The Issue Whether Respondent’s, State Board of Administration (Respondent or SBA), use of a telephonic hotline to allow eligible public employees to transfer their Florida Retirement System (FRS) assets from the FRS Pension Plan (Pension Plan) to the FRS Investment Plan (Investment Plan) constituted an “unadopted rule” in violation of Section 120.54, Florida Statutes (2009), interpreting the statutory phrase “electronic means” found in Section 121.4501, Florida Statutes (2002).1 Whether the SBA’s interpretation of the statutory phrase “electronic means,” allowing FRS eligible public employees to enroll in the Investment Plan by telephone and without completing and/or signing any form, is within the powers, functions, and duties delegated to the SBA by the Florida Legislature, or exceeded the SBA’s statutory authority, and enlarged, modified, or contravened the specific provisions of Subsection 121.4501(4)(a), Florida Statutes, in violation of Subsections 120.52(8) and 120.57(1)(e), Florida Statutes. Whether Petitioner, Sharon R. Huberty (Petitioner or Huberty), is entitled to an award of reasonable costs and attorney’s fees.
Findings Of Fact Petitioner is an employee of the Florida Department of Corrections and is assigned to the Hendry County Corrections Institute. Huberty has been employed as a corrections officer with the Florida Department of Corrections since 1997 and was so employed as a corrections officer in 2002. Huberty is substantially affected by the SBA’s interpretation of the term “electronic means” in Subsection 121.4501(4)(a)1.a., Florida Statutes. When Huberty petitioned the SBA to return her to the FRS Pension Plan without penalty, the SBA responded that Huberty had effected a valid election to switch from the Pension Plan into the Investment Plan. As a result of Huberty’s enrollment into the Investment Plan, Huberty has lost substantial pension and retirement benefits to which she would otherwise have been entitled under the FRS Pension Plan. As such, Huberty is substantially affected by the SBA’s interpretation and application of Subsection 121.4501(4)(a)1.a., Florida Statutes, and has standing to petition for a determination that the SBA’s interpretation and application of Subsection 121.4501(4)(a)1.a., Florida Statutes, is an invalid unadopted rule. The agency affected by Huberty’s rule challenge is the SBA. In the summer of 2002, state employees became eligible to enroll in the newly created Public Employees Optional Retirement Program (PEORP) known as the “Investment Plan.” The Investment Plan is a defined contribution plan. The member bears the risk of loss of the investments he or she chooses. In contrast, the existing Pension Plan is a defined benefit plan, wherein retirement benefits are calculated based upon a fixed formula, not the performance of the investments, which are selected by the state. Thus, the state, not the member, bears the risk of loss of the Pension Plan investments. Section 121.4501, Florida Statutes, describes the standards by which the SBA must administer PEORP or Investment Plan. Subsection 121.4501(4)(a)1., Florida Statutes, provides in pertinent part: 1. With respect to an eligible employee who is employed in a regularly established position on June 1, 2002, by a state employer: a. Any such employee may elect to participate in the Public Employee Optional Retirement Program in lieu of retaining his or her membership in the defined benefit program of the Florida Retirement System. The election must be made in writing or by electronic means and must be filed with the third-party administrator by August 31, 2002, or within 90 days after the conclusion of the leave of absence whichever is later. This election is irrevocable, except as provided in paragraph (e). . . . Thus, state employees electing to transfer from the Pension Plan into the Investment Plan must do so “in writing or by electronic means.” Further, the election must be “filed” with the third-party administrator. Following the adoption into law of Section 121.4501, Florida Statutes, under the auspices of Subsection 121.4501(4)(a)1., Florida Statutes, the SBA adopted a form (“MyFRS Your Plan Choice Form”), which FRS-eligible public employees could complete in order to elect the transfer of their FRS retirement assets out of the elector’s Pension Plan into the Investment Plan. This form was made available to FRS-eligible public employees as a paper version and as an electronic version on the MyFRS.com website. Under the provisions of Subsection 121.4501(4)(a)1., Florida Statutes, the SBA also implemented a telephone hotline (the “MyFRS Guidance Line”), which allowed for FRS-eligible public employees to effect a “first enrollment” into the Investment Plan by transferring their FRS retirement assets out of their Pension Plans into private equity accounts managed under the Investment Plan. The SBA contracted with a third party for the administration of the telephone hotline and the administration of the Investment Plan. Thus, during the 2002 “initial election” enrollment period, the SBA implemented three ways for a Pension Plan member to elect to join the Investment Plan: (1) by submitting a hard copy of the MyFRS Your Plan Choice Form, (2) by logging into the MyFRS.com website and completing the MyFRS Your Plan Choice Form electronically, or (3) by calling the MyFRS Financial Guidance Line and enrolling verbally over the telephone. In August 2002, Huberty sought to transfer her retirement assets from the Pension Plan to the Investment Plan. Huberty’s deadline to elect membership in the Investment Plan was August 31, 2002. At that time, the SBA utilized the telephone hotline as an alternate procedure by which to “enroll” FRS eligible public employees into the Investment Plan. Huberty’s initial election to transfer into the FRS Investment Plan was made orally by telephone to the third-party administrator on August 27, 2002. The SBA did not, thereafter, require Huberty to complete or sign any form following her “election” to transfer into the Investment Plan by telephone and no form was “filed” with the third-party administrator. Following her “election” to transfer into the Investment Plan by telephone, Huberty did not complete any form that met the requirements of former Florida Administrative Code Rule 19-10.001, 19-10.002, or 19-10.003, which were in effect at the time of Huberty’s election. Former Florida Administrative Code Rule 19- 10.001(2)(d), in effect at the time of Huberty’s election to transfer into the Investment Plan, stated: “‘Effective enrollment in PEORP’ means that the employee has completed the enrollment form; that the TPA [third-party administrator] has entered the employee into its recordkeeping system; and that the TAP has informed the division and the employee’s employer of the employee’s effective date of enrollment in PEORP.” However, the FRS telephone hotline by which FRS- eligible public employees “enrolled” into the Investment Plan did not require that the employee complete an enrollment form in order to effect the transfer of their Pension Plan assets into the Investment Plan. The FRS-eligible employee’s “election” was recorded by the third-party operator during the telephone call, and the FRS-eligible employee’s “election” was thus entered into the third-party administrator’s recordkeeping system. Former Florida Administrative Code Rule 19- 10.001(3)(a)6., in effect at the time of Huberty’s election to transfer into the Investment Plan, stated: “It shall be the TPA’s obligation to ensure that the form in toto is complete and more particularly that the election is clearly indicated.” The MyFRS telephone hotline used to enroll FRS- eligible public employees into the Investment Plan did not require that the third-party administrator ensure that a “form in toto” was complete, as FRS-eligible employees using the telephone hotline were not required to complete a form. Former Florida Administrative Code Rule 19- 10.001(3)(b), in effect at the time of Huberty’s election to transfer into the Investment Plan, stated: “Upon receipt of the completed form by the TPA, the TPA enrolls the employee in the PEORP.” The MyFRS telephone hotline used to enroll FRS- eligible public employees into the Investment Plan did not require that the third-party administrator receive “completed form[s]” from the employee before the SBA enrolled the employee into the Investment Plan. The SBA did not formally “adopt” the MyFRS Guidance Line as a rule, and there were no rules of the SBA in effect at the time of Huberty’s “election” to transfer her FRS assets into the Investment Plan that described the process by which the telephone hotline would be created or administered. Thus, the SBA’s policy and practice of allowing FRS-eligible employees to elect to transfer into the Investment Plan by telephone is an unadopted rule.
