11-004343
John R. Nelson vs.
Department Of Management Services, Division Of Retirement
Status: Closed
Recommended Order on Thursday, March 8, 2012.
Recommended Order on Thursday, March 8, 2012.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JOHN R. NELSON , )
12)
13Petitioner, )
15)
16vs. ) Case No. 1 1 - 4343
24)
25DEPARTMENT OF MANAGEMENT )
29SERVICES, DIVISION )
32OF RETIREMENT, )
35)
36Respondent. )
38)
39RECOMMENDED ORDER
41A hearing was held pursuant to notice, on January 1 1 , 20 1 2 ,
55in Tallahassee , Florida, by Barbara J. Staros, assigned
63Administrative Law Judge of the Division of Administrative
71Hearings.
72APPEARANCES
73For Petition er: Amy W. Schrader, Esquire
80Gray Robinson, P.A.
83Post Office Box 11189
87Tallahassee , Florida 32 302
91For Respondent: Elizabeth Regina Stevens , Esquire
97Courtney S trickland Brogan, Esquir e
103Department of Management Services
107Office of the General Counsel
1124050 Esplanade Way, Suite 1 60
118Tallahassee, Florida 32399 - 0950
123STATEMENT OF THE ISSUE
127Wh ether P etitioner must forfeit and repay distributions he
137received from the Deferred Retirement Option Program and
145subsequent monthly retirement benefits received as a consequence
153of his election to the position of County Commissioner of
163Jefferson County wi thin six months of terminating state
172employment.
173PRELIMINARY STATEMENT
175By letter dated February 1, 2011, Respondent , the Division
184of Retirement (Division) advised Petitioner John R . Nelson that
194the Division intended to void his participation in the Def erred
205Retirement Option Program . The letter further instructed
213Petitioner that he must repay all retirement benefits received,
222including the DROP accumulation, in the amount of $192,921.85.
232T he letter relied upon s ection s 1 2 1 . 021 ( 39 ) (b)2. and
250121.091(13)(c)5.d , Florida Statutes , as authority . The letter
258afforded Petitioner a point of entry to challenge Respondent ' s
269decision.
270Petitioner disputed Respondent ' s decision and timely
278requested an administrative hearing. The request for hearing
286was forwarded to the Division of Administrative Hearings on or
296about August 24 , 20 1 1 . A formal hearing was scheduled for
309October 26 , 20 1 1 . The Division filed an unopposed Motion for
322Continuance, which was granted. The hearing was rescheduled for
331January 11 , 2012. Petitioner filed a Motion for Leave to File
342Amended Petition for Formal Administrative Hearing, which was
350granted. The parties filed unilater al pre - hearing statements.
360At hearing, Petitioner testified on h is own behalf and
370offered the testimony o f Tyler M cN e i ll, John Nelson and Ira
385Gaines . Petitioner ' s Exhibit s numbered 1 through 7 w ere
398admitted into evidence. Respondent presented the testimony of
406one witness, Ira Gaines . Respondent ' s Exhibit s numbered 1
418through 4 w ere admitted into evidence.
425The hearing was not transcribed. The parties timely filed
434Proposed R ecommended Order s , which ha ve been duly considered in
446the preparation of this R ecommended O rder.
454References to the Florida Statutes will be to the 20 10
465version unless otherwise noted .
470FINDINGS OF FACT
4731. The Division of R etirement (Division) is, and was at
484the times material to this case, the state agency charged with
495the responsibility of administering the Florida Retirement
502System (FRS ) .
5062. Petitioner , John Nelson , was employed by the Department
515of Fina n cial Services (DFS) from October 1977 through July 31,
5272010. For the last five years of his employment with DFS,
538Petitioner participated in the Deferred Retirement Option
545Program (DROP).
5473. Prior to ending his DROP participation , Petitioner
555completed a DROP Termination Notification Form (DP - TERM Rev.
56506/06) on April 23, 2010, confirming he would terminate
574employment on July 31, 2010. The DROP Termination Notification
583was also signed by a representative from FRS confirming
592Petiti oner's employment termination date and reads in pertinent
601part:
602I understand that I cannot work for any
610Florida Retirement System (FRS) covered
615employer during the calendar month following
621my DROP termination date or my DROP
628participation will be null and void. If I
636fail to meet this requirement, I will
643forfeit my accumulated DROP benefit
648including interest. I also understand that
654I may not be reemployed by any FRS employer
663in any capacity including part - time,
670temporary, other personal services (OPS) or
676non - Division approved contractual services
682during the calendar month immediately
687following my DROP termination date. If I
694fail to meet this requirement, I will
701forfeit my accumulated DROP benefit,
706including interest retroactive to me
711enrollment date in the DROP.
