had joined FRS and told him that he could not work within the FRS system. Mr. LaVenia then erroneously told Mr. Fewless that he would not be violating any FRS conditions (and thus forfeiting his DROP payout) because Fruitland Park had a separate city pension plan into which Mr. Fewless could be enrolled. As noted above, Fruitland Park had passed a resolution mandating that “[a]ll General Employees and police officers shall be compulsory members of the Florida Retirement System as of the effective date of participation in the Florida Retirement System. ” While Mr. Fewless was pleased with what Mr. LaVenia told him, he called an FRS hotline on July 9, 2015, in order to verify that he would not be endangering his retirement benefits by accepting the police chief position with Fruitland Park. Mr. Fewless’s question was routed to David Kent, and Mr. Fewless described how he was going to work for Fruitland Park and that Fruitland Park was an FRS employer. Mr. Kent told Mr. Fewless that he could go to work for Fruitland Park immediately without violating any FRS requirements so long as he was not enrolled into the FRS system. Instead of being an FRS enrollee, Mr. Kent stated that Mr. Fewless could enroll into Fruitland Park’s pension plan or enter a third-party contract.9/ Mr. Fewless assumed that Mr. Kent was an FRS expert and remembers that Mr. Kent sounded very confident in the information he relayed over the telephone. On July 14, 2015, Mr. Fewless filled out and signed a form entitled “Florida Retirement Systems Pension Plan Deferred Retirement Option Program (DROP) Termination Notification.” The form indicates that Mr. Fewless would be ending his employment with OCSO on August 1, 2015. In addition, the form notified Mr. Fewless of the requirements associated with receiving his accumulated DROP and monthly benefits: According to our records, your DROP termination date is 08/01/2015. You must terminate all Florida Retirement System (FRS) employment to receive your accumulated DROP benefits and begin your monthly retirement benefits. You and your employer’s authorized representative must complete this form certifying your DROP employment termination. Termination Requirement: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or noncovered by retirement for the first 6 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, adjunct professor or non-Division approved contractual services. Reemployment Limitation: You may return to work for a participating FRS employer during the 7th – 12th calendar months following your DROP termination date, but your monthly retirement benefit will be suspended for those months you are employed. There are no reemployment limitations after the 12th calendar month following your DROP termination date. If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). 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 employment termination date. You must apply to establish a future retirement date. Your eligibility for DROP participation will be determined by your future retirement date and you may lose your eligibility to participate in DROP.[10/] (emphasis in original). Mr. Fewless’s Reliance on the Representations Made to Him Mr. Fewless placed complete trust in the representations made during his July 9, 2015, phone call to the FRS hotline and during his discussions with Fruitland Park’s city manager. When he left OCSO and accepted the police chief position with Fruitland Park, Mr. Fewless took a $33,000.00 annual pay cut and stood to receive $70,000.00 less from his DROP payout. It is highly unlikely he would have accepted those circumstances if he did not have a good faith basis for believing he was utilizing an exception to the termination requirement. In the months preceding his departure from OCSO, Mr. Fewless’s wife was being treated for a brain tumor. Following her surgery in May of 2015 and subsequent radiation treatment, Ms. Fewless returned to work for a month or two. However, given that the retirement checks Mr. Fewless had begun to receive were roughly equivalent to what Ms. Fewless had been earning, she decided to retire in order to spend more time with their grandchildren. During this timeframe, Mr. and Ms. Fewless decided to build their “dream home,” and Ms. Fewless designed it. They used a $318,000.00 lump sum payment from FRS to significantly lower their monthly house payment. Those actions would not have been taken if Mr. Fewless had suspected that there was any uncertainty pertaining to his retirement benefits. The Department Discovers the Termination Violation In November of 2017, the Department’s Office of the Inspector General conducted an audit to assess Fruitland Park’s compliance with FRS requirements. This audit was conducted in the regular course of the Department’s business and was not initiated because of any suspicion of noncompliance. The resulting audit report contained the following findings: (a) Fruitland Park had failed to report part-time employees since joining FRS; (b) Fruitland Park had failed to report Mr. Fewless as an employee covered by FRS; (c) Mr. Fewless’s employment with Fruitland Park amounted to a violation of FRS’s reemployment provisions; and (d) Fruitland Park failed to correctly report retirees filling regularly established positions. Because he had failed to satisfy the termination requirement, the Department notified Mr. Fewless via a letter issued on August 15, 2018, that: (a) his DROP retirement had been voided; (b) his membership in FRS would be retroactively reestablished11/; and (c) he was required to repay $541,780.03 of benefits. Mr. Fewless’s Reaction to Learning That He Had Violated the Termination Requirement Mr. Fewless learned on June 25, 2018, of the Department’s determination that he was in violation of the termination requirement. He responded on July 5, 2018, by writing the following letter to the Department: On the evening of, June 25, 2018, I was notified by Mr. Gary LaVenia, the City Manager for Fruitland Park, that he was contacted by members of the State of Florida’s DMS Inspector General’s office regarding a problem with my current retirement