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 Whether Petitioner was overpaid $961.87 in 1975 when he received a refund of his retirement contributions, and, if so, whether Petitioner is required to refund that amount to the Division of Retirement before receiving any retirement benefits.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a law enforcement officer employed by the Florida Highway Patrol (FHP). Petitioner was first hired by FHP in August 1968. He left FHP on October 15, 1975, to pursue a private venture. Petitioner rejoined FHP in July 1981, and he is currently a member of the troop that patrols the Florida Turnpike. Between September 1968 and December 1974, Petitioner made monthly contributions to the FHP pension fund which, at the time, was administered by FHP. In 1970, when the Florida Retirement System (FRS) was created, Respondent took over the administration of the FHP pension fund, and Petitioner elected to participate in the FRS. The FRS was, and still is, administered by Respondent pursuant to Chapter 121, Florida Statutes. Prior to January 1, 1975, the FHP pension fund and the FRS were "contributory," meaning that the employee was required to contribute a percentage of his or her salary to the fund, and contributions were also made by the employer. Starting on January 1, 1975, the FRS became "non-contributory," meaning that the employer made all of the contributions. Petitioner's contributions to his FHP pension fund account were recorded on a four-column ledger sheet which showed the old balance, date of contribution, amount of the contribution, and the total balance. The ledger sheet was not computerized. The entries were manually typed onto the ledger sheet. Petitioner's account showed a total balance of $4,656.71 on December 31, 1974, and because the FRS was "non- contributory" after that date, the account had the same balance on October 15, 1975, when Petitioner left FHP. The total balance shown for Petitioner's account was incorrect as a result of a calculation error made when Petitioner's December 1968 contribution was entered onto the ledger sheet. Prior to that contribution, the old balance reflected on the ledger sheet was $108.89. Petitioner's December 1968 contribution was $37.45, so the total balance should have been $146.34. However, a calculation error was made and the total balance entered on the ledger sheet was $1,108.21. The effect of this error was that the balance shown in Petitioner's account was $961.87 (i.e., $1,108.21 minus $146.34) more than Petitioner had actually contributed. The error was carried forward to the following month when $1,108.21 was entered as the old balance, and all subsequent entries to Petitioner's account reflected the error. As a result, Petitioner's actual contributions as of December 31, 1974 (and, hence October 15, 1975, when he left FHP) were $3,694.84, not $4,656.71. The error was not discovered in October 1975 when Petitioner left FHP and requested a refund of his contributions. Apparently, the account was not audited prior to payment of the refund to Petitioner. In October 1975, Petitioner signed a card requesting a refund of his contributions. The address listed on the card corresponded to Petitioner's address at that time. The pertinent information from the card (i.e., the payee and the amount) was provided to the Comptroller by Respondent when a warrant was requested. The Comptroller prepared a warrant in the requested amount and returned it to Respondent along with a computer- printed label that contained Petitioner's name and social security number, the refunded amount ($4,656.71), warrant number (173213), and the date of the warrant (November 4, 1975). The label was affixed to the refund request card, and the warrant was mailed to Petitioner. The Comptroller's records show that warrant number 173213 was paid on November 21, 1975. The records do not show the payee of the warrant. Nor do the records show whether the warrant was deposited into a bank account or cashed. The cancelled warrant no longer exists. Petitioner did not recall receiving a warrant in the amount of $4,656.71. Petitioner and his wife both testified that they recalled receiving only $2,500.00. Petitioner produced a deposit slip dated November 15, 1975, showing a $2,500.00 deposit as well as bank records which showed that deposit as the only large deposit into Petitioner's account between November 1975 and February 1976. The source of the $2,500.00 check is not shown on the deposit slip. The Comptroller's records show no FRS warrants in that amount during the period of November 15, 1975, through November 21, 1975, when such a warrant would likely have been paid. Moreover, Petitioner conceded that he may have had another bank account at the time, although he could not locate any records for such an account. Petitioner received a statement of account from Respondent in June 1974 showing the balance of his account to be $4,220.47 at that time. Despite having that information and despite his financial circumstances being "tight" at the time, Petitioner did not make any inquiry to Respondent as to why he received only $2,500.00. This suggests that the $2,500.00 check was not the FRS warrant. The overpayment was first discovered in 2000 when Respondent conducted an audit of Petitioner's FRS account as part of its preparation of the member annual statement required by Section 121.136, Florida Statutes. Petitioner was first informed of the error and the 1975 overpayment in August 2001 when he received an unsolicited telephone call from Brenda Shiver, an employee of the Respondent, regarding his retirement plans and the cost of "buying back" his prior service with the FHP between 1968 and 1975. Petitioner has no current plans to retire. Nor does Petitioner have a current desire to "buy back" his prior service which would cost over $21,000, not including the amount at issue in this proceeding. The cost of the prior service is not at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement issue a final order that increases the cost for Petitioner to "buy back" his prior service by $961.87 to reflect the 1975 refund overpayment, but eliminates the mandate that Petitioner pay that amount as a condition of receiving retirement benefits related to his current service. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 24th day of June, 2002. COPIES FURNISHED: Richard W. Holland 17964 Lookout Hill Road Winter Garden, Florida 34787 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 Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's deceased wife, Dorothy Bazzel, made a valid selection of retirement "option 1" instead of "option 2"; whether that apparent selection was a mistake and, consequently, whether the Petitioner should be allowed to receive retirement survivors benefits in accordance with "option 2", as provided for under section 121.091(6), Florida Statutes.
