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 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
Findings Of Fact Upon consideration of the joint stipulation of facts submitted by the parties, the following relevant facts are found: The petitioner was elected to the office of tax assessor, Bay County, for successive regular terms in 1952, 1956, 1960, 1964, 1968, and 1972. He was commissioned for that office on January 6, 1953, January 8, 1957, January 3, 1961, January 5, 1965, January 7, 1969, and January 2, 1973. As tax assessor, petitioner was a member of the retirement system now known as the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. By two written ballots, petitioner rejected membership in the Florida Retirement System, Chapter 121, Florida Statutes, to be effective December 1, 1970, and January 1, 1975. The constitutional office of tax assessor was abolished and the constitutional office of property appraiser was created in its stead by amendment to Article 8, Section (1)(d) in 1974. The petitioner was elected to the office of property appraiser in 1976, and commissioned on January 4, 1977. The petitioner's duties as property appraiser were and are the same as they were when he was the tax assessor. Petitioner has been in office continually since January 6, 1953, either as tax assessor or property appraiser. He has not terminated his employment and received a refund of contributions; has not had a non-creditable leave of absence; nor was he off the payroll for at least one calendar month.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's demand for admittance into the Florida Retirement System as of January 4, 1977, be denied. DONE and ENTERED this 20th of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William A. Cooper, Jr., Esquire Davenport, Johnston, Harris, Gerde and Harrison 406 Magnolia Avenue Robert L. Kennedy, Jr. Panama City, Florida 32401 State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303 Stephen S. Mathues, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207-C, Box 81 Tallahassee, Florida 32303
The Issue Whether Petitioner is eligible to receive retirement credit for the period of his employment with the Florida Bar from July 1, 1977 through June 4, 1981.
Findings Of Fact Petitioner was employed by the Florida Bar from July 1, 1977 to June 4, 1981. The record is unclear as to the nature of his employment at the Florida Bar. He is presently employed as a professor at Florida State University and has approximately 24 years' credit in the Florida Retirement System (FRS). Employees of the Florida Bar are paid as part of an overall budgetary process generated primarily from members' dues. Their salaries are not established by or funded by legislative appropriation. The Florida Bar has its own pension system that is a defined contribution plan funded entirely by the Florida Bar. The Bar employees contribute nothing to their pension system. This system has been in place since approximately 1970. Salaries of state officers and employees are reported from the State Comptroller to the Division of State Retirement. No salaries of the Florida Bar were paid or reported to the Division for the period of time Petitioner was employed at the Florida Bar. In the 1970's the FRS went from an employee/employer funded system to a strictly employer funded system which became known as a non-contributory system. The Florida Bar does not participate as a paying agency of the FRS and employees of The Florida Bar do not participate in any state employee benefit system. Beginning in 1955, until the establishment of the FRS, the Florida Board of Bar Examiners participated in the former public retirement system. When the FRS was created, participants, such as the Florida Board of Bar Examiners, began reporting into the new system and were allowed to participate in the new system. Mr. Ragsdale, administrator of the enrollment section of the Division, established that the employees of the Board of Bar Examiners participated by contributing into the former retirement system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for retirement service credit for the period of his employment with the Florida Bar. DONE AND ENTERED this 14th day of September, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 14th day of September, 2001.
