03-000486 David W. Felder vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, October 6, 2003.

Summary: University professor whose actions over 20 years had ratified 1984 election for Optional Retirement Program was not permitted to claim Florida Retirement System status.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID W. FELDER, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0486

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOM MENDED ORDER

Upon due notice, a disputed - fact hearing was conducted in

this case on June 6, 2003, in Tallahassee, Florida, before the

Division of Administrative Hearings, by its duly - assigned

Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Arthur Lewis Stern, III, Esquire

1904 West Indianhead Drive

Tallahassee, Florida 32301

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahas see, Florida 32399 - 0950

STATEMENT OF THE ISSUES

Whether Petitioner can transfer service from the State

University Optional Retirement Program to the Florida Retirement

System Pension Plan.

PRELIMINARY STATEMENT

The Division of Re tirement notified Petitioner by a letter

dated January 28, 2003, that his request to transfer previous

service from the State University Optional Retirement Program

(ORP) to the Florida Retirement System Pension Plan (FRS) was

denied. Petitioner timely re quested a disputed - fact hearing,

and the Division of Retirement referred the case to the Division

of Administrative Hearings on or about February 12, 2003.

At the disputed - fact hearing, Petitioner testified in his

own behalf and had Exhibits P - 1 through P - 8 and P - 10 through

P - 11 admitted in evidence. Respondent presented the oral

testimony of Cathy Smith and Robert Henning. Respondent's

Exhibits 1, 3, 4, 5, and 6, were admitted in evidence. Joint

Exhibit A, the parties' Pre - hearing Stipulation, as

int erlineated at hearing, was admitted in evidence. It has been

utilized in this Recommended Order as necessary, but not word -

for - word.

Official recognition was taken of Section 121.35, Florida

Statutes (2003), and Chapter 60U, Florida Administrative Code.

A Transcript was filed on June 23, 2003. Both timely filed

Proposed Recommended Orders have been considered in preparation

of this Recommended Order. 1/

FINDINGS OF FACT

1. Petitioner is currently employed as a professor of

philosophy and religion at F lorida Agricultural and Mechanical

University (FAMU). He was first employed as an Assistant

Professor at FAMU in 1971.

2. During Petitioner's employment with FAMU, he became an

associate professor and was given years toward tenure in 1980,

after filing an action with the Office of Civil Rights. 2/

3. Petitioner has published a dozen books, has been

awarded the Teacher Incentive Program Award and the Professorial

Excellence Program Award, and has been a National Endowment for

the Humanities Scholar at Bos ton University, New York

University, and the University of Chicago.

4. By stipulation, the parties agreed that Petitioner

accrued retirement benefits under FRS and the Division of

Retirement has credited Petitioner's service as a participant in

FRS during the academic years 1971 - 72, 1972 - 73, 1974 - 75, 1975 -

76, 1978 - 79, 1980 - 81, 1981 - 82, 1982 - 83, and 1983 - 84. Note that

this stipulation is silent as to the academic years 1973 - 74,

1976 - 77, 1977 - 78, and 1979 - 80.

5. During the period from August 1984 through the present,

Petitioner has been considered by the Division of Retirement to

be a participant in ORP, and ORP has been credited with employer

contributions for Petitioner's service at FAMU accordingly.

6. The Division of Retirement stipulated that if

Pet itioner had not undertaken acts which, in its opinion,

constituted an election to participate in ORP, Petitioner's

service, which has been credited in ORP, would have qualified

for the continued accrual of benefits under FRS.

7. In 1984, Petitioner becam e aware that he could make an

election to join ORP, a retirement option created that year by

the legislature, and that he must make his election to join that

program by June 1, 1984, or he would be forever barred from

utilizing ORP. The effective date of salary contributions was

July 1, 1984.

8. In 1984, it was necessary for a state employee to work

10 years in a FRS position in order for his or her retirement to

vest. Effective July 1, 2001, the requirement changed to six

years of creditable service fo r those members actively employed

on that date. 3/

9. Other Personal Services (OPS) is a category of

temporary employee which does not accrue creditable time toward

FRS retirement benefits.