7164. The above - referenced version of the DP - TERM (Revised
7286/06) has been incorporated by reference into Florida
736Administrative Code Rule 60S - 9.001(ee).
7425 . Due to significant statutory changes made by the
752Legislature, the Division sent to Petiti oner a secon d DROP
763Termination Notification , ( Form DP - TERM revised 04/10 ) which he
775signed on June 9, 2010 . The wording in the revised form
787refl ected statutory changes which would take effect July 1,
7972010. The revised form states in pertinent part :
806If your DROP termination date is on or after
815July 1, 2010: Your termination requirement
821means you cannot remain employed or become
828re - employed with any F lorida Retirement
836System (FRS) covered employer during the
842FIRST SIX calendar month s following your
849DROP t ermination date . This includes but is
858not limited to: Part - time work, temporary
866work, other personal services (OPS),
871substitute teaching or non - Division approved
878contractual services. During the 7th - 12th
885calendar months following your DROP
890termination da te, you may return to work for
899a participating FRS employer but must
905suspend your retirement benefit for any of
912these months your[sic] are employed. There
918are no reemployment exceptions during the
924reemployment limitation period. After the
92912th calendar m onth following your DROP
936termination date, there are no employment
942restrictions.
943If you fail to meet the termination
950requirements noted above, you will void
956(cancel) your retirement and DROP
961participation, you must repay all retirement
967benefits receive d including your DROP
973accumulation, and you must apply to
979establish a future retirement date. If you
986void your retirement your employer will be
993responsible for making retroactive
997retirement contributions and you will be
1003awarded service credit for the peri od during
1011which you were in DROP through your new
1019termination date. Your eligibility for DROP
1025participation will be determined by your
1031future retirement date and you may lose your
1039eligibility to participate in DROP.
1044(emphasis add ed) .
10486 . The revised form D P - TERM (Revised 04/10) has not yet
1062been adopted as a rule. At the time of hearing, r ulemaking had
1075been initiated .
10787. Petitioner terminated his employment with DFS on the
1087agreed termination date of July 31, 2010, and was no longer an
1099employee of DFS aft er that date.
11068 . Sometime between July 31, 2010 , and November 2010,
1116Petitioner was paid his accumulated DROP monies in the amount of
1127$181,635.09, in the form of a direct rollover into an eligible
1139retirement account. Petitioner was also paid monthly retir ement
1148benefits for the mo nths of August through November 2010, in the
1160total amount of $11,286.76. The Division deactivated
1168Petitioner's monthly retirement benefits in December 2011.
11759 . The total amount of retirement benefits paid to
1185Petitioner after ter minating employment with DFS is $191,921.85,
1195which the Division seeks to recover.
120110 . In April of 2010, at the urging of community members,
1213Petitioner registered to run for public office in Jefferson
1222County, Florida. He won the election and was sworn in t o office
1235as a Jefferson County Commissioner on November 16, 2010.
124411 . Tyler McNeill is the Chief Deputy Clerk and Human
1255Resources Officer for Jefferson County. Following Petitioner's
1262election as a County Commissioner, Mr. McNeill began to process
1272a sma ll packet of employment - related documents which he provides
1284to elected officials. Mr. McNeill went to Petitioner's home on
1294a Sunday evening to get the necessary papers signed.
130312. Prior to this meeting, Petitioner was unaware that
1312Jefferson C ounty partic ipates in the FRS. Petitioner described
1322his reaction to learning this as "shocking." When Mr. McNeill
1332and Petitioner got to the FRS form, Petitioner did not want to
1344sign it and informed Mr. McNeill of that. Mr. McNeill described
1355Petitioner as appearing physically ill, shocked, and "so ups et "
1365upon learning that the County was an FRS participating employer.
137513. On November 22, 2010, Petitioner and Mr. McNeill
1384called Ira Gaines, FRS Benefits Administrator , using a
1392speakerphone . At the time they placed this call, Petitioner had
1403not yet signed the employment documents supplied to him by
1413Mr. McNeill , and Petitioner informed Mr. Gaines of this.
