Findings Of Fact The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity: Stipulated Facts Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows: In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions; In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11); In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5). That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business. Stipulated Evidence Exhibit 1 - The deposition of Charles Kellum, Petitioner Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974. Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974. Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974. Exhibit 5 - The reports and deposition of Dr. Samartino. Exhibit 6 - The reports and deposition of Dr. Jacobson. Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36. Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975. Upon a consideration of the evidence further findings of fact are: The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification. The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled." Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman. Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years. His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service. Petitioner contends: That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work; That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty. Respondent contends: That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.
Recommendation Grant Petitioner Charles E. Kellum disability retirement benefits. DONE and ORDERED this 24th day of May, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building A Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT CHARLES E. KELLUM, Petitioner, vs. DOAH CASE NO. 77-465 DIVISION OF RETIREMENT, Respondent. /
Findings Of Fact Jean E. Preus is a registered real estate broker and was so registered at all times here relevant. Tax Shelter Real Estate, Inc., and Tax Shelter Real Estate of America, Inc., are corporate brokers registered by the Florida Board of Real Estate and were so registered at all times here relevant. Tax Shelter Real Estate, Inc., and Tax Shelter Real Estate of America, Inc., are wholly owned subsidiaries of another corporation controlled by S. William Preus, the husband of Respondent. The family owns the majority, if not all, of the stock in this controlling corporation. S. William Preus is president of Corporate Financial Planning of Florida, whose business is primarily providing computer printouts and expertise to insurance agents setting up retirement plans for clients. Preus holds the degree of Chartered Life Underwriter (CLU) although at present he sells no insurance, but deals primarily with the insurance companies in assisting their agents. On 28 October 1980 at the request of insurance agents, Edward LaGrave and Don Hansman, S. William Preus, enroute from a seminar in Daytona to his office in St. Petersburg, met with the owners of Peebles Tractor Company in Winter Haven, Florida, to present information on a Keogh Plan for employees of Peebles. Jean E. Preus accompanied her husband to this meeting. LaGrave and Hansman provided Preus with a list of employees of Peebles, their ages and salaries, from which it was determined that some $27,000 per year could be invested in an employee retirement plan such as a Keogh Plan. In the presentation Preus used prototype trust documents prepared by Lincoln Trust Company and, if the Peebles Tractor Company opted for the plan he presented, it was his intention to forward the application to Lincoln Trust to serve as trustee of the plan. Preus had purchased one or more time-sharing condominium units and was impressed with the appreciation he had noticed in the selling price of such units in the past two years. He was especially impressed with the Bahia Mar development at which he had purchased a unit and who had additional time-sharing units to sell. Time-sharing is those housing units sold to various individuals for one week out of the year as a vacation home with the capability of swapping usage with similar units in other places. At Bahia Mar the unit owner sold one- week usage per year on a 99-year lease with the property managed by the developer and rented if the owner does not want to occupy the unit during his week's ownership. Preus proposed time-sharing units as a suitable investment vehicle for the Peebles Tractor Company employees retirement fund and Jean E. Preus showed pictures of the condominium units they owned at Bahia Mar. Peebles was not interested in purchasing time-sharing units for their employees' retirement fund and no sales were made. Had Peebles bought any of the Bahia Mar units, Respondents would have received a ten percent commission. Preus had obtained the Lincoln Trust forms from Lincoln Trust Company at an earlier date by simply requesting the forms. He obtained additional forms from Flagship Bank in a similar fashion. William A. Preus, the adult son of Respondent who also works with his father, had called Lincoln Trust before the October 28 meeting and learned the fees had been changed since the forms he had on hand were printed. He amended the forms used by S. William Preus to reflect this change in the fees charged by Lincoln Trust Company when the presentation was made to Peebles Tractor Company. The day following the Peebles meeting Preus contacted Lincoln Trust Company and learned they would no longer accept financed real estate in an employee retirement plan for which they served