The Issue On April 11, 1996, the undersigned Hearing Officer entered a Final Order in City of St. Petersburg v. Division of Retirement, Case No. 95-5089RU, finding that certain non-rule policies of the DIVISION OF RETIREMENT violated the provisions of Section 120.535, Florida Statutes. In light of legislation being considered by the 1996 Legislature, certain issues asserted by the Petitioner under Section 120.56, Florida Statutes, were not resolved at the time of the entry of the Final Order in Case No. 95-5089RU. The CITY OF PALATKA, the TOWN OF LANTANA, and the CITY OF LARGO (CITIES), Petitioners in the above-referenced consolidated cases now seek a determination that the Respondent, the DIVISION OF RETIREMENT (DIVISION), may not subsequently enforce the non-rule policies which in case No. 95-5089RU were found to be in violation of Section 120.535, Florida Statutes. Petitioners further seek a determination that such non-rule polices, having been determined to be rules within the meaning of Section 120.52(16), Florida Statutes, are invalid under the provisions of Section 120.56, Florida Statutes. The ultimate issues in these cases are: 1) whether certain agency statements made by the Respondent, DIVISION OF RETIREMENT, regarding the application of the provisions of Chapters 175 and 185, Florida Statutes, to pension plans for municipal firefighters and police officers are "rules" as defined by Section 120.52(16), Florida Statutes; and, 2) if so, whether the agency statements impermissibly enlarge, modify, or contravene the statutory provisions of Chapter 175 and 185, Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes. Specifically, the issues in these cases relate to the criteria required of local law pension plans by the Legislature to qualify for the distribution of premium tax monies. Chapters 175 and 185, Florida Statutes, provide for pension plans for firefighters and police officers, and authorize two types of pension plans. "Chapter plans" are created by state law, and "local law plans" are created either by special act of the Legislature or by municipal ordinance. The gist of the petitions filed by the CITIES in these cases is that the DIVISION is attempting to impose, without express statutory authority, the same requirements relating to terms, conditions, and benefits on local law plans that the DIVISION requires of chapter plans. Specifically, the alleged non-rule policies of the DIVISION of which the CITIES complain are: 1) the definition of "credited service"; 2) the definition of "average final compensation"; 3) the disallowance of a Social Security offset and worker's compensation benefit offset; 4) the interpretation of "disability retirement"; and 5) the prohibition on prospectively reducing pension benefits to coincide with future available funding. As set forth below, the requirements specified by the Legislature for local law plans to receive premium tax monies have been the subject of extensive litigation. In rejecting a challenge to the constitutionality of these statutes, the Court in City of Orlando v. State Department of Insurance, 528 So.2d 468 (Fla. 1st DCA 1988) stated: Chapters 175 and 185 create a purely voluntary program whereby municipalities may receive state-collected taxes, imposed on property and casualty insurance premiums, with which to fund retirement programs for local police and firefighters. In exchange for receipt of these funds, the legislature has established certain criteria under which the funds must be operated and managed. Id. at 469. The dispute in these cases once again focuses on ascertaining what specific criteria the Legislature has established for the operation and management of such local pension plans in order to determine whether a local law plan complies with the applicable statute for purposes of receiving state-collected tax funds. Petitioners, CITY OF PALATKA, TOWN OF LANTANA, and CITY OF LARGO, take the position that Respondent, DIVISION OF RETIREMENT, has made non-rule policy statements, and required compliance therewith, which go beyond the specific and express criteria established by the Legislature for participation in the program. Petitioners contend that such statements are "rules" which unlawfully enlarge, modify, or contravene the provisions of Chapters 175 and 185, Florida Statutes, and therefore violate the provisions of Section 120.56, Florida Statutes, because the statements constitute invalid exercises of delegated legislative authority. Petitioners further contend that even though the DIVISION pursuant to Section 120.535(5), Florida Statutes, has, subsequent to the filing of these cases, promulgated proposed rules embodying these non-rule polices, the polices nonetheless may not be retroactively applied to deny the Petitioners their premium tax monies for calendar year 1995 to which they are otherwise entitled. Respondent, DIVISION OF RETIREMENT, takes the position that the DIVISION has complied with the provisions of Section 120.535(5), Florida Statutes, and may apply the non-rule policy statements which are now proposed rules to require compliance from the Petitioners. The DIVISION further contends that the non- rule policy statements, which have now been promulgated as proposed rules, merely construe and apply the provisions of Chapters 175 and 185, Florida Statutes, in the manner intended by the Florida Legislature, and therefore are not invalid under Section 120.56, Florida Statutes. The validity of the proposed rules which were promulgated by the DIVISION on July 12, 1996, is the subject of two separate pending administrative challenges brought pursuant to Section 120.54, Florida Statutes, and filed on July 30, 1996, by the Florida League of Cities and the City of St. Petersburg in cases Nos. 96-3560RP and 96-3561.
Findings Of Fact Parties Petitioner, the CITY OF PALATKA, is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes, respectively. Petitioner, TOWN OF LANTANA is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes. Petitioner, CITY OF LARGO, is a municipality of the State of Florida which has established a local law plan and participates in the voluntary program to receive state-collected taxes levied on property and casualty insurance with which to fund retirement programs for its municipal firefighters and police officers under Chapters 175 and 185, Florida Statutes. Respondent, DIVISION OF RETIREMENT (DIVISION), is the agency of the State of Florida vested with the statutory authority to administer the voluntary program under which municipalities receive state-collected taxes imposed on property and casualty insurance with which to fund local plans pursuant to Chapters 175 and 185, Florida Statutes. Prior to 1993, the Florida Department of Insurance was the state agency responsible for the administration of Chapters 175 and 185, Florida Statutes. History Chapters 175 and 185, Florida Statutes, relating to pension plans for firefighters and police, authorize two types of retirement or pension plans. One type is called "chapter plans" and the other is known as "local law plans." Chapter plans are created under state law, and the provisions of Chapters 175 and 185, Florida Statutes, control the plans' terms, conditions and benefits. Local law plans are purely voluntary and are created either by special act of the Legislature, or by municipal ordinance. The special act or municipal ordinance contain the provisions relating to the terms, conditions, and benefits of the local law retirement plan. Both chapter plans and local law plans receive funds from the state-collected premium tax on property and casualty insurance. The Petitioner CITIES have voluntarily participated on a continuing basis in the program created under Chapters 175 and 185, Florida Statutes, whereby the CITIES have received state-collected taxes imposed on property and casualty insurance premiums with which to fund its local plans for firefighters and police. The CITIES have received such premium tax monies until calendar year 1995. In 1986 the Legislature significantly amended Chapters 175 and 185, Florida Statutes. See Chapters 86-41 and 86-42, Laws of Florida. Chapter 86-41 pertained to municipal firefighters; Chapter 86-42 pertained to municipal police officers. As indicated above, the constitutionality of these statutes was upheld in City of Orlando v. State Department of Insurance, supra. In Section 1 of each act, the Legislature added substantially the same legislative intent language: Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide a uniform retirement system for the benefit of firefighters as hereinafter defined, and intends, in implementing the provisions of s. 14, Art. X of the State Constitution as they relate to municipal firefighters' pension trust fund systems and plans, that such retirement systems or plans to be managed, administered, operated, and funded in such manner as to maximize the protection of the firefighters' pension trust funds. This chapter hereby establishes minimum standards for the operation and funding of municipal firefighters' pension trust fund systems and plans. After the enactment of Chapters 86-41 and 86-42, Laws of Florida, the Department of Insurance undertook rulemaking to implement the provisions of the acts. The City of St. Petersburg and the Florida League of Cities challenged the proposed rules under Section 