plan. No additional information was shared during this initial telephone conversation and we scheduled a meeting for the following day. On June 26, 2018, I met with Mr. Gary LaVenia, Ms. Diane Kolcan, Human Resource Director and Ms. Jeannine Racine, the Finance Director regarding this matter. I was advised that members of the Department of the Florida Retirement System told them that I was in violation of receiving my current retirement benefits because I failed to take a six month break between my retirement with the Orange County Sheriff’s Office and joining the City of Fruitland Park. I explained to them that there must be some mistake because I am not currently enrolled in the Florida Retirement System through the City of Fruitland Park. The City enrolled me in their “City” pension plan. Mr. LaVenia agreed with me and we closed the meeting with me advising them I would do some additional research on the matter. * * * I then reached out to Mr. Chris Carmody, an attorney with the Gray/Robinson Firm, whom I worked with on legislative issues in the past. . . . I explained to him that according to the Inspector General’s report, I needed to have a six month separation between the Orange County Sheriff’s Office and the City of Fruitland Park, because both agencies participated in the Florida Retirement System. Mr. Carmody still did not feel that was a violation because I was not enrolled in the FRS Plan with the City of Fruitland Park, but rather their independent City pension plan. I felt the same way; however he wanted to continue to research the issue. A few hours later I received a telephone call from Mr. Carmody indicating the problem appears to be that the “City” participates in the FRS Pension Plan and even though I do not, I would be prohibited from working there for the six month period. After hearing this news, I immediately contacted Ms. Amy Mercer, the Executive Director of the Florida Police Chief’s Association. I explained the dilemma to her and just like the previously mentioned individuals she said “so what did you do wrong, that sounds ok to me. ” Ms. Mercer said she would reach out to the two attorneys that support the Florida Police Chief’s Association to get their opinion of the situation. The following morning, Ms. Mercer advised me that according to Attorney Leonard Dietzen my actions were in violation of the Florida Retirement Pension Plan Rules. Mr. Dietzen explained to her that I needed a six month separation from my employment with the Florida Retirement System and the City of Fruitland Park, because the City participated in the FRS Pension plan. Therefore, based on the above information [and] the realization that an innocent mistake had been made, please let me explain my actions: * * * In either June or July of 2015, I officially interviewed for the position of Police Chief for the City of Fruitland Park. . . . Approximately one week after the interviews, I was offered the position of Police Chief for the City of Fruitland Park. In July of 2015, I contacted the official FRS Hotline regarding my potential decision to join the Fruitland Park Police Department. I informed them that I was currently employed with the Orange County Sheriff’s Office and enrolled in DROP. I advised them that I was considering accepting the position of police chief with the City of Fruitland Park; however I wanted to confirm with them that I would have no issues with my retirement. I explained that the City of Fruitland Park was currently an FRS department; however they also had a separate “City” pension plan which I was going to be placed in. I wanted to confirm that this would not negatively impact my retirement benefits. I was advised that as long as I was enrolled in the “City” pension plan, I would be fine. The FRS employee also added that he heard other “new chiefs” were doing an “independent contract” with the City for a one year period, but he assured me either way would be fine. I concluded my telephone conversation and proceeded forward. I then began the employee benefits negotiations process with Mr. LaVenia. At the time of the negotiations, I realized I would be receiving my Florida Retirement check on a monthly basis and my wife was also employed as the vice-president of the Orlando Union Rescue Mission in Orlando, Florida. Therefore money was not my primary concern for this position and I surrendered my much larger salary with the Orange County Sheriff’s Office to become the Chief of Police for Fruitland Park for $70,000 per year. I officially accepted the position with the City of Fruitland Park, and informed Mr. LaVenia that I could not participate in the Florida Retirement System; however according to the FRS Hotline employee I could be placed in the city pension plan or sign a contract for a one year period. Mr. LaVenia recommended that I be placed in the city pension plan and had the appropriate paperwork completed. * * * It is important to recognize that I felt I took all the necessary steps to act within the guidelines of the Florida Retirement System. After all, I had worked for over thirty years with the Orange County Sheriff’s Office with an impeccable record and with the intent of securing a retirement package that would protect my wife and family for life. In conclusion, I feel I have been let down by the system in two very key areas regarding this matter: In July 2015, not only was I preparing for retirement and a new job; but my wife was experiencing serious medical issues that required surgery and radiation treatments for months at Shands Hospital. Although my mind was focused on her condition, I still felt it was extremely important to contact the FRS Hotline regarding my potential new position. My desire was to make sure I did not do anything that would jeopardize the retirement plan I worked for my entire career. The advice I was given by the FRS Hotline employee/professional apparently was terrible. Not only did he indicate I could go under the “City” pension plan, he further recommended that other chiefs have decided to do a “contract” with the city for a one year period to account for the separation from