01-001637
Yvonne Weinstein vs.
Department Of Management Services, Division Of Retirement
Status: Closed
Recommended Order on Friday, August 10, 2001.
Recommended Order on Friday, August 10, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8YVONNE WEINSTEIN , )
11)
12Petitioner , )
14)
15vs. ) Case No. 01-1637
20)
21DEPARTMENT OF MANAGEMENT SERVICES , )
26DIVISION OF RETIREMENT , )
30)
31Respondent. )
33___________________________________)
34RECOMMENDED ORDER
36Pursuant to notice, a final hearing was held in this case on
48July 26, 2001, by video teleconference between Miami and
57Tallahassee, Florida, before Claude B. Arrington, a duly-
65designated Administrative Law Judge of the Division of
73Administrative Hearings.
75APPEARANCES
76For Petitioner : Yvonne Weinstein, pro se
8315443 Southwest 137th Place
87Miami, Florida 33177
90For Respondent : Thomas E. Wright, Esquire
97Division of Retirement
100Cedars Executive Center, Building C
1052639 North Monroe Street
109Post Office Box 3900
113Tallahassee, Florida 32315-3900
116STATEMENT OF THE ISSUE
120Whether Petitioner is entitled to participate in the
128Deferred Retirement Option Program (DROP) of the Florida
136Retirement System (FRS), for the period September 1, 1998,
145through and including September 30, 1999.
151PRELIMINARY STATEMENT
153In September 1998, Petitioner became eligible to participate
161in DROP. In October 1999, Petitioner submitted her application
170to participate in DROP to her employer. In her initial
180application, Petitioner requested that her participation be
187retroactive to September 1, 1998, the date she became eligible to
198participate in DROP. Because her application was filed in
207October 1999, Respondent's staff determined that her DROP
215benefits could not begin before October 1, 1999. Respondent
224denied Petitioner's request that her participation in DROP be
233retroactive to September 1, 1998, and required her to submit a
244second application requesting a start date of October 1, 1999.
254Petitioner complied with the instructions to file a second
263application, but she timely challenged the denial of her request
273to begin her participation in DROP retroactive to September 1,
2831998. The matter was referred to the Division of Administrative
293Hearings, and this proceeding followed.
298At the final hearing, Petitioner testified on her own
307behalf, but presented no other testimony and offered no exhibits.
317Respondent offered the testimony of Doug Cherry , a Benefits
326Administrator employed by Respondent, and offered three
333exhibits, each of which was admitted into evidence. Official
342recognition was taken of relevant statutes and rules.
350No transcript of the proceedings was filed. Each party
359filed a Proposed Recommended Order, which has been duly
368considered by the undersigned in the preparation of this
377Recommended Order.
379FINDINGS OF FACT
3821. Petitioner is a former employee of the School Board of
393Miami-Dade County (School Board) and is a retired member of FRS.
4042. In September 1998, Petitioner became eligible to
412participate in DROP by virtue of reaching 30 years of service
423with the School Board.
4273. In September 1998, Petitioner asked Respondent for an
436estimate of her retirement benefits.
4414. In January 1999, the estimate of Petitioner's retirement
450benefits was prepared by Respondent and mailed to Petitioner.
4595. During the 1998-99 school year, Petitioner had
467difficulties in her dealings with a new school principal. 1/
477Petitioner testified that she delayed applying for DROP because
486she believed that her relationship with her employer would
495improve and she could continue to work as a teacher. Petitioner
506also testified that School Board administrators gave her
514erroneous information and misled her as to their intention to
524permit her to continue to teach. Petitioner argues that she
534would have elected to participate in DROP beginning September 1,
5441998, had her employer told her the truth about her employment
555status . In this proceeding, Petitioner argues that she be
565permitted to participate in DROP effective September 1, 1998, on
575equitable grounds, without specifying the equitable principles
582upon which she relies.
5866. On October 27, 1999, Petitioner completed her
594application to participate in DROP and filed the application with
604the School Board's personnel office. Respondent received the
612completed application via facsimile on November 3, 1999.
6207. The first application sent in by Petitioner requested
629that her DROP participation start retroactive to September 1,
6381998. Respondent, through its staff, denied that request and
647informed Petitioner that she would have to submit a second
657application, referred to by staff as a corrected application,
666requesting a start date of October 1, 1999.
6748. Pursuant to those instructions, Petitioner submitted a
682second application requesting that her start date be October 1,
6921999.
6939. Petitioner's challenge to Respondent's denial of her
701request to accept her participation in DROP retroactive to
710September 1, 1998, was timely.
71510. Petitioner was later terminated from her position with
724the School Board. 2/
72811. Respondent has been paid her drop benefits for the
738period beginning October 1, 1999, and ending when the School
748Board terminated her employment. Petitioner has not been
756employed by a FRS employer since the School Board terminated her
767employment.
768CONCLUSIONS OF LAW
77112. The Division of Administrative Hearings has
778jurisdiction of the parties to and the subject of this
788proceeding. Section 120.57(1), Florida Statutes.
79313. In this de novo proceeding, Petitioner has the burden
803of proving by a preponderance of the evidence that she is
814entitled to participate in DROP between September 1, 1998, and
824September 30, 1999. See Section 120.57(1)(j) and (k), Florida
833Statutes ; Florida Department of Transportation v. J.W.C. Co. , 396
842So. 2d 778 (Fla. 1st DCA 1981) ; Balino v. Department of Health
854and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977);
865and Young v. Department of Community Affairs , 625 So. 2d 831
876(Fla. 1993).
87814. Chapter 121, Florida Statutes, is the Florida
886Retirement System Act. See Section 121.011(1), Florida Statutes.