as trustee. Specifically, they would not accept funds to invest in financed time-shared condominium units. Formerly, Lincoln Trust had accepted financed raw land at Sugarwood Mills (in Florida) in such a retirement plan (Exhibit 11). In order to protect employee benefit plans Congress enacted the Employees Retirement Income Security Act (ERISA), 29 USCS 1001, et seq. Tax advantages accrue to those plans complying with ERISA, the federal tax laws and regulations promulgated pursuant thereto. All investments are not acceptable; however, the principal requirement is that funds placed in such accounts be prudently invested. Regulations have been promulgated disqualifying investments and certain personal property such as gold coins in ERISA plans, which type investment was formerly allowed. No regulations specifically authorize or bar ERISA investments in time-shared condominium units. Although trustees such as Lincoln Trust Company will not accept time-shared units in ERISA accounts, testimony was presented that Flagship Bank of Tampa would accept such investments in ERISA accounts. No evidence was presented that Jean E. Preus made any representations regarding the acceptability of time-shared units in an employee retirement account. According to her testimony she has no knowledge of ERISA plans and her participation in the October 28 1980, meeting was limited to showing pictures of and describing the time-shared unit she owned at Bahia Mar.
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 The issue for determination is whether Petitioner's rights and benefits under the Florida Retirement System should be terminated, per Respondent's Notice of Termination dated November 19, 2004.
Findings Of Fact No dispute exists that Ms. Page was employed with DLES. Furthermore, no dispute exists that, because of her employment with DLES, Ms. Page is a member of FRS. No evidence was presented as to Ms. Page's duties at DLES. In September 1999, Ms. Page was charged by an information in the Eleventh Judicial Circuit, In and For Dade County, in The State of Florida v. Ismael Page aka May Washington aka Ismay Washington, Case No. 99-27532, with one count of filing a false and fraudulent insurance claim in violation of Section 817.234(1), Florida Statutes, a third degree felony; and one count of grand theft in violation of Section 812.014(2)(c)1, Florida Statutes, a the third degree felony. Additionally, in September 1999, Ms. Page was charged by an information in the Eleventh Judicial Circuit, In and For Dade County, in The State of Florida v. Ismael Page aka May Washington aka Ismay Washington, Case No. 99-27533, with one count of filing a false and fraudulent insurance claim in violation of Section 817.234(1), Florida Statutes, a third degree felony; one count of uttering a forged instrument in violation of Section 831.02, Florida Statutes, a third degree felony; and one count of grand theft in violation of Section 812.014(2)(c)1, Florida Statutes, a the third degree felony. The count of uttering a forged instrument involved a forged letter by Ms. Page from a person, who was employed at DLES and who was alleged in the letter to be her supervisor at DLES, showing that Ms. Page had incurred lost wages as the result of an injury in an accident. The forged letter was submitted by Ms. Page to an insurance company in support of her claim for disability benefits. The person who was alleged to have written the letter and to be Ms. Page's supervisor at DLES did not write the letter. Ms. Page received disability payments from the insurance company. On or about September 13, 1999, Ms. Page pled guilty to and was adjudicated guilty of the one count of filing a false and fraudulent insurance claim and the one count of grand theft in Case No. 99-27532. On or about September 13, 1999, Ms. Page pled guilty to and was adjudicated guilty of the one count of filing a false and fraudulent insurance claim, the one count of uttering a forged instrument, and the one count of grand theft in Case No. 99-27533. By Notice of Termination of All Rights and Benefits Under the Florida Retirement System (Notice), dated November 19, 2004, Retirement notified Ms. Page that all of her rights and benefits under FRS were terminated. Retirement claimed in the Notice that Ms. Page, while employed at DLES, had pled guilty to one count of fraudulent insurance claims in violation of Section 817.234(1), Florida Statutes; one count of uttering a forged instrument in violation of Section 831.02, Florida Statutes; and one count of grand theft in the third degree in violation of Section 812.014(2)(c), Florida Statutes. Further, Retirement asserted in the Notice that, based on the criminal violations and pursuant to Article II, Section 8(d) of the Florida Constitution, Section 121.091(5)(f), Florida Statutes (2000), and Section 112.3173, Florida Statutes, she had no further rights under FRS, that she would not be permitted to repurchase, as prior service, the years of creditable service she earned prior to the convictions, and that her accumulated contributions on deposit in the FRS Trust Fund, if any, would not be affected. Ms. Page challenged Retirement's action and requested a hearing. In her challenge to Retirement's action, Ms. Page made an allegation of dismissal of charges and of being presently disabled. Ms. Page failed to appear at the hearing. Because of her failure to appear, her allegation remains nothing more than an allegation without support for which no finding of fact can be made.
