03-002976 Jack L. Poitinger, Jr. vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, April 13, 2004.

Summary: Petitioner did not timely submit the necessary forms to participate in the Deferred Retirement Option Program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK L. POITINGER, JR., )

)

Petitioner, )

)

vs. ) Case No . 03 - 2976

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 16, 2004, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes (2003). The hearing location was the Offices of

Division of Administrative Hearings, The DeSoto Building, 1230

Apalachee Parkway, Tallahassee, Florida. The hearing was

conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Jack L. Poitinger, Jr., Esquire, pro se

700 Barineau Road

Tallahassee, Florida 32304

For Respondent: Robert R. Button, Esquire

Department of Management Services

Division of Retirement

4050 Espl anade Way, Suite 260

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Is Petitioner eligible to join the Florida Retirement

System (FRS), Deferred Retirement Option Program (DROP)? See

§ 121.091(13)(a), Fla. Stat. (2001).

PR ELIMINARY STATEMENT

On May 14, 2003, Petitioner, as a member of the FRS, wrote

to Respondent requesting enrollment in DROP. On May 27, 2003,

Respondent replied to Petitioner denying the request to

participate in DROP and advising Petitioner of his right to

contest that preliminary decision. On June 16, 2003, Petitioner

wrote Respondent requesting a hearing to contest the proposed

agency action denying him permission to participate in DROP.

On August 19, 2003, the Division of Administrative Hearings

(DO AH) received notice of the transmittal of the case from

Respondent asking for the assignment of an administrative law

judge to address the dispute by entry of a recommended order.

Originally the case was scheduled to be heard on

October 28, 2003, before D on W. Davis, Administrative Law Judge.

The case was rescheduled to be heard on January 16, 2004, and

reassigned to the present administrative law judge for hearing.

At hearing Petitioner testified in his own behalf and

presented the testimony of Larry H unnicutt, Benefits

Administrator for Respondent. Joint Exhibits numbered 1 through

6 were admitted as evidence. At Petitioner's request official

recognition was given Chapter 2002 - 287, Section 899, Laws of

Florida.

A hearing transcript was filed on Feb ruary 6, 2004. The

parties timely filed proposed recommended orders on an extended

schedule. Those proposed recommended orders have been

considered in preparing the recommended order.

FINDINGS OF FACT

1. Petitioner is an active member of the FRS . He is an

Assistant State Attorney for the Second Judicial Circuit.

Petitioner is 62 years old. Petitioner was born September 17,

1941.

2. On June 30, 1998, Petitioner visited Respondent's

offices. He was assisted by Kelly Lafleur, a Benefits

Special ist for Respondent. At the time of hearing Ms. Lafleur

was no longer employed by Respondent. During the conversation

that ensued, some discussion was had concerning Petitioner's

military service and the DROP program which was to be

implemented in July 19 98.

3. According to notes completed in the course of

Respondent's routine business with Petitioner, as prepared by

Ms. Lafleur, there was a notation in which it can be reasonably

inferred that Petitioner " . . . will submit DP - 11 & DP - ELE with

DD - 21 4." The comment about DP - 11 and DP - ELE refers to forms

that must be completed by an FRS member who wishes to

participate in the DROP program.

4. The notations made by Ms. Lafleur when Petitioner

visited the Respondent included an entry which stated "approx

26.5 years, age 56." This refers to the fact that Petitioner at

the time had approximately 26.5 years in credited service in the

FRS and was 56 years of age. The notation concerning credited

service was exclusive of military service that might b e

purchased to add to Petitioner's retirement benefits in the FRS .

5. The notations made concerning Petitioner's visit with

Ms. Lafleur, also stated, "will be eligible based on 30 years of

service when he buys his military." This is interpreted in the

context of other notations that day, to mean that Petitioner

would be eligible for DROP when he purchased optional military

service credit.

6. A notation had been made on the form recording comments

about the visit, which stated "could enter up to 30 years or age

62, WHICHEVER IS EARLIEST, & participate for 5 years." These

remarks were struck over on the comments portion of the notes

maintained by Respondent concerning the conversation between

Petitioner and Ms. Lafleur. It is unclear why the not es were

lined - out.