10. Petitioner's pre - 1980 employment contracts with FAMU

had no t indicated whether he was in FRS, as opposed to being an

OPS employee, but there is no evidence to suggest this

information was provided on anyone else's contract, either.

11. There is no direct evidence whether Petitioner's FAMU

salary warrants and/o r pay - stubs, throughout all the years,

indicated withholding for social security, although that is

probable (See Finding of Fact 52). If they did, it would go to

show that Petitioner always had monthly or bi - weekly notice of

whether or not he was a regula r employee. It is also probable

that his FAMU warrants throughout all the years, as they do now,

showed a fund code, a class code, and his type of retirement

contributions.

12. At all times material, Petitioner at least knew he had

been in FRS his first two years at FAMU. This would seem to be

academic years 1971 - 72 and 1972 - 73.

13. Petitioner was "laid off" for the 1973 - 74 academic

year. Petitioner was refunded all his FRS accruals up to that

date. This meant that those FRS accruals would have to be paid

back to FRS in order for Petitioner to be able to count those

academic years toward retirement in FRS, but it is not clear

when Petitioner knew this was the result of his withdrawal of

the accruals. The record is unclear as to whether he has paid

ba ck these accruals. 4/ Under FRS, he would have had the option

to pay them back anytime before retirement.

14. When Petitioner applied for promotion at FAMU in 1978,

he had been told by FAMU officials that he could not be promoted

because he was in the OP S category. However, after settling his

civil rights action in 1980, he knew he was put in a permanent

position, as associate professor with the promotion he had been

denied, and had been given years towards tenure since 1978.

Apparently, he did not comp rehend that this adjustment also

resulted in his receiving FRS credit for all those years. In

1984, Petitioner somehow believed that he had only been credited

with FRS membership for 1980 through 1984.

15. In June 1984, Petitioner already had a tenured

contract for the following year, which, per the parties'

stipulation, would have been his tenth year in FRS, with

vesting. Cf. the collective endnotes.

16. Petitioner found out about the option to join ORP in

the spring of 1984. Petitioner testified that he had not wanted

to elect ORP in 1984 unless he could find out how many years of

credited service he had in FRS. This was because he understood

the illustrations provided with the ORP election literature to

indicate that if an employee had only one, two, or three years

of credit in FRS, making the election to participate in ORP

might be advisable, whereas the election should not be made by

one who had eight or nine years of FRS credit. The ORP election

literature itself was not offered in evidence.

17. Petitioner first testified that he had sought

clarification of his number of years in FRS from both the FAMU

Personnel Office and the Division of Retirement prior to the

June 1, 1984, deadline for making an ORP election. However, the

attempts he rel ated amounted to filling out a form in the

payroll section of the FAMU Personnel Office requesting his work

history, which form he thought would be forwarded to the

Division of Retirement; and filling out a form to make an

appointment with a FAMU Personnel Officer to discuss his

situation. His testimony is confused and contradictory as to

whether he personally made direct contact with the Division of

Retirement during this period, and upon the evidence as a whole,

it is concluded that he did not.

18. Non etheless, Petitioner completed a Division of

Retirement Ballot/Enrollment Form, also known as an ORP - 16 Form,

to participate in ORP. The instructions attached to the form

read, in pertinent part:

As an employee eligible to participate in

the ORP you have the option to reject or

elect membership in the ORP. If you reject

the ORP, you will be a member of the FRS.

If you choose not to participate, so

indicate in the space provided for rejecting

the ORP and include the date. If you reject

the ORP, it w ill not be necessary to

complete the remainder of the Enrollment

Form.

If you elect to participate, please complete

the following:

Percent of salary to be contributed by your

employer to each plan (the total must equal

6%).

Percent of salary to be ded ucted from your

salary as an employee contribution (the

total cannot exceed 6%) and to which

plan(s).

Name of company or companies you have

selected.

Read the three statements carefully, sign

and date the Enrollment Form.

19. The form contains an admonition that ORP election is

irrevocable.

20. Also on this Ballot/Enrollment Form, under "I elect to

become a member of the ORP and have signed necessary contracts

as follows," Petitioner filled in the investment provider name

of TIAA - CREF, the S tate employer's contribution percentage, and

the date of May 15, 1984. He did not fill in an employee

contribution percentage. He did not sign in either the "elect

to participate" or the "elect not to participate" portion of the

form. FAMU certified thi s form as described infra .

