The Issue Whether Petitioner has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).
Findings Of Fact Respondent was a participant in Petitioner’s retirement benefits fund. The retirement fund qualifies as a public retirement system. Respondent was hired by Petitioner on February 16, 1998, and at the time of his termination from employment he worked as a sewer operations team leader in Petitioner’s wastewater collections department. According to the Notice of Disciplinary Action dated July 8, 2010, Respondent’s employment with the City of Tampa was terminated based on the following: During the course of an investigation by the Tampa Police Department, report #2010-900187, you admitted to the following violations of City of Tampa policy: Using a City issued cellular phone for non- City related phone calls which furthered illegal activity; and using a City issued vehicle to participate in activities not related to your employment; both of which are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(c)(9), Neglect of Duty, Use of City equipment, including vehicles, for any unauthorized purpose. Wearing a City issued uniform while conducting unauthorized and illegal activities, violating City of Tampa Personnel Manual, Discipline Administration, B28.2,3(b)(8), Insubordination, Inappropriate use of City identification, including uniforms. Further, your behaviors as revealed in the investigation by the Tampa Police Department, are incompatible with the moral and ethical standards expected of City of Tampa employees and these behaviors are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(d)(9), Moral Turpitude, Engaging in any employment, activity or enterprise which is illegal, incompatible or in technical conflict with the employee’s duties and responsibilities as a City employee. The instant proceeding, as noted in Petitioner’s PRO, does not focus on whether Respondent’s conduct violated the City of Tampa’s “moral and ethical standards,” but instead focuses on whether Respondent, during the course of an investigation by the Tampa Police Department, admitted to wearing his city-issued uniform, and using his city vehicle and cell phone in furtherance of illegal activity.1/ Background In 2010, Detective Korey Diener of the Pinellas County Sheriff’s Office, was involved in a long-term investigation involving counterfeit checks. As part of the investigation, Detective Diener was monitoring a suspect by the name of Shannon Edwards (Edwards). During a circuit court probation hearing on February 24, 2010, Edwards, who was acquainted with Respondent because they hung out in the same neighborhood, presented a State of Florida, Department of Corrections, Public Service Hours form, which indicated that he (Edwards) had completed his court-ordered community service hours. Another detective, who was also involved with the case, was present in the courtroom and knew that the form was falsified based, in part, on a surveillance conversation he heard between Edwards and his girlfriend, Chelsea Niles (Niles). During the surveilled conversation, Edwards asked Niles to contact Respondent so that he could secure for Edwards a form showing that Edwards had performed the required community service hours, when in actuality he (Edwards) had not. According to Petitioner, Edwards, while using Niles as his agent, reached out to Respondent because Respondent, as a city employee, “knew somebody” who could prepare the needed community service form. Mr. Edwards did not testify during the disputed-fact hearing, and his statement is not being accepted for the truth of the matter stated therein. Ross Fabian (Fabian) was Respondent’s contact person for securing the fraudulent form. Respondent’s undisputed, credible testimony is that he knew Fabian because as a juvenile, Respondent had gotten into trouble and performed his ordered community service hours under Fabian’s supervision. Respondent maintained a relationship with Fabian throughout the years, but there is no evidence that the relationship between the two was in any way connected to Respondent’s employment with the city. Petitioner seeks to infer from Edwards’ statement that Respondent was a “city employee that knows somebody,” the existence of a nexus between Respondent’s employment and the securing of the fraudulent form. The evidence is insufficient to support such an inference. Police Interview The predicate for the instant action lies in that portion of the Notice of Disciplinary Action which provides that during the course of an investigation by the Tampa Police Department, Respondent “admitted” to “[u]sing a City issued phone for non-City related phone calls which furthered illegal activity, using a City issued vehicle to participate in activities not related to your employment, and [w]earing a City issued uniform while conducting unauthorized and illegal activities.” The evidence of record does not establish that Respondent admitted to the conduct as alleged. On June 16, 2010, Respondent was interviewed by Detective Mike Victor of the Tampa Police Department and Detective Korey Diener of the Pasco County Sheriff’s Office. A transcript of the audio recording was admitted into evidence. During the interview, Respondent was asked about the phone that he used when speaking with Edwards about the fraudulent community service hours. In response to the question, Respondent informed the detectives that he used his personal phone when speaking with Edwards. At no point during his interview with law enforcement did Respondent admit to using a city-issued cell phone as part of the transactions related to the fraudulent form. Furthermore, in reviewing the transcript of audio recording, Respondent was never asked if he used his city truck or was wearing his city-issued uniform while interacting with Edwards, Fabian, Niles, or anyone else who may have been involved with the execution of the fraudulent community service form. Succinctly stated, the transcript of Respondent’s recorded interview does not in any way indicate that Respondent admitted to using his city truck, or to wearing his city-issued uniform while completing the transactions related to the execution of the fraudulent community service form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order: Finding that there is no nexus between Respondent’s conduct and his public employment; Finding that forfeiture of Respondent’s benefits under the retirement plan is not authorized pursuant to section 112.3173, Florida Statutes; and Dismissing the petition for forfeiture, with prejudice. DONE AND ENTERED this 8th day of February, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2017.