The Issue The issue in this case is whether or not the position Petitioner held with Brevard County, Florida, from December 5, 2005, to October 31, 2006, entitled him to service credit in the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a member of the FRS. He first worked for the Florida Department of Transportation in October 1976 and remained with the Department of Transportation until January 1980, when he began working for Osceola County, Florida. He worked for Osceola County until May 1990, when he began working for Brevard County, Florida. He worked for Brevard County until 2004. At the time he was laid off by Brevard County, Petitioner had 25.5 years of credible service in the FRS. Petitioner's expressed desire was to complete 30 years of credible service in the FRS. To that end, he met with Brevard County officials seeking re-employment in a position that would qualify him for additional credible service. In October 2005, Petitioner met with several Brevard County employees, including the county manager and Human Resource director, seeking a job that would enable him to get 4.5 more years of credible FRS service. As a result of his meetings and efforts, on October 28, 2005, Petitioner was offered a part-time position as a park ranger with duties that included "monitoring any scheduled activities at Rodes [sic] Park on Friday and Saturday evenings from approximately 9:00 p.m. to 1:00 a.m., to ensure orderly behavior of park patrons." Accepting the offered position, Petitioner was employed as a Park Ranger I, with the stated job description. The following information appears on a Brevard County document titled "Authorization to Place Special Services Employee on Payroll" which memorialized his employment: Working Title: Park Ranger I, Part Time (less than 40 hrs per week); Hire Date: 12/03/05; and How many pay periods do you anticipate this job will last? 19 (PP) 38wks. Also noted on this document, "Enroll in FRS 95HA." An inter-office memorandum dated November 17, 2005, from Jeff Whitehead, south area parks operations manager to Peggy Busacca, county manager, regarding Petitioner's hiring, states in part: "This position will require an individual that has an extremely flexible schedule and that can be asked, at times, to report with very little notice. Furthermore, the majority of shifts will be on Friday and Saturday evenings, generally from 8:00 p.m. to 1:00 a.m. . . In addition, providing Mr. Bright with this opportunity will render him eligible to collect his retirement benefits." Frank Abbate, Brevard County Human Resource director, emailed Petitioner on December 19, 2005, stating, in part: "I'm glad to see that . . . you were able to get a position with Parks and Recreation that meets both[,] one of their Department's needs[,] as well as your interest in continuing to earn FRS service credits. I wish you the best and look forward to your achieving your goal of thirty years service under FRS!" Brevard County knew that Petitioner's employment was conditioned on his inclusion as a participant in the FRS, and, in fact, enrolled him in the FRS by making appropriate contributions on his behalf to FRS. At no time did Brevard County advise Petitioner that he was not participating in the FRS. Petitioner relied on Brevard County's assertion that he was an enrolled member of the FRS. Petitioner was hired with the mutual expectation that he would be available to work at Rhodes Park on any Friday and Saturday nights from 8:00 p.m. to 1:00 a.m. and that the employment would continue for 4.5 years so Petitioner would be able to obtain 30 years of credible FRS service. There was nothing "temporary" in the expectation of Petitioner and his employer regarding the duration of employment. During the period in question, December 2005 through October 2006, Petitioner worked at least one day per month. Petitioner's employment was continuing, not temporary, on-call, in that he was scheduled to be available to work at his assigned responsibility every Friday and Saturday. While Petitioner did not work every Friday and Saturday night, Petitioner did, in fact, work every Friday and Saturday night during the period in question, as requested by his employer, Brevard County. That is, he never failed to perform his assigned duties when requested. Petitioner was finally notified on November 7, 2007, that he was ineligible for participation in FRS. During this nearly two-year period of employment, Petitioner satisfactorily performed his employment responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Thomas L. Bright, is eligible for participation in the Florida Retirement System, while employed by Brevard County from December 3, 2005, through October 31, 2006. DONE AND ENTERED this 10th day of October, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 10th day of October, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Brian D. Solomon, Esquire Brian D. Solomon, P.L. 101 East 13th Street St. Cloud, Florida 34769 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner qualifies for retirement benefits as a joint annuitant of the late Roy Hartley, Jr.
Findings Of Fact Roy Hartley, Jr., died on June 11, 1994, with more than ten years of service as a member of the Florida Retirement System (FRS). Mr. Hartley was employed as a police officer with the Metro Dade Police Department. His Social Security Number was 267-70-3906. At the time of his death, Mr. Hartley had personally contributed the sum of $655.38 to the FRS. On October 29, 1993, Mr. Hartley designated Petitioner as the beneficiary of his retirement benefits on FRS Form M-10. After Mr. Hartley's death, Petitioner applied to the State of Florida, Division of Retirement, for benefits as Mr. Hartley's designated beneficiary. To be entitled to monthly retirement benefits, Petitioner must establish that she was a dependent of Mr. Hartley so as to qualify as a joint annuitant of his monthly retirement benefits. Section 121.091(7)(g), Florida Statutes (1994), contains the option that Petitioner seeks to exercise: (7)(g) The designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to the completion of 10 years of credible service but prior to actual retirement may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his death and the age the member would have attained