120.54, Florida Statutes. The Department's proposed rules were upheld by the DOAH Hearing Officer. On appeal, the First District Court of Appeal reversed the order of the Hearing Officer, and held that the majority of the department's proposed rules were invalid because statutory provisions governing chapter pension plans, which were not made specifically and expressly applicable by the Legislature to local firefighter and police plans, did not preempt municipal power with respect to local law plans. Florida League of Cities, Inc. v. Department of Insurance, 540 So.2d 850 (Fla. 1st DCA 1989) review denied 545 So.2d 1367 (Fla. 1989), [hereinafter referred to as the "Rules Case"]. From 1988 to 1991, the Department of Insurance engaged in litigation with numerous municipalities regarding compliance of local law plans with the provisions of Chapters 175 and 185, Florida Statutes. The Department settled these cases and continued to distribute premium tax funds to these local law plans with the understanding that the disputed issues of statutory compliance would be better resolved through rulemaking. The Department of Insurance conducted staff workshops to discuss rulemaking; however, the Department did not thereafter initiate formal rulemaking under Chapter 120, Florida Statutes, with regard to any compliance requirements for local law plans under Chapters 175 and 185, Florida Statutes. In 1993 the Legislature transferred statutory responsibility for the administration of Chapters 175 and 185, Florida Statutes, from the Department of Insurance to the DIVISION. The legislative transfer effected a transfer of all programs as well as personnel. Since the legislative transfer in 1993, the DIVISION has made a continuous and good faith effort to present these issues to the Legislature for clarification and resolution. Indeed, during the 1996 Session, HB 1951 and SB 2484 were introduced which specifically addressed and clarified the issues presented in these cases. On October 19, 1995, the City of St. Petersburg in case No. 95-5089RU filed a Petition challenging certain non-rule policies of the DIVISION under Sections 120.535 and 120.56, Florida Statutes. On April 11, 1996, the Final Order was entered in case No. 95-5089RU, holding that the DIVISION's non-rule policies violated the provisions of Section 120.535, Florida Statutes. The Final Order did not resolve the Section 120.56, Florida Statutes, issues. On May 10, 1996, the City of St. Petersburg filed a Notice of Appeal in case No. 95-5089RU as to the Section 120.56, Florida Statutes, issues, and that matter is now pending before the First District Court of Appeal, in case No. 96-1817. As indicated above, HB 1951 and SB 2484, specifically addressing the issues raised in these cases, were introduced during the 1996 Session Florida Legislature. On April 30, 1996, HB 1951 was passed by the Florida House of Representatives, but died along with SB 2484 in the Florida Senate on May 4, 1996. The 1996 Legislature failed to enact any legislation addressing or otherwise clarifying the issues raised in these proceedings. On May 31, 1996, the DIVISION noticed a rules workshop addressing these issues in the Florida Administrative Weekly. On June 12, 1996, the DIVISION disseminated proposed rules. On June 21, 1996, the DIVISION conducted the rules workshop. On July 12, 1996, the DIVISION published proposed rules and amendments, 60Z-1.004, 60Z-1.006, 60Z-1.026, 60Z-1.027, 60Z-1.028, 60Z-2.017, 60Z-2.018, and 60Z-2.019, which address the issues raised in these cases. On July 30, 1996, the City of St. Petersburg, and the Florida League of Cities, pursuant to Section 120.54, Florida Statutes, filed Petitions challenging the DIVISIONS's proposed rules. The Section 120.54 Petitions are now pending before the Division of Administrative Hearings in cases Nos. 96-3560RP and 96-3561RP. Stipulated Facts The following facts are undisputed by the parties: The DIVISION takes the position that Sections 175.032 and 185.02, Florida Statutes, (Definitions), apply to local law plans, including the definitions of "aggregate years of service" and "salary." It is the position of the DIVISION that firefighters disabled from duties of a fireman as defined in Section 175.032, Florida Statutes, are eligible for disability benefits. It is the position of the DIVISION that local law plan benefits may not be offset by social security or workers compensation benefits. It is the position of the DIVISION that a municipality with a local law pension plan is prohibited from prospectively reducing pension benefits so as to coincide with available funding. The premium tax monies for calendar year 1995 are withheld from each of the Petitioner CITIES by the DIVISION. Prior to 1994 the DIVISION, or its predecessor agency, the Department of Insurance, have never withheld Chapter 175 or 185 insurance tax premium moneys from the CITIES. It is the position of the DIVISION that all municipal pension plans submitted for review must comply with the non-rule policies at issue in the present case in order to receive Chapter monies pursuant to Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that the pension plans of the Petitioner CITIES do not fulfill the requirements of Section 175.351, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the pension plans of the Petitioner CITIES do not fulfill the requirements of Section 185.35, Florida Statutes, to qualify for release of state premium tax moneys. It is the position of the DIVISION that the term "credited years of service" as used in Section 175.351(4) and 185.35(1)(d), Florida Statutes, is to be defined in accordance with the term "aggregate number of years of service" and "aggregate number of years of service with the municipality" under Sections 175.032(1)(a) and 185(1)(b), Florida Statutes, respectively. It is the position of the DIVISION that it has the authority under Chapters 175 and 185, Florida Statutes, and Chapter 60Z, Florida Administrative Code, to withhold Chapter 175 and 185 premium tax money to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes. It is the position of the DIVISION that it has the authority to release payment of Chapter 175 and 185 premium tax moneys to plans not in compliance with Sections 175.351 and 185.35, Florida Statutes, provided the municipality is making good faith efforts to bring the violations into compliance.
The Issue The central issues in this case are (1) whether Petitioner is eligible for membership in and retirement benefits from the Teachers' Retirement System; and (2) whether Petitioner is entitled to receive as a refund contributions paid by his employing agency and, if so, how much and at what interest rate.
Findings Of Fact Petitioner, currently sixty-six years old, was employed as a professor of economics and finance at the University of South Florida (USF), Tampa, Florida, from September 1965 through August 31, 1981, when he terminated employment. As a member of the teaching faculty, Petitioner automatically became a compulsory member of the Teachers' Retirement System (TRS) and remained a member throughout his tenure at USE. When Petitioner originally enrolled in the TRS in September 1965, he signed an enrollment form entitled "Teachers' Retirement System of Florida, Enrollment Blank New Teachers." The form provided general information concerning the TRS, and included information about contributions, service credit, and service retirement benefits under the TRS. The enrollment form provided in part the following: I understand that the full amount of deductions from my compensation for annuity purposes with compound interest will be returned to me if I leave the service without a retirement benefit or will be paid to my beneficiary if I die in active service. At all times relevant hereto, the TRS required that members make contributions of six-quarter percent of their total salaries to their retirement accounts. Of this amount, six percent went into the TRS member's retirement account and the quarter percent was allocated to the Survivors' Benefits Fund. In addition to the contributions made by TRS members, employers were required to contribute matching funds to the TRS Retirement Fund. While employed at USF, the prescribed six quarter percent of Petitioner's salary was deducted, with six percent appropriately posted to his TRS retirement account. During the time Petitioner was employed at USF, the employer contribution paid by USF to match Petitioner's contribution was $23,846.06. Had Petitioner remained a member of TRS, he would have been eligible to begin receiving benefits in February 1993. While employed at USF, Petitioner was given the option to transfer from the TRS to the newly created Florida Retirement System on five different occasions: December 1970; June 1971; July 1972; January 1975; and January 1979. Through information disseminated by Respondent, TRS members were notified that by transferring to the "new" Florida Retirement System, they would become mandatory members of the federal Social Security System. Petitioner chose to remain in TRS rather than transfer to the Florida Retirement System, thereby foregoing membership in the federal Social Security System. In August 1981, prior to his normal age of retirement, Petitioner terminated his employment with USF and requested that Respondent refund Petitioner's