The Issue Whether Respondent, Department of Management Services, Division of Retirement (“Respondent”), is entitled to a deduction of the retirement benefits to be paid to Aubrie-Elle Perez, and if Respondent is entitled to a deduction, whether the deduction should be in the amount of the gross disbursements of $19,833.21 or the net payments to Edward Perez (“Lt. Perez”) in the amount of $17,017.80.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. There are approximately 400,000 active members within the FRS. Respondent is charged with managing, governing, and administering the FRS. In 1997, Lt. Perez began employment with the Miami-Dade County Fire Department. For over 16 years, Lt. Perez served as a fire fighter with the Miami-Dade County Fire Department, his last position being a Lieutenant. Lt. Perez was a vested member of the FRS. Upon his initial employment and enrollment with the FRS in 1997, Lt. Perez entered the Investment Plan and made a retirement benefits election designating that if he died before his retirement and chose not to designate a beneficiary, retirement benefits would be paid in accordance with section 121.091(8), Florida Statutes. Lt. Perez chose not to designate a beneficiary. Thus, according to this statute, retirement benefits would first be paid to Lt. Perez’s spouse, and if no spouse, then to his only child, the Petitioner. Tragically, on April 7, 2013, Lt. Perez collapsed at the fire station. Subsequently, Lt. Perez was diagnosed with a grade-four malignant brain tumor known as a glioblastoma multi-forming--a very aggressive and generally terminal form of brain cancer. There is no cure and the median survival rate for adults with this form of brain cancer is 9 to 14 months. Due to his terminal brain cancer and the treatments he had undergone and was undergoing, Lt. Perez was unable to continue his duties with the Miami-Dade County Fire Department. On February 19, 2014, a two-page FRS Investment Plan Application for Disability Retirement Form PR-13 (“application for disability retirement”), and an FRS Investment Option Selection Form PR-11o (“option selection form”), were submitted to Respondent for Lt. Perez. They were sent to Respondent by mail by Lt. Perez’s sister, Alecs Perez-Crespo. The effect of the application for disability retirement and the selection of Option 1 on the option selection form would be to transfer the monies from the Investment Plan into the Pension Plan, and convert Lt. Perez’s accumulated Investment Plan retirement benefits to monthly disability retirement benefits during his lifetime. Then, upon his death, the monthly benefit payments would stop, and the beneficiary would receive only a relatively small amount, if any--a refund of contributions Lt. Perez had paid into the Investment Plan retirement account, which are in excess of the amount he received in benefits, not including the transferred Investment Plan account balance.2/ The two-page application for disability retirement was not completed by the member, Lt. Perez, and was not signed by Lt. Perez in the presence of a notary public. The option selection form was not completed by the member, Lt. Perez, and was not signed by Lt. Perez in the presence of a notary public. Affirmative medical and factual evidence establishes, and rebuts any legal presumption to the contrary, that Lt. Perez was not mentally, physically, cognitively, or legally competent to execute the option selection form or the application for disability retirement in February 2014, or to understand their legal nature and effect. Nevertheless, Respondent processed the application for disability retirement and option selection form. As a result, Lt. Perez was deemed to have retired effective April 1, 2014, and he forfeited approximately $238,000, which was transferred from the Investment Plan to the Pension Plan. Subsequently, two disability retirement benefit warrants were issued by the State of Florida, Department of Financial Services, to Lt. Perez, via the Pension Plan, in care of Alecs Perez-Crespo, POA. The dates of these warrants are April 30, 2014, and May 30, 2014. Both warrants were endorsed by Ms. Perez-Crespo, “POA For Edward Perez.” Respondent made these disability retirement gross benefit disbursements resulting in net payments to Lt. Perez on the following dates and in the following amounts: April 30, 2014: gross disbursement of $4,950.63, less deducted taxes of $413.20, for a net payment to Lt. Perez of $4,537.43; May 30, 2014: gross disbursement of $4,950.63, less taxes of $413.20 and less a medical insurance deduction of $386.00, for a net payment to Lt. Perez of $4,151.43.3/ A direct deposit authorization for electronic transfer of future retirement benefit warrants into a checking account solely in the name of Lt. Perez was signed by Alecs Perez Crespo, “POA for Edward Perez,” on May 9, 2014. Two additional disability retirement gross benefit disbursements resulting in net payments to Lt. Perez were sent to the checking account of Lt. Perez on the following dates and in the following amounts: June 30, 2014: gross disbursement of $4,950.63, less taxes of $413.20 and less a medical deduction of $386.00, for a net payment to Lt. Perez of $4,151.43; July 31, 2014: gross disbursement of $4,981.32, less taxes of $417.81 and less a medical insurance deduction of $386.00, for a net payment to Lt. Perez of $4,177.51, bringing the total sum of the gross disbursements for the four payments made to Lt. Perez $19,833.21, and the total sum of the net disbursements for the four payments made to Lt. Perez $17,017.80. The net sum of $17,017.80 issued by the Pension Plan as disability retirement benefits to Lt. Perez was deposited into Lt. Perez’s checking account. Accordingly, $19,833.21 (gross)/ $17,017.80 (net), was received by Lt. Perez. Lt. Perez died on July 16, 2014, from the cancer. At the time of Lt. Perez’s death, Petitioner was, and remains, his sole surviving child (natural or adopted). Lt. Perez was not married at the time of his death and, thus, left no surviving spouse. Because of the receipt of the four payments during his lifetime, which are applied first to the personal contributions made by Lt. Perez into the Investment Plan during his lifetime, the amount of Lt. Perez’s small contributions into the plan were exhausted by the time of his death. Therefore, if the option selection form is valid, Petitioner, as the sole beneficiary and child of Lt. Perez, would receive nothing. Respondent concedes that notwithstanding the facial appearance of the option selection form and application for disability retirement, the documents are void and invalid because they failed to comply with the statutory, rule, and manual requirements applicable to properly effectuate the Option 1 selection, in that they were not completed by the member, Lt. Perez, and not signed by Lt. Perez in the presence of a notary public. Respondent concedes that due to Lt. Perez lacking the mental, cognitive, physical, and legal capacity to understand the nature and legal effect of executing the option selection form and application for disability retirement, the purported execution by Lt. Perez of the option selection form and of the application for disability retirement are void and invalid. Respondent concedes that the option selection form is invalid and void ab initio, and Lt. Perez’s earlier selection in 1997, pursuant to section 121.091(8), should be reinstated under the FRS Investment Plan. Respondent concedes that with Lt. Perez having died in 2014 with no surviving spouse, and with Petitioner being his sole surviving child at the time of his death, that the full retirement benefits of $234,035.81, to which Lt. Perez was entitled under his