The Issue Whether Petitioner's application to participate in the Deferred Retirement Option Program should be approved.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On August 24, 2001, Petitioner submitted to the Division a Florida Retirement System Application for Service Retirement and the Deferred Retirement Option Program (DROP), Form FRS DP-11. On the form, Petitioner indicated his name, social security number, birth date (June 22, 1946), his position title (guidance counselor), present Florida Retirement System employer (Miami-Dade County Public Schools), work phone, home phone, and home mailing address. These entries were followed by the a printed statement, which read as follows: I have resigned my employment on the date stated below and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.). My DROP participation cannot exceed a maximum of 60 months from the date I first reach my normal retirement date as determined by the Division of Retirement . I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit. I cannot add additional service, change options, or change my type of retirement after the DROP begin date. If I fail to terminate my employment in accordance with s. 121.021(39)(b), F.S., on my DROP termination date, my retirement will be null and void and my FRS membership shall be established retroactively to the date I began DROP. I have read and understand the DROP Accrual and Distribution information on the reverse side of this form. The "DROP begin date" and the "DROP termination and resignation date" that were filled in the form were August 1, 2001, and July 31, 2006, respectively. On the "Beneficiary Designation" portion of the form, Petitioner named his wife, Marianne F. Coto, as his "primary" beneficiary, and his daughter, Claudine Coto, as his "contingent" beneficiary. Their birth dates (but not their social security numbers) were noted on the form. At the bottom of the form was the following "Employer Certification," signed and dated (August 24, 2001), by Miami- Dade County Public Schools personnel officer, Maria Perez: This is to certify that the above named member will be enrolled as a DROP participant on the date stated and will terminate his or her employment on the date stated. On August 24, 2001, Petitioner also submitted to the Division a Florida Retirement System Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment, Form FRS DP-ELE. On the form, Petitioner indicated his name, social security number, birth date, his position title, present Florida Retirement System employer, work phone, home phone, and home mailing address. These entries were followed by a printed statement, which read as follows: Resignation From Employment to Participate in the DROP: I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated below, and resign my employment on the date I terminate from the DROP. I understand that the earliest date my participation in the DROP can begin is the first date I reach my normal retirement date as determined by law and that my DROP participation cannot exceed a maximum of 60 months from the date I reach my normal retirement date, although I may elect to participate in the DROP for less than 60 months. Participation in the DROP does not guarantee my employment for the DROP period. I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S. I cannot add additional service, change options, or change my type of retirement after my DROP begin date. On the form, Petitioner indicated that his "DROP begin date" and his "DROP termination and resignation date" were August 1, 2001, and July 31, 2006, respectively. Also on the form was an "Employer Certification," signed and dated (August 24, 2001), by Ms. Perez, the aforementioned Miami-Dade County Public Schools personnel officer, which was identical to the "Employer Certification" on the Form FRS DP-11 that Petitioner had submitted. Petitioner did not submit to the Division (along with Forms FRS DP-11 and DP-ELE) Form FRS 11o, on which he was required to indicate the form of payment of retirement benefits he desired. (Pursuant to the Division's Rule 60S-4.010, Florida Administrative Code, there are four optional forms of payment from which to choose.) Neither did Petitioner furnish the Division with any proof of age. In addition, Petitioner, in September of 1998, had submitted to the Division an Application to Purchase Retirement Credit for a Leave of Absence, but had not yet paid the amount necessary to purchase the credit. Accordingly, by letter dated September 8, 2001, the Division advised Petitioner of the following: This will acknowledge receipt of your Application for Service Retirement and the Deferred Retirement Option Program (DROP) You will be notified should we need additional information. If there is an amount due your account, please make your check payable to the Florida Retirement System (FRS) and reference your social security number on all future correspondence with this office. Date Received: 08/24/2001 Member SSN: . . . . Drop Begin Date: 08/2001 Drop End date: 07/31/2006 Amount Due, if any: $1,126.78 Option Selected: None The following items must be received. Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. The amount due is to purchase service for your leave of absence from 1975-76. If you do not elect to pay the above amount due and purchase the service it represents, we must have written notification of your intent. A Final Salary Certification, FC-1, with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. Petitioner did not provide the Division with the items listed in the September 8, 2001, letter. The Division therefore sent Petitioner a follow-up letter, dated October 24, 2001, which read as follows: DROP RETIREMENT APPLICATION TO BE EFFECTIVE: 08/2001 The item(s) listed below must be received to complete your DROP application and retain the above retirement date: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. Not having received any response from Petitioner, the Division sent Petitioner an identical letter on November 29, 2001. Still not having received any response from Petitioner, the Division sent Petitioner another letter, dated January 3, 2002, requesting that Petitioner provide the items that had been requested from him in the previous correspondence. The January 3, 2002, letter warned that the items "must be received immediately to avoid cancellation [of Petitioner's] DROP application." The items were not provided by Petitioner. Accordingly, the Division sent him the following letter, dated February 14, 2002: For your Florida Retirement System (FRS) Application for Service Retirement and Deferred Option Program (DROP), DP-11 to be effective 08/2001, the following item(s) previously requested, must be received within 21 calendar days from the date you receive this letter: Please provide Birth date verification of joint annuitant if Option 3 or 4 is selected. (Read the enclosed Request for Proof of Age, BVR-1). You should place your social security number on any documentation provided. Your birth date verification is required. (Read the enclosed Request for Proof of Age, BVR-1.) You should place your social security number on any documentation provided. Completion of the Option Selection for FRS members, Form FRS-11o is required. Payment of $1,126.78. Please make your check payable to the Florida Retirement System and note your social security number on the face. Otherwise, provide a written statement indicating that you do not wish to purchase this service. It is our intent to disapprove your application for the DROP if the requested information and documents are not received within the 21-day period. Should we disapprove your DROP application, the following will be applicable to you: You will be deemed to not have retired and the DROP application will be null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of applying for DROP. Your FRS membership will be reestablished retroactively to the effective date of DROP for which you applied. Your employer will be required to pay the FRS Trust Fund any difference between the DROP contributions and the contributions required for the applicable FRS class of membership. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. The beneficiary you designated on the retirement application you filed will remain in effect unless changed by you at a later date. Please call me if you have any questions. Petitioner received this February 14, 2002, letter from the Division on February 25, 2002, but, as of April 9, 2002, had not provided any of the items listed in the letter. Accordingly, on that date (April 9, 2002), Doug Cherry, the Division's Benefits Administrator, telephoned Ms. Perez, and asked her to attempt to make contact with Petitioner and remind him that that if he did not submit the items listed in the February 14, 2002, letter, his application to participate in DROP would be denied. On April 18, 2002, Ms. Perez faxed Mr. Cherry a copy of Petitioner's passport, along with a note that Petitioner would make additional submissions at a later date. No additional submissions were made by Petitioner. Accordingly, on May 29, 2002, the Division sent Petitioner the following letter: We have not received the items that were requested in our February 14th letter (copy enclosed) to you. Accordingly, your Florida Retirement System (FRS) Application for Service Retirement and the Deferred Retirement Option Program (DROP), DP-11, cannot be approved. Therefore, the following are applicable to you: You are deemed to not have retired and the DROP election is null and void. If you are eligible to participate in the DROP in the future, you will be required to submit a New Notice of Election to participate in the Deferred [Retirement] Option Program (DROP) and Resignation of Employment and a new Application for Service Retirement and the Deferred Retirement Option Program (DROP) during the 12-month period of your latest DROP eligibility date. You will be required to repay your employer for any annual leave payments you received as the result of your having applied for the DROP. Your FRS membership is being reestablished retroactively to 08/2001, the date of your DROP participation. Your employer will be required to pay to the FRS Trust Fund the difference between the DROP contributions (12.50%) and the contributions required for the applicable FRS class of membership during the period you participated in the DROP. Also you submitted a Notice of Election to Participate in the Deferred Retirement Option Program and Resignation of Employment, DP-ELE, with a resignation date to take effect in the future. Because it is discretionary with the employer as to whether such resignation can be rescinded, you should contact your employer for further information. By copy of this letter, we are advising your employer that immediate action is required by the employer to correct your FRS retirement plan on the next payroll reported to the Division. Your employer will be billed for the appropriate FRS contribution adjustments, if any, based on you not having joined the DROP. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-206.111, F.A.C. You may contact Doug Cherry at . . . should you desire additional information. Petitioner responded by sending the following letter to Mr. Cherry: I received a certified letter signed by Maurice Helms for Erin B. Sjostrom, which asks to contact you regarding a formal appeal to the action of your agency to cancel my D.R.O.P benefits for this 2001 to 2002 school year. Please allow this to serve as the formal appeal. Needless to say I am very frustrated and upset and would like to request your help to sort through this process. A bit of background history first I believe will help. I started working for Miami-Dade County Public Schools in 1970. At that time I was told it was necessary to be a U.S. citizen to be able to work as a teacher in the school system. I had already decided that and since I had officially turned 22, I became a naturalized U.S. citizen and submitted a copy of the Certificate of Naturalization to the School Board through the Dade County office. Where is that record and why am I being asked to produce it again after having accumulated 31 years of service and after I explained to the local retirement officer in charge, Maria Perez, that I had lost the original when I lost almost the entire contents of my house to Hurricane Andrew in 1992? Honestly since I had submitted [a] copy of my U.S. passport with birth-date and all other pertinent information and I also have my Florida Driver's License, which I have had since 1963 or so, and has been what I have used to verify my age and for identification purposes since I was a kid, (although now I am told by your office that this is not a valid acceptable proof, kindly explain why not?) I never thought it was necessary for me to obtain a copy of the Certificate of Naturalization (U.S. citizenship). Also please tell me why passport and driver's license and 31 years of continuous service on record is not sufficient. It is not as if I were trying to retire after a short time of service. I do have 31 years of service! I do not feel this is the right way to treat a dedicated teacher at the end of his career and I hope you agree with me and will help. To comply with the requirement of another piece of proof of age (which I fail to see the need of in my case where I already have 31 years of verifiable and documented service to Miami-Dade County Public Schools as stated before) I requested a copy of my child's birth certificate from the Bureau of Vital Statistics. This was also a frustrating experience. I requested one copy to be sent to me and one to Dade County Public Schools to the attention of Maria Perez. I was told that the copy would arrive in approximately 10 to 14 days. I have not yet received it. I assume that Ms. Perez never received it either. After thirty-one years of faithful service to the State of Florida, which you have on record, and my birth date established with you over 31 years ago, I find it ludicrous that, after having submitted my passport, having requested, although not having been able to get a copy from the Bureau of Vital Statistics, of my child's birth certificate within a number of days, that your office does not find this to be sufficient proof and that based on the technicality that you have only one instead of two forms of verification of my age, now you will cancel my D.R.O.P., which in essence means forfeiting close to $30,000 that I should have accumulated in my account. Please see the circumstances and kindly reconsider the action taken. I will be extremely grateful. Mr. Cherry responded to Petitioner's letter by sending the following letter, dated June 10, 2002, to Petitioner: This is in response to your letter received in our office on June 6th concerning cancellation of your DROP application. The letter from the Division dated May 29th canceling your DROP application was sent only after several prior notices were also sent. The birth date verification issue raised in your letter was only one of the pending items on your application. We sent an acknowledgment of your application dated September 8, 2001, informing you that we needed an option selection, your birth date verification, your spouse's birth date verification if you selected option 3 or 4 and either payment for your leave of absence or a statement that you did not wish to purchase the service. After receiving no response, we sent memos on October 24, 2001, November 29, 2001 and January 3, 2002, all requesting the same information. We never received any response to these notices. We then sent our February 14th letter by certified mail (which you signed for on February 25, 2002) informing you of our intent to cancel because your application was not complete. A copy of all of this correspondence is enclosed. Again, we received no response [to] this letter. Before sending our cancellation letter, I personally called the Dade School Board and asked them to contact you in one last effort to avoid cancellation. It was only then that we received (on April 18th) a copy of your passport but none of the other required documentation was submitted. After waiting until May 29th for the remaining items to be submitted, we sent the final cancellation letter. It was approximately eight months from our first notice to you of items pending on your application, to the May 29th letter of cancellation. That was certainly sufficient time to submit the needed information and also explain about the difficulty you might have obtaining additional birth date verification. However, during those eight months we had no contact or response from you despite our repeated notices. To summarize, your DROP application is not being cancelled because of birth date verification, but because you did not submit all of the items needed to complete your application, even though you had eight months to do so. Your letter will be forwarded to our Legal section and they will contact you concerning the appeal process. The "Legal Section," after receiving Petitioner's letter, referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's application to participate in DROP. DONE AND ENTERED this 15th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 15th day of October, 2002.