the FRS system. Clearly had this employee indicated by any means that the position with Fruitland Park would or possibly could jeopardize my retirement, I would have run away from this opportunity . . . * * * In July and August of 2015, while I was completing the hiring process with the City of Fruitland Park, management and/or staff should have cautioned me about the potential risk to my Florida Retirement Pension if I proceeded with the process. * * * Clearly, whoever made the decision to proceed with processing me was unaware of two things. (1) I would be violating the six month separation rule if I stopped my employment with the Orange County Sheriff’s Office on August 1, 2015 and began employment with Fruitland Park one day later on August 2, 2015. (2) The only pension plan available to new employees with the City of Fruitland Park had to be the Florida Retirement System. * * * I now understand from going through this procedure that there [was] an unintended error in how I officially retired from the Orange County Sheriff’s Office and began my employment with the Fruitland Park Police Department. It is important to mention that Sheriff Kevin Beary and Sheriff Jerry Demings chose me to command their Professional Standards Division on two separate occasions because they knew I was a man of integrity and would always “do the right thing.” I had no intent to skirt the system and/or do anything unethical. I can assure you nobody raised a red flag over this position prior to this incident; and I would have immediately stopped my efforts had I been aware of this rule. Mr. Fewless’s Current Situation While working as Fruitland Park’s police chief, Mr. Fewless’s salary and retirement benefits totaled $12,000.00 a month. In order to avoid accumulating more penalties, Mr. Fewless retired from his police chief position with Fruitland Park on August 31, 2018. Mr. Fewless has not received any FRS benefits since September 1, 2018. There was a three-month period when he was receiving no money. Mr. Fewless has been employed by the Groveland Police Department since March 4, 2019. Mr. Fewless describes his current financial situation as “dire” and says he and his wife are “wiped out.” They may need to sell their “dream house,” and they borrowed $30,000.00 from their daughter in order to litigate the instant case. In addition, the contractor who built the Fewless’s dream home failed to pay subcontractors for $93,000.00 of work. While the Department notes that Mr. Fewless stands to receive a higher monthly benefit, he disputes that he is somehow in a better position: No, I am not in a better position. The $542,000 that will be taken away from me because of what clearly could have been handled with one phone call from a representative of FRS – the difference in pay between my former retirement salary and my new retirement salary based on the recalculations will go from $6,000 to $7,000 a month. That means in order for me to recoup the $542,000 that the state was referring to, I would have to work 542 months. I don’t think I’ll live that much longer, No. 1. And No. 2, that doesn’t take into consideration interest and everything else that was part of that, if that makes sense. Mr. Fewless has filed a lawsuit against Fruitland Park. Ultimate Findings of Fact12/ Mr. Fewless’s testimony about his July 9, 2015, phone call to the FRS hotline is more credible than Mr. Kent’s. Mr. Fewless’s descriptions of that phone call are very consistent, and the Department has not directed the undersigned to any instances in which an account of that phone call by Mr. Fewless differed from his testimony or his July 5, 2018, letter to the Department.13/ This finding is also based on Mr. Fewless’s demeanor during the final hearing. Moreover, Mr. Fewless was not attempting to “game the system.” Given Mr. Fewless’s exceptional record of public service, it is very unlikely that he would knowingly and intentionally attempt to engage in “double dipping” by violating the termination requirement. It is equally unlikely that Mr. Kent can accurately remember what he told Mr. Fewless during a single phone call on July 9, 2015. Rather than questioning Mr. Kent’s veracity, the undersigned is simply questioning his ability to recall the content of a single phone call that appears to have been unremarkable.14/ It is also difficult to believe that Mr. Fewless would accept the police chief position with Fruitland Park and build an expensive “dream house” after being told by Mr. Kent that he would be violating the termination requirement.15/ Mr. Fewless’s reliance on Mr. Kent’s statement was entirely reasonable given that the arrangement described by Mr. LaVenia sounded like an imminently plausible exception to the termination requirement. Mr. Fewless’s subsequent actions in reliance of that statement were extremely detrimental to himself and his family. Finally, the circumstances of the instant case are analogous to other cases in which appellate courts have held that the enhanced requirements for estopping the government had been satisfied. In other words, Mr. Kent’s misrepresentation amounted to more than mere negligence, the Department’s proposed action would result in a serious injustice, and the public interest would not be unduly harmed by Mr. Fewless retaining the retirement benefits he earned through his public service with OCSO.
Conclusions For Petitioner: Ryan Joshua Andrews, Esquire Brian O. Finnerty, Esquire Johana E. Nieves, Esquire The Law Offices of Steven R. Andrews, P.A. 822 North Monroe Street Tallahassee, Florida 32303 For Respondent: Thomas E. Wright, Esquire Sean W. Gillis, Esquire Office of the General Counsel Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399
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 rescinding its proposed action that Michael A. Fewless’s FRS DROP retirement be voided and that he be required to repay all retirement benefits as provided in Florida Administrative Code Rule 60S- 4.012. DONE AND ENTERED this 18th day of July, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of July, 2019.
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
