04-004157 Nathaniel Glover, Jr. vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, July 21, 2005.

Summary: Petitioner is entitled to receive retirement benefits at the Elected Officers` Class rate of 3.0 percent per year of service, retroactive to July 1, 2003, the date of his termination of employment as Sheriff of Duval County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATHANIEL GLOVER, JR., )

)

Petitioner, )

)

vs. ) Case No. 04 - 4157

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on April 14, 2005, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Robe rt D. Klausner, Esquire

Klausner & Kaufman, P.A.

10059 Northwest 1st Court

Plantation, Florida 33324

For Respondent: Robert B . Button, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahas see, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue is whether payment of Petitioner's retirement

benefits should have commenced after the filing of an

application to retire with the Division of Retirement, with an

effective date of April 1, 2004, or be retroactively changed to

the date of his termination of employment, July 1, 2003.

PRELIMINARY STATEMENT

Petitioner, Nathaniel Glover, Jr., requested Respondent to

retroactively change his effective retirement date, on which

payment of benefits woul d commence, from April 1, 2004, to

July 1, 2003. Such a change would result in an additional n i ne

months of benefit payments from the Florida R etirement Trust

Fund. By letter dated May 27, 2004, Respondent denied

Petitioner's request to change the date on which payment of his

benefits would begin. Petitioner timely requested a formal

administrative hearing to contest Respondent's denial. The

matter was forwarded to the Division of Administrative Hearings,

and was heard before Robert S. Cohen, the Admin istrative Law

Judge assigned to the matter. At the hearing, Petitioner

testified on his own behalf, and called John Keane and George

Dandelake as witnesses. Petitioner offered 25 exhibits, all of

which were admitted into evidence. Respondent o ffered the

testimony of Andy Snuggs, and offered three exhibits, all of

which were admitted into evidence. The parties filed six joint

exhibits, all of which were admitted. At the conclusion of the

hearing, Petitioner and Respondent agreed to file p roposed

r ecomme nded o rders by June 16, 2005. A Transcript was filed on

April 27, 2005. Respondent filed its Proposed Recommended Order

on June 15, 2005, and Petitioner filed his on June 16, 2005.

The Proposed Recommended Orders, the testimony, and exhibits

have all be en considered in issuing this Recommended Order.

References to statutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. On July 19, 1995, Petitioner applied for membership in

the Special Risk Division of the Elected Officer s' Class of the

Florida Retirement System ("FRS").

2. On August 14, 1995, Respondent sent Petitioner a letter

admitting him into FRS.

3. On September 6, 1995, Sarabeth Snuggs, Chief of the

Bureau of Enrollment and Contributions for Respondent, sent

Pet itioner a letter revoking his membership in FRS.

4. On December 17, 1996, Petitioner wrote to Sarabeth

Snuggs responding to Respondent's decision to revoke his

membership in FRS. Pet itioner cited Section 121.052(2)( d),

Florida Statutes, which provides that membership in FRS includes

"any constitutional county elected officer assuming office after

July 1, 1981, including any sheriff."

5. The Consolidated City of Jacksonville was created by

the Florida Legislature with the enactment of Chapter 67 - 1320,

Laws of Florida. Section 1.01 of the Jacksonville Charter

provides that the county government of Duval County and the

municipal government of the City of Jacksonville are

consolidated into a single body politic. The Charter further

provides that the con solidated government succeeds to and

possesses all of the properties of the former government.

6. After being denied membership in FRS, Petitioner and

other members of the consolidated government and its

instrumentalities worked diligently to convince Re spondent to

admit Petitioner into FRS.

7. During Petitioner's attempts to be included in FRS,

Respondent repeatedly took the position that Duval County did

not exist as a county agency.

8. In a letter to Petitioner dated January 15, 1997,

Ms. Snuggs wrote that the consolidated Duval County government

"chose to consolidate as a 'city' government."

9. Mr. Keane worked with the Duval County Legislative

Delegation t o amend Chapter 121 to specifically clarify the fact

that the Duval County Sheriff and Cl erk of Court are

constitutional officers entitled to participate in FRS. In

2002, the Florida Legislature adopted language to clarify the

Duval County Sheriff and Clerk of Court's status with respect to

FRS.