Investment Plan designation of beneficiary should be paid directly to Petitioner. Respondent asserts, however, that the payment of the retirement benefits to which Petitioner is entitled should be reduced by the amount of the four payments made by Respondent to Lt. Perez, which gross disbursements total $19,833.21, or net disbursements total $17,017.80, making the retirement benefits to which Petitioner is entitled to be $214,202.60 or $217,018.01, not $234,035.81. Respondent’s position is correct because the gross benefits in the amount of $19,833.21 were received by Lt. Perez when the four payments, after applicable required deductions, were deposited into his personal checking account. At hearing, no persuasive and credible evidence was presented indicating whatever happened, if anything, to the net payments of $17,017.80 deposited into Lt. Perez’s checking account. No persuasive or credible evidence was presented indicating whether any of the monies were withdrawn from the checking account before or after Lt. Perez’s death. No persuasive or credible evidence was presented indicating that Ms. Perez-Crespo used, diverted, or withdrew any of the funds from the checking account. No bank statements were offered into evidence. Petitioner, who is the personal representative of the estate, did not testify. No accounting of the assets of Lt. Perez’s estate was presented. Even if any of the $17,017.80 was used or diverted by Ms. Perez-Crespo after being deposited into Lt. Perez’s checking account, Petitioner, as personal representative of the estate of Lt. Perez, might have a remedy in another forum to recover such funds from Ms. Perez-Crespo. In any event, such a potential claim, not borne by the evidence presented in the instant proceeding, is beyond the scope of this administrative proceeding. Based on the evidence adduced at hearing and the stipulations of the parties, it is clear that $19,833.21 was received by Lt. Perez when $17,017.80 (after the required deductions) was deposited into his personal checking account. To require Respondent to pay the entire amount of $234,035.81 would result in overpayment of $19,833.21. Respondent is, therefore, entitled to a deduction in the amount of the gross disbursement of $19,833.21.4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Management Services, Division of Retirement, enter a Final Order requiring that that the total sum of $214,202.60 be returned by Respondent to the FRS Investment Plan for the benefit of Lt. Perez, deceased, and that pursuant to section 121.091(8)(a), Florida Statutes, that Petitioner, Aubrie-Elle Perez, as the sole surviving child of and the sole beneficiary of Lt. Perez, immediately receive the amount of $214,202.60. The undersigned reserves jurisdiction to address issues regarding Petitioner’s entitlement to, and the amount of, attorneys’ fees, costs, and interest. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 January, 2017.
The Issue Whether Respondent’s pension should be forfeited based on his conviction for petit theft, a violation of the City of Tampa personnel manual.
Findings Of Fact Respondent was employed by the City as a Parks and Recreation Services Attendant II beginning in June 1999 through notification of his employment termination in 2012. At the time of his employment and on each three-year anniversary of the Union renegotiation of its contract with the City, Respondent was provided a copy of the City’s personnel manual. Specifically, Respondent was provided “Policy B28.2 Discipline Administration – Cause for Dismissal.” The manual states, in relevant part: Employees may be dismissed from employment for a variety of causes. The examples of misconduct and/or unsatisfactory performance enumerated in this policy for which dismissal is considered appropriate are not all inclusive. . . . The City of Tampa Civil Service Rules and Regulations authorize the City to dismiss employees due to incompetence, insubordination, neglect of duty, moral turpitude, and/or breach of peace (Article J. Section 4.a.). The types of conduct and/or performance which fall into these categories which may be considered cause for dismissal are listed below. As stated above, these lists are not all-inclusive. * * * c. Neglect of Duty * * * 9) Use of City equipment, including vehicles, for any unauthorized purpose. * * * d. Moral Turpitude * * * 2) Violation of City Code or other City policies relating to impartiality, use of public property, conflict of interest, disclosure and/or confidentiality. * * * 11) Theft or unauthorized removal or use of City property. The City has a program to recycle metal through a specific pre-selected vendor. All employees are advised of the process by which recycle materials are to be disposed. Should a City employee dispose of City property in a method not contracted for, that employee must secure a letter and additional documentation for the different method of disposal. In or about July 2012, Respondent and a coworker removed at minimum five metal trash cans from the NFL-YET Center, which is City property. Respondent and the coworker, while in their City uniforms, loaded the metal trash cans into a marked City truck. They proceeded to a non-authorized metal recycling center and attempted to sell the five metal trash cans. That metal recycling center declined to buy the trash cans as Respondent and his coworker did not have the appropriate letter or other documentation. Respondent and his coworker returned the metal trash cans to the NFL-YET Center. On July 11, 2012, Respondent and the coworker, while in civilian clothes, returned to the NFL-YET Center and loaded five metal trash cans belonging to the City into a private vehicle. They also had other metal in the vehicle. They proceeded to Trademark Metal Recycling (TMR). At TMR, Respondent and the coworker sold the five metal trash cans for $42.05. TMR staff reported the transaction to the Tampa Police Department (TPD) as the metal trash cans appeared to belong to the City. TPD conducted a criminal investigation. In July 2012, then TPD Detective Hinsz interviewed Respondent. Respondent admitted that he sold the five metal trash cans belonging to the City to TMR. Respondent further admitted to Detective Hinsz that he knew he was not allowed to sell city property. On July 12, 2012, Respondent was arrested and charged with petit theft and dealing in stolen property. On August 6, 2012, a Charge Sheet was filed in State of Florida v. Rodnick Vincent Boyd, Case No. 12-CM-13833, in the County Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, State of Florida, charging Respondent with one count of petit theft. In relevant part, the Charge Sheet: RODNICK VINCENT BOYD, on the 11th day of July, 2012, in the County of Hillsborough and State of Florida, did unlawfully obtain or use, or endeavor to obtain or use certain property of another, to-wit: trash cans, the property of CITY OF TAMPA, the value of said property being less than one hundred ($100.00) dollars in money current in the United States of America; and in so doing the defendant intended either to deprive the said CITY OF TAMPA of a right to the property or benefit there from, or to appropriate the property to his own use or to the use of any person not entitled thereto. On September 24, 2012, Petitioner entered a plea of nolo contendere to count one, petit theft. The Court withheld adjudication of guilt. The City’s retirement system is a public retirement system as defined by Florida law. See § 112.3173(5), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order determining that Respondent has forfeited his rights and benefits under the Retirement Fund. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2017.