7. The written record of the interview is reflected as

Joint Exhibit numbered 5. The exhibit also reflects the address

of the Petitioner as 700 Barineau Road, Tallahassee, Florida

32304. According to the written record, that addres s was

established by a telephone call to the member, understood to

refer to Petitioner. It was necessary for Respondent to obtain

the home address of Petitioner to facilitate further written

communication from Respondent to Petitioner.

8. As esta blished by the testimony of Larry Hunnicutt,

Benefits Administrator for Respondent, when Petitioner met

Ms. Lafleur on June 30, 1998, Petitioner was not eligible to

participate in the DROP program which would begin the next day.

It would have been necessa ry to purchase the military service to

establish eligibility for DROP . Payments for that service could

have been made on or before 90 days from the beginning date of

the DROP period .

9. Following the June 30, 1998 meeting between Petitioner

and Ms. L afleur, Petitioner submitted the necessary military

papers to assist Respondent in determining the cost to purchase

military service to be added to other service earned by

Petitioner in the FRS .

10. Joint Exhibit numbered 6 is an estimate of retirem ent

benefits provided to Petitioner by Respondent. It is dated

November 24, 1998. It contemplates the payment of $4,563 to

purchase military service time to be added to existing FRS

service. The amount of military service described is 3.84

years. That time added to other FRS service credit would have

given Petitioner 30.47 years of service as of the moment.

11. There is a stamp affixed to the estimate just

described. The stamp has check marks placed in relation to the

following categories: OPT - FRS , DROP , PREPARING TO RETIRE , and

OTHER. Next to the word "OTHER" are the hand - written entries:

DP - 11, DP - ELE.

12. The estimate document also included the following

language at the bottom:

THE AMOUNT DUE IS TH E COSTS TO PURCHASE YOUR

3.84 YEARS OF MIL ITARY SERVICE. PLEA SE

COMPLETE AND RETURN THE ENCLOSED FORM, M F - 1.

THIS ESTIMATE IS PRO VIDED FOR DROP PURPOSES

AND IS BASED ON A DROP BEGIN DATE OF 11/1/ 98

(SEE PRINTOUT AND BR OCHURE). OPTIONAL

SERVICE MAY BE EXCLU DED IN THE DETERMINA TION

OF YOUR DROP E LIGIBILITY DATE. TO RETAIN A

DROP BEGIN DATE OF 11/1/ 98, YOU MUST

COMPLETE AND RETURN THE ENCLOSED FORMS D P - 11

AND DP - ELE WITHIN 30 DAYS OF THE DATE TH IS

ESTIMATE WAS MAILED.

13. The nature of the estimate reminded Petitioner that

the estimate w as for giving him information for DROP purposes

and was premised upon a beginning date for DROP of 11/1/1998,

conditioned upon the payment of the $4,563.24 for military

service. The document reminded Petitioner that the optional

service (military service) could be excluded in the

determination of the DROP eligibility date. The document made

clear that retention of the DROP begin date of 11/1/1998 was

contingent upon the completion and return of the DP - 11 and DP -

ELE forms within 30 days of the date of the mailing of the

estimate. These two forms had been referred to in the earlier

conversation between Petitioner and Ms. Lafleur that took place

on June 30, 1998.

14. The document prepared establishing the estimate for

DROP purposes, dated November 24, 19 98, refers to a printout and

brochure associated with the estimate. While it is clear that

Petitioner received the estimate, the single - page document, it

is not certain that Petitioner received the printout and

brochure that is referred to in the document .

15. Eventually, Petitioner decided to purchase his

military service to be added to other service earned for

retirement purposes.

16. In November 2001 when Petitioner came to pay for his

military service, he met Mr. Hunnicutt. At the same ti me

Petitioner declined to upgrade his service classification for

retirement pertaining to the Senior Management Service Class

(SMSC). This visit with Mr. Hunnicutt was a short encounter in

length of time. Principally, the payment was made for the

militar y service credit. The participants did not engage in a

further review of Petitioner's status as an FRS member.

Ordinarily, had Petitioner made other inquiries concerning his

status, Mr. Hunnicutt would have responded to any questions.

In that context, had Petitioner asked Mr. Hunnicutt questions

about DROP eligibility, Mr. Hunnicutt would have provided

information about eligibility but not otherwise.

17. On December 17, 2001, Respondent provided Petitioner a

statement of his retirement account, Joint Exhibit numbered 3.

That statement of account indicated in relevant part:

We audited your retirement account and you

have 33.56 years of service through 11/2001.

