10-002233 Michael Delong vs. West Palm Beach Police Pension Fund Status: Closed Recommended Order on Tuesday, October 12, 2010.

Summary: Petitioner did not accrue service credit during time he received disability retirement benefits and, therefore, was not vested in the pension plan. Request for vested deferred retirement benefits should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL DELONG, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2233

)

WEST PALM BEACH POLICE PENSION )

FUND, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 14, 2010, by video teleconference, with the parties

appearing in West Palm Beach, Florida, before Patricia M. Hart,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who pres ided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Frank J. McKeown, Jr., Esquire

The Law Office of Frank J.

McKeown , Jr. , P.A.

2000 Palm Beach Lakes Boulevard

Suite 701

West Palm Beach, Florida 33409 - 6505

For Respondent: Bonni S. Jensen, Esquire

Perry & Jensen, LLC

400 Executive Center Drive, Suite 207

West Palm Beach, Florida 33401 - 2922

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible for vested deferred

retirement pension benefits payable by the West Palm Beach

Police Pension Fund ("Fund").

PRELIMINARY STATEMENT

In a letter dated March 18, 2010, the Board of Trustees

("Board") of the Fund notified Michael DeLong that it intended

to deny his request for an early or normal retirement benefit

payable by the Fund. The Board advised Mr. DeLong that it had

determined that he was not "eligible for any further benefits

from the plan because you did not have 10 years of credited

service." The Board attached to the letter a Proposed Order,

and it notified Mr. DeLong that he had the right to appeal the

Board's preliminary decis ion. Mr. DeLong timely filed his

appeal. The Board transmitted the matter to the Division of

Administrative Hearings for the assignment of an administrative

law judge, pursuant to the contract between the Fund and the

Division of Administrative Hearings.

The final hearing was held on July 14, 2010. At the

hearing, Mr. DeLong testified in his own behalf. The Fund

presented the testimony of David M. Williams, Jeffrey Amrose,

and Robert Klausner. Joint Exhibits 1, 2.1 through 2.11, 2.13

through 2.33, and 3 through 11 were offered and received into

evidence.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on July 22, 2010. The

parties timely filed proposed findings of fact and conclusions

of law, which ha ve been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, on the stipulation of the parties, and on the

entire record of this proceeding, the following find ings of fact

are made:

1. The Fund is a vested defined benefit pension plan

created by Special Act of the Florida Legislature pursuant to

Chapter 185, Florida Statutes. See Ch. 24981, Laws of Fla.

(1947), as amended by Ch. 88 - 105, Laws of Fla. ("Fund

doc uments"). 1 It is funded by contributions from its members;

the City of West Palm Beach, Florida; and the State of Florida.

2. Mr. DeLong was employed by the Police Department of the

City of West Palm Beach ("Police Department") on November 26,

1979.

3. Mr. DeLong was injured in the line of duty in or about

1987. He submitted an Application for Retirement dated May 26,

1988, under the category of " Duty Disability. "

4. Mr. DeLong retired from the Police Department effective

November 17, 1988, after the B oard approved his application for

disability retirement benefits. At the time of his disability

retirement, Mr. DeLong had service credit under the Fund of

eight years, 11 months, and 21 days.

5. Mr. DeLong received a monthly disability retirement

benefi t of $1,725.59.

6. In a letter dated April 19, 1989, Mr. DeLong applied

for a specialized assignment with the Police Department. He

enclosed with the letter an Application for Specialized

Assignment, indicating that his "requested assignment" was

"helico pter f l ight officer," and he stated that he believed he

could "perform flight operations." 2

7. The opening for specialized assignment for helicopter

patrol was advertised in the April 7, 1989, Police Department

Bulletin, and the assignment was described i n pertinent part as

follows: "The position will be considered a Part - time Position

that will utilize selected officers both during their On - Duty

and Off - Duty hours. Overtime will be afforded those who work

while Off - Duty."

8. At its meeting on June 14, 1989, the Board was advised

of Mr. DeLong's application for specialized assignment as a

helicopter pilot. Questions arose as to whether Mr. DeLong

continued to be disabled, as defined in the Fund documents, and

entitled to continue receiving disability re tirement benefits.