Findings Of Fact The Petitioner, Joe Bazzel, is a resident of Blountstown, Florida, and is retired. His wife, now deceased, was Dorothy Bazzel. She was a longtime teacher in the Bay County school system, with more than 46 years continuous creditable service in the Florida Retirement System and as a teacher. She retired on July 1, 1988. The Respondent is an agency of the State of Florida charged with administering and enforcing the statutes, embodied in Chapter 121, and related rules, by which operation of the Florida Retirement System, including determinations of entitlement to and payment of benefits, is accomplished. Mrs. Bazzel underwent surgery for breast cancer on January 11, 1987. She had been diagnosed by Dr. Dixon McCloy, of Panama City, with breast cancer sometime in January of that year. Her progress after surgery was satisfactory, and she kept all appointments, had required x-rays, examinations and mammograms thereafter, by which her physicians monitored her progress. She had expressed to several persons of her acquaintance a desire to retire by the end of the 1987-1988 school year. In order to prepare for that event, she contacted her brother-in-law, Ray Bazzel, who testified in this case, and asked him to contact the Division of Retirement in Tallahassee, Florida, to obtain an estimate of her expected retirement benefits. He made that request to Ms. Loreen Vause, an employee of the Division, on July 16, 1987, by telephone. The Division of Retirement has an ongoing program which automatically generates an estimate of benefits for members who have certain amounts of creditable service and are of a certain age. When Mr. Bazzel made his request for an estimate of benefits for Mrs. Bazzel, the Division was already in the process of preparing a benefit estimate for her through its routine program. That estimate was forwarded to Mrs. Bazzel on July 22, 1987, and it stated as follows: This is a routine audit of your account. Noting the many years of service you have, we are furnishing you an estimate of your benefits as if you terminate your employment on June 30, 1988, and retire effective July 1, 1988. This is furnished for informational purposes only. By means of that estimate, Mrs. Bazzel was informed as to the benefit amounts which she would receive under all four retirement options. See Respondent's exhibit 8 in evidence. Ray Bazzel would visit Mrs. Bazzel on occasion during his visits to Panama City. She was described by him in his testimony to be a very private person not given to talking much about her illness or the operation. She did discuss the possibility of her retirement on one occasion with him, sometime during the summer of 1987. They discussed all four retirement options, and he explained the options in detail to her. He advised her that she would have to make a decision as to which option she would take, but he was never advised by Mrs. Bazzel nor anyone else as to which option she had actually selected until after her death. He did not know that she had made application for retirement on January 14, 1988. Harold Bazzel is a nephew of the Petitioner. He testified that he did not know that Mrs. Bazzel had made an application for retirement and did not know what option she selected until after her death. Richard Locker was the personnel officer with the school board where she was employed and knew Mrs. Bazzel personally and professionally. He was the principal for six years at Cove Elementary School where both his wife, Nan Locker, and Mrs. Bazzel taught. Mr. Locker had a policy of discussing retirement issues with Florida Retirement Service members on his staff and advising them of correct procedures to follow, as to the paperwork involved, and as to the full retirement options which they could select. He advised all members who were employed at his school to call the Division of Retirement in Tallahassee for more information. He never advised anyone of which option they should take because each case is an individual case, and he did not feel comfortable advising an employee or friend which option to take and then later have that person accuse him of advising the wrong option. Mr. Locker saw Mrs. Bazzel after her surgery and stated that after the surgery, she appeared to be in good health. He saw her in May of 1988 and stated that she was very optimistic and appeared capable of teaching the next year. She did not seem moody or depressed in any way to him. He believed that she exhibited an attitude that her treatment had been a success and that her health had been restored. He discussed with her the possibility of her retiring at the end of the 1987-88 school year, and he believed that she would retire at that time. In two telephone calls, he and Mrs. Bazzel discussed the four different retirement options. She appeared to know what he was talking about and to understand those options. He felt that she understood that option 1 would pay the highest benefit amount to her of the four options. He, however, did not really know what option she had chosen until after the Petitioner, her husband, informed him after Mrs. Bazzel's death. Based upon the testimony of Ray and Harold Bazzel and that of Richard Locker, concerning their contact and discussions with and advice to Mrs. Bazzel, it is found that Mrs. Bazzel was aware of the four options and the differences between them. She was aware that option 1 provided the highest benefit to the retiring member for the lifetime of that member and that it would cease at the death of the member with no further benefits being payable to any person. On January 14, 1988, the Petitioner, Joe Bazzel, drove his wife to the offices of the school board, where she completed the forms necessary for her retirement. She talked with Vicky Poole, the records clerk, who helped teachers and administrators complete necessary retirement forms as part of her job duties. Ms. Poole had worked at the school board offices for approximately seven years and had an established procedure for informing prospective retirees of all information needed to process retirement applications. As part of her instructions to them, she would ask each potential retiree to inform her of the option they wanted to select, who their beneficiary would be and where the checks were to be sent. She would inform them when they would start receiving checks, would discuss with them their sick leave balance "payoff", and what steps they needed to take to obtain social security benefits. This discussion with prospective retirees would take up to one-half hour if the retirement form had not been partially completed before the retiree came into the office, or about 15 minutes if the form had already been partially completed. If Mrs. Bazzel already understood the retirement options and had formed an opinion of what she wanted to do concerning retirement and the selection of an option, and if the form had already been partially completed, then the entire process on January 14, 1988 could have occurred in a few minutes. It was Ms. Poole's practice to sit next to the prospective retiree, obtain the necessary information, and type it on the retirement form at that time. She would then advise the member of the various options by referring to the back of the retirement form (Respondent's exhibit 12 in evidence) or to a pamphlet explaining the options issued by the Division of Retirement. Both