The amount due for your military service has

been paid in full. Per your request, we

hav e removed your SMSC upgrade and the

corresponding amount due from your account.

That document made no mention of DROP eligibility.

18. Petitioner came back to Respondent's office in May

2003 and while he was there he spoke to Mr. Hunnicutt. A t that

time Petitioner made mention that he believed that he was in the

DROP program, notwithstanding that he had never submitted the

DP - 11 and DP - ELE forms that were required to participate in

DROP . Petitioner commented that he was not aware of the

requi red forms. Mr. Hunnicutt was introduced into the

conversation after Petitioner spoke to some other person in

Respondent's office. Petitioner made it obvious in the

conversation that he still had an interest in DROP

participation, even if Respondent was p ersuaded that he was not

enrolled in DROP from Respondent's point - of - view. As of the

date that the discussion was held with Mr. Hunnicutt, apparently

May 14, 2003, Respondent held to the view as expressed by

Mr. Hunnicutt, that Petitioner was no longer el igible to

participate in DROP, having failed to timely elect that option.

19. On May 14, 2003, Mr. Hunnicutt believed and continues

to hold the opinion, that Petitioner's outside date for electing

to participate in DROP , excluding military service, expi red on

March 31, 2003.

20. During the May 14, 2003 meeting between Petitioner and

Mr. Hunnicutt, it was explained by Mr. Hunnicutt that Petitioner

had rights to appeal a decision denying the right to participate

in DROP .

21. Joint Exhibit number ed 4 contains the notations by

Mr. Hunnicutt concerning the May 14, 2003, conversation between

Mr. Hunnicutt and Petitioner, kept by the Respondent as part of

its routine business. It highlights those facts that have been

found on this occasion.

22. On May 14, 2003, Petitioner wrote Mr. Hunnicutt to

make his case for eligibility to participate in DROP . This

correspondence was met by the May 27, 2003, correspondence from

Erin B. Sjostrom, State Retirement Director, formally denying

Petitioner his right to participate in DROP, while stating the

grounds for that denial. The two pieces of correspondence are

Joint Exhibits numbered 2 and 1, respectively.

23. Petitioner in his testimony stated his belief, that at

the point in time where he paid for his military service to be

added to his other FRS service time, that he was automatically

in DROP without having to take further action to enroll.

Petitioner in his testimony explains his impression of events by

commenting that he was told about DROP benefit s when he was not

already eligible to participate in the DROP program (having not

paid for military service), and he was not told of his right to

participate in the DROP program when he was eligible (having

paid for military service).

CONCLUSIONS OF LAW

24. DOAH has jurisdiction over the subject matter and the

parties, in accordance with Sections 120.569 and 120.57(1),

Florida Statutes (2003).

25. Respondent has requested the right to participate in

the DROP program and bears the burden to prove hi s eligibility

for participation. See Balino v. Department of Health and

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

The facts entitling Petitioner to participation in the DROP

program must be established by a preponderance of the evidenc e.

See § 120.57(1)(j), Fla. Stat. (2003).

26. Concerning Petitioner's right to participate in the

DROP program, his eligibility is determined consistent with

Section 121.091(13), Florida Statutes (2001), which states in

pertinent part:

(13) DEFE RRED RETIREMENT OPTION PROGRAM. --

(a) Eligibility of member to participate in

the DROP.

* * *

2. Except as provided in subparagraph 6. ,

election to participate is made within 12

months immediately following the date on

which the member first reaches normal

retirement date, or for a member who reaches

normal retirement date based on service

before he or she reaches age 62, or age 55

for Special Risk Class members, election to

participate may be deferred to the 12 months

immedia tely following the date member

attains 57, or age 52 for Special Risk Class

members. For a member who first reached

normal retirement date or the deferred

eligibility date described above prior to

the effective date of this section, election

to participat e shall be made 12 months after

the effective date of this section. A

member who fails to make an election within

such 12 - month limitation period shall

forfeit all rights to participate in the

DROP. The member shall advise his or her

employer and the div ision in writing of the

date on which the DROP shall begin. Such

beginning date may be subsequent to the 12 -

month election period, but must be within

the 60 - month limitation period as provided

in subparagraph (b)1. When establishing

eligibility of the me mber to participate in

the DROP for the 60 - month maximum

participation period, the member may elect

to include or exclude any optional service

credit purchased by the member from the

total service used to establish the normal

retirement date. . . (Emphasi s added)

* * *

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

terminatio n 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 w ithin 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.

