08-003326 Gordon B. Williams vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, October 30, 2008.

Summary: Petitioner cannot change his retirement type after cashing retirement benefits, and Petitioner did not show that the Department represented that he could.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GORDON B. WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 08-3326

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 15, 2008, a hearing was held in Tavares,

Florida, pursuant to the authority set forth in Sections 120.569

and 120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Gordon B. Williams, pro se

19607 North Highway 27

Clermont, Florida 34715

For Respondent: Geoffrey Christian, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue presented in this case is whether Petitioner is entitled to change his retirement to in-line-of-duty disability

benefits pursuant to Florida Administrative Code Rule 60S-

4.002(4).

PRELIMINARY STATEMENT

This case commenced when the Department of Management

Services, Division of Retirement (Department or Division of

Retirement) notified Petitioner that his request to change his

retirement from early service retirement to disability retirement

had been denied. Petitioner timely filed a Petition for Review

of Final Agency Action requesting a hearing, and the case was

forwarded to the Division of Administrative Hearings for

assignment of an administrative law judge.

The case was duly noticed for hearing August 22, 2008.

Because of the travel conditions created by Tropical Storm Fay,

the case was rescheduled for September 15, 2008, and proceeded as

scheduled. The parties submitted a Joint Stipulation of Facts

that, where relevant, have been incorporated into the Findings of

Fact below. At hearing, Petitioner testified on his own behalf

and Petitioner's Exhibits numbered 1-12, 14-19, 21, 23-25 were

admitted into evidence. The Department presented the testimony

of Debra Roberts and Respondent's Composite Exhibit 1 was

admitted. A Transcript of the hearing was filed with the

Division on October 8, 2008, and the parties timely filed

Proposed Recommended Orders which have been carefully considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department's Division of Retirement is charged with

managing, governing, and administering the Florida Retirement

System (FRS) on behalf of the Department.

2. The FRS is a public retirement system as defined by

Florida law.

3. On or about January 3, 1983, Gordon B. Williams began

his employment as a Vocational Instructor III for the Florida

Department of Corrections. By reason of his employment,

Mr. Williams became a member of FRS.

4. Over the course of his career, Mr. Williams suffered a

number of on-the-job accidents which resulted in various bodily

injuries.

5. On or about February 4, 1998, a Form FR-13a, signed by

Sherry Rogers, Personnel Technician I, at Lake Correctional

Institution was completed on behalf of Mr. Williams. The form

indicated "regular" disability.

6. By letter dated August 27, 1998, Mr. Williams tendered

his resignation from his employment. His employment with the

State of Florida terminated effective on or about September 23,

1998. Mr. Williams resigned because he was unable to continue

performing his duties in light of his physical disabilities.

7. Mr. Williams earned approximately 15.75 years of service

credit in the FRS.

8. Mr. Williams called the Division of Retirement to

discuss his retirement twice: on or about October 22, 1998, and

November 4, 1998.

9. On or about December 14, 1999, Mr. Williams completed

and filed with the Division an application for FRS early service

retirement. His effective retirement date was November 1, 1998.

However, the application received by the Department was not

signed. On the unsigned form, immediately above where Petitioner

should have signed the application, was the following statement:

I understand I must terminate all employment

with FRS employers to receive a retirement

benefit under Chapter 121, Florida Statutes.

I also understand that I cannot add

additional service, change options, or change

my type of retirement (Regular, Disability,

and Early) once my retirement becomes final.

My retirement becomes final when any benefit

payment is cashed or deposited. (Bold in

original.)

10. On January 8, 1999, the Division of Retirement notified

Petitioner that his application was not signed in the presence of

a notary public, and provided another application for him to

complete and have properly notarized. This letter also

indicated, in all-cap, bold-face type, "Once you retire, you

cannot add additional service or change options. Retirement

becomes final when any benefit payment is cashed or deposited!"

11. On January 29, 1999, a second Application for Service

Retirement was filed with the Division of Retirement, signed by

Mr. Williams and notarized on January 18, 1999. This application

bore the same statement regarding the applicant's understanding

of the inability to change retirement options or type as that

quoted in Finding of Fact 9.

12. A third application was submitted in approximately

February 1999, to correct a problem related to the notarization

of Petitioner's signature. This third application also contained

the same statement identified in Finding of Fact 9.

13. On or about March 24, 1999, Mr. Williams completed and

filed with the Department a Health Insurance Subsidy Certificate

and a withholding certificate for pension payments.

14. Petitioner began receiving benefit payments in March

1999 and these payments were direct deposited to Petitioner's

bank account.

15. Petitioner did not apply for disability retirement

prior to applying for service retirement.

16. On or about December 28, 2007, a new Form FR-13a,

signed by Luz Veintidos, Personnel Specialist, at the Department

of Corrections Region III Personnel Office, was completed on

behalf of Mr. Williams. This new Form FR-13a indicated "in-line-

of-duty" disability. Attached to the new Form FR-13a was the

original Form FR-13a completed in February 1998.

17. On or about January 22, 2008, Mr. Williams completed

and filed with the Department an application for in-line-of-duty

disability retirement, along with a letter requesting that his

type of retirement be changed from service retirement to

disability retirement.

18. Respondent's records do not indicate and no competent

testimony indicates that Respondent received any documents

related to Petitioner's claim for disability retirement prior to

January 2008. While Petitioner inquired about disability

retirement, no application was filed requesting it until 2008.