The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of June, 2017.
The Issue The issue in this case is whether Petitioner, Linda Holston, violated the reemployment provisions of Chapter 121, Florida Statutes (2005), and, if so, whether Petitioner is liable to repay the retirement benefits.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Linda Holston, is a member of FRS. She ended DROP and retired, effective January 31, 2006. Petitioner returned to work for the PCSB, for whom she had worked for 32 years on April 17, 2006, as a human resources clerk. With specific statutory exceptions, a FRS retiree is prohibited from returning to work for a FRS employer and receiving retirement benefits during the 12 months following their effective retirement date. As a clerical employee, Petitioner did not qualify for any of the specific statutory exceptions. Shortly after her retirement in 2006, Petitioner was contacted by PCSB regarding returning to work on a part-time basis. She indicated a willingness to return, but advised that she was concerned that her recent retirement would be an impediment to reemployment. Allen Ford, a PCSB employee, contacted Respondent and was advised that Petitioner "fell within the 780 hour maximum hourly requirement for reemployment and that she could work part-time." Mr. Ford did not record the name of Respondent's employee or the date of the conversation. He did not give Petitioner's name to Respondent's employee which would have resulted in the entry of a record of the phone conversation in Petitioner's record. Respondent has no record of Mr. Ford's phone call. Until July 1, 2003, repeal of the exception, certain school board employees could be employed within the first year of retirement for up to 780 hours without the suspension of retirement benefits. Petitioner was assured by PCSB that she could return to part-time work without impairing her retirement benefits. In fact, PCSB supplied, and Petitioner signed, a "District School Board of Pasco County Employment After Retirement Statement" that incorrectly stated that she may "be eligible for a reemployment exemption that limits my reemployment to 780 hours during the limitation period." This document also recorded the fact that Petitioner was a retired member of FRS, although PCSB was fully aware of this fact. However, Respondent was not made aware of Petitioner's reemployment because of her part-time status. After PCSB started reporting Petitioner's wages, Respondent made inquiry regarding her start date and discovered that Petitioner had been reemployed during the first 12 months of her retirement. That discovery initiated this case. In making her decision to return to work, Petitioner relied on the information provided by PCSB; she did not contact Respondent, nor did she review information available from Respondent regarding her status as a retired member of FRS. Petitioner returned to work on April 17, 2006. During the period of April 17, 2006, through January 31, 2007, Petitioner received $14,312.15 in retirement benefits and $1,500.00 in health insurance subsidy. Petitioner's earnings as a part-time clerical worker are insignificant relative to the amount of retirement benefits she is asked to forfeit. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.