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 reinstating the rights and benefits of Ismael Page under the Florida Retirement System. DONE AND ENTERED this 2nd day of September 2005, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 2nd day of September, 2005.
The Issue As a member of the Florida Retirement System, should Petitioner be allowed to purchase, for retirement credit service time with the Florida Retirement System, six months of out-of- state employment with the State of Indiana Agricultural Extension Service during 1972 and 1973?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced through the depositions, the following relevant findings of fact are made: Petitioner is a regular class member of the Florida Retirement System with 28 years service credit. In May 2001, Petitioner requested information from the Division of Retirement concerning the purchase of retirement service credit for the six months that she was employed by the Cooperative Extension Service at the Carroll County Extension Office in Delphi, Indiana. Petitioner obtained the required form (FR-30) (Division of Retirement's Exhibit 1) and submitted the FR-30 to her former employer. The FR-30 was completed by Pat Davis, Deputy Auditor, Carroll County Auditor's Office, Delphi, Indiana, which indicated that Petitioner had been employed by the Carroll County Cooperative Extension Service during the periods of June 1, 1972 through August 31, 1972, and June 1, 1973 through August 31, 1973, for a total of six months service. The portion of the FR-30 completed by Pat Davis also indicated that Petitioner had closed her account and withdrawn her contributions. The FR-30 form also indicated that the pension plan was: (a) a defined benefit plan; (b) a defined contribution plan; and (c) that the employer made contributions on behalf of the member. Petitioner testified, which I find credible, that she made contributions to a pension plan during her employment with the Cooperative Extension Services at the Carroll County Extension Office and that she withdrew her contributions to that plan after she left her employment with the Cooperative Extension Services at the Carroll County Extension Office. By letter dated July 31, 2001, the Division of Retirement advised Petitioner that Section B of the FR-30 had not been completed by the Indiana Public Employees Retirement System and advised Petitioner to submit an enclosed FR-30 to that agency for completion. By letter dated August 20, 2001, Charles E. Moore, Pension Administrator for the State of Indiana, Public Employees' Retirement Fund (PERF), advised Petitioner that he was returning the FR-30 because he was unable to find any record of Petitioner being a member of, or contributing to, the Indiana PERF. The letter further advised Petitioner: (a) that the records indicated that Carroll County did not join the Indiana PERF until January 1, 1976 and (b) that Petitioner was apparently not covered by the Indiana PERF during her employment by Carroll County, Indiana. Although Petitioner was not a member of the Indiana PERF while employed by the Carroll County Extension Service, it is apparent that she was covered by a retirement or pension plan provided by Carroll County, Indiana (a political subdivision) during her employment there as indicated by Petitioner's testimony and by Pat Davis's responses on the Division of Retirement's Exhibit 1 (FR-30), notwithstanding June Ferguson's subsequent conversations with Pat Davis to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order finding Madonna J. Wise eligible to purchase, for retirement credit service time with the Florida Retirement System, the six months of out-of-state service with the Extension Service in Carroll County, Indiana during June 1, 1972, through August 31, 1972, and June 1, 1973, through August 31, 1973. DONE AND ENTERED this 1st day of August, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Madonna Jervis Wise 6245 Frontier Drive Zephyrhills, Florida 33540 WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2002. Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
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 Should Respondent, Priscilla Phillips, forfeit her rights and benefits under the retirement system of the City of Tampa (Tampa) on account of the termination of her employment because she admitted aiding or abetting a “specified offense?”