In order to determine if Mr. DeLong was still disabled, the

Board directed that Mr. DeLong be examined by a physician chosen

by the Board "for the purpose of securing a medical opinion as

to whether Mr. DeLong is physically able to perf orm the duties

of the position being sought." 3

9. In a letter dated June 20, 1989, Michael F. McClure,

the Assistant Chief of the Police Department's Uniform Services

Division, advised Mr. DeLong that he could not be considered for

the helicopter patrol a ssignment because he was "not a full - time

employee with the police department." 4 Chief McClure further

stated that "[i]f, at some later date, you are determined by a

physician to be capable of returning to full duty, you [sic]

application will be consider ed." 5

10. As reflec ted in the minutes of the Board' s meetings on

August 22, 1989; November 8, 1989; and December 7, 1989; the

Board was unable to conclude, on the basis of the information

provided to it, that Mr. DeLong was physically capable of

performin g the duties of a police officer.

11. The minutes of the December 7, 1989, meeting reflect

that Mr. DeLong' s attorney at the time, Scott Richardson,

represented to the Board that "Dr. Stone [the physician chosen

by the Board to examine Mr. DeLong] stated that while Mr. DeLong

is not totally disabled that he would be limited in terms of

being prevented from performing the normal duties of a Police

Officer." 6 The minutes also reflect that Mr. Richardson stated

that "the Police Department states that due to these limitations

that Mr. DeLong would not be rehired." 7

12. The Board' s attorney framed the question before the

Board at the December 7, 1989, meeting as follows: "[T]h e

question is whether Dr. Stone' s re - evaluation would warrant the

Trustees determini ng that Mr. DeLong was no longer eligible to

receive Disability Benefits." At the conclusion of its

discussion of Mr. DeLong' s situation, the Board voted

u nanimously "to accept Dr. Stone' s report and to recognize that

Mr. DeLong is still eligible to recei ve Disability Benefits."

13. Mr. DeLong continued receiving disability retirement

benefits until the Board decided to discontinue the benefits at

its meeting on October 30, 1990.

14. In or about early October 1990, the Board learned that

that Mr. DeLong was employed as "a sworn Law Enforcement

Officer" with the Palm Beach County Sheriff's Office. 8

Mr. DeLong was adv ised in a letter from the Board' s attorney

dated October 12, 1990, that Ðdisability retirement is payable

only as long as you are totally in capacitated from performing

the functions of a police officer." Mr. DeLong was asked to

appear at the Board's October 30, 1990, meeting to "show cause

why your disability pension should not be terminated." 9

15. In a letter dated October 23, 1990, Mr. DeLong's

attorney advised the Board's attorney as follows: "Please be

advised that Mr. DeLong, effective immediately, resigns his

position with the West Palm Beach Police Department and

relinquishes any right that he presently has to the disability

pensio n previously granted. This letter will obviate the need

for us to appear at the [Board's] October 30, 1990, meeting." 10

16. In a letter dated October 29, 1990, Mr. DeLong

returned his disability retirement benefit check to the Fund and

confirmed that he " resigned his job as a police officer and

terminated my duty disability pension." 11

17. Because Mr. DeLong began his employment with the Palm

Beach County Sheriff's Office effective May 1, 1990, the Board

requested that he refund the amount of $10,553.54, w hich

represented the total amount of disability retirement benefits

he received between May 1, 1990, and October 1990. 12 Mr. DeLong

repaid the Fund in full.

18. Mr. DeLong was not entitled to a return of his

contributions to the Fund because the amount of disability

retirement benefits he received exceeded his contribution. He

did, however, receive payment of $5,497.90, which was the

balance in his share account as of October 1, 1989. 13

19. Mr. DeLong submitted to the Florida Retirement System

Pension Pla n a form dated June 24, 2005, requesting that it

verify his retirement system service credit. He noted on the

form that he had been employed by the West Palm Beach Police

Department from November 1979 to April 1990.