21. Petitioner also completed an ORP Enrollment/Change

Form, selecting, as his investment provider, TIAA - CREF. This

form provided, "If you have elected participation in TIAA - CREF

under the Florida Optional Retirement Program (ORP), please

complete this form when enrolling in or making a change to TIAA -

CREF noncashable Retirement Annuity or cashable Supplemental

Retirement Annuity (SRA) contracts. This form applies only to

TIAA - CREF contributions under the ORP." Petitioner c hecked

"enrollment" under "Reason for submitting form." He filled out

all parts of the form concerning the State's contributions,

including inserting the effective date of "7/1/84." He signed

the form and dated it "5/15/84."

22. Petitioner also sig ned a contract with TIAA - CREF as

his investment provider, dated "May 17, 1984." This document

bears a certification by FAMU that his passport proved

Petitioner's identity on that day.

23. Petitioner left the foregoing three 1984 forms with a

FAMU Person nel Office employee. Petitioner testified that he

had an agreement with the unnamed FAMU Personnel Office employee

to the effect that only if Petitioner came in and signed the

unsigned documents was he electing ORP, and that if Petitioner

did not come in to sign by June 1, 1984, the forms should be

destroyed. However, this testimony is only Petitioner's

understanding of the agreement. No one from the FAMU Personnel

Office testified, and there is no evidence that there was ever a

meeting of the minds on t his "understanding."

24. On May 17, 1984, a FAMU official dated and certified

Petitioner's unsigned Ballot/Election form (see P - 4 and Findings

of Fact 18 - 20) and forwarded it to the Division of Retirement.

The FAMU certification on this document was to t he effect that

Petitioner had executed a contract with a provider, which, in

fact, Petitioner had. (See R - 4 and Finding of Fact 22.) The

FAMU certification read, in whole part, "I certify that this

employee has signed a contract(s) with the ORP carrier(s ) as

shown above and is filling a fulltime position." The certifier

checked the box for "enrollment."

25. FAMU then forwarded the unsigned but certified

Ballot/Enrollment Form to the Division of Retirement. The

Enrollment/Change Form, signed by Petiti oner, may or may not

have gone to the Division, but the contract between Petitioner

and TIAA - CREF was forwarded by FAMU to TIAA - CREF.

26. In 1984, as now, if anyone in the Division of

Retirement had noticed that Petitioner had not signed the

Ballot/Elect ion Form, it was Division policy to write the

employee and ask him to completely fill out a new form and sign

it. Then the Division would honor the employee's election of

ORP, even if the correctly completed form were received after

the election deadline or the first payroll deduction.

27. Apparently, in 1984, due to the necessity of

processing a huge quantity of ORP Ballot/Election forms between

the June 1, 1984 election deadline and the dates of the electing

employees' first July bi - weekly or monthly paycheck(s), no one

in the Division of Retirement noticed the absence of

Petitioner's signature on the Ballot/Election Form, and no

letter was written to him. Instead, based upon the certified

unsigned Ballot/Election Form, and probably the

Enrollment/Cha nge Form, the Division of Retirement treated

Petitioner as enrolled in ORP as of the June 1, 1984 deadline.

28. However, Both Ms. Smith, Administrator of the

Enrollment Section of the Bureau of Enrollment and

Contributions, and Mr. Henning, Administrato r of the Optional

Retirement Program and Optional Annuity Program Section, of the

Division of Retirement, testified that if they had seen

Petitioner's certified but unsigned Ballot/Enrollment Form in

1984 or today, they would have assumed the Petitioner ha d

elected to be enrolled in ORP, because all the required

information was there, including the certified information that

he had signed a binding contract with the carrier/provider TIAA -

CREF.

29. In August 1984, the employer began paying the maximum

allow able State contributions to TIAA - CREF for Petitioner's ORP

retirement benefits.

30. In August 1984, Petitioner received, from TIAA - CREF, a

copy of the contract he had signed with that ORP provider.