The Issue The issue in this case is whether Petitioner’s husband’s selection of Option 1 for his pension plan benefits could be changed.
Findings Of Fact Mrs. Renaud, who is deaf, was married to Mr. Renaud for approximately 40 years. Mr. Renaud was employed by the State of Florida as a correctional officer at all times relevant hereto. He entered the State retirement program (in the pension plan) in November 1994. Mr. Renaud was in the “special risk” category of retirement class based on his position as a correctional officer. On October 24, 2013, Mr. Renaud signed and submitted a “Florida Retirement System Pension Plan Application for Service Retirement” form to the Department, indicating his intent to retire. The application was signed and notarized; it designated Mrs. Renaud as the sole beneficiary of his retirement benefits. On the same day, Mr. Renaud signed an “Option Selection” form, wherein he designated which of four payment options he wanted to utilize for payment of his retirement income. He selected Option 1, which states: A monthly benefit payable for my lifetime. Upon my death the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. The form also contains the following statement: “I understand that I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options or change my type of retirement . . . once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins.” The option selection form was signed by Mr. Renaud and notarized by a certified notary public. Inasmuch as Mr. Renaud selected Option 1, it was necessary that he and his designated beneficiary (Mrs. Renaud) also fill out form SA-1, the “Spousal Acknowledgement” form. On the acknowledgement form, Mr. Renaud indicated that he was married. Mrs. Renaud then signed the “spousal acknowledgement” portion of the form. The acknowledgement statement included this statement: “I, Vivian Renaud, being the spouse of the above named member [Mr. Renaud], acknowledge that the member has selected either Option 1 or 2.” Option 2 provides for continued benefits during the retiring person’s lifetime. However, benefits to the person’s spouse will continue for only a 10-year period. If the retiring person dies within the first 10 years of retirement, the spouse would only receive benefits for the balance of the 10-year period starting at the retirement date. The benefits under Option 2 are, therefore, limited in nature. The state retirement system requires a person selecting Option 1 or Option 2 to have their spouse acknowledge that selection choice because those benefits have finite ending dates, whereas retirement benefits under the other options continue as long as either the retiree or his/her beneficiary is living. By letter dated October 30, 2013, the Department acknowledged receipt of Mr. Renaud’s retirement application. The letter referenced the date the application was received (October 24, 2013) and the option Mr. Renaud had selected (Option 1). The letter was mailed to Mr. Renaud’s address of record, the same address he listed in his retirement application. The letter was sent to Mr. Renaud some 30 days before the first retirement benefit check was deposited in his account. Mrs. Renaud does not remember seeing the letter, but inasmuch as it was addressed to Mr. Renaud, her recollection of its receipt is not relevant. After Mr. Renaud’s death, his family found numerous un-opened letters in his car; the acknowledgement letter from the Department could well have been in that group. Mr. Renaud retired on November 1, 2013. His first payment of retirement benefits was transferred to his bank by way of electronic fund transfer, commonly referred to as direct deposit, on November 27, 2013. The gross amount of his monthly retirement benefit was $1,987.85; the net amount was $1,937.75 after $30.09 had been deducted for taxes. At that time, Mr. Renaud had not signed form W4P, the form which showed how many dependents the retiree was claiming for tax purposes. After later filling out that form (in which he indicated he would prefer to file as “single” for tax purposes), his monthly net benefit was reduced to about $1,735. Mr. Renaud received a direct deposit of retirement benefits on December 31, 2013; on January 31, 2014; and again on February 28, 2014. Mr. Renaud passed away on March 26, 2014, only five months after commencing his retirement. In accordance with the provisions of Option 1, Mr. Renaud’s retirement benefits ceased at that time. His beneficiary was entitled to payment for the entire month that he expired, but was not to be provided any further retirement benefits. Thus, a final payment was deposited in Mr. Renaud’s account on March 31, 2014. Mrs. Renaud was provided notice of the cessation of retirement benefits due to Mr. Renaud’s death. She timely filed a protest, seeking to have the payment of benefits reinstated. The Department denied her request, resulting in the instant matter. It is clear from the evidence that Mr. Renaud selected Option 1, Mrs. Renaud acknowledged that Mr. Renaud had selected either Option 1 or Option 2, and that retirement benefits were directly deposited to Mr. Renaud’s bank account for several months. Mr. and Mrs. Renaud’s signatures were duly notarized and have a presumption of legitimacy. Mrs. Renaud disagrees as to whether Mr. Renaud’s selection of Option 1 was legitimate, legal, or proper under the circumstances as she views them. First, Mrs. Renaud contends that Mr. Renaud was not mentally well at the time he signed the option selection form. The basis for her contention is that Mr. Renaud had experienced some seizure-related behavior during the year prior to signing the form. He had driven his car north on US Highway 301 one day in July 2012, “heading to work,” but ended up in Georgia without remembering why or how he got there. He later apparently lost his driver’s license because of the seizures (although the testimony on that issue was not clear).1/ Mr. Renaud worked for approximately 15 more months after his inexplicable drive to Georgia. Mrs. Renaud also argued that Mr. Renaud’s signatures on the three different forms he signed on October 24, 2013, were not similar to each other, indicating in her mind that he was having some sort of medical or psychological difficulty at that time. Inasmuch as there could have been any number of reasons the signatures were different (whether he was in a hurry, what base existed under the paperwork, etc.), there is insufficient evidence to determine why the signatures did not match. Mrs. Renaud’s testimony regarding the signatures is not persuasive. Ed Renaud said Mr. Renaud had been forced to retire due to his medical condition, i.e., that he had lost his driver’s license due to having seizures and the Department of Corrections would not let him work if he could not drive. However, Ed Renaud also said Mr. Renaud was able to continue working even when he was “forced” to retire. Again, the testimony on these facts was not clear. Mrs. Renaud said she should have been provided an interpreter on the day she signed the acknowledgement form. She did not state whether she requested an interpreter or whether the agency employee who provided her the form was aware of her disability.2/ Again, no one from Mr. Renaud’s employer, the Department of Corrections, testified at final hearing as to what happened on the day the forms were signed. Mrs. Renaud stated that she could read and write English, so she knew what she was signing.3/ She did claim to be confused as to whether her husband had selected Option 1 or Option 2, but candidly admitted that Mr. Renaud never told her one way or the other which option he had chosen. He only told her that he would “continue to provide for her in the future.” She believed the amount which was to be deposited in their account each month under Option 2 would be approximately $1900. The first check was in that approximate amount (due to the fact that Mr. Renaud had not established the amount of taxes to be deducted from his check at that time). The next five checks were in a lesser amount, approximately $1700. There is no evidence that Mrs. Renaud questioned the amount of the later checks. However, once the first check had been deposited in Mr. Renaud’s bank account, he would not have been allowed to change his option anyway. Lastly, Mrs. Renaud said her husband’s medical and mental condition was not conducive to making the option selection in October 2013. However, there was no competent evidence to support her claim. There was no direct testimony as to Mr. Renaud’s condition on the day he signed, nor as to whether he was or was not capable of understanding what he was signing. The only statement about his condition that day was that he wanted to park the car far enough away from the building that his co-workers could not see that Mrs. Renaud had driven the car. Ed Renaud also pointed out the issue of Mr. Renaud’s three signatures that day looking different from each other, but his lay opinion is not evidence upon which a finding of fact can be made as to Mr. Renaud’s mental condition. On October 24, 2013, Mr. Renaud had not been adjudged mentally incapacitated and no guardian had been appointed. Ed Renaud said that Mr. Renaud still believed he could perform his work assignments at that time and did not want to retire. But, other than his wife, no one provided any evidence that Mr. Renaud did not understand what he was signing. Mrs. Renaud, however, could not say which option he had selected because he never told her. Her subsequent presumption that Mr. Renaud did not intend to choose Option 1 is not persuasive. It should be noted that selection of Option 1 by Mr. Renaud set his average pre-tax monthly benefit at around $1,900.00; had he chosen Option 2, the benefit would have been around $1,700. Thus, there was incentive to “roll the dice” and select Option 1, hoping that he would survive long enough to provide for his wife. In this case, sadly, that gamble did not pay off. The facts of this case are sad in that Mr. Renaud had every intention of providing for his wife financially as long as she lived. However, he either made a mistake when he selected his payment option or he attempted to tempt fate and hope for the best. In either case, once he made his selection and began receiving benefits, the die was cast. Based upon the facts as presented, there is no basis for overturning the Department’s denial of Mrs. Renaud’s requested amendment of the payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's request for entitlement to her husband’s retirement benefits following his untimely death. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2015.
The Issue The issue in this matter is whether Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for employees of the City of Tampa (the “City”). Respondent was employed with the City from August 1, 1994, through March 16, 2009, when the City terminated his employment. Respondent worked as an Automotive Equipment Operator II in the City’s parks and recreation department. Respondent worked a total of 15 years for the City. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund. After six years of employment, Respondent vested in the pension plan. According to a Notice of Disciplinary Action, dated March 16, 2009, the City terminated Respondent based on a complaint that he had stolen City property. Specifically, in February 2009, the City received information that Respondent was in possession of a City-owned lawn mower at his residence. After receiving the complaint, the City notified the Tampa Police Department (“TPD”). TPD searched Respondent’s home. TPD did not find a City lawn mower. However, during its search, TPD did discover a spool of weed eater line on Respondent’s porch that he admitted belonged to the City. During a subsequent interview with TPD, Respondent confessed to taking the spool from the City’s supplies without permission. Respondent also divulged that he did occasionally take a lawn mower owned by the City and use it on his property. Following the TPD interview, Respondent was arrested and charged with theft of the City property under section 812.014, Florida Statutes. Respondent, however, was never prosecuted for the crime. After completing a pre-trial intervention program, Respondent’s theft charge was dismissed. The City, however, terminated Respondent’s employment based, in part, on his admission to stealing the weed eater line. Kimberly Marple, an Employee Relations Specialist Supervisor for the City, testified on behalf of the City and explained that the City maintains a zero tolerance policy for removal of or taking City property for personal use. Consequently, when the City learned of Respondent’s admission to TPD that he took City property, he was fired. At the final hearing, Petitioner admitted to “borrowing” the City lawn mower from time to time to use at his home. He expressed, however, that he always returned it to the City. Respondent claimed that he never considered permanently taking the lawn mower. Respondent did, however, confirm that he took the weed eater line from the City, without authority, for personal use and did not intend to return it. Respondent relayed that a spool of weed eater line costs approximately $80. Respondent voiced that he was an exemplary employee for the City during his 15 years of employment. Respondent represented that, prior to this incident, he had never received any disciplinary action from the City. Respondent’s testimony is supported by his annual performance evaluations which record that he dependably and diligently performed his responsibilities for the City parks and recreation department. Respondent’s performance was frequently marked as excellent or outstanding. Based on the evidence and testimony presented at the final hearing, the preponderance of the evidence establishes that the City terminated Respondent’s employment by reason of his admission to theft of City property. Therefore, the Fund met its burden of proving that Respondent must forfeit all rights and benefits to the Fund’s pension plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order finding that Respondent, Robert Ramshardt, a public employee who, by reason of his admitted commission of a “specified offense” under section 112.3173(2)(e), forfeited all rights and benefits in the pension plan administered by the Fund. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2017.