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, Linda Holston, violated the reemployment restrictions of Chapter 121, Florida Statutes. DONE AND ENTERED this 17th day of July, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2009. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Linda J. Holston 5841 10th Street Zephyrhills, Florida 33542 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 transferred to the Florida Retirement System (FRS) Investment Plan from the FRS Pension Plan, pursuant to section 121.4501, Florida Statutes (2012).1/
Findings Of Fact Petitioner is a 32-year-old former employee of the Florida Department of Corrections. Petitioner was employed as a correctional officer at the Northwest Florida Reception Center in Washington County, Florida from June 14, 2004, until he resigned on July 23, 2012. Petitioner is a fully vested member of the State of Florida Retirement System (FRS). Respondent, State Board of Administration, is the agency with the duty and responsibility to administer the State of Florida Retirement System Investment Plan. See § 121.4501(8), Fla. Stat. In mid-2011, Petitioner decided to look for other employment and began researching his retirement options. Petitioner discovered he needed to be employed by the State for six years to be fully vested in the FRS and have the option to transfer from the FRS Pension Plan (a defined benefit plan) to the FRS Investment Plan (a defined contribution plan). Sometime between May 1 and 10, 2012, Petitioner accessed the FRS website, either downloaded or printed the FRS “second election form” –- the paperwork required to transfer his retirement account to the Investment Plan -- and completed the form. Although Petitioner does not remember the exact date, Petitioner approached Ms. Charity Pleas, Secretary Specialist for the Chief of Security, and asked her to file his second election form for him by facsimile transmission (fax). Ms. Pleas testified she faxed the document to the number on the form. Petitioner observed Ms. Pleas place the paperwork into the fax machine, dial a fax number, complete the fax transmission, and retrieve a fax transmission confirmation report. Ms. Pleas handed the confirmation report to Petitioner. Petitioner cannot be certain what became of the confirmation report or his original second election form. Petitioner did not contact anyone with the Florida Retirement System to confirm receipt of his second election form. Ms. Pleas often sends faxes on behalf of employees at the Reception Center where she has been employed since 2007. Ms. Pleas occasionally receives complaints from employees that a fax she has sent on their behalf was not received by the other party. Sometimes this happens despite the fact that she has received a fax confirmation report. Petitioner began employment in the private sector with Power South on July 30, 2012. In early August 2012, Petitioner contacted the FRS to find out if the retirement funds were available to move into a 401K account with his new employer. He spoke with someone named “Jason” who said there was no record of a second election having been made by Petitioner. An investigation ensued. Aon Hewitt is the Plan Choice Administrator for the FRS Investment Plan. Aon Hewitt provides services to the SBA in connection with the Investment Plan, including processing enrollments and second elections. Lynette Murphy is Benefits Operations Manager for Hewitt Associates, LLC, a division of Aon Hewitt. Ms. Murphy researched the issue of whether Petitioner’s second election form was received by Aon Hewitt. She conducted several searches of the company’s files, including a search by Petitioner’s name (both first and last names) and social security number. In case the second election form had been received without a member name or social security number, Ms. Murphy also conducted a search on the numbers “99” and “90,” the codes assigned to forms received which are unidentifiable. Ms. Murphy’s search included not only forms received between April 1, 2012 and July 30, 2012, but also all dates covering the life of Petitioner’s eligibility and enrollment in the FRS. Ms. Murphy was unable to find any record of a second election form filed by Petitioner.
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 denying the relief requested in Petitioner’s Petition for Hearing. DONE AND ENTERED this <day> day of <month>, <year>, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this <day> day of <month>, <year>.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 31st day of March, 2003.
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2009.
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 26th day of July, 1993.
The Issue The issue in this case is whether James B. Anderson, a deceased retiree in the Florida Retirement System Pension Plan, selected Option 1 (maximum retiree’s monthly benefit without any spousal benefit after death of the retiree) or Option 3 (a reduced retiree’s monthly benefit with continued spousal benefit after death of the retiree).