10. In a letter dated June 24, 2002, Petition er thanked

Ms. Snuggs for recognizing his right to elect membership in FRS.

Petitioner observed that, since he was in the last year of his

second term as S heriff (Duval County allows only two consecutive

terms), he wanted confirmation of his "right to con nect the

previous seven (7 ) years of service as Sheriff." The June 24,

2002, letter also asked for "guidance" from Respondent.

11. The purpose of the June 24, 2002, letter was for

Petitioner to learn how Respondent intended to treat his first

six years of service. Petitioner sought to avoid any problems

since his retirement date was rapidly approaching.

12. On October 10, 2002, Petitioner and Mr. George

Dandelake, the Chief of the Budget and Management Division of

the Sheriff's Office, wrote to Ms. S nuggs requesting a

calculation of the amount of employer contributions required on

Petitioner's behalf. The October 10 letter also requested that

Respondent "identify what documents are required, in addition to

the contribution amount which will be paid b y the City, that

must be supplied to the Florida Retirement System."

13. Petitioner re - applied for membership in FRS, which was

granted on June 1, 2002, after the effective date of the

legislation designed to specifically admit the Duval County

Sheriff a nd Clerk of Court into FRS.

14. On June 18, 2003, twelve days before the expiration of

his term of office, still not having received confirmation of

the status of his prior service, Petitioner sent a letter to

Ms. Snuggs advising that FRS had not recogn ized his service from

1995 through 2002. Petitioner again stated in the letter that

he was terminating his position as Sheriff on June 30, 2003.

15. Less than a week prior to the termination of his term,

Petitioner received two "Statement[s] of Account" dated June 24,

2003, indicating that "you have until retirement to pay the

amount due on your account." The st atements further indicated

that "when you become vested for monthly benefits, we will

provide you an estimate of benefits with and without this

service."

16. According to the first Statement of Account,

Petitioner was entitled to purchase prior service at the 1.6

percent multiplier rate for the FRS regular class.

17. According to the second Statement of Account,

Petitioner was entitled to purc hase prior service at the 2.0

percent multiplier rate for the FRS special risk class.

18. Neither Statement of Account was correct, as both

failed to permit Petitioner to purchase service at the 3.0

percent rate for special risk, despite the fact that Pe titioner

had served a continuous and uninterrupted term as Sheriff.

19. The Statement of Account did not advise Petitioner

that he must submit a separate retirement application,

Form FR - 11, in order to preserve his retirement date.

20. The statement d id advise Petitioner that interest

would be assessed at a rate of 6.5 percent . This warning

appeared in bold face on the Statement of Account.

21. The June 24, 2003 , s tatements were the first time that

Petitioner was supplied with the amount due to purc hase service

credit. Since neither s tatement applied the correct multiplier

rate ( 3.0 percent ) for all eight years of Petitioner's service

as Sheriff , neither s tatement was correct.

22. Recognizing that only six days remained prior to the

expiration of Petitioner's term as Sheriff, Mr. Keane advised

Petitioner to submit payment to Respondent on an expedited

basis.

23. After receiving the June 24, 2003, Statements of

Account, Petitioner prepared a letter dated June 26, 2003, to

Cal Ray, the Director of the Department of Administration and

Finance for the Consolidated City of Jacksonville. In this

letter, Petitioner requested an employer contribution in the

amount of $163,554.32 to purchase his prior service. Petitioner

further requested an expedited pr eparation of the check to

ensure delivery to Respondent by July 1, 2003.

24. The letter to Mr. Ray requested payment of the amounts

that would have been periodically contributed by the City of

Jacksonville if Respondent had been acknowledged as a

partici pant in FRS in 1995.

25. On June 27, 2003, three days prior to the expiration

of his term of office, Petitioner drove from Jacksonville to

Tallahassee to meet with Respondent's representatives, including

Ms. Snuggs, regarding Petitioner's retirement. Mr . Dandelake

accompanied Petitioner on this trip.