20. Mr. DeLong sent a letter to the Fu nd administrator,

which was received on September 29, 2008, inquiring about his

eligibility for a pension, the years of service that were

credited to him, and any refunds due to him.

21. Although the record is incomplete, it appears that,

between July 200 9 and February 2010, the Fund's representatives

were trying to determine if Mr. DeLong was entitled to vested

deferred retirement benefits either upon early retirement or

upon normal retirement at age 55 years.

22. Mr. DeLong was notified that his request for vested

deferred retirement benefits would be discussed at the March 12,

2010, meeting of the Fund's Board.

23. The minutes of the Board's March 12, 2010, meeting

reflect that Mr. DeLong was not present. The issue of

Mr. DeLong's eligibility to recei ve vested deferred retirement

benefits was presented to the Board, and the minutes indicate

that the Board decided not to "apply any credited service to

Mr. DeLong during his time of disability." 14

C ONCLUSIONS OF LAW

24. The Division of Administrative Hea rings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to the contract between the Fund

and the Division of Administrative Hearings and Sections 120.565

and 120.57(1), Florida Statutes (2010).

25. Mr. DeLong is seeking to establish his eligibility for

vested deferred retirement benefits from the Fund and,

therefore, has the burden of proof by a preponderance of the

evidence. See Haines v. Department of Children & Families , 983

So. 2d 602, 605 (Fla. 5th DCA 20 08)(citing Department of Banking

& Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

199 6) ) ( g eneral rule is that party asserting affirmative of issue

has burden of presenting evidence as to issue , as well as

ultimate burden of persuasion); Florida Dep ' t of Transp . v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; see also

§ 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based

upon a preponderance of the evidence, except i n penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

26. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evide nce that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

2 7 . At the times pertinent to this proceeding, the Fund

documents defined the terms under which the Fund operated.

Section (2) of the Fund documents included the following

definitions, pertinent to this proceeding:

(i) "Member" or "participant" means any

person who is included in the membership of

the fund.

* * *

(k) "Police officer" means any person who

is elected, appointed, or employed full - time

by the city . . . .

* * *

(n) "Retirant" means any member who retires

with a pe nsion from the fund.

( o) "Retirement" means a member' s

withdrawal from city employment with a

pension payable from the fund.

* * *

(q) "Service," "credited service," or

"service credit" means the total number of

years, and fractional parts of years, of

service of any police officer omitting

intervening years and fractional parts of

years, when such police officer was not

employed by the city. . . .

28 . Section (8) of the Fund documents described the age

and service requirements for retirement and pr ovided for normal

retirement, vested deferred retirement, and early retirement.

Pertinent to this proceeding, "vested deferred retirement"

applied to members of the Fund "with 10 or more years of

credited service" who "leave the employment of the departme nt

for any reason except retirement or death." § (8)(b) of the

Fund documents. If a police officer is eligible for vested

deferred retirement, the police officer shall be entitled to a

pension on early retirement or at the normal retirement age.

Id.

29 . Mr. DeLong claims that he is entitled to a vested

deferred retirement benefit because his years of active

employment as a police officer with the Police Department, plus

the one year, five months, and 13 days during which he received

disability retiremen t benefits, total slightly more than

10 years.

30 . Duty disability retirement pensions are governed by

the provisions of Section (11) of the Fund documents, which

provided in pertinent part:

(a) Retirement. -- Any member who becomes

physically or mentally, totally and

permanently disabled to perform the duties

of a police officer, by reason of a personal

injury or disease arising out of and in the

course of the performance of his or her

duties as a police officer, in the employ of

the city, shall be retired with a pension

provided for in this subsection; provided,

that after a medical examination of the

member made by or under the direction of the

medical committee, the medical committee

reports to the board, in writing whether:

1. The member is wholly pre vented from

rendering useful and efficient service as a

police officer; and

2. Th e member is likely to remain so

disabled con tinuously and permanently. . .

* * *

(c) Duty disability pension benefits;

disability occurs before age and service

eligibilit y. -- A member whose retirement

on account of disability, as provided

in paragraph (a) of this subsection,

occurs prior to the date he or she would

become eligible to retire under

paragraph (8) hereof [normal, vested

deferred, or early retirement], shall

rec eive a disability pension . . . . The

disability pension . . . shall be subject to

subsection (12) hereof.