of those documents contain a narrative description of the retirement options. Ms. Poole did not choose a retirement option or advise a prospective retiree of which option to choose. The retiree must choose his or her own option. Ms. Poole would never advise a person concerning which option to take and had been advised by the Division of Retirement never to give such advice on option selection. If Ms. Poole perceived that a prospective retiree was indecisive about option selection or did not appear to understand the options or the consequences of such election, she would advise that person to speak with someone else who was knowledgeable about the retirement system and about the retiree's financial situation, such as a friend or relative. If a prospective retiree was still indecisive or unsure of the meaning of options or which option to select, Ms. Poole would hold the form and not complete it without being sure in her own mind that the retiree understood the option and knew what it meant. In her standard procedure, she would go over each item on the form at least two and up to four times with a retiree. If they were very certain of the option they wanted to select, she would then finish the form and have the person sign it and give it to Ms. Bolinger to notarize. Ms. Poole realized that the choice of an option was an important decision and conducted her interview with the retiree accordingly. She testified in this regard as follows: If they said well I'm looking at 2 and 3, that's waivering. If they said I want option 1, I typed 1 in and I would say it several times as I typed it in. I mean I was very well aware that this selection was for the rest of their life and could affect someone else. I was very well aware of that. So, I would repeat it several times and when I was complete, when the form was complete, I'd give it back and go over it again, again reemphasizing the option. If they did waiver, I would briefly go over the options and there was time, I always mention, you know, there's time to do this, to choose your option, perhaps you want to talk to someone. I could not advise them. That's what I did. Ms. Poole remembered that Mrs. Bazzel came into the office but did not remember if the retirement forms had already been completed or partially completed prior to the visit. She testified that there was no doubt in her mind that Mrs. Bazzel chose option 1 and no doubt that she knew what option 1 meant. Ms. Bolinger began to work with the school board dealing with retirement applications in 1984. She is now the records clerk who handles retirement matters for teachers and school administrators. This is the same job that Ms. Poole performed in January of 1988. Ms. Bolinger notarized the retirement form of Mrs. Bazzel. Ms. Bolinger learned her job from Ms. Poole and testified that the retirement form was always completed in the office before a retirement clerk and was never sent to anyone. She stated that the clerk would ask the member if they understood each of the options, and the clerk would be sure that the member did understand them. It was the practice to ask such a retiring person if he or she was familiar with the options. If the retiree seemed the least bit confused, Ms. Bolinger testified that the clerk would discuss each option all over again with the prospective retiree, give him the form with the options listed on the back, and they would then discuss each one and make sure that the prospective retiree understood each option before continuing the process of executing the requisite forms. Thus, Ms. Poole and Ms. Bolinger or any school board clerk follows a routine practice of examining and discussing in detail each retirement option with a prospective retiree and makes sure that person understands the wording of the four options and what the four options mean before making a selection, answering any questions the prospective retiree might have and advising them to seek counsel from a qualified person if the prospective retiree remains unsure of which option to elect. After the forms are completed, the clerks, including Ms. Bolinger and Ms. Poole, when she was performing that function, examine the forms with the retiring member to make sure that all information is correct. "We wait until they check the whole thing and this is exactly what they want, and I watch them sign it." The signature is the last item which is placed on the retirement form. If the retiring member appears unsure about the options, Ms. Poole and Ms. Bolinger will ask them to go home and think about it and think it all through before they decide. Like Ms. Poole, Ms. Bolinger leaves the option selection up to the retiring member and does not attempt to advise persons about which option to select, merely giving them the information concerning the effect of selecting a particular option. In her capacity as a notary, Ms. Bolinger stated that if a person did not look like they knew what they were doing in executing the form, she would not notarize the form. If they did not appear to understand that they were applying for retirement, or which facet of it they were applying for, she would, likewise, not notarize the form. She would not notarize a signature after the fact of the signature being placed on the form. Ms. Bolinger was shown a copy of Petitioner's exhibit 7, in evidence, which is a copy of the retirement form that did not have her notary signature. She observed that her notary stamp was on that copy but that her name had merely been signed in the wrong place, possibly because she was new to those duties concerning retirement clerk matters. She testified, however, that her signature was correctly placed on the form, she believes, that same day. See pages 17 and 37 of Petitioner's exhibit 7, in evidence. On January 14, 1988, Mrs. Bazzel completed two forms: FR-11, "Application for Service Retirement", and FR-9, "Request for Audit", (see Respondent's exhibits 9 and 10, in evidence). Both of those forms contain Mrs. Bazzel's signature and are dated with the same date, January 14, 1988. The FR- 11 form had that date written on it in three places. The two forms were then filed with the Division of Retirement. They were acknowledged by the Division as being received on the next day, January 15, 1988, according to the form FST- 40C, "Acknowledgment of Retirement Application", which has January 15, 1988 as the received date. See Respondent's exhibit 11 and the testimony of Stanley Colvin, in evidence. The Petitioner testified that he believes the retirement application forms referenced above were suspect as to accuracy because, according to his testimony, he took his wife to the school board offices on a Friday to sign the forms after the end of the teaching day on either January 8th or January 15th, and states that generally he remembers that it was a Friday because that was the day they had the habit of leaving the Panama City area to visit relatives for the weekend. However, the forms are dated January 14, 1988 in several places. The forms in evidence and the testimony of Ms. Colvin establish that the application documents were received on January 15th in the offices of the Respondent agency. Thus, they could not have been signed on Friday, January 15th. If they had been signed on Friday, January 8th, the record leaves no explanation as to why all of the forms were dated January 14th. The Hearing