03-003103 Henry G. Gohlke vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, January 27, 2004.

Summary: Petitioner failed to establish statutory authority to withdraw from the Deferred Retirement Option Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY G. GOHLKE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3103

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RE COMMENDED ORDER

Pursuant to notice, the above - styled case was heard on

November 14, 2003, by Stephen F. Dean, assigned Administrative

Law Judge of the Division of Administrative Hearings in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Henry G. Gohl ke, pro se

3140 Dowling Drive

Tallahassee, Florida 32308

For Respondent: Robert R. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

STATEMEN T OF THE ISSUE

Whether the Petitioner may withdraw from participation in

the Deferred Retirement Option Plan (DROP)?

PRELIMINARY STATEMENT

This case arose when the Petitioner sought to withdraw from

the DROP. The Respondent, Division of Retirement, Dep artment of

Management Services, determined that the Petitioner, having

elected to participate in the DROP, could not withdraw. The

Respondent advised the Petitioner in writing of its decision,

and the Petitioner requested a formal hearing on the issue. T he

Respondent referred the case to the Division of Administrative

Hearings, where the case was noticed for formal hearing on

November 14, 2003. The case was heard as noticed.

The Petitioner testified in his own behalf, and called

Eddie Tanner, a former em ployee of the Respondent, and Larry

Scott, an attorney currently employed by the Respondent, to

testify. The Respondent also called Larry Scott to testify.

The Respondent introduced Respondent's Exhibits J - 1 through

J - 10.

The Petitioner and the Respon dent filed post - hearing briefs

which were read and considered.

FINDINGS OF FACT

1. The Petitioner, Henry Gohlke, is a member of the

Florida Retirement System (FRS), which is governed by Chapter

121, Florida Statutes (2003). The Petitioner is employed by the

Department of Agriculture and Consumer Services.

2. The Petitioner divorced his former spouse, Joanne Marie

Gohlke, on October 29, 1997, and a Qualified Domestic Relations

Order (QDRO) was entered which provided that Joanne Marie Gohlke

was the alt ernate payee of the Petitioner's retirement benefits.

See Exhibit J - 10.

3. Under the terms of the QDRO, when the Petitioner

retired, his future retirement benefits would be incorporated

into alimony payable to Joanne Marie Gohlke, beginning with the

fir st monthly retirement benefit payment made to the Petitioner.

The payment was fixed based upon the value of the Petitioner's

pension at the time, and Joanne Marie Gohlke would receive

$552.05 per month.

4. DROP is a program which permits an employee, who has

qualified for retirement, to retire; draw his retirement benefit

based upon the retirement option he selected; and have the money

paid into a non - taxed, interest - drawing account for up to five

years while the employee continues to work. At the end of the

five years or such other shorter time the employee elects, the

employee may cease working and receive all or a part of the

money in a lump payment paying the income taxes due on the

amount, or roll the money over into an Individual Retirement

Account (IRA) or similar program without paying income taxes

until the money is withdrawn from that account.

5. The Petitioner testified that he queried Eddie Tanner,

who at that time was a paralegal working with the Division of

Retirement, about the effect of the QDRO on his DROP deposits.

There is conflicting testimony about what the Petitioner was

told; however, Tanner testified concerning his customary advice

to persons subject to QDROs. The Petitioner was advised to seek

clarification from the domestic re lations court to be certain.

6. The Petitioner elected to participate in the DROP

program in March of 2003. He may continue to participate in

DROP until March 28, 2008. See Exhibit J - 7.

7. When he began to receive retirement benefits, a letter

was sent to him on June 25, 1998, advising him that Joanne Marie

Gohlke would qualify for a $552.05 per month share of the

Petitioner's accrued DROP benefit as provided in the QDRO. The

letter also advised that, upon the Petitioner's ceasing to work,

the moneys d ue Joanne Marie Gohlke would be paid to her together

with the accrued interest. This letter was sent to the

Petitioner's old address, and he did not receive the letter.

