05-002428 Herman Johnson vs. Department Of Management Services, Division Of Retirement And Department Of Revenue Status: Closed Recommended Order on Friday, January 6, 2006.

Summary: Petitioner did not carry the burden of proof to establish that a retirement check mailed to him was not renewed and cashed by him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERMAN JOHNSON , )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 2428

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

________________________ _____ )

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

case on September 26, 2005 , in Starke , Florida, before Ella Jane

P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANC ES

For Petitioner: Terence M. Brown, Esquire

Brown & Broling, P.A.

Post Office Box 40

Starke, Florida 32091 - 0040

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplandade Way, Suite 16 0

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a refund of, or credit

equal to, the amount of the contributions he m ade to the

Florida Retirement System (FRS) for service between November 8,

1971 and June 30 , 1972.

PRELIMINARY STATEMENT

Petitioner requested credit to FRS for his service for

November 8, 1971 through June 30, 1972. In a proposed final

agency action letter dated November 30, 2004, Respondent Agency

denied his request. Petitioner timely re quested a disputed - fact

hearing, and the case was referred to the Division of

Administrative Hearings on or about July 7, 2005.

At hearing, Petitioner testified on his own behalf and had

one exhibit admitted in evidence. Respondent presented, by

telephone , the oral testimony of Andrew Snuggs, who was accepted

as an expert in FRS retirement calculations. Respondent had 15

exhibits admitted in evidence. 1/ Official recognition was taken

of certain requested statutes and rules.

A Transcript was filed on November 14, 2005. Respondent

filed a Proposed Recommended Order on November 28, 2005.

Petitioner filed a Proposed Recommended Order on December 9,

2005. Because the parties had stipulated to file their

proposals no later than November 24, 2005 ; and bo th proposals

were filed late, both proposals have been considered. 2/

F INDINGS OF FACT

1. Petitioner was employed as a paraprofessional by the

Alachua County School Board from November 8, 1971 through

June 30 , 1972. During this period, he was a participa nt in FRS.

2. Petitioner was employed as a County Commissioner by the

Bradford County Board of County Commissioners from November 19,

1996 , through November 16, 2004 . D uring this period, he was a

participant in FRS.

3. On October 20, 2004, Petitioner filed an Application

for Service Retirement with Respondent Division of Retirement.

4. Respondent's audit of Petitioner's FRS account

indicat ed that Petitioner had been paid in 1976 for his service

with the Alachua County School Board.

5. By an October 21, 2004 , letter, Respondent acknowledged

receipt of Petitioner's Service Retirement Application and gave

Petitioner the opportunity to "buy back" his 1971/1972 time with

the Alachua County School Board.

6. By a November 18, 2004 , letter, Respondent noti fied

Petitioner that he must provide either a check to buy back his

1971/1972 time or a written statement indicating he did not want

to purchase the service. Petitioner sent Respondent's letter

back to Respondent with the following handwritten letter at t he

bottom, "I do not wish to purchase this service. Send check of

refund." Petitioner signed and dated his signature, "11 - 23 -

04." 3/

7 . Respondent notified Petitioner, in a proposed final

agency action letter dated November 30, 2004, that an audit of

his FRS account showed that, in the 1975/1976 fiscal year,

Petitioner had requested a refund of his contributions to FRS

for the period from November 8, 1971 through June 30 , 1972. The

letter noted that a refund check, in the amount of $104.00,

representi ng the Petitioner's full contribution to FRS had been

issued on February 11, 1976. Respondent enclosed with the

letter a copy of the signed refund request card bearing a

signature it presumed to be Petitioner's. Respondent's letter

also informed Petition er that he could reinstate this service

credit by repaying the $104.00, plus accrued interest, for a

total of $645.89. It further stated that Respondent had

received Petitioner's written statement that he did not wish to

repurchase this service credit and therefore his name would be

added to the retired payroll without the refunded service.

8 . By a December 16, 2004, letter , Petitioner asked

Respondent to get a handwriting expert to prove his signature on

the refund request card was a forgery and a frau d. Respondent

did not get a handwriting expert, but r eferred the underlying

issue to the Division of Administrative Hearings.

9 . Respondent is the State Agency charged with the

responsibility of administering FRS. Its information management

system mai ntains a file on each member of FRS, including

Petitioner. This file permits the construction set forth in

Respondent's November 30, 2004 , letter.

10 . Respondent's file also reflects that on or about

November 2, 1998, Respondent , after conducting an audi t of

Petitioner's retirement account, determined that Petitioner then

would have had to submit a check in the amount of $442.65, if

Petitioner wanted to purchase previously refunded service from

November 8, 1971 through June 30, 1972.

11. Also, the file reflects that a letter , dated

November 16, 1998, was mailed to Petitioner, in care of (c/o)

the Bradford County Board of County Commissioners (of whom

Petitioner was one at the time), at the Board's official

address . This letter provided Petitioner with a Statement of

Account , which reflected the findings of the above audit and

explained that Petitioner had the option to purchase his

refunded service.