Findings Of Fact On June 30, 2007, the named Petitioner, James B. Anderson, terminated his employment with the University of South Florida (USF) at the age of 69 years and 9 months. At the time, his tenure at USF spanned 27 years and entitled him to receive pension benefits under the Florida State Retirement System Pension Plan. Also on June 30, 2007, Mr. Anderson completed an application for retirement. By applying Mr. Anderson, who was USF’s Director of Insurance and Risk Management, acknowledged that he would not be able to add service, change options, change his type of retirement (regular, disability, and early) or elect the Investment Plan once his retirement became final, which would be when he cashed or deposited any benefit payment. Also on July 2, 2007, Mr. Anderson and his wife, Mitzi Anderson, executed a Statutory Official Form FRS 110 before a notary public. By doing so, they selected Option 1, which provides the maximum pension benefits to Mr. Anderson until his death and no pension benefits to his wife after his death. The form stated clearly, in bold print, that Option 1 did not provide a continuing benefit after Mr. Anderson’s death and that the selection of Option 1 would be final when Mr. Anderson cashed or deposited any benefit payment. The next day, Mr. Anderson faxed the executed form to the Division of Retirement, which mailed Mr. Anderson an acknowledgement of receipt of the executed form. The acknowledgement included a clear statement, in bold print, that Mr. Anderson would not be able to change his benefit option selection after retirement and that his retirement would become final when he cashed or deposited any benefit payment. Mr. Anderson had second thoughts about his benefit option selection and contacted Donna Pepper, a retirement specialist employed by USF, to discuss changing to Option 3, which would give him a reduced pension benefit that would continue and be paid to his wife after his death. On July 6, 2007, Ms. Pepper sent an email to Mr. Anderson stating: “Here is another option selection form so that you can change your option.” The email attached a blank Statutory Official Form FRS 110. Ms. Pepper’s email also stated: “As we discussed, you may want to indicate that this form should supersede the previously submitted form.” It also advised the Petitioner to keep a copy for his records and send the original to the Division of Retirement as soon as possible. On July 20, 2007, at 12:53 p.m., a comment was entered on the Integrated Retirement Information System (IRIS) telephone log, documenting that Mr. Anderson was considering changing his benefit option selection and would “either FAX a form with a change of option on it or call to let them know he would not make the change.” The comment also documented that Jan Steller in retirement payroll was asked to hold Mr. Anderson’s first check until “this is resolved.” Later the same day, at 2:30 p.m., another comment was added to document that Mr. Anderson had called back to say he had decided to stay with Option 1 and that Jan Steller had been called back and asked “to release his check.” On July 31, 2007, an initial pension check was sent to Mr. Anderson in the amount of $4,188.45, in accordance with his selection of benefit Option 1, which was about $1,200 more than it would be under Option 3. This check was not immediately cashed. On August 31, 2007, a second Option 1 pension check in the same amount was sent to Mr. Anderson. On September 4, 2007, Mr. Anderson deposited the first two benefit checks into his Bank of America account. He continued to receive and cash or deposit monthly Option 1 benefit checks through January 2015. Mr. Anderson died on February 14, 2015. His wife notified the Division of Retirement, which stopped benefit payments in accordance with Mr. Anderson’s Option 1 selection. In March 2015, Mrs. Anderson found among her husband’s papers a copy of an executed Form FRS 110 that selected Option 3. Notwithstanding the telephonic communications with the Division of Retirement on July 20, 2007, the executed form indicates that it was notarized on July 23, 2007. Included in handwriting at the bottom of the executed form was the language, as suggested by Ms. Pepper: “This option supersedes option dated 7-02-07.” Mrs. Anderson also found a copy of Donna Pepper’s e-mail dated July 6, 2007, with instructions on how to change the selection of pension payments. Mrs. Anderson sent copies to the Division of Retirement and requested Option 3 spousal benefit payments. The Division of Retirement denied Mrs. Anderson’s request because it did not receive an Option 3 benefit selection before the copy Mrs. Anderson sent in March 2015. There was no evidence that the form was sent to the Division of Retirement before then. This, together with the fact that Mr. Anderson received and cashed or deposited seven and a half years’ worth of monthly Option 1 benefit checks, which were each over $1,200 more than the Option 3 benefit would have been, support a finding that Mr. Anderson actually selected Option 1 and never switched to Option 3. It is not clear from the evidence why Mr. Anderson kept a copy of an executed change from Option 1 to Option 3 after deciding not to send it to the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that Mr. Anderson selected benefit Option 1, finally and irrevocably and that Mrs. Anderson is not entitled to Option 3 spousal benefits. DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2016. COPIES FURNISHED: Nicholas E. Karatinos, Esquire Law Office of Karatinos Suite 101 18920 North Dale Mabry Highway Lutz, Florida 33540 (eServed) Joe Thompson, Esquire Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399 (eServed) Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Ste. 160 Tallahassee, Florida 32399-0950 (eServed)