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all of her rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 1985 to 2002, and at all times relevant to this case, Petitioner DeBorah M. Muskelly ("Muskelly") held various positions as an employee of the Department of Children and Families (or its predecessors). She also worked for a number of years as an adult education teacher in the Miami-Dade County Public Schools. As a public employee, she became a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). All told, Muskelly earned 17.62 years of creditable service. On March 30, 2004, Muskelly pleaded guilty in the Miami-Dade County Circuit Court, Eleventh Judicial Circuit, to two crimes, namely official misconduct as proscribed in Section 839.25, Florida Statutes (2000), and grand theft as proscribed in Section 812.014, Florida Statutes (2000). She was adjudicated guilty of official misconduct; adjudication of guilt was withheld with regard to the charge of grand theft. The Amended Information sets forth the basic facts underlying each of the criminal charges to which Muskelly entered a plea of guilty, as follows: Count 1 [O]n or about JANUARY 20, 2000 and continuing through MARCH 14, 2002, in [Miami-Dade County, Florida], [Muskelly], being a public servant, did knowingly falsify an official record or official document, to with: TIME SHEETS and/or TIME CARDS, with corrupt intent to obtain a benefit for himself [sic] or another . . . . Count 2 [O]n or about JANUARY 20, 2000 and continuing through MARCH 14, 2002, in [Miami-Dade County, Florida], [Muskelly] did unlawfully and knowingly obtain or use, or did endeavor to obtain or use U.S. coin or currency value of five thousand dollars ($5,000.00) or more, but less than ten thousand dollars ($10,000.00), the property of THE DEPARTMENT OF CHILDREN AND FAMILIES, as owner or custodian, with the intent to either temporarily or permanently deprive said owner or custodian of a right to the said property or a benefit therefrom, or to appropriate the same to said defendant's own use or to the use of a person not entitled thereto . . . . By pleading guilty to these crimes, Muskelly admitted the foregoing allegations, which the undersigned accordingly adopts as findings of fact herein.i In April 2005, Muskelly asked the Division to give her an estimate of her retirement benefits. Shortly thereafter, the Division learned about Muskelly's criminal record. After reviewing the court file, the Division determined that Muskelly had been convicted of "specified offenses" (a legal term that will be discussed below) and concluded that, consequently, she must forfeit all her rights and benefits as a member of the FRS. By letter dated July 28, 2005, the Division notified Muskelly of its preliminary decision regarding the forfeiture of her retirement benefits and offered her an opportunity to request a formal administrative proceeding to contest the determination. Muskelly timely requested a hearing.
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 determining that Ms. Muskelly forfeited all her rights and benefits under the Florida Retirement System, except for the return of any accumulated contributions, when she pleaded guilty to "specified offenses" committed prior to her retirement from public service. DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2008.
The Issue Whether Petitioner is eligible for retirement pursuant to Section 112.05, Florida Statutes.
Findings Of Fact Petitioner is a public health nurse supervisor who has been employed by the Hardee County Health Department since October 1, 1947. On October 22, 1971, while on annual leave in Texas, Petitioner telephoned her supervisor requesting that she be placed on leave of absence without pay until December 1, 1971. She requested this type of leave because she was experiencing difficulties with her back and did not desire to request sick leave since she was out of state. Her annual leave was almost exhausted at that time. Her supervisor authorized the requested leave and she was informed that she must keep up her health insurance premium payments while on leave of absence. She did so. The period of leave without pay extended from October 22 to December 3, 1971. (Testimony of Petitioner, Trussell, Petitioner's Exhibits 1-2) At the time the leave without pay was authorized, the personnel records clerk of the Hardee County Health Department requested and received information from the personnel department of the then State Board of Health of Jacksonville, Florida, that a leave without pay would not jeopardize Petitioner's retirement status. Similar information had been provided Petitioner and the clerk during a visit to that agency in 1970. (Testimony of Petitioner, Trussell) When Petitioner returned to duty from her leave without pay in December, 1971, the only personnel action taken by her employer was to prepare a personnel action form showing such return. At the time the leave without pay was taken by Petitioner, she had over 400 hours of accrued sick leave to her credit. (Testimony of Trussell, Petitioner's Composite Exhibit 2) During her employment, Petitioner was a member of the State and County Officers and Employees Retirement System (Chapter 122, F.S.) and paid contributions toward retirement under that system. As of January, 1978, she had contributed $11,195.37 into the retirement fund. She also was under the noncontributory plan for state employees (Section 112.05, F.S.) and was provided an estimated computation of retirement benefits under both retirement systems by the Department of Health and Rehabilitative Services on May 14, 1971. (Petitioner's Composite Exhibit 2) On March 22, 1977, Petitioner filed application for service retirement under the provisions of Chapter 122, Florida Statutes, with a designated retirement date of January 5, 1978. By letter of April 21, 1977, Respondent advised that applications were not accepted earlier than sixty to ninety days prior to the date of retirement. Petitioner resubmitted the application in September, 1977. By letter of October 7, 1977, Respondent advised the Petitioner that inasmuch as she had been granted a leave of absence without pay in November, 1971, a break in service occurred and therefore she was a compulsory member of the Florida Retirement System upon returning to employment in December of 1971, pursuant to Rule 22B-1.04(4), (sic) F.A.C. In this letter, she was also advised that Social Security contributions were payable on her account from December, 1971, but since her previous retirement contributions offset this indebtedness to some extent, she would owe for Social Security coverage retroactive to the calendar year, 1973. Thereafter, by an invoice dated January 30, 1978, the Division of Health, Department of Health and Rehabilitative Services, was billed a total of $6,523.74 for Petitioner's Social Security contributions, of which half or $3,261.87 was owed by the employee. (Petitioner's Composite Exhibit 2, Respondent's Composite Exhibit 1) In a letter dated November 9, 1977, the State Retirement Director advised Petitioner that she became a mandatory member of the Florida Retirement System in December, 1971, because she was off the payroll for a month and thereby had a break in service. He further advised that this fact alone did not interfere with her eligibility to be considered for retirement under Section 112.05, but since she had been off the state payroll for more than a month, she was not eligible to retire under that provision. Another letter of the State Retirement Director, dated February 23, 1978, stated that he had reconsidered his position, but adhered to the decision that Petitioner was a compulsory member of the Florida Retirement System pursuant to Rule 22B-1.04(1)4 and did not qualify for retirement under Section 112.05. Petitioner was advised of her right to a hearing in the matter and she thereafter requested the same on March 3, 1978, wherein she requests a determination of her eligibility to retire under Section 112.05.