89415. Section 121.019(13), Florida Statutes, describes DROP
901as follows:
903(13 ) In general, and subject to the
911provisions of this section, the Deferred
917Retirement Option Program, hereinafter
921referred to as the DROP, is a program under
930which an eligible member of the Florida
937Retirement System may elect to participate,
943deferring receipt of retirement benefits
948while continuing employment with his or her
955Florida Retirement System employer. The
960deferred monthly benefits shall accrue in the
967System Trust Fund on behalf of the
974participant, plus interest compounded
978monthly, for the specified period of the DROP
986participation, as provided in paragraph (c).
992Upon termination of employment, the
997participant shall receive the total DROP
1003benefits and begin to receive the previously
1010determined normal retirement benefits.
1014Participation in the DROP does not guarantee
1021employment for the specified period of DROP.
102816. There is no dispute that Petitioner is entitled to
1038participate in DROP from October 1, 1999, until her employment
1048was terminated. The only dispute is whether she is also entitled
1059to benefits under DROP between September 1, 1998, and
1068September 30, 1999.
107117. Section 121.091(13)(b), Florida Statutes, provides:
1077(b )1. An eligible member may elect to
1085participate in the DROP for a period not to
1094exceed a maximum of 60 calendar months
1101immediately following the date on which the
1108member first reaches his or her normal
1115retirement date or the date to which he or
1124she is eligible to defer his or her election
1133to participate as provided in subparagraph
1139(a )2. However, a member who has reached
1147normal retirement date prior to the effective
1154date of the DROP shall be eligible to
1162participate in the DROP for a period of time
1171not to exceed 60 calendar months immediately
1178following the effective date of the
1184DROP . . .
11882. Upon deciding to participate in the
1195DROP, the member shall submit, on forms
1202required by the division:
1206a. A written election to participate in
1213the DROP;
1215b. Selection of the DROP participation and
1222termination dates, which satisfy the
1227limitations stated in paragraph (a) and
1233subparagraph 1. Such termination date shall
1239be in a binding letter of resignation with
1247the employer, establishing a deferred
1252termination date. The member may change the
1259termination date within the limitations of
1265subparagraph 1., but only with the written
1272approval of his or her employer ;
1278c. A properly completed DROP application
1284for service retirement as provided in this
1291section; and
1293d. Any other information required by the
1300division.
130118. Section 121.091(13)(c )3., Florida Statutes, provides as
1309follows:
13103. The effective date of DROP
1316participation and the effective date of
1322retirement of a DROP participant shall be the
1330first day of the month selected by the member
1339to begin participation in the DROP, provided
1346such date is properly established, with the
1353written confirmation of the employer, and the
1360approval of the division, on forms required
1367by the division.
137019. Pursuant to the foregoing provisions of Section
1378121.019(13), Florida Statutes, Petitioner had to apply to
1386participate in DROP before she could receive any benefits from
1396that program. Because she did not apply to participate in DROP
1407until October 1999, she is not entitled to any benefits under
1418DROP before October 1, 1999.
142320. Petitioner has failed to demonstrate a basis in equity
1433or law that she is entitled to DROP benefits for the period
1445September 1, 1998 to September 30, 1999.
1452RECOMMENDATION
1453Based on the foregoing Findings of Fact and Conclusions of
1463Law, it is RECOMMENDED that Respondent enter a final order
1473denying Petitioner's request for benefits under DROP for the
1482period September 1, 1998 to September 30, 1999.
1490DONE AND ENTERED this 10th day of August, 2001, in
1500Tallahassee, Leon County, Florida.
1504___________________________________
1505CLAUDE B. ARRINGTON
1508Administrative Law Judge
1511Division of Administrative Hearings
1515The DeSoto Building
15181230 Apalachee Parkway
1521Tallahassee, Florida 32399-3060
1524(850) 488- 9675 SUNCOM 278-9675
1529Fax Filing (850) 921-6847
1533www.doah.state.fl.us
1534Filed with the Clerk of the
1540Division of Administrative Hearings
1544this 10th day of August, 2001
1550ENDNOTES
15511/ Those difficulties are set forth in detail in the Recommended
1562Order entered September 11, 2000, in DOAH Case No. 99-5125,
1572styled Dade County School Board v. Yvonne M. Weinstein .
15822/ According to DOAH's computer records pertaining to DOAH Case
1592No. 99-5125, supra , the School Board terminated Petitioner's
1600employment on December 14, 2000.
1605COPIES FURNISHED:
1607Yvonne Weinstein
160915443 Southwest 137th Place
1613Miami, Florida 33177
1616Thomas E. Wright, Esquire
1620Division of Retirement
1623Cedars Executive Center, Building C
16282639 North Monroe Street
1632Post Office Box 3900
1636Tallahassee, Florida 32315-3900
1639Erin Sjostrom, Director
1642Division of Retirement
1645Cedars Executive Center, Building C
16502639 North Monroe Street
1654Tallahassee, Florida 32315-1560
1657Mallory Roberts, General Counsel
1661Department of Management Services
16654050 Esplanade Way
1668Tallahassee, Florida 32399-0950
1671NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1677All parties have the right to submit written exceptions within 15
1688days from the date of this Recommended Order. Any exceptions to
1699this Recommended Order should be filed with the agency that will
1710issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 08/10/2001
- Proceedings: Recommended Order issued (hearing held July 26, 2001) CASE CLOSED.
- PDF:
- Date: 08/10/2001
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- Date: 07/26/2001
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
Case Information
- Judge:
- CLAUDE B. ARRINGTON
- Date Filed:
- 05/01/2001
- Date Assignment:
- 05/07/2001
- Last Docket Entry:
- 09/10/2001
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
G. Ware Cornell, Jr., Esquire
Address of Record -
Thomas E. Wright, Esquire
Address of Record -
Thomas E Wright, Esquire
Address of Record