on the commencement date of the deferred benefit elected by his beneficiary, paid in accordance with option 3 of paragraph (6)(a). Section 121.021(28)(c), Florida Statutes, contains the definition of the term "dependent beneficiary" that is pertinent to this proceeding: (28) Dependent beneficiary means any person designated by the member to receive a retirement benefit upon the member's death who is either: * * * (c) A person who is financially dependent for no less than one-half of his support from the deceased at retirement or at time of the death of such member, whichever occurs first. Rule 60S-6.001(34), Florida Administrative Code, defines the term "joint annuitant" as follows: JOINT ANNUITANT -- Means . . . any other person who is financially dependent where the other person is someone who is receiving one-half or more of his support from the member or is eligible to be claimed as a dependent or exemption on the Federal income tax return of the member. Petitioner and Mr. Hartley were not married, but they were living together at the time of his death. Except for a relatively short breakup, they had lived together for thirteen years. Petitioner was not claimed as a dependent on Mr. Hartley's federal income tax return. At the times pertinent to this proceeding, Petitioner worked part-time as a bartender. Respondent requires a person who is claiming to be a dependent of a deceased member pursuant to Section 121.021(28)(c), Florida Statutes, to document that the member contributed more than half of the alleged dependent's support. Stanley Colvin, the administrator of Respondent's retirement section, established that the Respondent typically reviews financial data for the year preceding the member's death in determining whether the deceased member contributed half of the alleged dependent's support. In making this determination, the Respondent determines the amount that the alleged dependent has to contribute to his or her own support and thereafter requires the alleged dependent to establish that the member contributed an amount equal to or more than that amount. Since the member died in June of 1994, Respondent in this case examined the W-2 statements for Petitioner and for Mr. Hartley for several years proceeding his death and for the year 1994. The 1993 W-2 statements reflect that Mr. Hartley had income from his employment of $67,360.23 while Petitioner had income from her employment of $9,450.00. Based on the differences between their earnings, it did not appear that there would be a problem with Petitioner's claim when Respondent's staff first reviewed the claim. The house in which Petitioner and Mr. Hartley lived at the time of his death was titled solely in the name of the Petitioner. This house was purchased in 1992. The fact that Petitioner owned the house only in her name caused Respondent's staff to question this claim. After learning about the house, Respondent's staff asked Petitioner to document that Mr. Hartley contributed more than half of her support and requested that she provide copies of cancelled checks and tax returns. In response to that request, Petitioner provided copies of certain cancelled checks and copies of her tax returns for 1992 and 1993. 1/ Mr. Hartley and Petitioner routinely gambled at Seminole Bingo. The down payment for the house came from their bingo winnings. Although they both gambled at bingo, Petitioner usually sat in the chair so that she would be the one to claim any bingo winnings. These winnings were reported on Petitioner's income taxes for the years 1992 and 1993. For 1992, Petitioner claimed bingo winnings in the amount of $60,531 and wagering losses in the amount $45,850. For 1993, Petitioner claimed bingo winnings in the amount of $21,860 and wagering losses in an equal amount. Petitioner's federal income tax return for 1993 reflected an adjusted gross income of $31,508. This sum included bingo winnings of $21,860. Petitioner testified, credibly, that they did not go to bingo as frequently in 1994 because Mr. Hartley had become interested in racing automobiles, but there was no evidence as to whether Petitioner or Mr. Hartley won at bingo during 1994 prior to Mr. Hartley's death. After reviewing the documentation provided by Petitioner, the Respondent denied monthly benefits to her. Respondent's denial was based on its interpretation of its rule that all income, including gambling winnings, should be considered as being available for the support of a person claiming to be a dependent of a member of the FRS. 2/ Respondent is not concerned with whether the alleged dependent loses his or her winnings at bingo or uses the winnings to pay bills. Respondent allocated the house payments, household expenses, and grocery costs paid by Mr. Hartley to have been one-half for Petitioner's support and the other half for his own support. 3. Respondent determined, correctly, that the documentation did not support a findings that Mr. Hartley contributed more than half of Petitioner's support when the bingo winnings were considered. Respondent advised Petitioner that she was entitled to a refund of Mr. Hartley's contribution to the FRS in the amount of $655.38. Petitioner established that Mr. Hartley paid the house payment ($683.00 per month in 1994), that he paid most of the household expenses, and that he routinely gave Petitioner cash for food, clothes, and miscellaneous expenses. The only bill routinely paid by Petitioner was the utility bill. She also paid her car bill and her auto insurance bill. Mr. Hartley occasionally assisted her with those bills. Based on the totality of the evidence, 4/ including the discrepancy between Mr. Hartley's earned income and Petitioner's earned income, 5/ the fact that Mr. Hartley paid the housing expenses, except for utilities, and the fact that he routinely gave Petitioner cash to use for her support, it is found that Mr. Hartley contributed more than $10,000 a year toward Petitioner's support. The evidence does not, however, support a finding that Mr. Hartley contributed more than $31,000 a year toward Petitioner's support. 6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and approves Petitioner's application for monthly benefits as a joint annuitant of Roy Hartley, Jr. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 August, 1996.