12. At the time of leaving his FRS - covered employment in

June 1972, Petitioner had accrued .80 years (ei ghty per cent of

one year) of creditable service in FRS, which computed to

$104.00 , but he was not a vested member of FRS .

13. In early 1976 , Respondent received a "Request for

Refund" card, dated "12 - 22 - 75," bearing Petitioner's name,

social security num ber, mailing address, and what purported to

be Petitioner's signature.

14. The mailing address listed on the refund card was, and

still is, Petitioner's mailing address. It is a post office

box. At all times material, Petitioner had the sole key to th is

post office box .

15. It was not unusual in 1975 for a non - vested member of

FRS to request a refund of accumulated contributions in FRS

after terminating employment. Reasons for this might include an

intention not to return to work for the State or an immediate

need for the money contributed.

16. Respondent Division of Retirement and the Comptroller

followed their established procedures when they processed the

request for refund card. Respondent Division of Retirement

provided the pertinent informatio n from the card to the

Comptroller and requested a corresponding warrant. The

Comptroller prepared a warrant in the requested amount and

returned it to the Division, along with a computer - printed label

that contained Petitioner's name and social security number, the

refunded amount ($104.00), voucher number (270029), warrant

number (0304887), and the date of the warrant (February 11,

1976). Upon receipt of the warrant and label, Respondent

affixed the label to the refund request card , somewhat left of

the middle, and over some of the other printing and markings .

The label was affixed rather than filling out by hand the

printed space indicated for the same information in the lower

right hand corner of the card. The Respondent Division then

mailed the warr ant to Petitioner's address of record.

17. It is possible, but unlikely because he was employed

elsewhere at the time (see Finding of Fact 18 ) that in 1975,

Petitioner made out the refund request card at t he office of his

former employer , the School Board of Alachua County , and

transmitted it t hrough the former employer's office to

Respondent. Petitioner could also have transmitted it

personally under those conditions , but there is no affirmative

proof either of the foregoing scenarios occurrence . It is

possible that when the card was transmitted to the Respondent,

it did not already have the necessary approval information

filled out by a representative of the School Board of Alachua

County , providing the date of Petitioner's last retirement

deduction, em ployer agency code, and approval signature, but

there is no affirmative proof of this , either . It is possible

that the card acquired this information before it was submitted

to Respondent or that Respondent requested that the former

employer place this in formation on the card before Respondent

request ed that the Comptroller cut a State warrant to

Petitioner . Therefore, it also is possible that the card was

handled sometime during the process by persons in the office of

the School Board of Alachua County, who may also have corrected

dates in the request portion of the card, presumably filled out

by Petitioner, but there is no affirmative proof that any of

that chain of conjectured events actually happened. Respondent

now cannot determine how the Agency ini tially was contacted (in

writing or by telephone) concerning the refund or whether it was

initially contacted by Petitioner or by his first FRS employer,

the Alachua County School Board. However, nothing in this chain

of possible, yet unproven, events alt ers Mr. Snuggs ' clear and

convincing testimony that at the time at issue , retirement

refund checks were mailed by Respondent directly to the address

of the former State employee, not to the former employing

agency. 4/

18. At hearing, Petitioner admitted th at, when he left

State employment in 1972, he had no idea what the future would

bring and that he continued to run for office (presumably an

FR S - covered employment) whenever the opportunity arose.

Petitioner also testified that he was working for IBM in l ate

1975 and early 1976 and that his financial situation was "pretty

good."

19. However, Petitioner denied executing the request for

refund card and further denied ever receiving the State warrant

for $104.00.

20. The actual warrant at issue was destro yed by the

Comptroller's Office in accordance with its statutory document

control schedule, so it is impossible to determine who endorsed

and cashed it.

21. Petitioner contended that the signature on the refund

request card was not his, but a forgery. He based this claim on

his belief that he "never had a signature that looked that

good." Respondent produced no handwriting expert to refute this

testimony. However, Petitioner admitted that the appearance of

his signature had "changed from time to time, " and Respondent

offered in evidence three examples of Petitioner's signature to

show the different forms Petitioner's signature has taken over

the years. Upon reviewing these exhibits, Petitioner conceded

that all of the examples were of his signature an d that they

"don't look the same."

22 . The undersigned has compared the three acknowledged

signatures with the signature on the refund request card. T here

are differences among all of them, and the undersigned cannot

make any reasonable finding of fact one way or the other as to

the authenticity of the signature on the retirement refund card

in this case.

CONCLUSIONS OF LAW

2 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accor dance with Section 120.569 and Subsection

120.57(1), Florida Statutes.

2 4 . FRS is codified in Chapter 121, Florida Statutes.

