96-004284 Dennis A. Barga, O/B/O James E. Brandon, Deceased vs. Division Of Retirement Status: Closed Recommended Order on Wednesday, December 31, 1997.

Summary: Deceased's use of wrong form does not invalidate designation of beneficiary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS A. BARGA, o/b/o )

JAMES E. BRANDON, )

)

Petitioner, )

)

vs. )

)

DIVISION OF RETIREMENT, )

) Case No. 96-4284

Respondent, )

)

and )

)

WILLIAM BRANDON, )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

On October 14, 1997, a formal administrative hearing in this

case was held in Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: David T. Weisbrod, Esquire

601 North Franklin Street

Tampa, Florida 33602

For Respondent: Stanley N. Danek, Esquire

Division of Retirement

Cedars Executive Center

2639 North Monroe Street, Building C

Tallahassee, Florida 32399

For Intervenor: Thomas Frost, Esquire

7901 Fourth Street North

Suite 315

St. Petersburg, Florida 33702

STATEMENT OF THE ISSUE

The issue in this case is who is entitled to payment of

remaining retirement benefits due to James E. Brandon, deceased.

PRELIMINARY STATEMENT

In September 1995, the Division of Retirement became aware

that James E. Brandon, a participant in the Florida Retirement

System, had died. There were unpaid benefits remaining to James

E. Brandon's credit which are due and payable to a designated

beneficiary. The Division notified Dennis A. Barga that he was

entitled to receive the remaining benefits.

Subsequent to the Division's notification to Mr. Barga, the

Division became aware that a form had been filed amending the

named beneficiary. By letter dated October 23, 1995, the

Division of Retirement notified Mr. Barga that the benefits would

be paid to the subsequent beneficiary. Mr. Barga requested a

formal administrative hearing. The Division forwarded the matter

to the Division of Administrative Hearings.

A Petition to Intervene was filed by a William Brandon, one

of the subsequent beneficiaries. The petition was granted.

At the hearing, joint Exhibits 1-4 were admitted into

evidence. The Petitioner presented the testimony of three

witnesses and testified on his own behalf. Petitioner's Exhibits

1-4 were admitted. The Respondent presented the testimony of one

witness. The Intervenor presented the testimony of one witness

and had Exhibits 1-2 admitted. A prehearing stipulation filed by

the parties was admitted as an Administrative Law Judge's

exhibit.

A transcript of the hearing was filed. Proposed recommended

orders were filed by the Respondent and the Intervenor.

FINDINGS OF FACT

1. James E. Brandon was employed by the Hillsborough County

Parks and Recreation Department and was a participant in the

Florida Retirement System (FRS).

2. Mr. Brandon had a long standing relationship with Dennis

A. Barga.

3. In February 1995, James E. Brandon applied for FRS

disability benefits due to a medical condition.

4. On the application for disability benefits, James E.

Brandon designated Dennis A. Barga as his primary beneficiary.

5. The application for disability benefits was approved in

June 1995, with an effective retirement date of March 1, 1995.

6. James E. Brandon elected to receive benefits under

"Option 2" of the FRS, which provides for a lifetime benefit to

the covered employee. Option 2 also provides that, if the

covered employee does not survive for the ten years following

retirement, payment is made to a designated beneficiary for the

remainder of the ten year period.

7. James E. Brandon died on August 28, 1995, of the

condition which resulted in his disability.

8. James E. Brandon did not personally receive any of his

disability benefits.

9. By letter dated September 29, 1995, the Division

notified Mr. Barga that he was entitled to receive the remaining

benefit payments for the ten year period.

10. At the end of September, the Division sent two checks

to the home of James E. Brandon. One check covered the initial

benefits period from March 1995 through August 1995. The second

check was for the September 1995 benefit. The checks were not

returned to the Division and apparently were cashed or deposited.

11. On October 10, 1995, the Division was notified by

William Brandon that his brother, James E. Brandon, had completed

a form amending his designation of beneficiary and that the form

had been filed with the Division.

12. The Division searched its files and located a form, FRS

M-10, which was apparently filed on July 25, 1995, by James E.

Brandon, and which amends his prior designation to identify

sequential beneficiaries.