142214. During this conversation, Petitioner expressed his
1429willingness to resign from office and refuse to accept pa yment
1440from the County for his newly elected position. According to
1450Mr. McNeill, Petitioner was not yet eligible to receive
1459compensation from the County because the employment papers had
1468not yet been processed. Mr. McNeill testified that he would
1478have bee n able to discard the documents .
148715. During this telephone conversation, Mr. Gaines advised
1495that Petitioner was legally a person employed by the County by
1506virtue of his being sworn into office on November 16, 2010.
1517Mr. Gaines equated bring sworn into of fice as being an employee.
1529At hearing, Mr. Gaines reiterated his position: that he did not
1540know any way Petitioner could not be enrolled in FRS when
1551occupying an elected position.
155516. As a result of this telephone conversation with
1564Mr. Gaines and in rel iance on Mr. Gaines' advice, Mr. McNeill
1576processed Petitioner's employment papers including the F RS
1584reenrollment form. Mr. Gaines then began receiving salary
1592payments for being a county commissioner.
159817. On December 6, 2010, Mr. Gaines sent a letter to
1609P etitioner stating that his election to the position of County
1620Commissioner had voided his DROP participation, and
1627consequently, Petitioner would have to repay $181,635.09 for the
1637DROP payment, and $11,286.76 in monthly retirement benefits .
1647The letter furt her informed that Petitioner will continue to
1657earn credit as an elected official in the Elected Officer's
1667Class of FRS membership and that Petitioner's retirement account
1676w ould be adjusted to reflect service from August 2005 through
1687July 2010 (h is DROP per iod) which he estimated would increase
1699Petitioner's retirement benefits by $1,200 per month .
170818. In response to the December 6, 2010 letter, Petitioner
1718appeal ed the voiding of his DROP participation. By letter dated
1729February 1, 2011, the Division denied the request. The
1738February 1 , 201 1 letter also informed Petitioner of his right to
1750request a hearing, which gave rise to this proceeding.
1759CONCLUSIONS OF LAW
17621 9 . The Division of Administrative Hearings has
1771jurisdiction over the parties and sub ject matter of this
1781proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011) .
179020. This proceeding is de novo. § 120.57(1)( k ), Fla.
1801Stat. (2011).
180321 . The burden of proof in an administrative proceeding is
1814on the party asserting the affirmative of the issue unless the
1825burden is established otherwise by statute. Young v. State,
1834Dep ' t of Cmty . Aff . , 567 So. 2d 2 (Fla. 3rd DCA 1990); Balino v.
1852Dep ' t of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). T he Division ,
1868as the party asserting that Petitioner's benefi ts be repaid, has
1879the burden of proof in this proceeding.
188622 . The Division is the state agency responsible f or
1897administering the FRS . § § 121. 025 and 121.031 , Fla. Stat.
190923 . The 2009 and 2010 Legislatures enacted substantial
1918amendments to c hapter 121, Florida Statutes, the Florida
1927Retirement System Act. Section 121. 021 , as amended, reads in
1937pertinent part as follows:
1941( 10 ) "Employer" means any agency, b ranch,
1950department,. . .or any county agency,
1957branch, department, board. . . which
1963participates in the system for the bene fit
1971of certain of its employees. . .
1978(11) "Officer or employee" means any person
1985receiving salary payments for work performed
1991in a regularly established position. . . .
1999* * *
2002( 39 ) (a) "Termination" occurs, exc ept as
2011provided in paragraph (b), when a member
2018ceases all employment relationships with an
2024employer, however:
2026* * *
20292. For retirements effective on or after
2036July 1, 2010, if a member is employed by any
2046such employer within the ne xt six calendar
2054months, termination shall be deemed not to
2061have occurred. . . .
2066(b) "Termination" for a member electing to
2073participate in the Deferred Retirement
2078Option Program occurs when the program
2084participant ceases all employment
2088relationships with an employer in accordance
2094with s. 121. 091(13), however:
2099* * *
21022. For termination dates occurring on or
2109after July 1, 2010, if the participant
2116becomes employed by any such employer within
2123the next 6 calendar months, termination will
2130be deemed not to have occurred, except as
2138provided in s.121.091(13)(b)4.c.