Findings Of Fact Background Ms. Phillips worked for Tampa from December 10, 1984, to September 1, 2011. In 2007, Tampa suspended Ms. Phillips for one day for violating computer use policies. Otherwise, Ms. Phillips’ employment history is discipline-free. Throughout her employment, Ms. Phillips worked for the Tampa Police Department as a Data Terminal Operator. Her responsibilities included identifying stolen goods in pawn shops. Ms. Phillips was a public employee of Tampa and a participant in the City of Tampa General Employees Retirement Fund. The Retirement Fund is a public retirement system. On September 1, 2011, Tampa terminated Ms. Phillips’ employment for violating the following provisions of Tampa’s Manual of Regulations: #1814-Restrictions on Revealing Information, #1104-Interference with Cases, and #1005-Standard of Conduct. Tampa relied also on violations of the following provisions of its Personnel Manual as a basis for termination: “B28.2A(3)c(11), Neglect of Duty-Unauthorized release of information or records” and “B28.2A(3)d(2), Moral Turpitude- Violation of City Code or other City policies relating to impartiality, use of public property, conflict of interest, disclosure and/or confidentiality.” Facts Admitted by Ms. Phillips On January 22, 2011, Ms. Phillips received and reviewed a confidential Officer Safety Alert issued by the police department’s Strategic Investigations Bureau. The Strategic Investigation Bureau is responsible for undercover investigations. Ms. Phillips knew this. The Officer Safety Alert included names and pictures of three subjects of an investigation. One was Reginald Preston. Ms. Phillips knew Mr. Preston and had met him about five times. She knew that he was a convicted felon who had been recently released from incarceration. Mr. Preston is the nephew of Ms. Phillips’ friend Beverly Harvin. At the time, Ms. Harvin worked for the police department as a Community Service Officer. The Officer Safety Alert stated: The above listed subjects are part of an on going [sic] investigation. S.I.B./Enforcement Group 2 has purchased firearms from these subject(s) that were taken in a residential burglary. The subjects are still in possession of additional firearms. The subjects are not wanted at this time due to the ongoing nature of the investigation. Use caution when coming into contact with the listed subjects and vehicles. Also use caution if responding to calls at the listed addresses. Due to the ongoing investigations, only distribute to TPD Personnel. LAW ENFORCEMENT SENSITIVE The information contained within this bulletin is the property of the Tampa Police Department and constitutes active criminal intelligence information, and is exempt from public records[.] Ms. Phillips read the alert when she received it. She understood that providing the information in the alert to the subjects identified in it could cause them to flee. Ms. Phillips called Ms. Harvin after reading the alert. Ms. Harvin was at home on medical leave recovering from a broken collar bone.1/ Ms. Phillips told Ms. Harvin about the alert, including the fact that Ms. Harvin’s nephew was identified in it. Ms. Phillips photographed the alert with her cellphone and sent the picture to Ms. Harvin. Ms. Phillips asked Ms. Harvin “could she get in touch with him [Mr. Preston] to come down and talk with the police officer.” Ms. Phillips intended for Ms. Harvin to contact Mr. Preston with the information that he was being investigated. In her words, Ms. Phillips “wanted him to come down and clear himself if he was not involved in this.” Ms. Harvin told Ms. Phillips that she would contact Mr. Preston, and she did. During the entire period of her employment with the police department, Ms. Phillips knew of only one time when an individual turned himself in after learning that he was wanted. Additional Information During an internal investigation of the incident, Ms. Phillips admitted the preceding facts to the investigating officers. Her termination on September 1, 2011, followed. The information in the alert about the stolen guns investigation was not available to the general public. Ms. Phillips obtained the information because she was a public employee. If Mr. Preston learned he was the subject of an undercover investigation, that would have obstructed and impeded the investigation. It would also have endangered the lives of the undercover officers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, City of Tampa General Employees Retirement Fund, enter a final order finding that the employment of Respondent, Priscilla Phillips, with the City of Tampa was terminated because of her admission to committing the commission of a “specified offense” as identified in section 112.3173, Florida Statutes, and that she forfeited her rights and benefits under the General Employees Retirement Fund. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2017.