Recommendation That Petitioner's request for retirement under the provisions of Section 112.05, Florida Statutes, be approved. DONE and ENTERED this 17th day of August, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony N. Deluccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 2258 Fort Myers, Florida 33902 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Building 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Petitioner was employed by Palm Beach County from 1954 to 1968 as Assistant County Engineer and County Engineer. During this period he was a member of SCOERS, had deductions taken from his salary for retirement, and became eligible for full retirement based on years of service when he reached the age of 60 in April, 1983. From 1954 to 1956 six percent (6 percent) [5 percent prior to July 1, 1955] was deducted from Petitioner's salary as his retirement contributions pursuant to the retirement plan in effect for state and county officers and employees. In 1957 the Legislature amended Chapter 122, Florida Statutes, by providing social security coverage for state and county employees electing to be so covered. All groups of employees, including SCOERS employees, were divided into Division A and Division B. Those in Division B were those who made an election in writing to have their retirement deductions changed from six percent (6 percent) to four percent (4 percent) to have FICA deductions withheld from their salaries, and to be covered by the Social Security System. Those not so electing remained in Division A, their employment was not covered by social security, and their retirement deduction was six percent (6 percent). As a county employee any election Petitioner made to convert from Division A to Division B would have been made to Palm Beach County, who provided the names of those so electing to the Comptroller's Office, who in 1958 handled the retirement files for the state. No list of names submitted by the counties has been retained by the state. Palm Beach County does not maintain active personnel files for retired people and had no personnel records for Petitioner in the dead files. Accordingly, at the time of the hearing Palm Beach County had no written election from Petitioner to change from Division A to Division B. When the employees in these SCOERs system elected to change to social security coverage in 1957 or 1958, part of the sum they had contributed to their state retirement was transferred to the Social Security Administration to make their entry into social security retroactive to January 1, 1956. The maximum that was transferred to the Social Security Administration for any one member of SCOERS so electing was $178.50. This amount was transferred from Petitioner's retirement account to the Social Security Administration in 1958. Effective January 1, 1956, Petitioner's contribution to SCOERS was calculated at four percent (4 percent) of his salary and this amount was deducted monthly until his employment with Palm Beach County ended in 1968. During the period Petitioner was employed by Palm Beach County he contributed to this retirement fund at the rate of six percent (6 percent) for 1.17 years and at the rate of four percent (4 percent) for12.91 years. From 1958 through 1962 annual statements were submitted to SCOERS members showing the contributions to and the status of their retirement accounts. In 1963 such a statement was provided on July 1, 1963. Thereafter, the statements were submitted on a fiscal year basis. At no time did Petitioner protest the FICA deductions from his salary or question the percentage deducted from his pay for the retirement fund. Petitioner now contends that he did not pay any attention to the deductions from his salary to the retirement fund and was unaware that social security deductions were being taken. This contention is not consistent with Petitioner's testimony that he is a fiscal conservative nor with his background as an engineer. In addition to the referendum made available to employees under the SCOERS in 1957 to elect to be covered by social security the Legislature subsequently established other referendums in 1959 and again in the 1960s providing members of SCOERS other opportunities to elect social security coverage. On December 1, 1970, the Florida Retirement System was started and membership in the old Florida retirement systems, including SCOERS, was closed. All members of the Florida Retirement System are covered by social security. Of the approximately ten thousand employees not in the Florida Retirement System, i.e., still in SCOERS, teachers and law enforcement retirement systems, less than one hundred remain in Division A and are not covered by social security. A special Statute of Limitations bars actions to modify contributions to the Social Security System three years three months and fifteen days after the contributions are made. Accordingly, Petitioner's coverage under social security from 1956 to 1968 is irrevocable.
The Issue The issue in this case is whether Petitioner held a "regularly established position" during the period from January 1979 through June 1979, when she worked as a teacher's assistant for a district school board; if so, then she would be entitled to receive retirement service credit for the period, which Respondent so far has declined to grant.
Findings Of Fact Historical Facts Petitioner Silvia Urrechaga ("Urrechaga") worked for nearly 30 years, in various positions, as an employee of the Miami-Dade County School Board ("MDCSB"). As an employee of a district school board, she became a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). It is undisputed that, before July 1, 1979 (and thus at all times material to this case), local employers (such as district school boards) that participated in the FRS had the authority to determine, in the exercise of discretion, which of their employees would be covered under the FRS. At that time, the Division did not have the authority to review and overrule local employers' decisions in this regard. From January 1979 through June 1979, Urrechaga was employed as a teacher's assistant. A "Request for Personnel Action" memorandum dated January 8, 1979, memorializes MDCSB's hiring of Urrechaga to fill this part-time hourly position. The memorandum specified that Urrechaga would be "paid from discretionary funds until [the] end of [the] 78/79 school year." On or around January 19, 1979, a "Personnel Transaction Form" was completed, wherein it was recorded that, effective January 8, 1979, Urrechaga would participate in Retirement Plan "F." It is undisputed that Plan "F" meant the FRS. It is further recorded on the personnel form that MDCSB would contribute 9.1 percent of Urrechaga's salary into the FRS trust to fund her retirement benefit. An Annual Earnings Report for the 1978-79 school year shows that for the payroll period ending February 6, 1979——her first as a teacher's assistant——Urrechaga was paid a gross salary of $208.89, and that MDCSB deposited 9.1 percent thereof, or $19.01, into the FRS trust for the benefit of Urrechaga, a Plan "F" participant. Beginning with the very next pay period, however, and continuing through the end of June 1979, Urrechaga's retirement plan designation on the Annual Earnings Report is "J" rather than "F." It is undisputed that "J" meant no retirement benefit. Consistent with that designation, MDCSB (apparently) did not contribute to the FRS on Urrechaga's behalf for the pay periods ending February 9, 1979 through June 22, 1979, at least according to the Annual Earnings Report. MDCSB does not presently have any records documenting the grounds, if there were any, for removing Urrechaga from the FRS. There are likewise no existing records reflecting that Urrechaga was notified