The Issue Whether Petitioner is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 2001
The Issue The issues in this case are whether Petitioner was provided incorrect, inaccurate, and erroneous information, and, if so, if she may transfer to the Florida Retirement System (FRS) Pension Plan (Pension Plan) by paying a “buy-in” amount of $2,418.55, consistent with the amount quoted to Petitioner in January 2020.
Findings Of Fact Ms. Evangelisto has been continuously employed by an FRS- participating employer since August 2012. As a new employee of an FRS-participating employer, Ms. Evangelisto had a choice to enroll in one of two FRS retirement plans: the Pension Plan or the Investment Plan. The Pension Plan is administered by the Florida Division of Retirement (Division of Retirement), which is housed within the Department of Management Services. The Pension Plan is a defined benefit plan; the benefit is formula-based. The formula used for calculating a pension plan benefit is based on total years of creditable service at the time of retirement, membership class, and average final compensation. See § 121.091, Fla. Stat. The Investment Plan is administered by SBA. The Investment Plan is a defined contribution plan; the benefit is based on gains and losses due to market performance. On January 22, 2013, Ms. Evangelisto enrolled in the Investment Plan, with an effective date of February 1, 2013. This choice is considered Ms. Evangelisto’s initial election. Ms. Evangelisto is still enrolled in the Investment Plan. After making an initial election, an employee may make a “second election” if still employed with an FRS-participating employer, earning salary and service credit. Ms. Evangelisto may utilize a second election to move into the Pension Plan, but must pay a “buy-in” amount to do so. This sum is derived from an actuarial calculation conducted by the Division of Retirement. To effectuate a second election, Ms. Evangelisto must complete and submit a 2nd Election Retirement Plan Enrollment Form (2nd Election Form) to the Plan Choice Administrator. The 2nd Election Form may be obtained by calling the MyFRS Financial Guidance Line or through the MyFRS.com website. When completed, the form may be submitted by facsimile, mail, or by electronic submission through the MyFRS.com website. Respondent is required to provide FRS Investment Plan participants with educational services, including: disseminating educational materials; providing retirement planning education; explaining the Pension Plan and the Investment Plan; and offering financial planning guidance on matters such as investment diversification, investment risks, investment costs, and asset allocation. See § 121.4501(8)(b), Fla. Stat. Respondent provides these educational services through Ernst & Young (EY), a contracted third-party administrator. EY financial planners provide information to FRS employees via the MyFRS Financial Guidance Line. On multiple occasions over the years, going back to as early as July 2018, Ms. Evangelisto spoke to EY financial planners via the MyFRS Financial Guidance Line to request a calculation of her buy-in amount.2 In July 2018, Ms. Evangelisto contacted the MyFRS Guidance Line to request her buy-in amount. In August 2018, she received a comparison estimate. The comparison estimate provided the estimated buy-in amount, the current value of her Investment Plan, and the amount of out-of-pocket funds 2 Ms. Evangelisto testified that she made requests to determine her buy-in amount even prior to 2018. Ms. Evangelisto would have to pay to buy into the Pension Plan. This out-of- pocket sum is the result of the difference between the buy-in amount determined by the Division of Retirement and her Investment Plan account balance. The amounts contained in the comparison estimate are only valid for the calendar month in which they are issued. From July 2018, through March 2019, there were numerous communications between Petitioner and EY Financial Planners by telephone conversation, email, and through voice messages. Ms. Evangelisto made requests for buy-in amounts and received updated comparison estimates in November 2018 and March 2019. On January 13, 2020, Petitioner requested a calculation of her buy-in amount. On January 22, 2020, she received a comparison estimate which set forth an out-of-pocket cost of $2,418.55 to transfer to the Pension Plan. The estimate indicated that it was valid until January 31, 2020. On February 14, 2020, Petitioner requested another calculation of her buy-in amount. On March 12, 2020, she received a comparison estimate with an out-of-pocket cost of $7,198.64. The estimate indicated that it was valid until March 31, 2020. Ms. Evangelisto testified that she did not transfer to the Pension Plan, after being provided comparison estimates, because she did not have the funds to pay for the associated out-of-pocket cost. On June 24, 2020, Petitioner called the MyFRS Guidance Line to request yet another comparison estimate. During this