31. Although Petitioner claimed that he only ask ed to get

out of ORP in 2002 when his number of years in FRS was finally

revealed to him by a social security account calculation, 5/ he

simultaneously and inconsistently maintained that he went to the

FAMU personnel office in August 1984 and orally complai ned that

he did not want to be in ORP. However, Petitioner was

consistent throughout his testimony that a FAMU personnel office

employee told him in August 1984 that the FAMU employee had

telephoned the Division of Retirement and that the Division of

Reti rement had "said" that Petitioner's decision to join ORP was

irrevocable.

32. Sometime in 1984, after being advised by FAMU's

Personnel Office that his prior election to go into ORP was

irrevocable, Petitioner sought the advice of an attorney, but he

ult imately chose not to formally contest his membership in ORP.

33. Petitioner testified that, based on his prior civil

rights action, he was not anxious to jump into an expensive

lawsuit without knowing what his damages were and that his

damages depended u pon the number of years of accrued service he

had in FRS as of June 1, 1984, which accrued service he believed

he had lost by the election of ORP.

34. Then, as now, state employees frequently presented

issues contesting their appropriate retirement fund or account

to the Division of Retirement by phone or letter. Once an oral

request for review of the account is presented in written form

to the Division, it is reviewed and a decision made. The

decision is reduced to a letter, which constitutes the

(prop osed) final agency action.

35. Petitioner's testimony that he repeatedly from 1984

until 2003 tried to obtain his FRS history from FAMU strains

credulity, but his claim that between 1984 and 1989 he had twice

tried, without success, to secure information from the FAMU

Personnel Office about how many years in FRS he had lost is

credible.

36. He claimed to have sent certified letters concerning

his years of service, apparently to FAMU, but there is no

documentation at the Division of Retirement that anyon e

telephoned or wrote the Division of Retirement at any time prior

to 2002 with any information that could be linked to Petitioner

by social security number or his personnel file.

37. From 1984 to 1989, the employer's maximum contribution

to TIAA - CREF wa s transmitted as requested by Petitioner's 1984

Ballot/Election and Ballot/Change Forms.

38. A member of ORP is allowed to make supplemental

employee contributions.

39. In 1989, 1993, 1998, and 1999, Petitioner made

employee contributions to his ORP p rovider company TIAA - CREF,

utilizing Division of Retirement Ballot/Enrollment forms, also

known as ORP - 16 forms.

40. After the 1984 enrollment period, ORP - 16 forms have

been used for employees already in ORP to change their

contribution amounts, as the r espective maximum amounts the

State and the employee were permitted to contribute were raised

by statutory amendments. ORP - 16 forms could also be used to

request divisions of the maximum percentages of the employer's

and the employee's contributions betwe en several ORP investment

providers or to change from one ORP investment provider to

another. Changing providers or adding providers would require

that the employee also execute a new contract with the new

provider. After June 1, 1984, ORP - 16 forms could not be used by

anyone employed and eligible on that date to initially elect to

be in ORP because their deadline to elect ORP had been

June 1, 1984. However, other persons becoming employed later

had later election deadlines for ORP membership and c ould use

the same ORP - 16 forms to meet their later election deadlines.

Employer certifications to the Division that valid provider

contracts had been executed to cover all funds transmitted were

still required.

41. On his 1989 ORP - 16 Form, Petitioner sig ned under the

words, "I elect not to participate in ORP," and inserted the

date "1/9/89". He also signed under the words, "I elect to

become a member of ORP and have signed necessary contracts…" He

inserted "11%" for his employee contributions, the TIAA - C REF

name, and the same date in this portion of the form. He did not

indicate the new 11% employer contribution on this ORP - 16 Form,

because that percentage was statutorily defined. This ORP - 16

Form was certified by FAMU to the Division of Retirement on

1 /11/89, in the language set out above in Finding of Fact 24.

The certifier could have checked the boxes for "enrollment" or

"plan change," but he or she checked the box for "other". The

Division of Retirement transmitted the employer's maximum

contributi on and Petitioner's requested employee contribution to

TIAA - CREF as requested by Petitioner's 1989 ORP - 16 Form until

1993.

