03-000625 Mantana Heim vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, December 19, 2003.

Summary: Petitioner is not entitled to have her effective retirement date moved to an earlier date, nor is she entitled to collateral estoppel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANTANA HEIM, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0625

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOM MENDED ORDER

A formal hearing was conducted in this case on October 1,

2003, in Tallahassee, Florida, before Diane Cleavinger,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Mantana Heim, pro se

2664 Radford Church Road

Moneta, Virginia 24121 - 4496

For Respondent: Robert B. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether the effective retirement date of Petitioner as

determined by Respondent is correct.

PRELIMINARY STATEMENT

Petitioner, Mantana He im, requested Respondent, Division of

Retirement (Division), to change her effective retirement date

from May 1, 2002 to August 1, 1999. By letter dated November 4,

2002, the Division denied Petitioner's request to change her

effective retirement date. O n November 26, 2002, Petitioner

requested a formal administrative hearing on the Division's

denial. The matter was forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified in her own behalf. She

did not offer any ex hibits into evidence. Respondent presented

the testimony of one witness, but did not offer any exhibits into

evidence.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Orders on November 3 and October 30, 2003,

respectively.

FI NDINGS OF FACT

1. Ms. Heim was employed by the Department of Corrections.

2. She was a regular member of the Florida Retirement

System (FRS) with 16.34 years of creditable service. Her date

of birth is September 5, 1945.

3. Ms. Heim terminated employme nt from the Department of

Corrections in July 1999, at the age of 53. At the time of her

separation from employment, Ms. Heim did not receive

instructions on her eligibility to apply for early retirement

from the Department of Corrections or from the Divi sion of

Retirement. She did not receive any misinformation or erroneous

information regarding her retirement from either the Division of

Retirement or the Department of Corrections. Had Ms. Heim known

about early retirement, she would have elected to ret ire in

1999, and her retirement (assuming she timely filed her

application) would have been August 1999. Had she retired in

1999, her benefits would have been statutorily reduced by five

percent for each year she was under the age of 62, resulting in

appr oximately a 30 percent reduction in the current amount of

her benefit.

4. There are approximately 800 employers participating in

FRS with approximately 600,000 active members of FRS and 200,000

retirees. When a member terminates employment, the Division is

not informed by the member’s employer. It is the responsibility

of the member to inform the Division of his or her retirement

since leaving state employment does not necessarily mean the

person is retiring or desires to receive his or her retirement

be nefits.

5. The Division periodically sent benefit estimates to

Ms. Heim after her termination. However, the estimates were

sent to the wrong address and were not received by Petitioner

until April 2002. At that point, the Division learned of her

termin ation and sent her a letter advising her of her ability to

elect early retirement. When Ms. Heim learned of her early

retirement option, she contacted the Division.

6. The Department of Management Services, Division of

Retirement, sent Ms. Heim an applic ation for retirement in April

2002. The Petitioner, upon receiving the application for

retirement, submitted the required paperwork on July 2, 2002.

7. The Division, pursuant to its statutes and rules,

determined that Ms. Heim’s effective date of retirem ent was

May 1, 2002, and has offered her benefits based on that date.

There was no evidence which demonstrated that the May 1 date was

incorrect. Ms. Heim believes her retirement date should be

August 1, 1999, because she was not at fault for not applyin g

for retirement in 1999. However, as indicated, it is the

member's responsibility to notify the Division about that

member's retirement. In this case, the Division complied with

the statutes and rules governing the Florida retirement system.

8. Final ly, Ms. Heim believes that, should her effective

retirement date be changed, her benefit should not be reduced as

the Division's statutes and rules require. She objects to her

benefit being reduced because of her desire “to punish the

Division of Retireme nt” for not giving her clear information

about early retirement or being aware of her correct address.

The problem with Petitioner’s argument is that the agency

responsible for Ms. Heim’s employment and retirement was the

Department of Corrections and not the Division. The other

problem is that there is no factual or legal bases in law or

equity to grant such relief.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceedin g. Chapter 120, Fla. Stat. (2003).

10. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of an

issue. Department of Transportation v. J.W.C. Co., Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). Accord ingly, it is

Petitioner's burden to demonstrate entitlement to an alternative

effective retirement date.

11. Section 121.091, Florida Statutes, provides that

"benefits may not be paid under this section unless the member

has terminated employment and a p roper application has been

filed in the manner prescribed by the department."