26. At the June 27, 2003, meeting, Petitioner personally

delivered a check to Respondent in the amount of $163,554.32.

Respondent accepted the check and issued a written receipt

signed by Sarabeth Snuggs.

27. Petitioner was never told during the June 27, 2003,

meeting with Respondent that he would forfeit benefits if he

failed to complete an application.

28. Respondent knew that Petitioner was leaving office on

June 30, 2003.

29. Respondent never dis cussed the filing of an

application for retirement benefits at any time during the

course of its conversations and correspondence with Petitioner.

30. Petitioner was never told by Respondent to complete

any forms to protect his rights to the 2.0 percent multiplier

during the pendency of his dispute with Respondent. Petitioner

was never provided any handbook, notice, statutes, or rules

indicating he would forfeit benefits under any circumstances.

31. When Petitioner left the June 27, 2003, meeting, bot h

he and Mr. Dandelake understood that he was still engaged in a

dispute with Respondent over his entitlement to the 3.0 percent

multiplier.

32. Petitioner knew that he was required to file an

application in order to receive retirement benefits.

3 3 . Pe titioner testified that if he had left the June 27

meeting with any indication that he would forfeit benefits by

not filing an application, he would have filed something, with

advice of counsel, to preserve his rights.

34 . Petitioner received an Estimate of Benefits via fax

from Respondent on June 27, 2003, reflecting an annual benefit

of $23,105.90. This statement valued 6.92 years of Petitioner's

uninterrupted special risk service as Sheriff using the 2.0

percent multiplier, and 1.08 years of service a s Sheriff using

the 3.0 percent multiplier.

35 . The June 27, 2003, s tatement lists Petitioner's

retirement date as July 1, 2003. The estimate does not warn

Petitioner that he must do anything in order to preserve his

July 2003 retirement date. The esti mate states only that it is

subject to "final verification of all factors."

36 . Petitioner's term of office as elected Sheriff ended

on June 30, 2003. Petitioner's employment terminated when his

term expired on that date.

37 . Respondent was aware of the dates of the expiration of

Petitioner's term of office as well as his employment

termination date.

38 . When Petitioner's employment terminated on June 30,

2003, it was unclear whether he would be credited with the 3.0

percent multiplier for his eight years of special risk service.

39 . Petitioner was not notified by Respondent prior to the

expiration of his term as Sheriff on June 30, 2003, that he

needed to submit a retirement application .

40 . The first time Petitioner was advised b y Respondent of

the need to file an application for retirement benefits was in

the comment section of the Estimate of Retirement Benefits

provided to him by letter dated March 4, 2004. The warning was

printed in bold face type.

41 . The Estimate of Retirement Benefits dated June 27,

2003, did not include the bold face warning to file an

application.

42 . Respondent was not provided with a Division of

Retirement publication entitled "Preparing to Retire" prior to

his leaving service on June 30, 2003. In fact, the copy of the

publication offered into evidence by Respondent is dated "July

2003," subsequent to Petitioner's retirement.

43. As the only member of FRS in his office in

Jacksonville, Petitioner had no staff or employees trained in

FRS or Florida retirement ben efits.

44 . Petitioner was provided with a " P reparing to Retire"

booklet in March 2004.

45 . On November 3, 2003, Florida Attorney General Opinion

2003 - 46 confirmed that Petitioner, as the elected Sheriff, was

eligible for membership in the Elected Offic er's Class of the

Florida Retirement System.

46 . On December 31, 2003, and on January 16, 2004,

Petitioner's counsel attempted to obtain clarification from

Respondent regarding Petitioner's retirement benefits.

47 . The December 31, 2003, letter noted t hat the

"extraordinary delay" in resolving the issue of Petitioner's

benefits was at no time due to fault on the part of Petitioner.

Respondent never refuted or disputed this statement.

48 . By letter dated March 4, 2004, Petitioner was finally

advised b y Respondent that he was entitled to be credited with

the higher 3.0 percent multiplier for all eight years of his

service as Sheriff.