Officer can only logically find that, indeed, the forms were signed by Mrs. Bazzel on January 14, 1988 and received in the offices of the Division in Tallahassee, Florida, on January 15, 1988. The date of January 20, 1988, appearing on the documents, was established to be the date they were received in the bureau within the department which actually performs benefit calculations, not the date it was first received by the department. The evidence establishes that Mrs. Bazzel selected option 1, the retirement option which provides no survivor's benefits. None of the exhibits in evidence can support a finding that she chose or intended to choose option 2, which provides survivor's benefits. The application for service retirement shows an election for option 1 and the acknowledgment of receipt of that retirement application, FST-40C, shows that option 1 was selected, as well as the letter that informed Mrs. Bazzel that she was being added to the retirement payroll in the category of option 1 benefits. On August 1, 1988, the day after the first retirement warrant would have been received by Mrs. Bazzel, Ray Bazzel called the offices of the Division of Retirement to state that Mrs. Bazzel had checked the wrong number of income tax exemptions and wanted to change them. In order to know how many exemptions she had, he would have had to see the stub from that first retirement warrant. The stub would have depicted the gross amount of the benefit, which was the same amount as that provided for option 1, and not the gross amount attributable to option 2. See FST-40C form, in evidence as Respondent's exhibit 8. Additionally, in a conversation with one of her closest friends, Nan Locker, Mrs. Bazzel led Ms. Locker and friends at school to believe that her surgery had alleviated her medical problem with cancer and that she was in good health. During a conversation they had approximately nine months before Mrs. Bazzel's death, Mrs. Bazzel, in talking about retirement with Ms. Locker, who was also contemplating retirement, made a comment as follows: "Well, I've got my retirement and Joe's got his." This comment was made sometime in the fall of 1989 before Mrs. Bazzel's death in July of 1990. Although the Petitioner introduced exhibits 1, 2 and 4 in an attempt to show that his wife meant to select option 2 and that some mistake was made by the school board or the Division in preparing and submitting the documentation setting up Mrs. Bazzel's retirement benefit situation; in reality, those exhibits merely show that Mrs. Bazzel possibly did some calculations as to the difference in monthly amounts between option 1 and option 2. The exhibits can only show that she may have been aware of the difference in monthly benefit amounts between the two options, but they do not show that she intended to select option 2. Indeed, the evidence and testimony, considered in its totality, shows that her selection of option 1 was a voluntary, knowing selection. The evidence also shows that Mrs. Bazzel was mentally and medically competent to make that selection, freely and voluntarily. Her visits with Dr. McCloy, her treating physician, in the first half of 1988, to monitor her health situation after the cancer surgery, were normal and showed nothing unusual as far as any recurrence of cancer was concerned. Her chest x-rays were negative for recurrent cancer. On June 3, 1988, she was diagnosed as having a small duodenal ulcer, but no indication of recurrent cancer was present. Dr. McCloy treated her for the ulcer with medication; and by August 10, 1988, her symptoms attributable thereto had largely been alleviated. Her visits to Dr. McCloy were routine for the remainder of 1988 and 1989, with normal results. It was not until March of 1990 that she was diagnosed with a spot on the left rib, which proved to be recurrent cancer, probably attributable to the original breast cancer. She deceased as a result of this condition on July 9, 1990. Dr. McCloy testified that he never advised Mrs. Bazzel that her cancer was terminal because he believed that it had been successfully treated after the surgery and for a long period of time thereafter he had no evidence of its recurrence. Therefore, he had not advised her that she was terminally ill during the period of time she was making the retirement decisions, applying for and receiving her first retirement check during essentially the first half of 1988. Dr. McCloy's testimony further establishes, without doubt, that Mrs. Bazzel was alert, possessed her full intelligence and faculties, and understood the significance of his medical instructions, and understood his advice as to her health status. Accordingly, it has been established that Mrs. Bazzel did not have a recurrence of cancer until it was diagnosed in March of 1990, long after she had made the relevant retirement decisions pertinent hereto, and that she knew and was fully aware of her medical condition during the process of applying for her retirement benefits. She, therefore, understood the steps she took for retirement application and benefit receipt purposes, and was not medically or mentally impaired to make those decisions. It was established that she began her teaching career as a member of the Teacher Retirement System, pursuant to Chapter 238, Florida Statutes. She subsequently transferred into the Florida Retirement System under Chapter 121, Florida Statutes, during an open enrollment period. While a member of the Teacher Retirement System, she paid $12,870.33 in total contributions, plus interest, which accumulated on those contributions in the amount of $8,561.97, for a total on deposit in her account of $21,432.30. During the period of her retirement before her death, Mrs. Bazzel received total benefits in the amount of $49,551.95. She, therefore, received $28,119.65 more in benefits than she had paid into the Teacher Retirement System in contributions, plus accumulated interest. It was proven that the distance to the residence or places of business of the deponents, whose depositions were admitted into evidence, comports with the standard of Rule 1.330, Florida Rules of Civil Procedure. Since the locations of the deponents as potential witnesses accorded with the 100 mile standard, their depositions were admitted in lieu of live testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Joe Bazzel, is not entitled to have the retirement option selected by Dorothy Bazzel changed from option 1 to option 2. DONE AND ENTERED this 15th day of September, 1992, 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) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5774 Petitioner's Proposed Findings of Fact 1-5. Rejected as not being in accord with the preponderant weight of the evidence. 6. Accepted but not itself materially dispositive. 7-11. Rejected as not being in accord with the preponderant weight of the evidence. Respondent's Proposed Findings of Fact 1-25. Accepted. 26-30. Accepted. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Mr. Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Joe Bazzel P.O. Box 46 Blountstown, FL 32424 Stanley M. Danek, Esq. Division of Retirement Cedars Executive Center 2639 North Monroe Street, Bldg. C Tallahassee, FL 32399-1560
The Issue Whether Petitioner is entitled to disability retirement benefits calculated as if she had reached the age of 65, irrespective of her true age.