12. Florida Administrative Code Rule 60S - 4.0035, provides

in pertinent part that

(1) It shall be the responsibility of the

member, or the beneficiary in the event of

the member ’s death, to make proper

application to the Division for retirement

benefits.

* * *

(3) The Division shall establish the

member’s effective retirement date as

follows:

(a) For a member who makes application for a

normal or early retirement benefit as

pro vided in Florida Administrative Code Rule

60S - 4.004 or 4.005, the effective retirement

date shall be the first day of the month

following the month in which the member’s

termination occurs, provided the Division

receives such member’s application for

retir ement no later than 30 calendar days

after such termination. If a member fails

to apply for retirement within 30 calendar

days after termination or if the member

chooses to defer his retirement to a later

date, the effective retirement date shall be

the f irst day of the month following the

month in which the Division receives the

member’s application, or the first day of a

later month specified by the member.

The statutes and rules also provide for early retirement and the

calculations of benefits under r egular and early retirement.

These statutes and rules put a member on notice as to the

member's responsibilities and early retirement options.

Tamburro v. Department of Management Services, Division of

Retirement , DOAH Case No. 03 - 1347 (RO July 15, 2003) .

13. Petitioner argues that the Division had a duty to

inform her when she might be eligible for retirement benefits.

By failing to do so, she seems to imply the Division is

obligated to establish her effective retirement date as

August 1, 1999. She has cited no statute or other authority

imposing such a duty on the Division and there is no such

statute or other authority. Rather, she seems to base her claim

on something akin to the doctrine of equitable estoppel.

14. The elements that must be establish ed for the doctrine

of equitable estoppel to apply against a governmental agency are

set forth in Council Brothers, Inc. v. City of Tallahassee ,

634 So. 2d 264, 266 (Fla. 1st DCA 1994):

The elements which must be present for

application of estoppel are: ‘( 1) a

representation as to a material fact that is

contrary to a later - asserted position;

(2) reliance on that representation; and

(3) a change in position detrimental to the

party claiming estoppel, caused by the

representation and reliance thereon.’ Stat e

Department of Revenue v. Anderson, 403

So. 2d 397, 400 (Fla. 1981). See also

Dolphin Outdoor Advertising v. Department of

Transportation , 582 So. 2d 709, 710 (Fla.

1st DCA 1991); Harris v. State, Department

of Administration, Division of Employees'

Insu rance , 577 So. 2d 1363, 1366 (Fla. 1st

DCA 1991); Warren v. Department of

Administration , 554 So. 2d 568 (Fla. 5th DCA

1990). As a general rule, estoppel will not

apply to mistaken statements of the law, see

Anderson , 403 So. 2d at 400, but may be

applied to erroneous representations of

fact. Dolphin Outdoor Advertising , 582

So. 2d at 711; Harris , 577 So. 2d at 1366;

Warren , 554 So. 2d at 571; City of Coral

Springs v. Broward County , 387 So. 2d 389,

390 (Fla. 4th DCA 1980).

* * *

One seeking to invoke t he doctrine of

estoppel against the government first must

establish the usual elements of estoppel,

and then must demonstrate the existence of

affirmative conduct by the government which

goes beyond mere negligence, must show that

the governmental conduct will cause serious

injustice, and must show that the

application of estoppel will not unduly harm

the public interest. Alachua County v.

Cheshire , 603 So. 2d 1334, 1337 (Fla. 1st

DCA 1992).

15. "Although equitable estoppel can apply against the

state . . ., such claims can be pursued only in rare instances

where there are exceptional circumstances." McNamara v.