49 . Petitioner noted that the March 4, 2004, Statement of

Account, while properly applying the 3.0 percent multiplier, now

had changed Petitioner's retirement date to April 2004 from the

previous estimates showing a retirement date of July 2003.

50 . The March 4, 2004 , s tatement included the bold face

notice to Petitioner that he must file an application for

retirement be nefits. No prior notices or correspondence from

Respondent had informed Petitioner that he must file Form FR - 11

in order to retain his retirement date of July 1, 2003.

51 . After formally being notified that he would receive

the 3.0 percent multiplier fo r all eight of his years of service

as Sheriff, and after having received the notice that he must

file Form FR - 11, Petitioner submitted the form in April 2004.

52 . Respondent is a fiduciary charged with acting in the

best interest of participants in FRS.

53 . Andy Snuggs, who travels around the state educating

employers and employees in FRS, acknowledged that Petitioner was

not responsible for the delay by Respondent in recognizing

Petitioner's entitlement to the 3.0 percent multiplier.

54 . Mr. Snuggs acknowledged that he does not tell

employees that they will forfeit benefits if they delay the

filing of their applications.

55 . Petitioner received his first retirement check in

May 2004 which was based upon the benefit established in

March 2004 of $3 2,624.58 annually, not the $23,105.90 previously

established by Respondent in June 2003.

56 . Petitioner has received no retroactive benefits for

the period of July 1, 2003, through April 30, 2004.

57 . In a letter dated May 6, 2004, Petitioner stated t hat

his acceptance of the first retirement check was not to be

construed by Respondent of a waiver of his rights to retroactive

benefits from July 1, 2003, forward.

CONCLUSIONS OF LAW

5 8 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569 and 120.57(1), Fla. Stat.

59 . The burden of proof in an administrative proceeding is

on the party asserting the affirmative of an issue. Department

of Transportation v. J.W.C., Inc. , 39 6 So. 2d 778 (Fla. 1st DCA

1981). Accordingly, Petitioner has the burden in this

proceeding to demonstrate entitlement to the effective

retirement date of July 1, 2003, which would result in nine

additional months of benefits.

60 . Section 121.091, Florid a Statutes, provides that

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

has terminated employment and a proper application has been

filed in the manner prescribed by the department."

61 . Florida Administrative Code Rule 60S - 4.0035, i n

per tinent part, provides:

(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 effe ctive retirement date as

follows:

(a) For a member who makes application for

a normal or early retirement benefit as

provided in Florida Administrative Code Rule

60S - 4.004 or 4.005, the effective retirement

date shall be the first day of the month

follow ing the month in which the member's

termination occurs, provided the Division

receives such member's application for

retirement 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 first day of the month following the

month in which the Division receives the

member's application, or the first day of a

later month s pecified by the member.

62 . Section 121.052(2)(d), Florida Statutes, provides, in

pertinent part, the following with respect to membership in the

"Elected Officers' Class" of employees:

Any constitutional county elected officer

assuming office on or afte r July 1, 1981,

including any sheriff, tax collector,

property appraiser, supervisor of elections,

clerk of the circuit court, county

commissioner, school board member, or

elected school board superintendent, or any

elected officer of any entity with

count ywide jurisdiction assuming office on

or after July 1, 1981, who, pursuant to

general or special law, exercises powers and

duties that, but for such general or special

law, would be exercised by any of the

constitutional county elected officers set

forth in this paragraph, including the

sheriff and clerk of the circuit court in a

consolidated government with countywide

jurisdiction unless such sheriff or clerk

elected to continue to participate in a

local retirement system.

63 . Petitioner, with the acqui escence of Respondent,

requested an Attorney General's Opinion concerning the

applicability of Section 121.052(2)(d), Florida Statutes, to his

position as Sheriff of Duval County . O pinion N o. 2003 - 46 ,

issued by Attorney General Charlie Crist on November 3 , 2003,

points out the plain language of the statute as it relates to

Petitioner's position as Sheriff of Duval County, a

"consolidated government with countywide jurisdiction." Section

121.052(2)(d), Florida Statutes , was amended to unequivocally

include the elected officers of the consolidated Duval

County/Jacksonville government in the Elected Officers' Class.