27. The facts reveal that Petitioner became eligible to

participate in DROP in March 2002 at a time when he had reached

normal retirement, as a person with 30 years' service, exclusive

of optional service credit for his military time, and as a

person more than 57 years of age. This meant that he could have

elected to participate in DROP between April 1, 2002, and

March 31, 2003, upon the submission of a written election and

properly completed DROP application. Petitioner failed to

provide the necessary w ritten election and application within

the time allowed. He is not entitled to participate in DROP.

28. Petitioner alludes to the possibility that Respondent

should be equitably estopped from denying his eligibility to

participate in DROP. Petitioner has not proven that anything in

Respondent's conduct would call for the enforcement of the

doctrine of equitable estoppel. See Council Brothers, Inc. v.

City of Tallahassee , 634 So. 2d 264 (Fla. 1st DCA 1994).

29. Respondent did not represent a mat erial fact that was

contrary to some later asserted position, which Petitioner

relied upon and changed his position to his detriment. To the

contrary, information provided by Respondent reminded Petitioner

that it was unreasonable to assume that he was au tomatically in

the DROP program upon paying for his military time to be added

to his other FRS service. Instead, Petitioner was told by

Respondent that certain forms needed to be completed and

returned to support the request for participation in DROP.

Fi nally, reading of the statute by a reasonable person, in

particular one who is law - trained, would lead him or her to

understand that paying for the military service credit alone

would not establish eligibility to participate in DROP.

30. Petitioner poin ts out the language contained in

Chapter 2002 - 387, Section 899, Laws of Florida, effective

May 16, 2002, which states:

Section 121.091(13)(a)2.

* * *

. . . For a member who first reached normal

retirement date or the deferred eli gibility

date described above prior to the effective

date of this section, election to

participate shall be made within 12 months

after the effective date of this section.

. . .

This language would allow additional time to elect to

participate in th e DROP program, according to Petitioner.

31. Reference to Chapter 2002 - 387, Section 899 Laws of

Florida is inapplicable. It is a law that became effective

beyond the time line for establishing eligibility to participate

in the DROP program. It is Sect ion 121.091(13)(a)2., Florida

Statutes (2001), containing the same language cited by

Petitioner that pertains to Petitioner's case. The subject

language in the 2001 law is the same as originally enacted in

Chapter 1998 - 18, Section 1, at 121.091(13)(a)2., Laws of

Florida, effective April 22, 1998. It is Chapter 1998 - 18, Laws

of Florida, which created the limited opportunity for members

who reached the normal retirement date, or the deferred

eligibility date, prior to April 22, 1998, to be allowed to make

t heir election to participate in DROP within 12 months of

April 22, 1998. The fact that the language did not change, up

to and including, the point in time at which Petitioner became

eligible to participate in DROP, did not create opportunities

for him, th at the earlier members had enjoyed under terms set

forth in Chapter 98 - 18, Laws of Florida.

32. Finally, Petitioner argues that fairness demands, that

it would be equitable for Respondent to depart from the absolute

requirements of law and allow his par ticipation in the DROP

program, given that he was only 44 days from the deadline to

elect participation in DROP when told that he was not enrolled.

Respondent cannot depart from the requirements of the statute in

its exercise of jurisdiction, wherein it h as properly denied the

request for participation. See State of Florida ex rel.

Greenberg v. Florida State Board of Dentistry , 297 So. 2d 628,

(Fla. 1st DCA 1974), rehearing denied August 6, 1974.

RECOMMENDATION

Upon consideration of the facts found an d Conclusions of

Law reached, it is

RECOMMENDED:

That a Final Order be entered denying Petitioner's right to

participate in the DROP program.

DONE AND ENTERED this 13th day of Ap ril, 2004, in

Tallahassee, Leon County, Florida.

S

____________ _______________________

CHARLES C. ADAMS

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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 2004.

COPIES FURNISHED :

Jack L. Poitinger, Jr., Esquire

700 Barineau Road

Tallahassee, Florida 32304

Robert R. Button, Esquire

Department of Manage ment Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Alberto Dominguez, General Counsel

Department of Management Services

Division of Retirement

4050 Esplanade Way

Tallahassee, Florida 32399 - 1560

Sarabet h Snuggs, Interim Director

Division of Retirement

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions 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.