retirement contributions. In making the request, Petitioner completed and signed a form entitled, "Request for Refund," FRS M81. Completion of this form is a requisite for receiving retirement refunds and applies to members of any of the Florida retirement systems. The Request for Refund states: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. On the reverse side of the Request for Refund card, is the following: Under the provision of the Florida Statutes, a member MUST terminate employment before he can obtain a refund. * * * The refund process may be started upon receipt of this application. It may be necessary to issue a second refund after all payrolls on which a member's name appears are received and audited by the Retirement System Office. A member who has ten or more years of creditable service has a vested interest in retirement and may leave his contributions on deposit indefinitely and qualify for deferred retirement. Pursuant to Petitioner's request, the Division refunded $22,153.10 to Petitioner in October 1981. The refund, which was provided in three warrants, included all employee contributions and earned interest posted to Petitioner's retirement account as of the date of the refund. Petitioner's refund was provided in three separate warrants because the system in place, in 1981, was incapable of generating a single check for an amount in excess of $9,999.99. In late 1995 or early 1996, Petitioner called the Division of Retirement to inquire about his benefits under the TRS. Petitioner made after this call after he reviewed his Social Security wage earning history and learned that no contributions had been posted to his Social Security account during the sixteen years he had been employed at USF. Upon reviewing the Petitioner's request, Respondent discovered that $1,692.96 remained in Petitioner's TRS account. Of the amount remaining in Petitioner's account, $292.63 represented Petitioner's employee contributions, and $1,400.33 was earned interest. Respondent's failure to refund Petitioner's $292.63 and the interest earned thereon as soon as these moneys were posted to Petitioner's account was the result of an unintentional accounting error. Under the procedures used by the Division at that time, Petitioner's most recent employee contributions were not posted to his account until November or December 1981. The interest earned on Petitioner's employee contributions were not posted to Petitioner's account until the end of the 1981/1982 fiscal year. This matter is addressed in the Request for Refund which notified members that "it may be necessary to issue a second refund" after all payrolls on which the member's name appears have been posted. After discovering this inadvertent accounting error, Respondent initially agreed to refund Petitioner the outstanding $1,692.96. Subsequently, the Division of Retirement agreed to pay Petitioner $1,692.96 plus six a-half percent interest from October 1981, for a total amount of $4,088.31. The six and a- half percent interest rate is the current rate established by Respondent. Pursuant to Petitioner's request, Respondent has not yet refunded Petitioner's outstanding employee contributions and interest, pending the culmination of this proceeding. At the time Petitioner completed and signed the Request for Refund, it was his intention to obtain all of his contributions and interest. It was not until Petitioner's inquiry in 1995 or 1996 that he became aware that a small amount of his employee contributions and interest thereon had not been refunded. Petitioner believes that because Respondent did not refund all moneys due him, some $1,692.96, he retained membership in the TRS and is now able to retire from that system with a partial benefit. Alternatively, Petitioner asserts that he is entitled to receive as a refund, all contributions paid into his retirement fund, including the contributions paid by USF. According to Petitioner, his understanding and belief in this regard is based on an explanation provided to him by Dr. John Milliken, the Dean of the College of Business at USF. Petitioner's understanding in this regard was not correct. At some point prior to Petitioner's terminating his employment at USF, he reviewed a Summary Plan Description (SPD) which was issued by the Division of Retirement in 1980. One section of the SPD, Refund of Contributions, provides in relevant part: If a member terminates employment he may elect to receive a refund of all the contributions he has made to the retirement system, except those made to the Survivors' Benefit Trust Fund. Furthermore, the first paragraph of the Summary Plan Description states: This brochure contains basic information on the Teachers' Retirement System, established by Ch. 238, Florida Statutes. It is not intended to be a comprehensive review of the Teachers' Retirement System and should not be used in place of the law on questions of interpretation and appli-cation. Any question which are not answered by this brochure may be addressed to the Div. of Retirement, . . . . Based on Petitioner's reading of the provision of the SPD quoted in paragraph 20 above, it was his "judgment" and "impression" that any refund prior to retirement, would include both employee and employer contributions and the interest on these contributions. At no time did Petitioner verify his interpretation with the Division of Retirement or the USE Personnel Office.
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 that Petitioner, John C. Deiter, is (1) ineligible for retirement benefits under the Teachers' Retirement System and (2) is not entitled to receive employer contributions and interest thereon. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELDK 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 3rd day of September, 1997. COPIES FURNISHED: Murray B. Silverstein, Esquire POWELL, CARNEY, HAYES and SILVERSTEIN, P.A. Barnett Tower One Progress Plaza, Suite 1210 St. Petersburg, Florida 33701 Stanley M. Danek, Senior Attorney Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399
The Issue The issue presented is whether Petitioner's application for retroactive retirement benefits should be granted.
Findings Of Fact Petitioner was employed by the Palm Beach County Sheriff's Office for approximately twelve years, working in a special risk capacity. As a result of that employment, he was a member of the Florida Retirement System. In 1972 Petitioner completed Respondent's form FRS-M10 setting forth his membership as a special risk member of the Florida Retirement System as of November 1, 1970. Petitioner resigned his position on March 15, 1982, when he was 47 years of age and had more than ten years of creditable service. At the time of his resignation, he was employed in the position of Inspector, Director of Law Enforcement, the third in command at the Sheriff's Office. There are approximately 550,000 active members in the Florida Retirement System. Many members choose not to submit an application for retirement benefits on their normal retirement date for a variety of reasons. An application for retirement benefits is a prerequisite for the establishment of an effective retirement date for a member of the Florida Retirement System. In September of 1991, Petitioner applied for retirement benefits. At the time of his application, he was 57 years of age. Petitioner never contacted Respondent to request information or advice regarding his retirement benefits prior to filing his retirement application in September of 1991. Based upon receipt of Petitioner's application for retirement benefits in September of 1991, Respondent established October 1, 1991, as Petitioner's effective retirement date. In October of 1986 Petitioner received from the Palm Beach County Sheriff's Office a copy of some of Respondent's forms which are utilized by persons filing applications for retirement benefits. Some of the information included in that package relates to persons who are regular members of the Florida Retirement System, not special risk members.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to change his effective retirement date and denying Petitioner's request for retroactive retirement benefits. DONE and ENTERED this 1st day of September, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0849 Petitioner's proposed findings of fact numbered 1 and 3-5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being contrary to the evidence in this cause. Petitioner's proposed findings of fact numbered 6-13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Mary Alice Gwynn, Esquire Suite 302 215 Fifth Street West Palm Beach, Florida 33401 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee FL 32399-1560 A. J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Respondent, State Board of Administration (SBA or Respondent), validly enrolled Petitioner, Sharon R. Huberty (Petitioner), into the Florida Retirement System (FRS) “Investment Plan” (Investment Plan), when Petitioner used a telephonic hotline to “elect” to transfer her FRS assets without completing or signing any form. Whether SBA should void Petitioner’s initial election to join the Investment Plan made via telephone in August 2002 and allow her to transfer back into the FRS Pension Plan (Pension Plan) without any cost in excess of the current value of her Investment Plan accounts.