Therefore, Respondent was placed on notice of Petitioner's

eligibility for inclusion in the class, and use of the 3.0

percent multiplier no late r than mid - 2002. The Attorney

General's Opinion merely reiterated what Respondent should have

already known: Sheriff Glover was a member of FRS entitled to

the 3.0 percent multiplier well before the time of his

retirement.

64 . Respondent failed at hearin g to provide any reasonable

explanation for its inability to accurately calculate

Petitioner's retirement benefits using the 3.0 percent

multiplier applied to the eight years of his term - limited office

as Sheriff of Duval County. The issue remaining in th is case is

whether Petitioner is entitled to recover his lost benefits for

the first nine months of his retirement.

65 . Without question, Respondent knew for a lengthy period

of time prior to the expiration of Petitioner's term as Sheriff

that he intended to retire at the end of his term. Just as

clearly, Petitioner neither had the benefit of a human resources

or personnel officer at the City of Jacksonville well versed in

FRS and state retirement procedures nor had the benefit of

Respondent's employee, M r. Snuggs, visiting Jacksonville to

educate him and other participants in FRS on the fine points of

the application and retirement process. Petitioner was left to

fend for himself, which he admirably did with the aid of legal

counsel and experienced city personnel. He was even placed in

the position of having to drive to Tallahassee at the eleventh

hour to ensure the City's contribution to his retirement was

made on time. The evidence supports the fact that Petitioner

never even received the employee's r etirement manual until

nearly a year after his employment terminated.

66 . The Division of Administrative Hearings has no

equitable jurisdiction to award equitable relief. Such

jurisdiction is vested in the circuit courts of Florida pursuant

to Section 2 6.012(2)(c), Florida Statutes. However, the courts

have noted that the administrative process in this state

routinely handles cases in which the parties have introduced

estoppel issues. Occidental Chemical Agricultural Products,

Inc. v. Dept. of Environm ental Protection , 501 So. 2d 674 ( Fla.

1st DCA 1987). See , e.g. , Kuge v. Div ision of Retirement , 449

So. 2d 389 (Fla. 3d DCA 1984); Fraga v. Dept. of Health and

Rehabilitative Services , 464 So. 2d 144 (Fla. 3d DCA 1985); and

Salz v. Div isio n of Retirement , 432 So. 2d 1376 (Fla. 3d DCA

1983). But, the courts have recognized that equitable estoppel

will be applied against the state "only in rare instances and

under exceptional circumstances." Dept. of Revenue v. Anderson ,

403 So. 2d 397, 400 (Fla. 1981), c iting North American Co. v.

Green , 120 So. 2d 603 (Fla. 1959). Another general rule is that

the state cannot be estopped through mistaken statements of the

law. Dept. of Revenue v. Hobbs , 368 So. 2d 367 (Fla. 1st DCA),

appeal dismissed , 378 So. 2d 345 (F la. 1979); Austin v. Austin ,

350 So. 2d 102 (Fla. 1st DCA 1977), cert. denied , 357 So. 2d 184

(Fla. 1978).

67. The elements that must be established for the doctrine

of equitable estoppel to apply against a governmental agency are

set forth in Council Bro thers 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." Dept.

of Revenue v. Anderson , 403 So. 2d 397, 400

(Fla. 1981).

* * *

One seeking to invoke the doctrine of

estop pel against the g overnment 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 government conduct will cause serious

inj ustice, 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).

68. The difficult determination to make in this matter is

whether Petitioner relied u pon a misrepresentation by Respondent

as to a material fact that is contrary to a later asserted

position. Here, Respondent asserted that Petitioner was

entitled only to the 2.0 percent multiplier for calculating his

retirement benefits when by statute cl arified no later than

2002, Petitioner was without question a member of the Elected

Officer's Class and entitled to the 3.0 percent multiplier .

Respondent appeared unable to understand its own statute as it

applied to Petitioner's eligibility to receive t he higher

multiplier. This is a mistake in law , not material fact.