13. The amended beneficiaries, in order, are William W.

Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens.

The Brandons are family members of the deceased. Ms. Stevens is

a long-time family friend and was also employed by the

Hillsborough County Parks and Recreation Department.

14. FRS Form M-10 is the form adopted by the Division for

use by a non-retired FRS participant in designating a

beneficiary. Form M-10 does not require execution before a

notary public.

15. FRS Form FST-12 is the form adopted by the Division for

use by a retired participant in designating a beneficiary. Form

FST-12 requires execution before a notary public.

16. The amendment of the beneficiaries should have been

executed on a Form FST-12.

17. The Form M-10, which was filed on July 25, 1995, was

provided to James E. Brandon by the human resources office of the

Hillsborough County Parks and Recreation Department. The form

was obtained by Victoria Weaver Stevens apparently at the request

of the deceased.

18. The filing of the improper form was through no fault of

James E. Brandon.

19. The Petitioner suggests that the signature on the Form

M-10 is a forgery. There is no credible evidence to support the

assertion. The evidence establishes that the deceased sometimes

included his middle initial in his signature, and other times did

not.

20. The Petitioner suggests that during the last weeks of

the deceased's life, he was overmedicated, was often unaware of

his surroundings, and was likely manipulated into changing the

designated beneficiaries. There is no credible evidence that

James E. Brandon was mentally incapacitated and unable to

understand the import of his decisions at the time the amendment

was filed with the Division.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

22. The Division of Retirement is responsible for

administration of the Florida Retirement System. Chapter 121,

Florida Statutes.

23. Section 121.091(8) Florida Statutes, addresses

designation of beneficiaries under the Florida Retirement System

and provides, in part, as follows:

Each member may, on a form provided for that

purpose, signed and filed with the division,

designate a choice of one or more persons,

named sequentially or jointly, as his or her

beneficiary who shall receive the benefits,

if any, which may be payable in the event of

the member's death pursuant to the provisions

of this chapter. . . . The beneficiary most

recently designated by a member on a form or

letter filed with the division shall be the

beneficiary entitled to any benefits payable

at the time of the member's death. . . .

Rule 60S-4.011(1), Florida Administrative Code, further

addresses designation of beneficiary and provides, in part, as

follows:

A member may designate a beneficiary . . . to

receive the benefits which may be payable

pursuant to these rules in the event of the

member's death. No designation of

beneficiary shall be effective unless it has

been filed with the Division. The most

recent designation of beneficiary filed with

the Division shall replace any previous

designation whether made before or after the

member's retirement.

24. In this case, the most recent designation of

beneficiary was set forth on the FRS Form M-10, filed on July 25,

1995. The Hillsborough County Parks and Recreation Department

should have provided, and the deceased should have used, FRS Form

FST-12, the form adopted by the Division for use by retired

participants.

25. However, Section 121.091, Florida Statutes, provides

that "[t]he beneficiary most recently designated by a member on a

form or letter filed with the division shall be the beneficiary

entitled to any benefits payable at the time of the member's

death." (Emphasis supplied.) The inclusion of the reference to a

"letter" clearly indicates that a designation should not fail

merely due to the erroneous failure to use a specific form.

26. The Petitioner asserts that the deceased's failure to

utilize the appropriate form requires that the amendment to the

designated beneficiary be invalidated. In support of this

assertion, the Petitioner cites to rules which designate and

incorporate by reference the proper forms. Nothing in the cited

rules specifically requires that an inappropriately filed

designation be invalidated.

27. As to the suggestion that the deceased was coerced into

the amendment or that the amended designation is a forgery, the

evidence does not support the assertion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Division of Retirement enter a

Final Order dismissing the Petition of Dennis A. Barga.

DONE AND ORDERED this 31st day of December, 1997, in

Tallahassee, Leon County, Florida.

_

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 1997.

COPIES FURNISHED:

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Paul A. Rowell, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

David T. Weisbrod, Esquire

601 North Franklin Street

Tampa, Florida 33602

Stanley N. Danek, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Thomas Frost, Esquire

7901 Fourth Street North

Suite 315

St. Petersburg, Florida 33702

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.