Findings Of Fact From April 1969 until March 1996, Petitioner, Bobbie Jones Scott, was employed as a school teacher by the Okaloosa County School Board. She served 27 years as an elementary school teacher, teaching at the same Okaloosa County elementary school for her entire tenure. Prior to commencing her teaching career, Petitioner served as a library aide in Okaloosa County for the full 9-month term of that position in the 1967-1968 school year. Petitioner is a member of the TRS. The TRS was closed to new members on December 1, 1970. Since closure, teachers have been enrolled in the Florida Retirement System (FRS). At some point, Petitioner purchased retirement credits in TRS for the school year during which Petitioner served as a library aide. Early retirees under both TRS and FRS, retiring without disability, have their retirement benefits actuarially reduced by five percent per year or five-twelfths percent per month for each year or fraction of year that the retiree is under the age of 62. See, Section 121.021(30), Florida Statutes and Rule 6S-7.003, Florida Administrative Code. Petitioner first inquired about retirement in 1993, when her husband, also a teacher, retired. She requested and obtained from the Division an estimate of early retirement benefits. In 1993, the early retirement penalty reduced Petitioner's retirement benefit to 67.9 percent of her normal retirement benefit. The reduction was so great that Petitioner elected to keep teaching. On October 16, 1994, Petitioner severely injured her arm when she slipped on a freshly waxed floor at the elementary school. Several surgical procedures were required over the next two years as a result of this accident. Despite extensive physical therapy, Petitioner did not regain full range of motion and full use of her dominant right arm. Petitioner could not raise her arm above shoulder level and could not raise it high enough to write on a blackboard. The injury clearly interfered significantly with Petitioner's ability to teach. In December 1994, because of her injury, Petitioner requested an estimate of retirement benefits. Again, the early retirement penalty reduced the retirement benefit to 77.9 percent of normal benefits. The reduction was so great that Petitioner could not afford to retire. Approximately three months after her accident on January 17, 1995, the Petitioner returned to teaching. Her physical therapy and surgical treatment continued. In June 1995, while recuperating from the third operation on her arm, Petitioner called the Division of Retirement to request information on disability retirement. She specifically told the person she spoke with that she was a member of TRS. Petitioner was sent an application form and instructions for retirement under FRS instead of an application and instructions for TRS. At that time, the Petitioner did not submit the application because a decision on the application would not be reached before the start of the 1995-1996 school year. Petitioner wished to avoid commencing the school year, only to leave teaching several weeks into the school year, necessitating finding and hiring a replacement teacher and disrupting the students’ course of studies. In November 1995, Petitioner was diagnosed with diabetes. Teaching was becoming detrimental to Petitioner's health. At the urging of her physician she elected to pursue disability retirement. The Petitioner reviewed a booklet sent to her by Respondent entitled "Florida Retirement System Disability Benefits." The Petitioner relied on the statement on page 27 of the booklet which states, "Disability benefits are not reduced for early retirement." Based on that statement Petitioner applied for disability retirement and submitted the disability retirement application which she had received earlier along with the requisite supporting documentation on January 10, 1996. Neither the FRS disability retirement application form nor the FRS Disability Retirement Handbook informed Petitioner that there would be an early retirement penalty for disability retirees. However, the FRS literature also indicates that employees who are members of other retirement systems may be governed by different rules and should look to those other retirement systems. Unfortunately, Petitioner had been given the wrong information by the Division of Retirement even though she had specified she was a member of TRS. On February 9, 1996, after receiving Petitioner's application, the Division of Retirement sent a letter to Petitioner advising her that the incorrect disability retirement application form had been used. A TRS Disability Retirement Application form was enclosed with the letter. Only the title of the application was changed. In essence, the TRS application was the same as the FRS application. No booklet or pamphlet explaining the TRS system was provided. On February 14, 1996, immediately upon her receipt of the February 9, letter and the TRS Disability Retirement Application form, Petitioner telephoned the Division of Retirement and spoke with Mark Sadler, a retirement administrator in the disability determination section within the Division of Retirement. The Petitioner explained that she had used the disability retirement forms provided to her by the Division. She inquired as to whether an additional 30 days would be needed to process her application. She also indicated that the reason she was still working and had not retired previously is that she could not afford to be assessed the early retirement penalty. Mr. Sadler informed the Petitioner that she would need to submit the correct TRS Disability Retirement application. However, Mr. Sadler agreed to accept the physician’s report of disability already submitted with the FRS form and to expedite her request for disability retirement since the medical information which Petitioner had submitted met the TRS requirements for disability documentation. On or about March 7, 1996, Petitioner received notification from the Division of Retirement that her application for disability retirement had been approved. The next day, Petitioner met with Virginia Bowles, a benefits specialist with the Okaloosa County School Board, to obtain an estimate of her retirement benefits under Plan E of the TRS system. Mrs. Bowles prepared an estimate of Petitioner’s benefits. The estimate did not show any reduction of benefits for early retirement. The form Ms. Bowles prepared was clearly labeled "estimate" and provided, inter alia, that Petitioner would receive a calculation of her retirement benefits from the Division of Retirement in approximately three weeks. While in Mrs. Bowles’ office, Petitioner insisted on confirmation from the Division of Retirement that an early retirement penalty would not be imposed on her benefits. In the Petitioner’s presence, Mrs. Bowles called the Division of Retirement to verify that there was no early retirement penalty for disability retirees. Mrs. Bowles was assured that there was no such penalty. Mrs. Bowles immediately relayed that information to Petitioner. Based on this representation, Petitioner immediately resigned her position on March 