19. By letter dated February 8, 2008, the Division of

Retirement advised Mr. Williams that a retired member could not

change his type of retirement after a benefit payment has been

cashed or deposited and therefore the Division of Retirement

could not honor his request.

20. By letter dated February 25, 2008, Mr. Williams

contended that he was "following Division of Retirement

instructions when he applied for early service retirement instead

of disability retirement" and that his October 1998 telephone

conversation with the Division "was, in effect, a denial of

application for benefits."

21. He could not, however, identify who he talked to at the

Division of Retirement that instructed him regarding his choice

to file for early retirement. Nor did he indicate that at any

time he understood that an application for retirement could be

processed by an individual agency as opposed to the Division of

Retirement, or processed by telephone without a written

application.

22. By letter dated April 11, 2008, the Division advised

Mr. Williams of its final decision to deny his request to change

his type of retirement from service retirement to disability

retirement.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

24. The burden of proof in this proceeding is on the party

asserting the affirmative of an issue. Wilson v. Department of

Administration, Division of Retirement , 538 So. 2d 139, 141-142

(Fla. 4th DCA 1989). That is, Petitioner has the burden of

demonstrating that he is entitled to change his retirement

status. He must prove his entitlement by a preponderance of the

whether Petitioner suffers from a disability as a result of an

injury suffered while on the job, but whether Petitioner may

change the type of retirement he receives once benefits begin.

25. This case is governed by the provisions of Florida

Administrative Code Rule 60S-4.002, which states in pertinent

part:

(4) After a retirement benefit payment has

been cashed or deposited or after a DROP

payment is credited:

(a) No additional service, which remained

unclaimed at retirement, may be claimed or

purchased;

(b) The selection of an option may not be

changed; and

(c) The type of retirement, i.e., normal,

early, or disability, may not be changed,

except for the following:

1. When a member recovers from disability

and subsequently applies for normal or early

retirement as provided in subsections 60S-

4.007(7) and (8), F.A.C.

2. When a member begins receiving normal or

early service retirement benefits while

appealing a denial of his application for

disability retirement and such disability

application is subsequently approved as

provided in paragraph 60S-4.007(3)(g),

F.A.C., or

3. When an elected officer requests, prior

to July 1, 1990, that his benefit be

suspended and recalculated as provided in

paragraph 60S-4.012(6)(b), F.A.C. (Emphasis

supplied.)

26. With the exception of amendments not relevant to the

issues presented in this case, Rule 60S-4.002 has been in force

at all times material to the facts presented here.

27. None of the three exceptions enumerated in the rule

apply in this case. Petitioner is not applying for normal or

early retirement after recovering from a disability. Petitioner

is not an elected official seeking recalculation of his benefit

pursuant to a request made prior to July 1, 1990. Most

importantly, Petitioner did not begin receiving early service

retirement while appealing the denial of disability retirement,

because he did not file an application seeking disability

retirement until 2008.

28. Petitioner asserts that his agency's original

completion of the FR-13a form indicating "regular" as opposed to

"in-the-line-of-duty" disability constituted a denial of his

application. However, Petitioner has stipulated that the

Division of Retirement, as opposed to the Department of

Corrections, has the responsibility for managing the FRS. While

an individual agency may answer questions relating to retirement

and perform certain functions regarding the confirmation of

employment, there is no credible evidence to indicate that

Petitioner believed any agency other than the Division of

Retirement had the authority to approve his retirement

application.

29. The Petitioner's argument that the Department should be

equitably estopped from denying his request is likewise without

merit. To demonstrate the application of equitable estoppel, the

Petitioner must demonstrate a) a representation as to a material

fact that is contrary to a later-asserted position; b) a

reasonable reliance on that representation; and 3) a change in

position detrimental to the party claiming estoppel caused by the

representation and reliance thereon. Warren v. Department of

Administration , 554 So. 2d 568, 570 (Fla. 5th DCA 1989); Salz v.

Department of Administration, Division of Retirement , 432 So. 2d

1376 (Fla. 3rd DCA 1983). Estoppel is limited to exceptional and

rare cases. Id.

30. In this case, Petitioner relies on the purported

statement of an unknown employee at the Department who he claims

told him to apply for early retirement until such time as he

could apply for in-line-of-duty retirement. He could not

identify who supposedly made the statement, and the statement is

not reflected in the call logs of the Department. Petitioner

simply has not proven by a preponderance of the evidence that

such a statement was made.

31. Even assuming that a Division of Retirement employee

made such a statement, reliance on it would not be reasonable

where, as here, documents received from the Division of

Retirement and some signed by Petitioner, indicated in no

uncertain terms that the type of retirement could not be changed

once a retirement check was cashed. Petitioner had in front of

him the official agency position on Division of Retirement

written materials at the time he completed his original

application. Further, Florida Administrative Code Rule 60S-4.002

was in effect long before the application in this case was

completed. The rule, and the written statements in the forms

that are consistent with the rule, are in accord with the

Department's current position that Petitioner cannot change his

retirement type. Therefore, Petitioner cannot establish the

necessary elements of equitable estoppel.

31. Under these circumstances, Petitioner has failed to

meet his burden of proof.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered denying Petitioner's request

to change his retirement status to in-line-of-duty disability

retirement.

DONE AND ENTERED this 30th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2008.

COPIES FURNISHED:

Gordon B. Williams

19607 North Highway 27

Clermont, Florida 34715

Geoffrey Christian, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director

Department of Management Services

Division of Retirement

Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.