contemporaneously that, wittingly or unwittingly, she had been taken out of the retirement plan. It is reasonable to infer, and the undersigned does so, that MDCSB neither informed Urrechaga that she was being excluded from participation in the FRS nor notified her about any administrative remedies that she might have had in consequence of such action. Years later, after an issue had arisen regarding whether Urrechaga is entitled to retirement service credit for the months from January 1979 through June 1979, MDCSB investigated the situation and concluded that Urrechaga had been removed from the retirement plan by mistake. This determination was reported to the Division by MDCSB's Retirement Coordinator, Maria Y. Perez, in a letter dated July 23, 2003, which provided in pertinent part as follows: In reviewing the payroll/personnel records of Ms. Urrechaga, it's [sic] been determined that from January, 1979 through June, 1980, she was excluded from the retirement plan in error. Ms. Urrechaga was hired January 8, 1979, as a part-time hourly teacher assistant, job code 4259, a position eligible for retirement coverage[,] and [she] worked though June, 1979 [in that position.] The Division refused to accept MDCSB's determination, however, on the ground that it was not supported by sufficient proof that Urrechaga had been paid out of a "regular salary account." Consequently, by letter to the Division dated February 28, 2006, Ms. Perez reiterated MDCSB's conclusion, stating in relevant part as follows: Although I cannot provide you with a specific account serial number listing indicating [sic] that specifically Ms. Urrechaga was in a regularly established position; all our hourly teachers assistants were hired in a regularly established position, particularly as late as 1979, and not in a [sic] Other Personnel Services accounts. As support for this statement, Ms. Perez furnished the Division with the records of several other teacher's assistants who, the records unambiguously show, had been treated by MDCSB as FRS participants at the time that Urrechaga, who held the same employment position, had been excluded from the retirement plan. As of the final hearing, Ms. Perez continued to be MDCSB's Retirement Coordinator, a position she had held since 1982. In that capacity, Ms. Perez was MDCSB's senior management person in charge of retirement matters. Ms. Perez's communications to the Division regarding Urrechaga, which were written in her official capacity as MDCSB's agent, did not give voice to mere personal opinions, but rather——as statements clearly falling within the scope of her agency and authority——constituted MDCSB's official statements on the subject of Urrechaga's retirement benefit.1 In other words, Ms. Perez's letters to the Division concerning Urrechaga's retirement benefit expressed an agency determination of Urrechaga's substantial interests, namely the conclusion that Urrechaga had worked for MDCSB in a regularly established position and, accordingly, was supposed to have been a participant in the FRS during the period from January 1979 through June 1979, notwithstanding that conflicting statements in contemporaneously prepared documents give rise to some confusion concerning her participation therein.2 Determinations of Ultimate Fact From January 1979 through June 1979, Urrechaga worked in a "regularly established position" as a teacher's assistant with MDCSB. As an employee in such a position, Urrechaga was entitled to participate in the FRS, and she earned retirement service credit for her work during the period at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order awarding Urrechaga the retirement service credit that she earned for working in a regularly established position as a teacher's assistant with MDCSB during the period from January 1979 through June 1979. DONE AND ENTERED this 11th day of December, 2006, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2006.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Evelyn S. Day, is entitled to modify her type of retirement benefits from "early service retirement" to "disability retirement."
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are accepted. The Findings of Fact set forth in paragraph 5 are accepted in part. In that paragraph, the Hearing Officer found as follows: Her memory and thought processes had evidentially [sic] already begun deteriorating because Mrs. Day was unable to ask guestions concerning her retirement rights, responsibilities, and entitlements very well. Because of this condition, Ms. Hobby agreed to accompany her to the offices of the Division of Retirement in order to ascertain what her retirement rights, entitlements, and responsibilities might be preparatory to Mrs. Day electing to retire. The above-quoted findings are rejected as conclusory and not supported by competent, substantial evidence. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence, except the finding that Mrs. Day retired and Ms. Hobby filled out her application for retirement. Additionally, the Hearing Officer's findings that petitioner was incompetent and suffering from Alzheimer's disease are rejected as being legal conclusions not supported by any judicial order or by any competent, substantial evidence in the record. The Findings of Fact as set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted. The Findings of Fact as set forth in paragraph 9 are accepted. That portion of the Findings of Fact in paragraph 10 which concluded the petitioner was incompetent is rejected as not supported by competent, substantial evidence. The petitioner has never been declared incompetent or determined to be incompetent by a medical doctor. Findings of Fact as set forth in paragraph 11 are accepted in part and rejected in part. That portion of the Findings which states that the application for retirement was not filed by Ms. Day is not supported by competent, substantial evidence. In point of fact, the Division has a filed application signed by the petitioner. The portion of the paragraph finding the petitioner incompetent is rejected as not supported by competent, substantial evidence. There has been no legal or medical determination that the Petitioner is incompetent. Additionally, there is no competent, substantial evidence that petitioner is suffering from Alzheimer's disease. The Hearing officer's finding that the petitioner's application was filed in error is not supported by competent, substantial evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, 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 Administration, Division of Retirement, according the Petitioner, Evelyn Day, the opportunity to change the status of her retirement benefits from early retirement to disability retirement, effective as of the date her earlier retirement application was accepted by the agency. DONE AND ORDERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 48B-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2085 PETITIONER'S PROPOSED FINDINGS OF FACT 1-8. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted to the extent that the record establishes that the Petitioner signed the application. Accepted to the extent that it was established that Petitioner has received the retirement checks. It is not established that the Petitioner cashed or deposited those retirement checks by preponderant evidence of record. Accepted insofar as it recites the Respondent's position in this matter. Accepted. Accepted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esq. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Mr. Joseph G. Stokes 911 "B" Street Crestview, Florida 32536 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center Building C 1639 North Monroe Street Tallahassee, Florida 32399-1560