2 5 . Chapter 121, Florida Statutes, provides for compulsory

participation in FRS for all employees hired after December 1,

1970. § 121.051, Florida Statutes.

2 6 . Respondent is the State Agency charged with the

responsibility of administering FRS. § 121.025, Fl a. Stat.

27. Prior to 1975, FRS was "contributory," meaning that

each FRS member was required to contribute a percentage of his

or her salary to the FRS Trust Fund. Contributions to the FRS

Trust Fund were also made by each member's employer.

§ 121.071(2)(a), Fla. Stat.

28. On January 1, 1975, FRS became "non - contributory" for

members, meaning that each mem ber's employer made all

contributions to FRS. § 121.071(2)(a), Fla. Stat.

29 . Upon termination for any reason other than retirement,

a member could request a full refund of contributions paid prior

to the date upon which FRS became non - contributory.

§ 121.071(2)(b), Fla. Stat.

30 . If a member receives a refund of contributions and

does not "purchase it back," the member waives all rights under

FRS to the service credit represented by the refunded

contributions. § 121.071(6)(c), F la. Stat.; Fla. Adm in. Code.

R. 60S - 3.002(6).

31 . The burden of proof in administrative hearings i s on

the party asserting the affirmative of an issue. Department of

Banking and Finance , Division of Secur i ties and Investor

Pro tection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996) ;

Florida Department of Transportation v. J. W. C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981). This burden has been

specifically adopted for the instant type of case. Johnson v.

Dept. of Management Services , DOAH Case No. 04 - 1685 (RO:

S eptember 22, 2004); Holt v. Dept. of Management Services , DOAH

Case No. 04 - 1046 (RO: June 24, 2004); and Helms v. Dept. of

Management Services , DOAH Case No. 02 - 0354 (RO: April 17, 2002).

The standard of proof is a preponderance of the evidence.

Florida Department of Health and Rehabilitative Services v.

Career Service Commission , 289 So. 2d 412 (Fla. 4th DCA 1974),

and Section 120.57(1)(j), Florida Statutes.

32. Petitioner herein has the burden of proving by a

preponderance of the evidence that he did not receive a refund

and that he is therefore now entitled to a refund of, or a

credit equal to, the accumulated contributions he made for the

period of employment at issue. A "preponderance of the

evidence" means that Petitioner must prove that it is "m ore

probable than not" that he did not receive a refund and that he

is therefore now entitled to a refund of, or a credit equal to,

the accumulated contributions he made to FRS. See cases cited

supra ; and Holland v. Dept. of Management Services , DOAH Case

No. 02 - 0986 (RO: June 24 , 2002), involving request by respondent

for a refund of an overpayment of petitioner's retirement

contribution refund .

33 . Herein, Petitioner's evidence is little more than his

bare assertion , thirty years after the fact, that h e did not

sign the 1975/1976 request for refund card and that he did not

receive the refund warrant. I detect no dishonesty on

Petitioner's part, only a confusion of memory. Since the refund

check was mailed to a post office box to which only Petitioner

had a key, it is more probable than not that he did receive the

State warrant, and by inference, that he is the one who endorsed

and cashed that warrant.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED :

That a final order be entered which denies Petitioner's

request for a refund or credit for the amount of the accumulated

contributions he made to FRS between November 8 , 1971 , and

June 30 , 1972.

DONE AND ENTERED this 6th day of January , 200 6 , in

Talla hassee, Leon County, 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 January , 200 6 .

ENDNOTES

1/ The Table of Contents of the Transcript i s in error, but its

transcribed pages 8, 9, and 58 will bear out these statements.

2/ Petitioner 's Proposed Recommended Order has been considered

over R espondent's objection in the form of a Motion to Strike,

filed December 19, 2005. Respondent's proposed "stipulated

facts" were only stipulated to by Respon dent. Petitioner

stipulated only to Respondent's exhi bi ts.

3/ Petitioner testified that he made this request because he

knew that Respondent was holding some money for him from "that

time." Clearly, Petitioner did not understand his options as

set out in the letter, but equally clearly, he was seeking a

one - time payment, and was not seeking credit in time served in

government employment.

4/ Cases cited by Respondent indicate that through 1974, refund

applications had to be made by the former employee through the

former FRS employer, and that through 1974 , refund checks were

sometimes mailed to the former FRS employer for pickup by the

former employee. ( See Conclusion of Law 31.)

COPIES FURNISHED :

Terence M. Brown, Esquire

Brown & Broling, P.A.

Post Office Box 40

Starke, Florida 32091 - 0040

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplandade Way, Suite 160

Tallahassee, Florida 32399

Alberto Dominguez, Esquire

Department of Management Services

Division of Retirement

40 50 Esplanade Way

Tallahassee, Florida 32399 - 0950

Sarabeth Snuggs, Interim Director

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

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 the final order in this case.