21412 4 . Florida Administrative Code Rule 60S - 6.001(40) defines
"2152officer or employee" as any person receiving compensation for
2161work performed in a regularly established position with any
2170agency, including county agency board, which participates in the
2179FRS.
218025 . At the time Petitioner and Mr. McNeill initiated the
2191telephone call to Mr. Gaines, Petitioner was not yet an officer
2202or employee as defined in section 121.021(10) or r ule 60S -
22146.001(40), as he had not received compensation and was willing
2224to forego compensation. However, following the conversation
2231with Mr. Gaines, and in reliance thereon, Petitioner received
2240compensation for his position as County Commissioner and became
2249an off icer or employee as contemplated by those provisions . 1/
22612 6 . Section 121.091 reads in pertinent part as follows:
2272( 9 ) EMPLOYMENT AFTER RETIREMENT;
2278LIMITATION. -
2280* * *
2283(c) Any person whose retirement is
2289effective on or after July 1, 2010, or whose
2298participation in the Deferred Reti r ement
2305Option Program terminates after July 1,
23112010 , who is retired under this chapter,
2318e xcept under the disability reti rement
2325provisions of subsection (4) or as provided
2332in s. 121.053, may be reemployed by an
2340employer that participates in a state -
2347administered retirement system and receive
2352retirement benefits and co mpensation from
2358that employer. However, a person may not be
2366reemployed by an employer participating in
2372the Florida Retirement System before m eeting
2379the definition of termination in s. 121.021
2386and may not receive both a salary from the
2395employer and retirement benefits for 6
2401calendar months after meeting the definition
2407of termination. However, a DROP participant
2413shall continue employment and rec eive a
2420salary during the period of participation in
2427the Deferred Retirement Option Prog ram, as
2434provided in subsection ( 13).
2439* * *
2442(1 3 ) (c) Benefits payable under DROP. -
2451* * *
24545. At the conclusion of the p articipant's
2462DROP, the division shall distribute the
2468participant's total accumulated DROP
2472benefits, subject to the following:
2477a. The division shall receive verification
2483from the participant's employer or employers
2489that the participant has terminated all
2495employment relationships as provided in s.
2501121.021(39) .
2503* * *
2506d. A DROP participant who fails to
2513terminate all employment relationships as
2518provided in s. 121.021(39) shall be deemed
2525as not retired, and the DROP elect i on is
2535null and void. Florida Retirement System
2541members h ip shall be reestablished
2547retroactively to the date of the
2553commencement of DROP, and each employer with
2560whom the participant continues employment
2565must pay to the Florida Retirement System
2572Trust Fund the difference between the DROP
2579contributions paid in paragraph (i) and the
2586contributions required for the applicable
2591Florida Retirement System class of
2596membership during the period the member
2602participated in DROP, plus 6.5 percent
2608interest compounded annually.
26116. The retirement benefits of any DROP
2618participant who terminates all employment
2623relationships as provided in s. 121.021(39)
2629but is reemployed in violation of the
2636reemployment provisions of subsection (9)
2641shall be suspended during those months in
2648which the retir ee is in violation. Any
2656retiree in violation of this subparagraph
2662and any employer that employs or appoints
2669such person without notifying the Division
2675of Retirement to suspend retirement benefits
2681are jointly and severally liable for any
2688benefits paid duri ng the reemployment
2694limitation period. The employer must have a
2701written statement from the retiree that he
2708or she is not retired from a state -
2717a dministered retirement system. Any
2722retirement benefits received by a retiree
2728while employed in violation of the
2734reemployment limitations must be repaid to
2740the Florida R etirement System Trust Fund,
2747and his or her retirement benefits shall
2754remain suspended until payment is made.
2760Benefits suspended beyond the end of the
2767reemployment limitation period apply toward
2772repay ment of benefits received in violation
2779of the reemployment limitation.
2783(emphasis add ed ) .
278827 . Petitioner argues that section 121.091(13)(c)6. i s
2797applicable whereas FRS argues that section 121.091(13)(c)5.d. is
2805applicable to Petitioner . FRS furt her asserts in its Proposed
2816Recommended Order that section 121.091(13)(c)6. applies only to
2824FRS members who have met the six - month termination requirement
2835set forth in section 121.021(39) and return to work in the
2846fo llowing six months. Petitioner , however , argues that section
2855121.091(13)(c)5. d . is intended only to apply where termination
2865of employment relationships, and the corre s po nding payment of
2876DROP benefits , is never made. Petitioner's situation d oes not
2886neatly fit into either statutory provision, so an analysis of
2896each provision is in order.