8, to be effective March 13, 1996.1 Had Petitioner known there would be a reduction in her disability retirement benefits and had she not received incorrect information from both the Division of Retirement and the Okaloosa County School Board, she would have found some way to continue working to avoid the early retirement penalty even though continued employment would have been detrimental to her health.2 At the time of her retirement, Petitioner had attained the age of 58 years and 4 months, 44 months short of the normal retirement of age 62. The estimate prepared by Ms. Bowles reflected that Petitioner's monthly retirement benefit would fall between $1,458.20 and $1,512.41. At the time of her resignation, Petitioner was earning over $39,000 per year as an experienced teacher. Once Petitioner resigned her position, she could not immediately return to work. Board policy required her to wait one year before re-employment and then she could be rehired at a starting teacher’s salary of about $21,000. A couple of weeks after resigning her position, Petitioner received a calculation of her retirement benefits from the Division of Retirement. The benefits were significantly lower than the estimate of benefits prepared by Mrs. Bowles. Retirement benefits under Plan E are calculated by, first, determining an "average final compensation," or AFC, for an employee by averaging the 10 highest years of salary in the employee’s last 15 years of employment. The employee’s compensation percentage, or "comp percent," is then determined by assigning a 2 percent value for every year of creditable service. The AFC is then multiplied by the comp percent to arrive at a retirement benefits figure. In Petitioner’s case, the Division calculated AFC as $32,601.10. The Division, based on 27.9 years of service, arrived at a comp percent of .558, resulting in a normal retirement allowance of $18,191.41 per year or $1,515.95 per month.3 However, because Ms. Scott fell into the early retirement category under TRS her benefits were reduced. In calculating Petitioner’s disability benefits, the Division of Retirement reduced the otherwise normal retirement benefit calculation by 18.33 percent to 81.667 percent of her normal benefit. The reduction resulted in a monthly retirement benefit of $1,238.03. The reduction is the result of a five- twelfths of one percent reduction for each month that Petitioner was short of age 62 and is the correct benefit calculation under TRS. See Rule 6S-7.003, Florida Administrative Code.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Division of Retirement calculated Petitioner’s benefits correctly and is not estopped from reducing Petitioner’s benefits based on her status as a disability retiree. DONE AND ENTERED this 30th day of July, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1997.
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 The issue presented for decision in this matter is whether petitioner is entitled to disability retirement benefits pursuant to F.S. Section 121.091(4). 1/
Findings Of Fact Having heard the testimony presented and considered the exhibits received into evidence at hearing, it is found as follows: On April 30, 1973, petitioner was employed by Metropolitan Dade County as a fire lieutenant, when he injured his back while unloading fire hoses. 2/ He then took some vacation time and returned to work for about three months. He saw a medical doctor during this time for pain in his right hip and lower back. For a while, his back pains seemed to improve, but then got worse again. In August of 1973, petitioner again injured his back at work when responding to an emergency. Dr. Ray Lopez saw petitioner after this second injury and put him in the hospital. Apparently, petitioner did not return to work after August 30, 1973. On September 10 or 11, 1973, Dr. Hubert Aronson performed surgery on petitioner and removed a herniated disc. According to Dr. Aronson, on September 25, 1973, petitioner's legs were free of pain, but he was still having some back pains, as he was on October 16, 1973. His pain in his right leg had abated somewhat after the surgery. On October 24, 1973, petitioner suffered a gunshot wound to the abdomen. The bullet entered the spinal canal and cut some of the nerve roots inside the spinal canal. Immediately after the gunshot wound, petitioner had a partially paralyzed left leg. Abdominal surgery was performed in connection with the gunshot wound. In December of 1973, a third operation was performed on petitioner. This operation was also related to the damage done by the gunshot wound. After the gunshot wound, petitioner began to have pain recurring in the right leg. Since his left leg was paralyzed as a result of the gunshot wound, he was having to use his right extremity almost exclusively in his ambulation. His complaints from this point forward relate primarily to pain in his right leg, right hip, and lower back. As noted above, petitioner did not return to work after August 30, 1973. Petitioner is now receiving benefits under a long-term disability program by Metropolitan Dade County, which determined that petitioner was, for that purpose, totally and permanently disabled as a result of the work-related accidents and was not capable of being placed in any of its approximately 500 job classifications. It was petitioner's testimony that although the pain in his right leg and hip is somewhat relieved by medication, he is still uncomfortable even with the medication. He testified that he cannot sit or stand for any long period of time and only gets relief when he lies down. He stated that although he would like to work, he does not feel that he is able to do so because of his pain and the resulting medication. Petitioner is 39 years of age, has a high school education and has been employed as a plasterer, as well as a firefighter. It was Dr. Aronson's opinion that petitioner received a twenty-five percent permanent physical impairment as a result of the work-related injuries. As to the injuries resulting from the gunshot wound, Dr. Aronson estimated the permanent physical impairment to be forty or fifty percent. The combination of the work-related injuries and the gunshot wound would be less than seventy-five percent. In answer to questions regarding petitioner's ability to work, Dr. Aronson opined that petitioner would not be able to be an active firefighter and, as to other jobs, Aronson stated that only the petitioner could answer that question because he is the one who suffers the pain. Dr. Aronson did state that, while the gunshot wound produced the greater physical impairment, the work-related injuries produced the greater disability due to the pain involved. Dr. Ray Lopez felt that the gunshot would aggravate the prior work-related injuries. Had petitioner not been shot, he may have been able to return to work in some capacity with the fire department. Even after the gunshot wound, it was Dr. Lopez's opinion that while petitioner could not return to work as an officer in the fire department, he may "potentially, eventually be rehabilitated in some other type of endeavor".