42. Ms. Smith and Mr. Henning testified that they would

not have understood Petitioner's 1989 ORP - 16 Form as a request

to get out o f ORP, because an employee could not change ORP

contribution percentages unless he or she was already in ORP;

because an employee in Petitioner's class could not elect for or

against ORP after June 1, 1984; and because the form was

certified by the employe r.

43. On September 18, 1989, Petitioner signed an

Application for TIAA - CREF Supplemental Retirement Annuity (SRA)

and an Enrollment Memo for an ORP and Tax Deferred Annuity

Program (TDA). On this latter item, Petitioner marked "already

participating" be side the printed words, "ORP employer

contributions"; checked the box for "voluntary ORP employee

contributions"; and checked the box for "new contract" under

"Supplemental retirement annuity (SRA) contracts." These forms

were sent to TIAA - CREF. On Octob er 1, 1989, TIAA - CREF issued

Petitioner his SRA and TDA.

44. On the 1993 ORP - 16 Form, Petitioner did not sign a new

portion added to the form which allowed a certain class of

employee to state, "In lieu of participating in the ORP, I elect

to partici pate in FRS." Petitioner did not fall in this

classification of employee, anyway. He did, however, increase

his employee's contribution to ORP via TIAA - CREF, and signed and

dated the ORP - 16 Form "September 27, 1993," in the section

under, "I elect to bec ome a member of the ORP and have signed

necessary contracts. . ." This ORP - 16 Form also was certified by

FAMU to the Division of Retirement in the usual language, and

the box for "contributions change" was checked. The Division of

Retirement transmitted t he employer's maximum contribution and

Petitioner's employee contribution to TIAA - CREF as requested by

Petitioner's 1993 ORP - 16 Form until 1998.

45. On November 3, 1996, Petitioner signed a Request for a

TIAA Traditional Transfer Payout Annuity to TIAA R eal Estate

and/or CREF. This document was sent to TIAA - CREF.

46. On the 1998 ORP - 16 Form, Petitioner again did not sign

the portion which allowed a different class of employee to

state, "In lieu of participating in the ORP, I elect to

participate in F RS." He did, however, again increase his

employee's contribution to ORP via TIAA - CREF, and signed and

dated the ORP - 16 Form, "Nov. 30, 1998," in the section under, "I

elect to become a member of the ORP and have signed necessary

contracts. . ." This ORP - 1 6 Form also was certified by FAMU to

the Division of Retirement, in the usual language, and the box

for "contributions change" was checked. The Division of

Retirement transmitted the employer's maximum contribution and

Petitioner's employee contribution t o TIAA - CREF as requested by

Petitioner's 1998 ORP - 16 Form until 1999.

47. The 1999 ORP - 16 Form states at one point that the

employer's contribution must equal 10.14% of salary and the

employee's contribution cannot exceed 10.14%, and then also

states tha t if the employee chooses to have up to 11.57% of his

adjusted gross taxable salary deducted, other issues including

other investment funds must be considered. (See Finding of Fact

50.) On the 1999 ORP - 16 Form, Petitioner did not sign the new

portion whi ch allowed a different class of employee to state,

"In lieu of participating in the ORP, I elect to participate in

FRS." He did, however, decrease his employee's contribution to

ORP via TIAA - CREF, and signed and dated this ORP - 16 Form

"6/11/99" in the sec tion under, "I elect to become a member of

the ORP and have signed necessary contracts. . ." This ORP - 16

Form also was certified by FAMU to the Division of Retirement in

the usual language, and the box for "contributions change" was

checked. Since that da te, The Division of Retirement has

continued transmitting the employer's maximum contribution and

Petitioner's employee contribution to TIAA - CREF as requested by

Petitioner's 1999 ORP - 16 Form.

48. Petitioner testified that he used the 1989 - 1999 ORP - 16

f orms and the TIAA - CREF contracts to set up supplemental

accounts while protesting against being in ORP at all. The

reason Petitioner gave for executing the four changes in

contribution to ORP itself was that he had unilaterally

concluded that he could not use any investment companies used in

conjunction with FRS supplemental accounts.