Findings Of Fact Petitioner has been employed as a corrections officer with the Florida Department of Corrections since 1997 and has been assigned to the Hendry County Corrections Institute in Fort Myers, Florida. In Florida, corrections officers are classified as “special risk” for FRS purposes. Petitioner became a member of the Pension Plan in 1997 after she moved from Wisconsin to Florida to work for the Florida Department of Corrections. In 2000, the Florida Legislature enacted law creating a bipartite retirement system for public employees. The new system granted existing public employees the one-time option of “electing” to transfer their FRS Defined Benefit Plan assets into a newly-created FRS Defined Contribution Plan, also known as the Investment Plan. This election was termed the “first election.” Under the new optional retirement system, FRS- eligible public employees who had made a valid “first election” could, at a later date, exercise the option of making a “second election,” whereby the market value of the FRS-eligible public employee’s Investment Plan assets would be returned to the Pension Plan, and any deficit between the value of the employee’s Investment Plan assets and the value of the Pension Plan would be paid by the employee. The Investment Plan is a defined contribution plan, and the member bears the risk of loss of the investments he or she chooses. In contrast, the Pension Plan is a defined benefit plan, wherein retirement benefits are calculated based upon a fixed formula, not the performance of the investments, which are selected by the state. Thus, the state, not the member, bears the risk of loss of the Pension Plan investments. In creating the Investment Plan option, the Florida Legislature emphasized through the enabling legislation, the importance of providing information and education to potential program participants. During the 2002 “initial election” enrollment period, the SBA implemented three ways for a Pension Plan member to elect to join the Investment Plan: (1) by submitting a hard copy of the MyFRS Your Plan Choice Form, (2) by logging into the MyFRS.com website and completing the MyFRS Your Plan Choice Form electronically, or (3) by calling the MyFRS Financial Guidance Line and enrolling verbally over the telephone. Section 121.4501, Florida Statutes (2002),1 describes the standards by which the SBA must administer the Public Employee Optional Retirement Program (PEORP or Investment Plan). Subsection 121.4105(4)(a)1., Florida Statutes, provides, in part: 1. With respect to an eligible employee who is employed in a regularly established position on June 1, 2002, by a state employer: a. Any such employee may elect to participate in the Public Employee Optional Retirement Program in lieu of retaining his or her membership in the defined benefit program of the Florida Retirement System. The election must be made in writing or by electronic means and must be filed with the third-party administrator by August 31, 2002, or within 90 days after the conclusion of the leave of absence whichever is later. This election is irrevocable, except as provided in paragraph (e). . . . Thus, state employees electing to transfer from the Pension Plan into the Investment Plan must do so “in writing or by electronic means.” Further, the election must be “filed” with the third-party administrator. Pursuant to Section 121.4501, Florida Statutes, the SBA created a form called the MyFRS Your Plan Choice Form. In order to complete the MyFRS Your Plan Choice Form and elect to transfer from the Pension Plan into the Investment Plan, the SBA required that the employee sign the form. If an eligible employee submitted an otherwise complete MyFRS Your Plan Choice Form without signing it, the SBA would reject the form as incomplete and not effectively enroll the employee into the Investment Plan. For employees electing to enroll in the Investment Plan by submitting the MyFRS Your Plan Choice Form, the SBA requires that the employee sign the “Authorization” section of the form, which includes a section titled “IMPORTANT INFORMATION,” which contains several affirmative statements describing the Investment Plan participant’s rights and responsibilities. According to Daniel Beard, the form requires a signature “because there is some very important information that a member needs to take into consideration before making any choices.” This “very important information” was not provided to Petitioner at the time she used the MyFRS Financial Guidance Line to “elect” to enroll into the Investment Plan. In 2002, the SBA contracted with a third-party administrator to create and operate a telephone hotline (MyFRS Financial Guidance Line) whereby FRS-eligible public employees could elect to transfer their Pension Plan assets into the newly-created Investment Plan via telephone. On August 27, 2002, Petitioner contacted the telephone hotline intending to transfer her retirement assets from the Pension Plan to the Investment Plan. Petitioner’s initial election to transfer into the Investment Plan was made orally by telephone to the third-party administrator on August 27, 2002. The SBA did not require Petitioner to complete or sign any form following her election to transfer into the Investment Plan by telephone. Petitioner did not sign or submit a form, and no form was “filed” with the third-party administrator. At the time of her 2002 election, Petitioner understood the Investment Plan to be an alternative to the Pension Plan whereby she would have the ability to choose her own investments rather than follow the investments that the state FRS administrators picked for her. She assumed that her retirement benefits would otherwise be unchanged. At the time of her 2002 election, Petitioner claims that she did not understand that she was effectively canceling her fixed-benefit pension plan and replacing it with a fixed- contribution, market-based investment plan and that she would no longer be eligible to receive pension benefits or to participate in the state’s deferred compensation “DROP” program. Petitioner’s deadline to elect membership in the newly-created Investment Plan was August 31, 2002. Before this deadline expired, a Plan Choice Kit was mailed to members who were eligible to enroll in the Investment Plan. The Plan Choice Kit included a document entitled “Your Plan Choice Form” (Plan Choice Form). The Plan Choice Form identified 39 different investment options available to members who transferred to the Investment Plan. The Plan Choice Form advised plan members to review the material in the Plan Choice Kit before making a plan choice. The MyFRS Choice Book (Choice Book), including the Plan Choice Kit, advised members of key differences between the Pension Plan and the Investment Plan. The Choice Book warned members that the value of an Investment Plan account is not fixed and “will vary depending on the performance of your investment. That means, the value of your account can go up, but it also can go down . . .”. The Choice Book also advised members that they would have an opportunity to switch back to the Pension Plan if they so desired, but they would have to “buy back” into the Pension Plan with money from their Investment Plan account. The Choice Book cautioned members, “[i]f you don’t have enough money in your Investment Plan account, you can still get back in . . . but you’ll have to make up the difference from other savings.” The Plan Choice Form advised members to review a description of their “rights and responsibilities under the FRS Pension Plan and FRS Investment Plan in the respective Summary Plan Descriptions and Florida Statutes, available through the MyFRS Financial Guidance Line at 1-866-44-MyFRS . . . or at MyFRS.com.” The Investment Plan Summary Plan Description informed members in 2002: You will have a one-time opportunity to switch to the Pension Plan at any point while working for an FRS employer. If you decide to switch, you must “buy back” into the Pension Plan with the money in your Investment Plan account. If you don’t have enough money in your Investment Plan account, you can still get back in . . . but you’ll have to make up the difference from your other financial resources. The Plan Choice Form and Choice Book advised members that they could make an election to enroll in the Investment Plan online at MyFRS.com or by calling the MyFRS Financial Guidance Line and choosing option five to be connected directly to the FRS Plan Choice Administrator. The SBA conducted numerous workshops for members to help them determine which plan to choose. Five workshops were noticed in Fort Myers, Florida, for April 8 through 12, 2002. Petitioner testified that she was not aware the workshops were offered and, therefore, did not avail herself of the information available at the workshops. Petitioner did call her personal financial advisor at Raymond James, before the plan choice deadline expired, to discuss the investment options available to her if she chose to transfer to the Investment Plan. Petitioner’s financial advisor recommended that she invest in the following Investment Plan funds identified on the Plan Choice Form: Franklin Small-Mid Cap Growth, Fidelity Mid Cap Stock Fund, Fidelity Growth Company Stock Fund, and the T. Rowe Price Small Cap Stock Fund. On August 27, 2002, Petitioner called the MyFRS Financial Guidance Line and spoke to an FRS Plan Choice Administrator representative (Representative). She told the Representative she wanted to transfer to the Investment Plan. She also told the Representative she wanted her Investment Plan assets to be invested in the four funds recommended by her Raymond James financial advisor and identified a beneficiary for her Investment Plan account. Petitioner testified at hearing that she did not have a copy of the Plan Choice Form with her when she made the call to the Representative on August 27, 2002. However, it is evident from the transcript of the recording of the August 27, 2002, call that Petitioner, in fact, either did have that form or had reviewed it prior to the call. When asked by the Representative what she had decided to elect, Petitioner replied “section one, number two.” “Section one, number two” of the Plan Choice Form is the option to transfer all of the member’s Pension Plan assets and all future contributions to the Investment Plan. The Representative confirmed Petitioner’s “section one, number two” reference as follows: REPRESENTATIVE: Okay. You want to go into the Investment Plan? MS. HUBERTY: Yes ma’am. REPRESENTATIVE: Okay. So you’re wanting to transfer your present value of your Pension Plan and all future contributions to the Investment Plan? MS. HUBERTY: Yes, Ma’am. Similarly, when identifying the funds in which she wanted to invest, Petitioner referenced the funds in “section three,” the section containing the list of fund choices in the Plan Choice Form. Petitioner identified the funds in the order they are found in “section three” of the Plan Choice Form. Petitioner claims she had another form with her during the call, but failed to produce a copy of this other form in the instant proceeding. Petitioner’s claim that she either did not receive or did not review the Plan Choice Kit prior to her enrollment in the Investment Plan is not credible. After enrolling in the Investment Plan, Petitioner received quarterly statements indicating her membership in the Investment Plan. The quarterly statements advised Petitioner of the value of her Investment Plan account and the performance of the investment funds she selected. Petitioner changed her beneficiary designation by submitting a written form on February 2, 2007. She called the MyFRS Financial Guidance line to clarify that one of the beneficiaries she designated was to be contingent. During the call, Petitioner did not complain or make any mention of the possibility that she might be in the wrong plan. Petitioner’s Investment Plan account value grew from an opening balance of $40,308.63 on September 30, 2002, to a high of $144,029.62 on September 30, 2007. As of September 30, 2008, the value of Petitioner’s Investment Plan account had declined to $121,019.94. On October 7, 2008, Petitioner contacted the MyFRS Guidance Line and spoke with an FRS representative about the circumstances under which she had made her first election into the Investment Plan. Petitioner requested that the FRS representative send her a copy of the document that she had signed electing to switch to the Investment Plan. The FRS representative responded that Petitioner would not necessarily have signed anything and that Petitioner may have enrolled verbally over the telephone or may have filled out an electronic enrollment form. During the October 7, 2008, telephone call, Petitioner stated that she would never have “join[ed] something where I wouldn’t be getting a pension. There’s nowhere on any form or whatever supposedly that I signed or was over the telephone that nobody ever told me that I wouldn’t be getting a pension if I joined this.” Petitioner repeated this sentiment on several subsequent telephone calls to the MyFRS Financial Guidance Line. On November 5, 2008, the SBA sent a letter to Petitioner stating that on August 27, 2002, Petitioner “actively enrolled” in the Investment Plan by making her “initial election” through calling the MyFRS Financial Guidance Line, effective September 1, 2002. The SBA letter stated as follows: In processing the election through the MyFRS Financial Guidance line, you agreed to the following statements listed on the Retirement Plan Enrollment Form: “I want to . . . take the FRS Investment Plan 100% Transfer Option. That means I switch to the new FRS Investment Plan and transfer the present value of my FRS Pension Plan benefit to the new FRS Investment Plan. I will also have future employer contributions sent to my new FRS Investment Plan.” “I understand that I can find a description of my rights and responsibilities under the FRS Pension Plan and the FRS Investment Plan in the respective Summary Plan Descriptions, Florida Statutes, available through the MyFRS Financial Guidance Line . . . or at MyFRS.com. I understand that the value of my FRS Pension Plan benefit which will be initially transferred to my Investment Plan account will be an estimate. Then, within 60 days of that transfer, there will be a reconciliation pursuant to Florida law which will use my actual FRS membership record. The actual amount could be more or less than the estimate you received.” “Your choice will be final at 4:00 p.m. (Eastern Time) on the first day of your Choice period if you file prior to the beginning of your Choice period. Otherwise it will be final on the day it is received. You must file before the applicable deadline noted on page 1. See Your Choice Book for more details on when your Choice period begins, and on the second chance opportunity you have during your career with the FRS to change your selection.” The attestations and warnings listed on the SBA’s November 5, 2008, letter to Petitioner were taken from the MyFRS Your Plan Choice Form, Section 4: Authorization. However, the Representative who received Petitioner’s August 27, 2002, telephone call had not verbally, or subsequently in writing, provided Petitioner with the information, attestations and warnings that the SBA listed on its November 5, 2008, letter to her, or those which are included in the MyFRS Your Plan Choice Form. On the August 27, 2002, telephone call to the MyFRS Financial Guidance Line, Petitioner did not verbally attest that she agreed to any statements from the MyFRS Your Plan Choice Form, Section 4: Authorization. The Representative who assisted Petitioner on August 27, 2002, did not advise her that she could speak with a financial services expert from Ernst & Young to discuss the distinctions between the Investment Plan and the Pension Plan. The Representative who assisted Petitioner on August 27, 2002, did not: Refer Petitioner to Section 121.4501, Florida Statutes. Confirm that Petitioner understood the terms and conditions of the “second election.” Confirm that Petitioner understood that there might be a cost if she decided later to transfer from the Investment Plan back into the Pension Plan. Confirm that Petitioner understood that under the terms of the Investment Plan, she would not be eligible to receive monthly pension checks during her retirement. Provide any disclosures about where Petitioner could find information concerning her rights as a participant in the Investment Plan. Confirm that Petitioner understood that under the terms of the FRS Investment Plan, she would not be eligible to participate in the state’s deferred compensation “DROP” program. Confirm that Petitioner understood that she should review the fund profiles and the Investment Fund Summary before choosing investment funds. Had Petitioner been required to complete and sign the MyFRS Your Plan Choice Form, she would necessarily have been presented with such information and had the opportunity to affirmatively state that she understood her rights as a participant in the Investment Plan. The form also references Section 121.4501, Florida Statutes, which is the governing statute of the Investment Plan. Therefore, Petitioner’s alleged “election” by telephone was not the functional equivalent of her having completed and signed the MyFRS Your Plan Choice Form, and Petitioner’s alleged “election” was voidable. Petitioner did not complete any kind of form that met the requirements of Florida Administrative Code Rule 19-10.001, 19-10.002, or 19- 10.003, which were in effect at the time of her alleged election. The MyFRS telephone hotline used to enroll FRS- eligible public employees into the Investment Plan at the time of Petitioner’s alleged “election” did not require that employees complete a written or electronic enrollment form in order to transfer their Pension Plan assets into the Investment Plan. However, no one affiliated with the SBA provided her with any misleading information about the Investment Plan. The SBA did not require that an FRS-eligible public employee sign any form in order to transfer his or her FRS assets from the Pension Plan to the Investment Plan, but did require that Investment Plan participants complete and sign a “Beneficiary Designation Form” in order to change the beneficiary designation on an Investment Plan participant’s account. On November 22, 2008, Petitioner filed a petition for hearing with the SBA seeking to return to the Pension Plan at no cost over the value of her Investment Plan account. As of July 15, 2009, the balance of Petitioner’s Investment Plan account was $104,238.10. As of July 16, 2009, Petitioner’s cost to “buy back” into the Pension Plan was $184,658.81. Based upon this value, Petitioner would have to contribute $80,420.70 in addition to the value of her Investment Plan account if she exercised her second election to transfer back to the Pension Plan. Subsection 121.4501(4)(a)1., Florida Statutes, governed Petitioner’s enrollment in the Investment Plan in 2002. This provision provides in pertinent part: Any such employee may elect to participate in the [Investment Plan] in lieu of retaining his or her membership in the defined benefit program of the Florida Retirement System. The election must be made in writing or by electronic means and must be filed with the third-party administrator by August 31, 2002. . . . The SBA construed the phrase “by electronic means” used in Subsection 121.4501(4)(a)1., Florida Statutes, to mean the election could be made by computer or by telephone. The SBA considers a telephone call to be “electronic” because the telephone calls to the Plan Choice Administrator are recorded. However, Petitioner received her bachelor’s degree in 1976 and completed a semester of coursework toward a Masters of Business Administration degree in 1977. When Petitioner moved from Wisconsin to Florida in 1977, she “rolled-over” her Wisconsin retirement plan account into an Individual Retirement Account (IRA) with the assistance of a Raymond James financial advisor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order, as follows: Allowing Petitioner to transfer her accumulated retirement assets from the Pension Plan to the Investment Plan by telephone without completing or signing a form was improper and invalid. By taking no action for six years after the SBA enrolled her in the Investment Plan, Petitioner has waived her right to transfer back into the Pension Plan without any cost in excess of the current value of her Investment Plan accounts and must comply with requirements of Subsection 121.4501(4)(e), Florida Statutes, if she desires to make a “second election.” DONE AND ENTERED this 1st day of October, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 1st day of October, 2009.
The Issue The issues are whether Petitioner's employment as a substitute teacher is creditable service under the Florida Retirement System, entitling her to retirement benefits and whether she may purchase retirement credit for out-of-state and federal service prior to vesting.