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is my recommendation that petitioner's request for disability retirement benefits be denied. Respectfully submitted and entered this 30th day of October, 1975, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675
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.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Waltraud E. Paehler, was a classroom teacher in the Clay County public school system until 1993, and says she had a total of nineteen years of service. During that time period, she participated in the Florida Retirement System, which is administered by respondent, Division of Retirement (Division). In 1992, petitioner was suffering from a number of illnesses, including chronic kidney failure and congestive heart failure, which impaired her ability to continue working as a teacher. She also suffered from depression. These conditions continued into 1993. During this time period, she was hospitalized on at least two occasions. Because her work was very stressful, and tended to exacerbate her medical condition, petitioner accepted her physician's advice and decided to resign her teaching position effective April 14, 1993. On April 21, 1993, or a week later, she executed her application for retirement and opted to take early retirement effective May 1, 1993, when she was fifty-four years of age. Even though the local school board had periodically distributed information booklets to all teachers, including petitioner, concerning early, normal and disability types of retirement, and the various retirement options were discussed annually at each school's in-service training seminar, petitioner says she was still unaware of the disability retirement option. Thus, she elected to take early retirement on April 21, 1993. Because of her age, her retirement benefits were reduced by forty percent, or five percent for each year under the normal retirement age of sixty-two. Assuming she was qualified, had she elected to take disability retirement, there would have been no penalty because of her age. At or about the time petitioner decided to resign her teaching position, her daughter, who was assisting petitioner in her personal affairs, telephoned the local school board in an effort to ascertain potential retirement options for her mother. She spoke with an unknown individual in the school personnel office who the daughter says was not "very knowledgeable." The two discussed "in general what (her) mother could do" with respect to retirement, but the daughter says she received no specifics other than the fact that her mother would be "entitled to partial pay." She also requested that an application for service retirement form be mailed to her mother. The daughter then relayed this sketchy information to her mother. Because of financial constraints, and in order to receive her benefits immediately, petitioner decided to take early retirement rather than wait until normal retirement age. After selecting the option 1 benefit, which entitled her to benefits for her lifetime only, petitioner carried the form to her school's personnel office where she executed it on April 21, 1993, before the principal's secretary, a notary public. Although the secretary could not recall the specific event, she affirmed that she would not allow anyone to sign a document who did not appear to be competent. In selecting option 1, which gave the highest monthly benefits for early retirement, petitioner acknowledged she understood the ramifications of making that choice when she did so on April 21, 1993. Thus, on that date she possessed sufficient mental capacity to know that these benefits would last only during her lifetime, and her daughters would not receive any benefits after her death. At final hearing she confirmed that, prior to executing the form, she had reviewed the various options under early retirement and selected the first option since she "figure(d) (she had) done enough for them all (of her) life, they can take care of themselves." In June 1994, petitioner read an article in a teacher trade publication and learned that a number of states offered disability retirement as an option and did not penalize retirees for early retirement due to a disability. This article prompted petitioner the following month to write a letter to the Division. When petitioner made inquiry with the Division in July 1994 concerning a change from early (service) to disability retirement, she was told that under Rule 60S-4.002(4), Florida Administrative Code, she could not do so after cashing her first check. By then, petitioner had long since cashed the first retirement check mailed to her at the end of May 1993. That advice prompted her to eventually challenge the Division's rejection of her claim on the theory that she was "incapacitated" when she made her decision to take early retirement. In support of her contention that in 1993 she lacked the necessary mental capacity to make a reasoned decision concerning her retirement, petitioner presented the testimony of three health professionals from whom she was receiving care in 1993. Their deposition testimony is found in petitioner's exhibits 1-3 received in evidence. Dr. Hardin, a family physician, was petitioner's primary treating physician from February 1992 until April 1993. In the spring of 1993, he recalled petitioner as being "confused," "in an imbalanced state," suffering "mental duress," dependent on explicit instructions for appointments, and taking a variety of prescribed medications for tobacco cessation, chronic renal failure, congestive cardiac condition, high blood pressure, cardiomyopathy, tremors, anxiety and migraine headaches. Because of these conditions, Dr. Hardin found it difficult to believe that she could "handle" a more complicated matter such as choosing a retirement option. Dr. Hardin acknowledged, however, that during the spring of 1993, he had little chance "to follow her" since another physician, Dr. Stoneburner, was managing petitioner's most important illness, renal failure. Dr. Stoneburner, a nephrologist and internist who has treated petitioner for a kidney disease since 1985, felt that in the spring of 1993 she "was not in a very good position to make a competent decision based on her emotional state." Just prior to her retirement, he observed petitioner as having "significant depression" and "a lack of desire to work." She was also taking as many as six or seven medications at one time which could "possibly" cause "someone to be confused." Based on these circumstances, Dr. Stoneburner opined that petitioner was not competent to make a rational judgment. However, Dr. Stoneburner conceded that if petitioner had been given retirement options explained in layman's terms, and had someone to assist her in explaining the various options, she could have made an intelligent decision. Kristina