01-001637 Yvonne Weinstein vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, August 10, 2001.

Summary: Retiree not entitled to participate in Deferred Retirement Option Program prior to first day of month in which completed application is submitted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YVONNE WEINSTEIN , )

)

Petitioner , )

)

vs. ) Case No. 01-1637

)

DEPARTMENT OF MANAGEMENT SERVICES , )

DIVISION OF RETIREMENT , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

July 26, 2001, by video teleconference between Miami and

Tallahassee, Florida, before Claude B. Arrington, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Yvonne Weinstein, pro se

15443 Southwest 137th Place

Miami, Florida 33177

For Respondent : Thomas E. Wright, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Post Office Box 3900

Tallahassee, Florida 32315-3900

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to participate in the

Deferred Retirement Option Program (DROP) of the Florida

Retirement System (FRS), for the period September 1, 1998,

through and including September 30, 1999.

PRELIMINARY STATEMENT

In September 1998, Petitioner became eligible to participate

in DROP. In October 1999, Petitioner submitted her application

to participate in DROP to her employer. In her initial

application, Petitioner requested that her participation be

retroactive to September 1, 1998, the date she became eligible to

participate in DROP. Because her application was filed in

October 1999, Respondent's staff determined that her DROP

benefits could not begin before October 1, 1999. Respondent

denied Petitioner's request that her participation in DROP be

retroactive to September 1, 1998, and required her to submit a

second application requesting a start date of October 1, 1999.

Petitioner complied with the instructions to file a second

application, but she timely challenged the denial of her request

to begin her participation in DROP retroactive to September 1,

1998. The matter was referred to the Division of Administrative

Hearings, and this proceeding followed.

At the final hearing, Petitioner testified on her own

behalf, but presented no other testimony and offered no exhibits.

Respondent offered the testimony of Doug Cherry , a Benefits

Administrator employed by Respondent, and offered three

exhibits, each of which was admitted into evidence. Official

recognition was taken of relevant statutes and rules.

No transcript of the proceedings was filed. Each party

filed a Proposed Recommended Order, which has been duly

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is a former employee of the School Board of

Miami-Dade County (School Board) and is a retired member of FRS.

2. In September 1998, Petitioner became eligible to

participate in DROP by virtue of reaching 30 years of service

with the School Board.

3. In September 1998, Petitioner asked Respondent for an

estimate of her retirement benefits.

4. In January 1999, the estimate of Petitioner's retirement

benefits was prepared by Respondent and mailed to Petitioner.

5. During the 1998-99 school year, Petitioner had

difficulties in her dealings with a new school principal. 1/

Petitioner testified that she delayed applying for DROP because

she believed that her relationship with her employer would

improve and she could continue to work as a teacher. Petitioner

also testified that School Board administrators gave her

erroneous information and misled her as to their intention to

permit her to continue to teach. Petitioner argues that she

would have elected to participate in DROP beginning September 1,

1998, had her employer told her the truth about her employment

status . In this proceeding, Petitioner argues that she be

permitted to participate in DROP effective September 1, 1998, on

equitable grounds, without specifying the equitable principles

upon which she relies.

6. On October 27, 1999, Petitioner completed her

application to participate in DROP and filed the application with

the School Board's personnel office. Respondent received the

completed application via facsimile on November 3, 1999.

7. The first application sent in by Petitioner requested

that her DROP participation start retroactive to September 1,

1998. Respondent, through its staff, denied that request and

informed Petitioner that she would have to submit a second

application, referred to by staff as a corrected application,

requesting a start date of October 1, 1999.

8. Pursuant to those instructions, Petitioner submitted a

second application requesting that her start date be October 1,

1999.

9. Petitioner's challenge to Respondent's denial of her

request to accept her participation in DROP retroactive to

September 1, 1998, was timely.