Findings Of Fact Petitioner, aged 53, applied for retirement benefits from the Florida Retirement System (FRS) on October 20, 2003. Petitioner has 4.53 years of creditable service with the FRS due to her employment as a full-time teacher with the Alachua County School Board (School Board). She worked for the School Board from sometime in the early 1970s through May 1977. In May 1977, Petitioner terminated her employment with the School Board. She then joined the military, serving four years of active duty. After completing her military service in 1981, Petitioner worked out of state as a civil service employee with the Federal government. She also worked for a period of time in the private sector. In the 1990s, Petitioner returned to Alachua County, Florida. She worked as a substitute teacher for the School Board for approximately four years, from November 21, 1999 through February 14, 2002. Before beginning her employment as a substitute teacher/temporary employee in 1999, Petitioner signed a document entitled "Acknowledgement of FRS Status and Alternative Plan." This document clearly advised Petitioner that her employment as a substitute teacher was not covered under FRS. Petitioner was not employed by a participating employer in a regularly established position on July 1, 2001. She needs an additional 1.47 years of credible service in order to vest in FRS with six years of credible service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to FRS benefits. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Robert R. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Carolyn Johnson-Rollins Apartment N118 2701 Northwest 23rd Boulevard Gainesville, Florida 32605 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether the Petitioner is entitled to a refund of amounts contributed to the State and County Officers' and Employees' Retirement System.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division of Retirement is the state agency charged with the responsibility for administering the State and County Officers' and Employees' Retirement System. Section 122.13, Florida Statutes. Ms. Cook worked as a nurse's aide for Jackson Memorial Hospital from November 1960 until September 1968, when she resigned. As an employee of Dade County, Ms. Cook participated in the state retirement system under the State and County Officers' and Employees' Retirement System, which is governed by Chapter 122, Florida Statutes, and she made employee contributions to the Retirement System Trust Fund. In October 1968, the Division of Retirement received a "Request for Refund" card bearing Ms. Cook's name, social security number, and address and bearing what purported to be Ms. Cook's signature in two places on the card. On October 23, 1968, the state issued warrant number 66611 in the amount of $904.95, drawn from the State Retirement Trust Fund against Ms. Cook's retirement contributions; on December 15, 1968, the state automatically issued warrant number 106270 in the amount of $42.08 drawn from the State Retirement Trust Fund against Ms. Cook's retirement contributions, which closed her retirement account. In December 1997, Ms. Cook contacted the Division requesting information regarding retirement benefits under the Florida Retirement System. She was told that she was not a vested member of the system and that she was not eligible for retirement benefits. She was also advised by the Division that its records showed that her accumulated contributions of $947.03 were paid to her in 1968. Ms. Cook denied signing the "Request for Refund" card, and she denied receiving either of the two refund checks. The address on the "Request for Refund" card submitted on October 1968 is listed as "6600 NW 1st Place, Miami, Fla." Ms. Cook currently resides at that address and has resided at that address continuously since in 1968. The signatures on the 1968 "Request for Refund" card differ in some respects from the signatures appearing on the letters and pleadings from 1997 and 1998 that are part of the record in this case. However, there are also substantial similarities between the signatures on the "Request for Refund" card and the signatures appearing on documents in the record of this case. The evidence presented in this case is not sufficient to establish that Ms. Cook is now entitled to a refund of contributions she made to the state retirement system between 1960 and 1968.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying the request of Audrey Cook for a refund of contributions she made to the state Retirement Trust Fund from 1960 to 1968. DONE AND ENTERED this 13th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Larry D. Scott, Senior Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399 Audrey P. Cook 6600 Northwest 1st Place Miami, Florida 33150 Mr. A. J. McMullen, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner, Angela Williams (Petitioner or Ms. Williams), was properly enrolled in the Florida Retirement System (“FRS”) Investment Plan upon the expiration of her election period after she was employed by the Department of Corrections (“DOC”) in March 2019.
Findings Of Fact Stipulated Facts Petitioner was employed by the Seminole State College of Florida, in an FRS-eligible position, from 1990 through 1998. At that time, the Pension Plan was the only retirement program available for eligible employees. In 2002, the Investment Plan became available for employees participating in the FRS. Petitioner was not employed in an FRS-eligible position at that time. Petitioner began employment with DOC, an FRS-participating employer, in March of 2019. Following her return to FRS-eligible employment, Petitioner was provided an initial choice period with a deadline of December 31, 2019, by 4:00 p.m., Eastern Time, to elect the Pension Plan or the Investment Plan. Since the Plan Choice Administrator received no election from Petitioner by the December 31, 2019, deadline and Petitioner was not employed in a Special Risk Class position, Petitioner was enrolled in the Investment Plan. Respondent has no record of Petitioner utilizing an election during her initial choice period. On or about January 24, 2020, Petitioner submitted a Request for Intervention (“RFI”) asserting that she had been “erroneously enrolled in the Investment Plan” and requesting that she be “placed back into the Pension Plan, along with any choices associated with that plan.” Petitioner asserted she thought she should have defaulted into the Pension Plan, since she had been previously enrolled in that plan during her 1990-1998 employment. Petitioner’s RFI was denied. On February 24, 2020, Petitioner filed a Petition for Hearing disputing that “it was compulsory to make an election” and that the default into the Investment Plan was “erroneously done.” She alleged that “Florida Statutes 121.4501(4)(b) and 121.4501(4)(f) [we]re incorrectly quoted” in the response to her RFI, and that her “login and activity are not being correctly recorded.” An informal proceeding pursuant to section 120.57(2) followed. At the informal hearing, Petitioner stated that, “on May 27th [2019], the website [MyFRS.com] indicated that I was in the Pension Plan and if I wanted to stay in the Pension Plan, that I should not have to make an election.” On December 14, 2020, the Hearing Officer issued an Order of Transfer to DOAH, citing Petitioner’s statements at the hearing, such as quoted in the preceding paragraph, as raising a disputed issue of material fact. This proceeding thus ensued. Facts Adduced at Hearing Ms. Williams testified that upon her employment with DOC, she received a letter by U.S. Mail at her listed address with a PIN to establish an online FRS account. She then logged onto MyFRS.com on or about May 27, 2019. She testified that she also logged into her MyFRS.com account in the fall of 2019. She stated that during both logins, she was presented with a screen that informed her that she was enrolled in the Pension Plan. She also testified that the login screen included a statement that if she intended to remain in the Pension Plan, she did not need to do anything further. However, there was no screenshot or extrinsic evidence offered in evidence to corroborate that testimony. Ms. Williams’s testimony alone is insufficient to support a finding of fact as to the substance of any logged-in online activities. Furthermore, Ms. Olson testified credibly that a screen providing information as described by Ms. Williams does not exist in the SBA system. Ms. Williams further testified that the next communication she received from SBA by U.S. Mail came in January 2020, informing her that she was enrolled in the Investment Plan. Ms. Williams called the number provided in the mailed notice on January 13, 2020, and spoke with Graham, an FRS plan administrator. Ms. Williams advised Graham of her belief that she was erroneously enrolled in the Investment Plan. By that time, the election period had passed. Graham indicated that he would investigate the matter. On January 22, 2020, Ms. Williams received a message to call Graham. She did so, but the call was “dropped.” She called back and spoke with Carrie. That call was transcribed and is in the record of this proceeding. The transcript of that call reveals that none of the parties to the call had a precise explanation of or answer for the events. It would not be inaccurate to say that Carrie and the MyFRS.com financial guidance representative who joined the call were uncertain about the circumstances of Ms. Williams's account. However, there was no statement made by either of the FRS representatives that could be construed as being contrary to the position SBA has taken in this case. More to the point, since the call was placed on January 22, 2020, after the election period had expired, the discussion between Ms. Williams and the persons on the call could not have formed the basis for any reliance or change in position detrimental to Ms. Williams. Ms. Williams believed that certain of her keystrokes while on her two visits to the MyFRS.com website were not recorded by the transaction server, which she surmised was the result of errors in the system. She testified to her belief that “Alight [the SBA contractor] has a -- quite a serious issue with communication -- with communication defaults, with losing communication between MyFRS.com website and the transaction server. It’s happened to me, you know, several times. So, I -- I don’t believe that you can trust what is being printed by Alight as being