31 . Subsection (12) of the Fund documents sets forth

"[c]onditions applicable to all disability retirants," and

provided in pertinent part:

(c) Pa yment of disability pensions. --

Monthly disability retirement benefits shall

be payable as of the date the board

determines that the member was entitled to a

disability pension; . . . The last payment

shall be, if the police officer recovers

from the disabi lity prior to his or her

normal retirement date, the payment due next

preceding the date of recovery, . . . .

* * *

(e) Reexaminations of disability

retirants. -- At least once each year during

the f irst 5 years following a member' s

retirement on account of disability, and at

least once in each 3 - year period thereafter,

the board shall require any disability

retirant who has not attained age 50 to

undergo a medical examination to be made by

a physician designated by the board. . . .

If, upon such medical e xamination of such

retirant, the said physician reports to the

board that the retirant is physically able

and capable of performing the duties of a

police officer in the rank held by him or

her at the time of his or her retirement,

the member shall be retu rned to employment

in the department at a salary not less than

the rank held by him or her and his or her

disability pension shall terminate.

(f) Credited service for disability

retirant. -- In the event a disability

retirant is returned to employment in the

department, as provided in paragraph (e),

he or she shall again become a member of

the fund and the credited service in force

at the time of the member' s retirement shall

be restored to his or her credit. If he or

she retired under a duty disability a s

provided in paragraph (11)(a) hereof, he or

she shall be given service credit for the

period he or she was in receipt of a

disability pension. . . .

32 . Pursuant to Section (12)(e) and (f) of the Fund

documents, Mr. DeLong would have been eligible to receive

service credit for the period during which he received

disability retirement benefits only if it was determined that he

was physically capable of performing the duties of a police

officer and if he returned to employmen t with the Police

Department.

33 . Based on the minutes of the relevant Board meetings,

there was no determination by the Board that Mr. DeLong was

physically capable of returning to duty as a police officer

prior to its learning, in October 1990, that Mr. DeLong had been

employed b y the Palm Beach County Sheriff' s Department since

Ma y 1, 1990. In fact, Mr. DeLong' s attorney conceded at the

Board' s December 7, 1989, meeting that Mr. DeLong continued to

have limitations on his ability to perform the normal duties of

a police officer. The Board voted at t hat time to continue Mr.

DeLong' s disability retirement benefits, an implicit finding by

the Board that Mr. DeLong remained totally and permanently

disabled as defined in Section (11)(a) of the Fund document s.

34 . Based on the findings of fact herein, even had the

Board concluded that Mr. DeLong was no longer permanently and

totally disabled, the Police Department did not refuse to return

him to employment. The only application for employment

submitted to t he Police Department by Mr. DeLong was an

Application for Specialized Assignment as a helicopter pilot,

which he submitted in April 1989. Mr. DeLong could not be given

this "specialized assignment" because he was no longer employed

as a full - time police o fficer by the Police Department, which

employment was a prerequisite for consideration for a

specialized assignment. Consequently, the Police Department

could not hire Mr. DeLong for this position.

35 . Mr. DeLong contends in his proposed findings of fact

and conclusions of law that his employment with the Police

Department actually ended when the Police Department terminated

his employment effective May 1, 1990, the day he began his

employment wit h the Palm Beach County Sheriff' s Department. To

the contr ary, in accordance with the definition of "retirement"

in Section (2)(o) of the Fund documents, Mr. DeLong withdrew

from his employment with the Police Department on November 17,

1988, the effective date of his retirement and his entitlement

to disability benefits from the Fund. His purported

"resignationÑ of his position with the Police Department on

October 23, 1990, was ineffective and did not alter his

termination date under the Fund documents.