8. Eventually, the Petitioner learned that his DROP

payments would be subject to the allocation of $552.05 each

month to his ex - wife pursuant to the QDRO. This money would be

payable to his ex - wife at the same time the Petitioner accessed

his DROP money. The Petitioner questioned this payment to his

ex - wife.

9. The status of DROP benefi ts has been litigated, and the

courts have determined that DROP benefits are retirement

benefits and subject to QDROs. See Ganzel v. Ganzel , 770 So. 2d

304, 306 (Fla 4th DCA 2000).

10. Based upon this precedent, the Respondent denied the

Petitioner's req uest not to pay the proceeds from DROP to Joanne

Marie Gohlke. Upon learning that his ex - wife would receive a

portion of his DROP account, the Petitioner sought to withdraw

from his participation in the DROP.

11. Although an employee may elect to conti nue to work at

the end of five years with the permission and written

concurrence of his employer, he or she would automatically lose

his or her DROP moneys by continuing to work past the five - year

mark. 1/

12. There is no administrative mechanism for wit hdrawing

from DROP which would be analogous to "un - retiring." The

Respondent properly denied the Petitioner's request to withdraw

from DROP.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Chapters 120 and 121, Florida Statutes.

14. The burden of going forward and the burden of

persuasion are on the party asserting the affirmative of the

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

396 So. 2d 349 (Fla. 1st DCA 349 1977). The Petitioner seeks to

withdraw from DROP and seeks to establish that right. He has

the burden. The burden of proof is by a preponderance of the

evidence. See Agrico Chemical Co. v. Department of

E nvironmental Regulation , 365 So. 2d 759 (Fla. 1st DCA 1979,

cert. Den. 376 So. 2d 74).

15. The courts, as stated in the facts above, have

determined that DROP contributions are retirement benefits, and

a subject to QDROs. See Ganzel , supra .

16. The Peti tioner argues that he received bad advice and,

therefore, should be permitted to withdraw from the DROP. It

may be that Mr. Tanner advised the Petitioner that he had some

merit in arguing that the QDRO proceeded his entry into DROP,

but it is more likely that Mr. Tanner also followed his regular

practice of advising the Petitioner, as a person subject to a

QDRO, to seek a ruling from the domestic relations court.

17. Assuming for a moment that it had been shown that

Mr. Tanner provided inaccurate advice t o the Petitioner, the

Petitioner must show not only the regular elements of estoppel,

but must also demonstrate conduct which goes beyond mere

negligence, showing that the government's conduct will cause

serious injustice and that application of the doctri ne will not

unduly harm the public interest. See Alachua County v.

Cheshire , 603 So. 2d 1334, 1337 (Fla 1st DCA 1992).

18. There is no injustice in requiring retirement payments

to the Petitioner's DROP account to be apportioned in accordance

to the co urt's QDRO providing that $552.05 be paid to his former

spouse from his retirement benefits. It is certainly no more a

windfall to her, as it is to him.

19. The Petitioner has failed to establish a factual

predicate for estopping the Respondent; the Pe titioner has not

established a legal right to withdraw from DROP; and, therefore,

the Petitioner has not met his burden of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is recommended that Petitioner's Petition be

dismissed.

DONE AND ENTERED this 27th day of January, 2004, in

Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

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 27th day of January, 2004.

ENDNOTE

1/ Because the employer does not have to ma ke retirement

contributions after the employee goes into DROP, the employer,

by agreeing to continue to employ the former DROP participant,

also agrees to make five years' worth of retirement

contributions for the employee.

COPIES FURNISHED :

Robert R. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Henry G. Gohlke

3140 Dowling Drive

Tallahassee, Florida 32308

Sarabeth Snuggs, Interim Director

Division of Retireme nt

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

Alberto Dominguez, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 156 0

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 th e final order in this case.