accurate.” However, there was no testimony or evidence of such beyond Ms. Williams’s speculation. Evidence was received of five emails sent from the SBA contractor to Ms. Williams between July 22, 2019, and December 30, 2019, advising her of the deadline for making an election. The emails were sent to an email address that Ms. Williams acknowledged she used. The documentary evidence included read-receipts of Ms. Williams having opened only one of the emails during the election period. Ms. Williams went through each of the emails, explaining why she could not have opened those emails at the times indicated. However, her testimony for three of the emails was intended to show that she could not have opened the emails at the times indicated, though the times indicated were the “sent” times, not the “opened” times. Thus, her testimony that she did not open those emails is credited, though for the reason that she simply did not open them rather than that the time shown for her having opened them was incorrect. The only email for which there is evidence of its having been opened within the election period was sent on October 7, 2019, at 8:03 a.m., and first opened that same date at 7:56 p.m. Ms. Williams had no recollection of reading that email. She testified that the recorded time of her opening it again -- Saturday, October 12, 2019, at 9:27 a.m. -- was unlikely because she “was actually getting a fridge delivered that day. So, I would not have been on the internet reading my e-mail while my fridge was being delivered.” It seems a stretch that anyone would forego checking emails for a full weekend day for a refrigerator delivery. That a read-receipt record would be randomly generated without a document having been opened is implausible. The read-receipt record indicated that the October 7, 2019, email was last opened on January 22, 2020, at 5:16 p.m. Another indicated that an August 15, 2019, email was first opened on January 22, 2020, at 5:21 p.m., minutes before Ms. Williams returned Graham’s call. Ms. Williams indicated that reading the email at that time did not make sense to her, stating “if I had that e-mail and I was going to log -- and I was going to read it, I would have done it after the first phone call on the 13th, not right before I dialed in to talk to Graham.” To the contrary, it seems quite normal for one to review emails from SBA prior to discussing a retirement plan election with an SBA representative investigating the election. The email records are, themselves, hearsay.2 However, they are not accepted by the undersigned for the truth of the matters set forth, i.e., the dates and times that they were sent to and opened by Ms. Williams, but rather for the more general purpose of showing that she had been provided with notice of issues regarding her retirement plan that required attention. Thus, they are accepted and given weight for that purpose. Several notices were also sent to Ms. Williams by U.S. Mail at her correct address. She acknowledged receipt of the letter containing her PIN in May 2019, and the letter informing her that she was enrolled in the Investment Plan in January 2020, but denied having received any of the others. There was simply no credible explanation why notices, mailed in the normal course of SBA’s duties to an address of record, would not have been delivered by the U.S. Postal Service. Regardless of whether emails were or were not read, the enrollment of Ms. Williams in the Investment Plan is controlled by application of section 121.4501, Florida Statutes. Ms. Williams addressed what she believed to be the ambiguity of section 121.4501, particularly subsections (4)(b)1. and (3)(a), which she believed to be “open to an interpretation.” That issue will be addressed in the Conclusions of Law that follow.
Recommendation Upon consideration of the findings of fact and conclusions of law set forth herein, it is RECOMMENDED that the State Board of Administration enter a final order upholding the decision to enroll Petitioner, Angela Williams, in the Florida Retirement System Investment Plan pursuant to section 121.4501(4)(b), Florida Statutes. DONE AND ENTERED this 5th day of April, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2021. COPIES FURNISHED: Ruth E. Vafek, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 Angela Atkinson Williams 4237 Trout Avenue Milton, Florida 32583 Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue Whether the Petitioner should be permitted to return his retirement contributions and be reinstated in the Florida Retirement System so that he can apply for disability benefits from the Florida Retirement System.
Findings Of Fact Petitioner is a thirty-four year old man, having left high school in the eleventh grade in order to get married, but later took the GED test to qualify as a high school graduate. Some years later he was informed by an Ophthalmologist that he had fallen into the bracket of being legally blind, a status which categorizes a person who has ten percent (10%) or less vision. Petitioner can and does read. He worked for a bakery which entailed work with machinery and required extensive reading, but was advised by the ophthalmologist to find a job where he would not be required to work with machinery and which did not require extensive reading. Petitioner began participating in the State and County Officers and Employees Retirement System on July 1, 1969, when he became a partner in a blind vending stand. He elected to become a member of the Florida Retirement System on December 1, 1970. Petitioner attended two (2) agency meetings at which retirement was discussed. He stated that he had changed from the State and County Officers and Employees Retirement System (Chapter 122, Florida Statutes) to the Florida Retirement System (Chapter 121, Florida Statutes), and was prompted to make the change because a senior partner in the business who had been there for many years said that it was a good idea for him and for the younger partner to sign into the new system. He stated that there probably was a discussion relative to the merits of the new retirement system but that he did not remember anything about it. He did, however, sign the card to change retirement systems. On June 1, 1971, Petitioner suffered some type of injury to his back which was subsequently diagnosed as a sprain. Petitioner received medical treatment and returned to work where he continued to work for the Bureau of Blind Services for approximately three years, resigning November 11, 1974. On March 5, 1975, Petitioner obtained a lump sum as a settlement for this disputed claim under the Florida Workmen's Compensation Act. Petitioner went on leave February 5, 1974, after supplying his supervisor, Mr. Eurgil G. Crawford, Administrative Vending Stand Section, Bureau of Blind Services, with a letter from the physician stating that Petitioner had a "nervous condition." In a letter of October 10, 1974, Mr. Crawford advised Petitioner to either return to work or to contact them if it was not possible. He also stated that the Petitioner would have sixty (60) days in which he might come back to work if he so desired, but that after that time his position would have to be filled permanently by another employee. Petitioner had had some employment problems with the other two (2) members of the three (3) man working team. The problems involved the work at the stand, cleanliness and the lifting necessary to operate the stand. He stated that he and the other two (2) members just could not get together as far as working as a team was concerned. After termination of employment, which was voluntary on the part of Petitioner, Petitioner contacted the supervisor, Mr. Crawford, and asked whether he was entitled to benefits he had contributed and was told that he was. Thereupon, Mr. Crawford sent him the necessary forms to apply for a refund. A refund was made after Petitioner had signed the proper forms and returned them to Mr. Crawford. Two (2) state warrants were issued to Petitioner, one on December 19, 1974, and a subsequent one to close out his account. Petitioner did not work after leaving the Blind Services and has not attempted to find work but receives disability benefits from Social Security based on a 15 percent permanent partial disability rating. He stated that "I have come up with a couple of not so advantageous jobs, you know, its a possibility of getting hurt and one thing and another, I haven't done anything." Subsequently, Petitioner requested information from the Respondent and, after receiving literature from them in 1976, tendered a sum of money equal to the refund he had received so he could apply for disability retirement benefits. The tender of the repayment of his contributions was denied. Petitioner applied for this administrative hearing. Petitioner contends: That he was unaware of a choice to apply for a disability rating when he signed the waiver to obtain a refund. That the supervisor owed Petitioner a special duty to inform him of the possibility of applying for disability benefits before requesting a return of his contributions. Respondent contends: That Petitioner was present at meetings at which the retirement system was discussed; he had information that caused him to transfer to the Florida Retirement System; that he knew of eligibility requirements under the Florida Retirement System and that requirements for eligibility were written in a booklet he had obtained from an employee of the retirement system and that he testified he knew of the five year eligibility requirement. That Petitioner voluntarily signed the waiver, that he had due notice and that the tender of the refund was properly denied.
Recommendation Deny the Petition. DONE and ORDERED this 18th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Townsend, Esquire Albritton, Sessums & Di Dio 100 Madison Avenue, Suite 301 Tampa, Florida 33602 Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center Tallahassee, Florida
The Issue Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
Findings Of Fact 12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI. Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants. Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants. Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds. Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped. Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977. Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid. The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