290128 . First, the definition of "termination" in section
2910121.021(39)(b)2 . states that for termination occurring on or
2919after July 1, 2010, if the participant becomes employed by any
2930such employer within the ne xt six calendar months, termination
2940shall be d eemed not to have occurred .
29492 9 . Section 121.091(13)(c)5.d. (asserted by FRS as
2958controlling) states that a DROP participant who fails to
2967terminate all employment relationships as provided in section
2975121.021(39 ) (which defines termination) shall be deemed as not
2985retired, and the DROP election is " null and void. " This part of
2997the statutory language appears to fit Petitioner's
3004circumstances. However, the section continues by describing a
3012method of payment by the employer, not the employee, to the
3023Florida Retirement System Trust Fund that does not fit
3032Petitioner's situation and that does not describe what is being
3042sought by the D ivision . That is, section 121.091(13)(c)5. d.
3053requires "each employer with whom the p articipant continues
3062employment" to pay the difference between the DROP contributions
3071paid in paragraph (i) (which deals with "contributions" from the
3081employer ) for retroactive reinstatement to FRS. It does not
3091describe, nor mandate, forfeiture of DROP mo nies by the DROP
3102participant who becomes reemployed by an FRS employer.
311030 . Section 121.091(13)(c)6 . (asserted by Petitioner as
3119controlling) addresses a DROP participant who terminates all
3127employment relationships as provided in s. 121.02 1(3 9 ) but is
3139re employed in violation of the reemployment provisions of
3148subsection (9) (which provides limitations to reemployment and
3156prohibits the person from receiving both a salary and retirement
3166benefits for six calendar months after meeting the definition of
3176termina tion) , and requires that the person's retirement benefits
3185be suspended "during those months in which the retiree is in
3196violation." Petitioner argues that Petitioner fits within this
3204provision because he terminated all relationships with his
3212original emplo yer, DFS, and became reemployed by Jefferson
3221County . Respondent asserts this provision only relates to those
3231employee s who are reemployed after the six months' prohibition
3241found in 121.039(39) but before 12 months have passed since
3251retirement.
325231 . While the interrelationship of these statutes is
3261confusing, Respondent's argument that section 121.091(13)5. d . is
3270controlling is more persuasive. This is because Petitioner,
3278although having terminated employment from DFS, did not meet the
3288definition of "termina tion" in 121.021(39) because he became
3297employed by "any such employer" within six calendar months of
3307terminating employment from FRS . Therefore, "termination will
3315be d eemed to have not occurred." § 121.021(39)(b)2., Fla. Stat.
332632 . However, Pet itioner argues in the alternative that,
3336even if section 121.091 (13)(c)5.d. is controlling, it does not
3346contain forfeiture provisions. Petitioner notes that the same
3354subsection contains language requiring forfeiture of retirement
3361benefits for those employe es who commit specif ied felonies while
3372employed. § 121.091(13)(j), Fla. Stat. Petitioner's argument
3379in this regard is well taken. "S tatutes imposing forfeiture
3389will be strictly construed in a manner such as to avoid the
3401forfeiture and will be liberally construed so as to avoid and
3412relieve from forfeiture." Williams v. Christian , 335 So. 2d 358 ,
3422(citing Ireland v. Thomas , 324 So. 2d 146,147 (Fla. 1st DCA
34341976) (holding that where[t]he statute does not clearly require
3443a forfeiture or irremediable penalty[n ]one should be supplied by
3453unnecessary implication.").
345633 . In his Amended Petition for Formal Administrative
3465Hearing, Petitioner asserts that FRS' intended action is
3473impermissibly based on an unadopted rule . S ection 120.57(1)(e),
3483Florida Statutes , pro hibits an agenc y or an administrative law
3494judge from basing agency action that determines the substantial
3503interests of a party on an unadopted rule. However, it is
3514unnecessary to address Petitioner's argument in this regard as
3523neither t he content of the n ew form, nor the old form to the
3538extent that it goes beyond the language of the controlling
3548statute, form s the basis of the determination of Petitioner's
3558interests . W hile the second DP - TERM form (revised 04/10)
3570informed Petitioner of FRS' position, the ag ency's notice letter
3580dated February 1, 2011, which forms the basis of this
3590proceeding, did not reference the form a s authority for its
3601decision. The notice letter referenced statutes as authority
3609and the determination made herein is based upon the control ling
3620statute s as described above.