The Issue The issue in this case is whether Willie Mae Miles is entitled to retirement credit for the period beginning March 1952 through August 1976 when she was employed at the Jackson Memorial Hospital in Miami, Florida (the "Hospital"). There is no dispute that Willie Mae Miles was employed at the Hospital during that time period. However, the Department of Administration (the "Department") contends that Ms. Miles received a refund of her employee retirement contributions of $5,475.39 in May 1977. Therefore, the Department contends that Respondent is not entitled to credit for that period of service. Ms. Miles claims that she did not apply for or receive a refund of retirement contributions. She also claims that she would only have accepted a lump sum refund if it included her contributions and the county and state contributions with interest. Since no such sum was received, she claims she is entitled to retirement credit for her employment at the hospital.
Findings Of Fact While Mrs. Miles has handled her case up to and including the hearing since she dispensed with the services of her attorney, her testimony and the nature of the exhibits indicate that she did not fully comprehend the meaning and intent of the documents that she signed requesting a refund of her retirement contributions and mistakenly believed that she still had funds in the Retirement Trust Fund from which a retirement benefit would be paid later upon her retirement. Her belief was erroneous. Under the State and County Officers and Employees' Retirement System (SCOERS), an employee and the employing agency each paid retirement contributions into the Retirement Trust Fund, and these contributions were credited to the employee's retirement account. Eventually, when the employee retired, the retirement benefit was paid from the total contributions paid into the Trust Fund, including investment earnings of the Fund. However, if the employee terminated employment before retirement, he could legally receive only a return of his personal contributions paid in and not the retirement contributions paid in by his employing agency. Mrs. Miles believed she was due and had a right to her own paid-in contributions, as well as the contributions paid in for her by her employing agency, and since she had received a refund of only a portion (her portion) of her retirement contributions, there were monies (retirement contributions made by her employer) still on deposit with the Division of Retirement that would provide for her retirement. Mrs. Miles did not understand that the return of her personal contributions would end any entitlement or vested right on her part to a future retirement benefit under the SCOERS. It is also evident from her testimony that no one with her employing agency advised her of this fact and that none of the information received from the Division of Retirement made this clear to her. The "Request for Refund" card stated the effect of a refund of personal contributions, but Mrs. Miles did not understand the instructions on the refund card. In April, 1989, the Division received an inquiry from Mrs. Miles advising that she was applying for her retirement benefits. This is further evidence that she believed she still had an active retirement account with the State of Florida. It is concluded that Mrs. Miles never had any actual intent to relinquish her right to apply for and receive a retirement benefit under the SCOERS.