49. In fact, Petitioner could not purchase his TIAA - CREF

ORP - SRA and ORP - TDA without already being in ORP. Therefore,

logically, his execution of the SRA and TDA documen ts described

at Finding of Fact 43, further signify or ratify Petitioner's

earlier election of ORP.

50. Also, Mr. Henning testified that at no time was there

any impediment via ORP to Petitioner's setting up a regular 403b

tax shelter annuity or a 457 tax - deferred compensation account

outside ORP. Petitioner also could have set up such plans if he

had remained in FRS, but if he had remained in FRS, he would not

have been able to run these plans through the ORP process. Mr.

Henning's testimony is competen t, expert, and unrefuted.

Moreover, information concerning a 457 plan is included on each

ORP - 16 Form, immediately above the signature line for the "I

elect to become a member of the ORP and have signed necessary

contracts. . ." portion, by way of caution ing the employee that

it is the employee's responsibility to be sure that in

listing/changing any amount to be deducted for ORP, the employee

must take into consideration that all payroll deductions,

including credit unions, the 457 plan, or other suppleme ntal

accounts are fully funded.

51. From 1984 through the present, Petitioner has received

quarterly statements from TIAA - CREF, reflecting his earnings in

ORP.

52. In 2002, Petitioner received a calculation from the

Federal Social Security Administrati on, which showed that he had

been employed and that some employer(s) (not necessarily FAMU)

had paid deductions in every year from 1971 to the present, with

the exception of 1977. Petitioner then interpreted this to mean

that he was in OPS with FAMU that year and was in FRS every

other year between 1971 and 1984. 6/ Only in 2002 did he contact

the Division of Retirement.

53. Petitioner's calculations show that if he had stayed

in FRS, he could expect approximately three times the annual

retirement benefi t that he can now expect via TIAA - CREF.

CONCLUSIONS OF LAW

54. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

55. Regardless of how the p arties have characterized the

legal issues of this case, the practical problem to be solved

herein is whether Petitioner was properly enrolled in ORP

between August 1984 and the present; alternatively, whether

Petitioner's pre - August 1984 enrollment in FRS should have been

continued between August 1984 and the present.

56. The Florida Retirement System is codified in Chapter

121, Florida Statutes, and provides for compulsory participation

in the Florida Retirement System for all employees hired after

December 1, 1970, with certain exceptions.

57. In 1984, the Florida Legislature established the State

University Optional Retirement Program for the State University

System. Chapter 83 - 197 in relevant part provides as follows:

121.35 System Opt ional retirement program for the State

University System

(1) OPTIONAL RETIREMENT PROGRAM

ESTABLISHED. The Division of Retirement of

the Department of Administration shall

establish an optional retirement program

under which contracts providing retirement

and death benefits may be purchased for

eligible members of the State University

System who elect to participate in the

program. The benefits to be provided for or

on behalf of participants in such optional

retirement program shall be provided through

individual annuity contracts, which may be

fixed or variable, or a combination thereof,

in nature. The state shall contribute as

provided herein toward the purchase of such

optional benefits which shall be fully and

immed iately vested in the participant.

58. Petitioner was a compulsory member of FRS in 1984 when

the Legislature established ORP for eligible members of the

State University System.

59. The new retirement program was afforded to eligible

employees as an alternate to participation in FRS. In order to

participate, an employee was required to notify the employer and

the Division of his election in writing.

60. Section 121.35(3) Florida Statutes (1984), provided,

as follows:

ELECTION OF OPTIONA L PROGRAM

(a) Any eligible employee, employed on or

about March 1, 1984, may elect to

participate in the optional retirement

program in lieu of participation in the

Florida Retirement System. Such election

shall be made in writing and filed with the

divi sion and the personnel officer of the

employer on or before June 1, 1984. Upon

such election, participation in the optional

program shall take effect July 1, 1984, and

election to so participate shall terminate

the person's membership in the Florida

Retir ement System. Any eligible employee

who is employed on or before March 1, 1984,

who fails to make an election to participate

in the optional program by June 1, 1984,

shall be deemed to have elected to retain

his membership in the Florida Retirement

system .