conversation, Petitioner inquired about potential changes to the buy-in amount associated with becoming “vested.” The conversation was recorded and later transcribed by a court reporter: Ms. Evangelisto: Does the cost to buy into the pension change significantly once you would be vested at the eight years? EY financial planner: I actually don’t know if it would or not. Ms. Evangelisto: Okay. EY financial planner: I can try to find out. I don’t think it’s necessarily based on vesting, but more the years of service. Ms. Evangelisto: Okay. During the June 24, 2020, call, the EY financial planner told Ms. Evangelisto that she could expect the comparison estimate in three weeks. Ms. Evangelisto agreed to July 16, 2020, for a follow-up call. On July 9, 2020, Ms. Evangelisto received an email from EY, but the email did not contain the requested comparison report. On July 15, 2020, Ms. Evangelisto called the MyFRS Guidance Line to follow up on her June 24 request and to ask about the July 9 email. The EY financial planner calculated the buy-in costs for her over the phone. He provided a verbal, estimated out-of-pocket cost of $17,657.00 to buy into the Pension Plan. Surprised by this number, which was over $10,000 higher than the out-of-pocket estimate provided in March 2020, Ms. Evangelisto asked why the cost increased. This telephone call was also recorded and later transcribed by a court reporter. Relevant parts of the conversation are as follows: Ms. Evangelisto: Does it normally jump up heftily at eight years of service -- EY financial planner: No. No. Ms. Evangelisto: -- or like in a yearly increment? EY financial planner: No. Ms. Evangelisto: It doesn’t? EY financial planner: It -- okay, you have been watching in and monitoring it very closely, so you had in December, January, March, and now we are a July figure. If all of those other figures were consistent, while the increase due to the change in the underlying interest rate might have a negative impact, it shouldn’t be so much that it’s going to bump up the cost by another $10,000. The EY financial planner promised to look into the numbers to ensure they were not miscalculated. On the same day, the EY financial planner called Ms. Evangelisto back and left a voicemail. He stated that the out-of-pocket cost he provided on the earlier phone call was correct and that the number had substantially increased because Ms. Evangelisto hit the eight-year vesting mark.3 The previous calculations were based on having an unvested account balance. Ms. Evangelisto returned the EY financial planner’s call and he confirmed the information he provided in the voicemail. Ms. Evangelisto asked EY financial planners, on two occasions, if her buy-in amount (and resulting out-of-pocket costs) would increase upon becoming vested. On the first occasion, during the June 24 call, the EY financial planner told her that he “did not know” and would endeavor to provide her with an answer by July 16. Unfortunately for Ms. Evangelisto, the final date to make the switch to the Pension Plan before the substantial increase4 was June 30. Ms. Evangelisto reached out to the MyFRS Guidance Line on July 15, prior to her scheduled July 16 call. On this occasion, the EY financial planner provided incorrect information when he told her that buy-in amounts did not 3 In her Proposed Recommended Order, Ms. Evangelisto asserted that she became “vested” on July 1, 2020, after completing eight years of creditable service with FRS-participating employers. 4 It is important to note that the amount to buy into the Pension Plan increased every time Ms. Evangelisto requested a calculation, albeit not the sizeable jump that occurred when she became vested. substantially increase upon vesting. This proved to be inconsequential, however, as the increase to Ms. Evangelisto’s buy-in amount had occurred as of July 1, 2020, prior to the EY planner providing the incorrect information. An EY financial planner provided inaccurate information to Ms. Evangelisto when he indicated that no substantial jump would occur upon vesting. Nevertheless, Ms. Evangelisto is required to pay a buy-in amount as calculated by the Division of Retirement when she chooses to move forward with making the second election. Petitioner did not prove that she should be entitled to pay the buy-in amount calculated in January 2020. That amount was valid until January 31, 2020, and the document provided to Ms. Evangelisto clearly notified her of such. Ms. Evangelisto still has a one-time second election to move into the Pension Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 21st day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Elisha Marie Evangelisto 4604 20th Avenue West Bradenton, Florida 34209 Deborah Stephens Minnis, Esquire Ausley McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32302 Ash Williams, Executive Director & Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
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, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