Kissimmee River Valley Sportsmans' Association , 648 So. 2d 155,

162 - 63 ( Fla. 2d DCA 1994). "Among the elements that must be

proven is a positiv e act by an authorized official, upon which

reliance is based." Id. ; see also Bishop v. State, Division of

Retirement , 413 So. 2d 776, 779 ( Fla. 1st DCA 1982)(" There is no

evidence that the state or its agents have committed an

affirmative act by which an equitable estoppel could be declared

against the State."); Department of Administration, Division of

Retirement v. Flowers , 356 So. 2d 14, 15 (Fla. 1st DCA

1978)("The authorities are clear that estoppel cannot be raised

against the State unless there are exceptional circumstances and

some positive act on the part of a state officer."); and

Greenhut Construction Co. v. Henry A. Knott, Inc. , 247 So. 2d

517, 524 ( Fla. 1st DCA 1971)(" The causal and offhand manner in

which the bureau chief indicated that he tho ught it would be

satisfactory for Knott to submit a bid cannot be said to

constitute such an affirmative and positive representation of

fact as to justify reliance thereon by Knott in determining

whether it should submit a bid for construction of the

proje ct."). The mere failure to act does not constitute a

"positive act" upon which an estoppel against a state agency can

be based. See Monroe County v. Hemisphere Equity Realty, Inc. ,

634 So. 2d 745, 747 - 48 ( Fla. 3d DCA 1994)(" Here, the trial court

misconst rued the legal doctrine of equitable estoppel when it

ruled that Texas Largo was entitled to proceed with its

development based upon the County's failure to act against third

parties. The trial court further erred when it found that the

Planning Director' s 1987 letter to Tamarind, the original

developer, was an additional basis for estopping the County from

enforcing its regulation against Texas Largo. . . . [T]he

letter does not, under any conceivable standard, rise to the

level of a 'positive act' suffi cient to create estoppel. Simply

put, the letter says nothing, and suggests nothing by omission,

regarding the two - year limitation."); State v. Hadden , 370

So. 2d 849, 852 (Fla. 3d DCA 1979) ("[E]stoppel will not be

applied against the State for an omissio n to act. . . .") ; and

U. S. Immigration and Naturalization Service v. Hibi , 94 S. Ct.

19, 21 - 22 ( 1973)(" Here the petitioner has been charged by

Congress with administering an Act which both made available

benefits of naturalization to persons in responden t's class and

established a cutoff date for the claiming of such benefits.

Petitioner, in enforcing the cutoff date established by

Congress, as well as in recognizing claims for the benefits

conferred by the Act, is enforcing the public policy established

by Congress. While the issue of whether 'affirmative

misconduct' on the part of the Government might estop it from

denying citizenship was left open in Montana v. Kennedy , 366

U.S. 308, 314, 315, 81 S. Ct. 1336, 6 L. Ed. 2d 313 (1961), no

conduct of the sort there adverted to was involved here. We do

not think that the failure to fully publicize the rights which

Congress accorded under the Act of 1940, or the failure to have

stationed in the Philippine Islands during all of the time those

rights were ava ilable an authorized naturalization

representative, can give rise to an estoppel against the

Government."). Accordingly, even if the Division had had an

obligation to provide Petitioner a 1999 notification regarding

"early retirement benefits," and the Di vision had made no

attempt to meet this obligation, the Division's inaction would

not have estopped it from applying, as it did, the provisions of

the Act and its implementing rules to establish an effective

retirement date of May 1, 2002, for Petitioner. Neither would

estoppel lie against the Division if it had engaged in the

"positive act" of misinforming Petitioner about the provisions

of the Act and the Division's rules regarding "early retirement

benefits," inasmuch as agencies of "the state cannot be estopped

through mistaken statements of the law." State Department of

Revenue v. Anderson , 403 So. 2d 397, 400 (Fla. 1981); see also

Austin v. Austin , 350 So. 2d 102, 105 (Fla. 1st DCA

1977)("Administrative officers of the state cannot estop the

state th rough mistaken statements of the law.").

16. Based on the findings of fact herein, Petitioner has

not established that the Division made a representation of fact

to her that it later contradicted or that the Division committed

an affirmative act going beyo nd mere negligence which resulted

in her failure to apply for benefits sooner than she did. See

Mary Mosser v. Division of Retirement , DOAH Case No. 01 - 2648

(RO November 20, 2001). The Division received Petitioner's

application on July 2, 2002. In acco rdance with Section

121.091, Florida Statutes, the Division liberally construed the

statute in favor of the member by providing a grace period for

mailing, and established Petitioner's effective retirement date

as May 1, 2002. Petitioner has not demonstra ted that the

Division's action was erroneous. Annie L. Gibbs v. Division of

Retirement , DOAH Case No. 02 - 2314 (RO September 18, 2002);

Tamburro , supra ; Hardy v. Dept. of Management Services , Case No.

DMS - 02 - 0028. Therefore, Petitioner's effective retirem ent date

should not be changed, nor her benefit adjusted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order confirming Petitioner’s

retirement date as May 1, 2002.

DONE A ND ENTERED this 19th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 19th day of December, 2003.

COPIES FURNISHED :

Robert B. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Mantana Heim

2664 Radford Church Road

Moneta, Virginia 24121 - 4496

Alberto Dominguez, Esquire

General Counsel

Department of Management Services

4050 Esp lanade Way

Tallahassee, Florida 32399 - 1560

Sarabeth Snuggs, Interim Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

NOTICE OF RIGHT TO SUBMI T 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.