61. Petitioner contends that there could be no election of

ORP until such time as Petitioner signed the May 15, 1984 ORP - 16

Form, and since he has never signed it, he cannot be considered

to have ever been enrolled in ORP.

62. However, the stat ute requires only that an election be

made in writing and filed with the Agency (FAMU) and the

Division of Retirement, and based upon the statute and the

instructions on the forms, Petitioner timely and irrevocably

elected to enroll in ORP in 1984.

63 . Petitioner testified that at the time he was eligible

to join ORP, he did not know for sure how many years had been

credited to FRS on his behalf, and therefore he did not seek to

overturn the ORP membership at his first opportunity. He also

testified that, in 1984, he had believed he had been in FRS for

1971 - 72 and 1972 - 73 and for 1980 through 1984. If he believed

this, then it logically follows that he must also have believed

that he had six years in FRS as of 1984. Even assuming the

unlikely concep t that in 1984 Petitioner believed that the two

years of accruals he had withdrawn were not credited to FRS, he

still knew he had four FRS years, without the year he was laid

off, and further knew he was about to enter into his fifth year

in FRS. Since th e election literature apparently recommended

not entering ORP with more than four years in FRS, the

undersigned is not persuaded that (1) receiving a definitive

pronouncement from FAMU or the Division of Retirement in 1984

that he had four or more years in FRS would have caused

Petitioner to not elect ORP in the first place or, that (2) in

the second place, it would have caused Petitioner to contest his

ORP status in a timely manner.

64. The Division of Retirement inadvertently offended its

own policy, ne ver codified into a rule, when it processed

Petitioner's 1984 Ballot/Enrollment Form without his signature

on it, but based on the totality of the circumstances,

everything Division personnel saw pointed to a valid election by

Petitioner for ORP, and Petit ioner never did anything to change

that perception.

65. Also, it would be remarkable if the Division of

Retirement could have discerned from Petitioner's subsequent

behavior and multiple form filing that he was requesting to be

let out of ORP. Everything he did pointed to a continued desire

to be in ORP.

66. Petitioner's window of opportunity to challenge being

put in ORP opened upon his notification from TIAA - CREF in August

1984, but Petitioner's second - hand oral inquiries through the

FAMU Personnel O ffice cannot, by hindsight, be converted to a

notification to the Division of Retirement that Petitioner

wanted to be removed from ORP. Petitioner consulted an

attorney, and, presumably fully informed, elected not to

formally challenge his membership in O RP. The Division could

not have been expected to remove Petitioner from ORP or furnish

him with instructions on how to challenge its processing of his

ORP Ballot/Election Form, because Petitioner did not ask the

Division to do anything.

67. Repeatedly asking FAMU to tell him how many years he

had been in FRS does not amount to asking the Division of

Retirement to remove him from ORP.

68. Petitioner knew in August 1984, that he was in ORP and

that some action on his part was necessary to correct the so -

called mistake. Despite consulting a lawyer, he did not act

reasonably or timely to either get a statement of his creditable

time in FRS or to remove himself from ORP.

69. Moreover, Petitioner proceeded to change contributions

to ORP four times, each t ime signing forms stating he had a

TIAA - CREF contract and was electing ORP. He could not elect

employee contributions in addition to employer contributions in

1989 and change those employee contributions three more times

without being a member of ORP in t he first place. Petitioner

ratified any inadvertent mistake the Division made in 1984 four

times. It would be nonsensical for the Division or TIAA - CREF to

assume that Petitioner's affirmative acts of placing different

percentages of his own money in TIAA - CREF for ORP signified that

he wanted to get out of ORP. It would be equally nonsensical

for either the Division or the provider to assume that

Petitioner's affirmative act of contributing to an ORP - SRA or

TDA, both of which could only be purchased by OR P members,

signified that he wanted to get out of ORP.

70. While public policy militates, or at least should

militate, against an employee being placed in one form of

retirement fund over another without his informed and clear

consent, and although the undersigned is loathe to penalize any

citizen for mistakes of government in the absence of a clear

election based on that citizen's signature, the fact remains

that each State employee bears the burden of acting timely to

protect his or her own interests w ith regard to retirement

accounts, and Petitioner has not.