Crenshaw, a licensed mental health counselor, met with petitioner on four occasions between February 18 and April 12, 1993. Ms. Crenshaw found petitioner to have "significant difficulty with depression," in an "agitated, very stressed, (and) overwhelmed" condition, and with a "strong sense of uncertainty about her future." While the witness believed that petitioner would have understood a pamphlet describing her retirement options, she would not have "necessarily understood all the implications to her own personal life." The witness agreed, however, that once petitioner made a decision to resign her job, she seemed more "upbeat" and "positive." Further, petitioner had told her by telephone on April 15, 1993, that she felt "much better" after retiring from her job. The counselor did not know if petitioner was mentally competent when she opted for early retirement a week later. Nothwithstanding the testimony of the health professionals, the findings in paragraph 7 are deemed to be more compelling on the critical issue of competency, and it is found that on April 21, 1993, petitioner understood the nature and consequences of her acts, and she was capable of binding herself by the retirement application. Therefore, her request to have rule 60S-4.002(4) waived, or to have her "contract" with the Division set aside, should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a Final Order determining that petitioner was mentally competent when she elected to take early retirement and that her request to have rule 60S-4.0002(4) waived so as to permit her to file a request for disability retirement be denied. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4841 Petitioner: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 12. 4-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-9. Partially accepted in finding of fact 4. 10-11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. 14-20. Partially accepted in finding of fact 12. 21-24. Partially accepted in finding of fact 11. 25-31. Partially accepted in finding of fact 13. 32-37. Partially accepted in finding of fact 6. 38-39. Partially accepted in finding of fact 5. 40. Covered in preliminary statement. 41-43. Rejected as being unnecessary. Respondent: Rejected since the evidence shows that petitioner was employed by the Clay County School Board and not the Duval County School Board. Also, the only evidence of record as to years of service is the testimony of petitioner that she had nineteen years of service. However, this fact is not necessary to resolve the dispute. Partially accepted in finding of fact 8. Partially accepted in findings of fact 8 and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 6-7. Partially accepted in finding of fact 12. 8-9. Partially accepted in finding of fact 11. 10-12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Rejected as being unnecessary. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for the resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Mark H. Levine, Esquire 245 East Virginia Street Tallahassee, Florida 32301-1263 Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560
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.
Findings Of Fact On June 19, 1987, the last day of the 1986-87 school year, Petitioner received his class schedule for the forthcoming 1987-88 school year at Kinlock Park Junior High School in Dade County, Florida, where he was the band director. Petitioner was discomfited with the schedule and resolved that he would investigate the process of applying for retirement benefits in view of a total of 36 years of service in the Florida Retirement System (FRS), inclusive of four years of military service. He knew he had been eligible for retirement since August, 1985. On July 1, 1987, Petitioner requested an appointment with administrative personnel of the Dade County School Board to discuss retirement options by executing and mailing a form entitled "Retirement Information/Appointment Request" to the Dade County School Board's Bureau of Personnel Management, Retirement Section. The form was received by the bureau on July 8, 1987. On the form, Petitioner stated he was tentatively planning to retire in August, 1987. Thereafter, Petitioner was contacted and attended a conference with a representative of the school board's retirement section on July 27, 1987, where he executed numerous personnel documents and completed the application for retirement benefits. The application was received by Respondent on July 30, 1987. The face of the application form contains a blank where an applicant for retirement inscribes the date for termination of service with all FRS employers. In the instant case, that blank reflects the date of June 19, 1987, as the effective date of Petitioner's termination of employment. Following the effective date of termination of employment on the application is the form's emphatic printed statement that this is the date for termination of employment and not the effective date of retirement. The application is notarized and bears the signature of Petitioner. While evidencing Petitioner's intent to terminate his employment on June 19, 1987, the application form provides no evidence of Petitioner's intent to retire prior to July 1, 1987. Another of the many forms which Petitioner received at the July 27, 1987, retirement conference is entitled "Retirement Information Form." Petitioner acknowledged his signature on this form which sets forth language stating that the signatory understands the data on the form is an estimate of his potential retirement benefits and that the amount may change. That form sets forth an effective retirement date of August 1, 1987. The Dade County School Board has 26,000 to 27,000 employees. Of this total number, approximately 18,000 are teachers. Between 400 and 500 of the employees seek retirement each year. Of that number, approximately 150-200 teachers retire in June of every year. All employees of the board are urged to contact the retirement section as soon as possible. The general policy is for the employee contemplating retirement to telephone the office. Four or five seminars are held throughout the year by various entities to familiarize school board employees with retirement procedures and benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered establishing Petitioner's retirement date for purpose of receipt of retirement benefits to be August 1, 1987. DONE AND ENTERED this 15th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3317 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Addressed. Addressed. Addressed. Addressed. Addressed. Addressed in part, remainder unnecessary to conclusion. COPIES FURNISHED: Jonathan W. Thurston 4850 Northwest 24th Court Miami, Florida 33142 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hon. Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