36 . Based on the pertinent provisions of the Fund

documen ts, as applied to the facts found herein, Mr. DeLong is

not entitled to service credit for the period of time he

received disability retirement benefits from the Fund. His

service credit at the time of his retirement and withdrawal from

employment with th e Police Department was, pursuant to

Section (2)(q) of the Fund documents, eight years, 11 months,

and 21 days. Mr. DeLong has fewer than 10 years of service

credit with the Police Department, and he has, therefore, failed

to meet his burden of proving by a preponderance of the evidence

that he is eligible for vested defe rred retirement benefits from

the Fund . 15

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Trustees of the West

Palm Beach Police Pension Fund enter a final order finding that

Michael L. DeLong did not accrue service credit during the time

he received disability retirement benefits and is , therefore,

not eligible for vested deferred retirement benefits.

DONE AND ENTERED this 1 2 th day of October, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________ ________

PATRICIA M. HART

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 1 2 th day of October , 2010.

ENDNOTES

1 / In the Pre - Hearing Stipulation filed by the parties, it was

noted that one question of law to be determined was whether the

1987 or 1988 version of the special act governing the Fund was

applicable in this proceeding. At the final hearing, counsel

for the Fund stated that the parties had agreed that the 1988

version of the special act should be applied.

2 / Joint Exhibit 2.5.

3 / Joint Exhibit 2.6.

4 / Joint Exhibit 2.7.

5 / Id.

6 / Joint Exhibit 2.11.

7 / Id.

8 / Joint Exhibit 2.13

9 / Id.

10 / Joint Exhibit 2.14.

11 / Joint Exhibit 2.15.

12 / Joint Exhibit 2.18.

13 / At the times pertinent to this proceeding, the share account

was not part of a member's contributions to the Fund but was a

separate fund established by Section 185.35(2), Florida

Statutes.

14 / Joint Exhibit 2.33.

15 / Mr. DeLong included in his proposed findings of fact and

conclusions of law a request for attorney's fees and co sts "upon

a finding on the appeal the Agency's actions were gross abuse of

the Agency's discretion. Florida Statute Section 120.596(5)."

Section 120.595(5), Florida Statutes (2010), provides in

pertinent part that "[w] hen there is an appeal, the court in its

discretio n may award reasonable attorney' s fees and reasonable

costs to the prevailing party if the court finds that the appeal

was frivolous, meritless, or an abuse of the appellate process,

or that the agency action which precipitated the appeal was a

gross abuse of the agency' s discretion. "

Mr. DeLong is not entitled to the requested award of

attorney's fees and costs for two reasons. First, this

administrative proceeding is not an appeal of the Board's

action, in the sense that the term Ðapp ealÑ is used in

Section 120.595(5), Florida Statutes (2010), because there has

not yet been final agency action. This proceeding is a part of

the administrative process in which the Board's final agency

action is formulated. See Haines v. Department of C hildren &

Families , 983 so2d 602, 605 (Fla. 5th DCA 2008); Beverly

Enterprises - Florida, Inc. v. Department of Health and

Rehabilitative Services , 573 So. 2d 19 (Fla. 1st DCA

1990) ( citing Florida Department of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) )( "A request for formal

administrative hearing commences a de novo proceeding intended

to formulate agency action, and not to review action taken

earlier or preliminarily. ") . Second, the Division of

Administrative Hearings is not a court but is an administrative

entity conducting evidentiary hearings under contract with the

Board, which retains the authority to enter a find order in this

matter. See Florida State University v. Hatton , 672 So. 2d 576,

579 (Fla. 1st DCA 1996)("[N]either the Division of

Administrative Hearings nor its hearing officers are '[a] court

of competent jurisdiction . . . .'").

COPIES FURNISHED:

Dav id M. Williams , Plan Administrator

West Palm Beach Police Pension Fund

2100 North Florida Mango Road

West Palm Beach, Florida 33409

Bonni S. Jensen, Esquire

Perry & Jensen, LLC

400 Executive Center Drive, Suite 207

West Palm Beach, Florida 33401 - 2922

Frank J. McKeown, Jr., Esquire

The Law Office of Frank J. McKeown, Jr., P.A.

2000 Palm Beach Lakes Boulevard

Suite 701

West Palm Beach, Florida 33409 - 6505

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 r ecommended order should be filed with the agency that

will issue the final order in this case.