71. Petitioner's failure to seek redress directly from the

Division of Retirement and his proactive investments with TIAA -

CREF from 1984 to the present created the present situation.

Petitioner w as aware in 1984 that he did not sign his

Ballot/Election Form. He was aware in 1984 that a so - called

"mistake" had been made in placing him in ORP. He instructed

and allowed the Division of Retirement to pay money on his

behalf to TIAA - CREF for nearly 2 0 years, without notifying the

Division or TIAA - CREF of any problem. Rather than notifying

either the Division or the provider, Petitioner kept executing

their forms, constituting his free - will participation in ORP.

72. Finally, although Petitioner sug gested that his TIAA -

CREF funds now be used to "cover" the lack of contributions to

FRS during the last 20 years, the amount of those investments

would be insufficient to fully fund his FRS account. There

seems to be some procedure whereby Petitioner can elect a

different State - approved ORP provider, but neither Petitioner

nor Respondent has demonstrated any law or procedure which

permits Petitioner to cancel his contracts with TIAA - CREF prior

to his retirement and pay that money into FRS. See peripherall y

Bradshaw v. University of West Florida v. Department of

Management Services, Division of Retirement , DOAH Case No. 02 -

0212 (Recommended Order June 28, 2002).

73. The Division of Retirement is the agency charged by

the Legislature with the task of mainta ining the integrity of

FRS, thus safeguarding the interests of all members of the

system. The Florida Constitution and the Agency's enabling

statutes require that FRS be funded and administered in a sound

actuarial manner. To allow Petitioner to change i n 2003 his

election for ORP retroactively to 1984 would offend that trust

and duty.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Management Services,

Division of Retirement, ent er a final order, which determines

Petitioner to have been a valid member of ORP since June 1,

1984, denies his request to retroactively transfer into FRS, and

dismisses his Petition.

DONE AND ENTERED this 6th day of October, 2003, in

Tallahassee, Leon Cou nty, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 6th day of October 2003.

ENDNOTES

1/ All continuances of hearing and extensions of time for post -

hearing proposals have been initiated and/or stipulated by the

parties.

2/ It is not clear if this was an internal discrimination

investigation, a case before the Florida Commission on Human

Relations, or a civil lawsuit, but Petitioner employed an

attorney at the expense of $10,000.

3/ Petitioner received, in 2002 or 2003, from the Division of

Retirement, an estimate, stating he was vested in FRS based on

service through 5/1984 with retirement effective at age 62.

This document contains the exculpatory language "Estimate only,

subject to verification of all factors." Based on other

evidence that an election to go into ORP in 1984 would wipe out

all Petitioner's years toward FRS retirement and due to a

subsequent social security calculation (See n. 5, below), this

"estimate" by the Division is suspect for ac curacy.

4/ A letter from Petitioner to the Director of the Division of

Retirement dated August 6, 2002, (R - 1) states that in June 2002,

he went to the Division to "update [his] address and also to pay

for the refund I had taken the year I was unemployed. … The

remedy I request is to have my future retirement funds go into

the FRS Pension Fund and if possible to be given the opportunity

to buy back years with my ORP funds." According to Petitioner's

testimony, all his years in FRS were wiped out, effectiv e June

1, 1984, but see n. 3, above.

5/ Oddly enough, this exhibit, Exhibit P - 8D, shows a zero

contribution in 1977, which may relate to the 1976 - 77 school

year contract, but which certainly does not correlate with the

year Petitioner was laid off in 1973 - 74. See Findings of Fact

12 - 14 and 52. It is entirely possible that Petitioner earned

money other than from FAMU in 1973 - 74 and that amount would

appropriately show up in his social security calculations.

However, if he were paid "zero" in social secur ity withholding

in 1977 by FAMU, because he was in OPS, then his time in FRS

might not match the information given in n. 4, above.

6/ See nn. 4 and 5, above.

COPIES FURNISHED:

Arthur Lewis Stern, III, Esquire

1904 West Indianhead Drive

Tallahassee, Flo rida 32301

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

Erin Sjostrom, Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

Monesia Taylor Brown

Acting General Counsel

4050 Esplanade Way

Tallahassee, Florida 32399 - 1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 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.