362534 . Finally, Petitioner argues that Petitioner did not
3634violate termination or reemployment requirements because he is
3642an elected official. Section 121.053 reads in pertinent part as
3652follows:
3653Participation in the Ele cted Officers' Class
3660for retired members. -
3664( 3) On or after July 1, 2010:
3672(a) A retiree of a state - administered
3680retirement system who is elected or
3686appointed for the first time to an elective
3694office in a regularly established position
3700with a covered empl oyer may not reenroll in
3709the Florida Retirement System.
3713(b) An elected officer who is elected or
3721appointed to an elective office and is
3728participating in the Deferred Retirement
3733Option Program is subject to termination as
3740defined in s.121.021 upon complet ion of his
3748or her DROP participation period. An
3754elected official may defer termination as
3760provided in subsection (7).
3764* * *
3767(7) A member who is elected or appointed to
3776an elective office and who is participating
3783in the Deferred Retirement Option Program is
3790not subject to termination as defined in s.
3798121.021, or reemployment limitations as
3803provided in s. 121.091(9), until the end of
3811his or her current term of office or, if the
3821officer is consecutively elected or
3826reelected to an el ective office eligible for
3834coverage under the Florida Retirement
3839System, until he or she no longer holds an
3848elective office, as follows:
3852* * *
3855(a) At the end of the 60 - month DROP period:
38661. The of ficer's DROP account may not
3874accrue additional monthly benefits, but does
3880continue to earn interest as provided in s.
3888121.091(13). However, an officer whose DROP
3894participation begins on or after July 1,
39012010, may not continue to earn such
3908interest.
39092. R etirement contributions are not
3915required of the employer of the elected
3922officer and additional retirement credit may
3928not be earned under the Florida Retirement
3935System.
3936(b) An elected officer may voluntarily
3942terminate his or her elective office at any
3950tim e and receive his or her DROP proceeds.
3959However, until termination occurs, an
3964elected officer whose termination
3968limitations are extended by this section is
3975ineligible for renewed membership in the
3981system and may not receive pension payments,
3988DROP lump sum payments, or any other state
3996payment other than the statutorily
4001determined salary, travel, and per diem for
4008the elective office.
4011(c) Upon termination, the officer shall
4017receive his or her accumulated DROP account,
4024plus interest, and shall accrue and c ommence
4032receiving monthly retirement benefits, which
4037must be paid on a prospective basis only.
4045(emphasis supplied)
40473 5 . This case appears to be a case of first impression in
4061this regard . It is clear from reading section 121.053 that the
4073Legislature place d elected officials in a different category
4082from other government employees regarding termination
4088requirements . However, the language of section 121.053 does not
4098appear to fit Petitioner's circumstances. 2/ T his exemption
4107appears to apply to a member who is an elected officer and who
4120is participating in DROP at the same time.
412836 . Section 12 1 . 122 states that a retiree of a state -
4143administered retirement system who is initially reemployed on or
4152after July 1, 2010, is not eligible for renewed membership.
4162Th is is consistent with section 121.053(3)(a) , which also
4171prohibits a retiree of a state - administered retirement system
4181who is elected for the first time on or after July 1, 2010, from
4195reenroll ing in the FRS.
420037 . This statutory language is relevant in th at the
4211intended ag ency action of FRS , in addition to seeking
4221reimbursement of DROP monies, notified Petitioner that he would
4230continue to earn retirement credit as an elected official in the
4241Elected Officer's Class of FRS membership.
424738 . FRS relied o n section 121. 091(13)(c)5.d., which does
4258not contain a forfeiture provision. Because forfeiture
4265provisions must be strictly construed, forfeiture cannot be
4273implied. Further, b ecause Petitioner was reemployed after
4281July 1, 2010, he is not eligible to reen roll in FRS in the
4295Elected Officer's Class of FRS.