10. Petitioner was later terminated from her position with

the School Board. 2/

11. Respondent has been paid her drop benefits for the

period beginning October 1, 1999, and ending when the School

Board terminated her employment. Petitioner has not been

employed by a FRS employer since the School Board terminated her

employment.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

13. In this de novo proceeding, Petitioner has the burden

of proving by a preponderance of the evidence that she is

entitled to participate in DROP between September 1, 1998, and

September 30, 1999. See Section 120.57(1)(j) and (k), Florida

Statutes ; Florida Department of Transportation v. J.W.C. Co. , 396

So. 2d 778 (Fla. 1st DCA 1981) ; Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977);

and Young v. Department of Community Affairs , 625 So. 2d 831

(Fla. 1993).

14. Chapter 121, Florida Statutes, is the Florida

Retirement System Act. See Section 121.011(1), Florida Statutes.

15. Section 121.019(13), Florida Statutes, describes DROP

as follows:

(13 ) In general, and subject to the

provisions of this section, the Deferred

Retirement Option Program, hereinafter

referred to as the DROP, is a program under

which an eligible member of the Florida

Retirement System may elect to participate,

deferring receipt of retirement benefits

while continuing employment with his or her

Florida Retirement System employer. The

deferred monthly benefits shall accrue in the

System Trust Fund on behalf of the

participant, plus interest compounded

monthly, for the specified period of the DROP

participation, as provided in paragraph (c).

Upon termination of employment, the

participant shall receive the total DROP

benefits and begin to receive the previously

determined normal retirement benefits.

Participation in the DROP does not guarantee

employment for the specified period of DROP.

16. There is no dispute that Petitioner is entitled to

participate in DROP from October 1, 1999, until her employment

was terminated. The only dispute is whether she is also entitled

to benefits under DROP between September 1, 1998, and

September 30, 1999.

17. Section 121.091(13)(b), Florida Statutes, provides:

(b )1. An eligible member may elect to

participate in the DROP for a period not to

exceed a maximum of 60 calendar months

immediately following the date on which the

member first reaches his or her normal

retirement date or the date to which he or

she is eligible to defer his or her election

to participate as provided in subparagraph

(a )2. However, a member who has reached

normal retirement date prior to the effective

date of the DROP shall be eligible to

participate in the DROP for a period of time

not to exceed 60 calendar months immediately

following the effective date of the

DROP . . .

2. Upon deciding to participate in the

DROP, the member shall submit, on forms

required by the division:

a. A written election to participate in

the DROP;

b. Selection of the DROP participation and

termination dates, which satisfy the

limitations stated in paragraph (a) and

subparagraph 1. Such termination date shall

be in a binding letter of resignation with

the employer, establishing a deferred

termination date. The member may change the

termination date within the limitations of

subparagraph 1., but only with the written

approval of his or her employer ;

c. A properly completed DROP application

for service retirement as provided in this

section; and

d. Any other information required by the

division.

18. Section 121.091(13)(c )3., Florida Statutes, provides as

follows:

3. The effective date of DROP

participation and the effective date of

retirement of a DROP participant shall be the

first day of the month selected by the member

to begin participation in the DROP, provided

such date is properly established, with the

written confirmation of the employer, and the

approval of the division, on forms required

by the division.

19. Pursuant to the foregoing provisions of Section

121.019(13), Florida Statutes, Petitioner had to apply to

participate in DROP before she could receive any benefits from

that program. Because she did not apply to participate in DROP

until October 1999, she is not entitled to any benefits under

DROP before October 1, 1999.

20. Petitioner has failed to demonstrate a basis in equity

or law that she is entitled to DROP benefits for the period

September 1, 1998 to September 30, 1999.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

denying Petitioner's request for benefits under DROP for the

period September 1, 1998 to September 30, 1999.

DONE AND ENTERED this 10th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of August, 2001

ENDNOTES

1/ Those difficulties are set forth in detail in the Recommended

Order entered September 11, 2000, in DOAH Case No. 99-5125,

styled Dade County School Board v. Yvonne M. Weinstein .

2/ According to DOAH's computer records pertaining to DOAH Case

No. 99-5125, supra , the School Board terminated Petitioner's

employment on December 14, 2000.

COPIES FURNISHED:

Yvonne Weinstein

15443 Southwest 137th Place

Miami, Florida 33177

Thomas E. Wright, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Post Office Box 3900

Tallahassee, Florida 32315-3900

Erin Sjostrom, Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32315-1560

Mallory Roberts, 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.