Recommendation It is RECOMMENDED that the Petitioner not be credited with any creditable service under the provisions of Chapter 121, Florida Statutes, for the period from March 1952 to May 1977. DONE and ORDERED this 30 day of March 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30 day of March 1990. APPENDIX TO RECOMMENDED ORDER 89-4834 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the proposed findings of fact submitted by the Respondent in this case. Petitioner's submittal was a mixture of argument, conclusions and facts which have been carefully considered in the preparation of this Recommended Order. However, specific ruling on proposed findings of fact by the Petitioner is not possible given the format of her proposal. Rulings on Respondent's Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. The first sentence is adopted in substance in Findings of Fact 5. The remainder of the proposal is rejected as unnecessary. Subordinate to Findings of Fact 7. Adopted in substance in Findings of Fact 8 and 10. Adopted in substance in Findings of Fact 11 and 12. Adopted in substance in Findings of Fact 14 and 16. COPIES FURNISHED: Willie Mae Miles 10220 S.W. 170th Terrace Miami, Florida 33157 Larry Scott, Esquire Division Attorney Office of General Counsel Department of Administration Room 440 Carlton Building Tallahassee, Florida 32399-1550 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that HRS did not discriminate against Keith Woods on the basis of age, but exercised its legal rights under the then applicable statute. Therefore, this petition should be dismissed. DONE and ORDERED this 11th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank C. Lawson, Esquire 244 Bal Bay Drive Bay Harbour, Florida 33154 James G. Mahorner, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301 Julia M. Giller, Esquire 1177 Kane Concourse Miami Beach, Florida 33154
The Issue Whether Petitioner is entitled to receive Florida Retirement System (FRS) benefits from her deceased spouse’s retirement account, pursuant to FRS Option 3 (lifetime monthly benefit to joint annuitant).
Findings Of Fact Petitioner, Lettie Jones, is the wife of FRS member, James Jones, and a designated beneficiary of his FRS account. Respondent, Department of Management Services, Division of Retirement, is the state agency with the responsibility to administer the FRS. Background Findings Mr. Jones applied to the State of Florida for disability retirement on July 13, 1994. On his application, Mr. Jones noted that the “[m]uscles in [his] feet and legs [were] deteriorating.” In response to a question regarding any other physical impairments, Mr. Jones answered, “Losing strength in right hand.” The record does not reflect the effective date of Mr. Jones’ retirement. Mr. Jones suffered a stroke in April 1996. On January 27, 1997, Mr. Jones obtained from the state an “Estimate of Disability Retirement Benefits” listing the approximate monthly benefit payment amounts for all four FRS payment options. On that date, Mr. Jones also obtained Form 11o, the FRS retirement benefit election option form, and Form FST 12, the FRS beneficiary designation form. On March 18, 1997, Mr. Jones executed Form 11o, choosing Option 2 for payment of his monthly retirement benefits, and Form FST 12, designating Petitioner as primary beneficiary, and his daughter as contingent beneficiary, of his retirement account. Form 11o provides the following explanation of Option 2: A reduced monthly benefit payable 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 payments. No further benefits are then payable. Form 11o requires the spouse’s signature acknowledging the member’s election of Option 2. The spousal acknowledgment section appears in a box on Form 11o following the description of Options 1 and 2. The first line inside the box reads, in all capital letters, “THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2.” On March 18, 1997, Petitioner signed the box on Form 11o acknowledging her husband’s election of Option 2. Mr. Jones received more than 120 monthly retirement benefit payments prior to his death in 2013. Petitioner’s Challenge Petitioner alleges that Mr. Jones lacked the capacity to make an informed election of benefit payments on March 18, 1997, because he had reduced cognitive function. Both Petitioner and her daughter testified that they accompanied Mr. Jones to the FRS office on March 18, 1997, but were not allowed to “go back” with him when he met with an FRS employee to select his retirement option and execute Form 11o.2/ Petitioner admitted that she did sign the box on Form 11o, which acknowledges spousal election of Option 2, but testified that the form was blank at the time her husband presented it to her for signature. Petitioner signed the spousal acknowledgment on Form 11o the same day her husband executed the form. Petitioner introduced no evidence, other than the testimony of her daughter, that Mr. Jones suffered from reduced cognitive function on March 18, 1997. The fact that Mr. Jones suffered a stroke in 1996 is insufficient evidence to prove that he lacked the mental capacity to make an informed retirement option selection on the date in question.
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 the relief requested in the Petition for Administrative Hearing. DONE AND ENTERED this 25th day of October, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2016.