Petitioner disputed the 2.0 percent conclusion both before and

during his meeting with Respondent on June 27, 2003, just days

before his retirement. Respondent did not tell Petitioner th at

he must file his application for retirement benefits even though

he disputed the multiplier, yet Petitioner candidly testified

that he believed he was required to file an application in order

to secure his retirement benefits. His fear, of course, was

that if he filed his application while the issue of the

multiplier was still unresolved, he might waive his right to

continue to fight for the significantly higher benefit. This

acknowledgment by Petitioner that he knew an application must be

filed tends to negate his reliance on the action or inaction of

Respondent as to notifying him of his obligations. Left

unanswered is why Respondent failed to inform Petitioner in

June 2003 on the Estimate of Benefits form that he must file an

application , yet infor med him in bold faced type on the same

form in March 2004 that he must file his application immediately

in order to begin receiving benefits in April 2004. This sounds

as though the issue w ere unsettled in June 2003 and remained

unsettled until March 2004 .

69. The final issue of law is whether the doctrine of

equitable tolling should apply here. While equitable tolling

generally is not employed in cases involving the mere failure to

provide any information to an employee , Hickey v. Division of

Retirement , Case No. 98 - 3895 ( DOAH March 9, 1999) , adopted in

toto by Final Order 5/10/99) and Behnke v. Division of

Retirement , Case No. 00 - 0697 ( DOAH August 14, 2000 ), the Florida

Supreme Court held in Machules v. Dept. of Administration , 523

So. 2d 1132 (1988), b oth that the principles of equitable

tolling are applicable to administrative cases and that the

doctrine should apply when an applicant has been misled or

lulled into inactivity by an agency, and has been diligent in

seeking to protect his rights after di scovering the error.

Here, Petitioner was lulled into inactivity by virtue of the

fact that he continued to engage in debate and discussion with

Respondent after his employment termination date of June 30,

2003, had passed. Not until the Attorney General was asked to

weigh - in and the issuance of his Opinion clarifying the already -

clear statute with respect to Petitioner's class of employment,

as well as the issuance by Respondent of yet another Estimate of

Benefits calculation to Petitioner in March 2004, was Petitioner

in a position to apply for the retirement benefits to which he

was justly entitled. Moreover, Petitioner was extremely

diligent in seeking his appropriate benefits from Respondent.

For years he corresponded with Respondent to clarify the issues

related to Jacksonville's status and his eligibility to

participate in FRS. Petitioner personally drove to Tallahassee

to deliver the City's payment of the employer contribution prior

to his termination date. No evidence was produced at hearing

th at would lead any reasonable person to believe that Petitioner

intended to leave office and retire on any date other than

June 30, 2003. Once he was made aware of the proper calculation

of his retirement benefits, Petitioner immediately filed his

applica tion for benefits. Even then, he was forced to write to

Respondent to state that his acceptance of his first retirement

check should in no way be construed as a waiver of his right to

seek the nine months of retirement pay to which he felt

entitled. Peti tioner received no assistance from Respondent,

either through pre - retirement education, or during the process

Petitioner was forced to endure as his retirement loomed large

on the horizon.

70. In light of the circumstances under which Petitioner,

a career law enforcement officer, was forced to pursue with

great fervor his earned retirement pay, he should be entitled to

receive his full retirement benefits retroactive to July 1,

2003. This conclusion is supported by the testimony at hearing

of both Petitio ner , his colleagues who supported him during this

difficult process, and by Respondent's representatives who

should have been more helpful when dealing with a member of FRS

in need of the agency's expertise and guidance.

RECOMMENDATION

Based upon the Find ings of Fact and Conclusions of Law, it

is

RECOMMENDED that Petitioner be awarded retirement benefits

at the rate of 3.0 percent per year for his eight years of

Elected Officer's Class of service, retroactive to July 1, 2003.

DONE AND ENTERED this 21st d ay of Ju ly , 2005 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of Ju ly , 2005 .

COPIES FURNISHED :

Robert D. Klausner, Esquire

Klausner & Kaufman, P.A.

10059 Northwest 1st Court

Plantation, Florida 3 3324

Robert B. Button, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

Alberto Dominguez, General Counsel

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.