4300RECOMMENDATION
4301Based upon the foregoing Findings of Fact and Conclusions
4310of Law set forth herein, it is
4317RECOMMENDED:
4318That th e Divisi on of R et irement enter a final order
4331rescinding the February 1, 2 011 , notification letter requiring
4340reimbursement of Petitioner's DROP distribution and
4346reimbursement of Petitioner's monthly retirement benefits from
4353August 2010 through December 2010 when those benefits were
4362discontinued; reinstating those monthly benefit s beginning six
4370month s following the completion of Petitioner's DROP period, and
4380nullifying Petitioner's reenrollment in the Elected Officers'
4387Class of FRS membership.
4391DONE AND ENTERED this 8 th day of March , 201 2 , in
4403Tallahassee, Leon County, Florida.
4407S
4408BARBARA J. STAROS
4411Administrative Law Judge
4414Division of Administrative Hearings
4418The DeSoto Building
44211230 Apalachee Parkway
4424Tallahassee, Florida 32399 - 3060
4429(850) 488 - 9675
4433Fax Filing (850) 921 - 6847
4439www.doah.state.fl.us
4440Filed with the Clerk of the
4446Divisi on of Administrative Hearings
4451this 8 th day of March , 201 2 .
4460ENDNOTE S
44621/ Petitioner asserts that the doctrine of equitable estoppel
4471ap plies. That determination is beyond the scope of this
4481tr ibunal's authority, as it does not have jurisdiction to grant
4492equitable remedies. § 26.01 2, Fla. Stat.
44992/ What does not appear to have been contemplated by the
4510Legislature is Petitioner's unique circumstance: must a former
4518state employee who received h is or her DROP benefits refrain
4529from running from public office for six months after receiving
4539DROP benefits, or risk losing them by falling into the same
4550category as other government employees who are simply hired for
4560their positions, not elected to them.
4566COPIES FURNISHED :
4569Amy W. Schrader, Esquire
4573Gray Robinson, P.A.
4576Post Office Box 11189
4580Tallahassee, Florida 32302
4583aschrader@gray - robinson.com
4586Elizabeth Regina Stevens, Esquire
4590Department of Management Services
4594Office of the Gene ral Counsel
46004050 Esplanade Way, Suite 160
4605Tallahassee, Florida 32327
4608Elizabeth.Stevens@dms.myflorida.com
4609Courtney Strickland Brogan, Esquire
4613Department of Management Services
4617Division of Retirement
46204050 Esplanade Way, Suite 160
4625Tallahassee, Flori da 32399 - 0950
4631Courtney.Brogan@dms.myflorida.com
4632Sarabeth Snuggs , Director
4635Division of Retirement
4638Department of Management Services
4642Post Office Box 9000
4646Tallahassee, Florida 32315 - 9000
4651J as on Dimitris , General Counsel
4657Department of Management Services
4661Division of Retirement
46644050 Esplanade Way
4667Tallahassee, Florida 32399 - 0950
4672NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4678All parties have the right to submit written exceptions
4687within 15 days from the date of this recommended order. Any
4698exceptions to this recommended order should be filed with the
4708agency that will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/08/2012
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 01/11/2012
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/09/2012
- Proceedings: Petitioner's Amended Response to First Request for Admission No. 3 filed.
- PDF:
- Date: 12/29/2011
- Proceedings: Motion for Extension of Time to File the Joint Pre-hearing Stipulation filed.
- PDF:
- Date: 12/20/2011
- Proceedings: Petitioner's Response to Respondent's First Request for Production filed.
- PDF:
- Date: 12/20/2011
- Proceedings: Petitioner's Notice of Serving Answers to Respondent's First Set of Interrogatories filed.
- PDF:
- Date: 12/19/2011
- Proceedings: Respondent's Motion for Attorney's Fees Pursuant to Section 57.105 filed.
- PDF:
- Date: 11/01/2011
- Proceedings: Motion for Leave to File Amended Petition for Formal Administrative Hearing filed.
- PDF:
- Date: 10/27/2011
- Proceedings: Order Re-scheduling Hearing (hearing set for January 11, 2012; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 10/25/2011
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for January 18, 2012; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 10/05/2011
- Proceedings: Respondent's Second Supplemental Answer to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 10/04/2011
- Proceedings: Respondent's Supplemental Answers to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 10/03/2011
- Proceedings: Respondent's Response to Petitioner's First Request to Produce filed.
- PDF:
- Date: 10/03/2011
- Proceedings: Respondent's Answers to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 09/30/2011
- Proceedings: Respondent's Response to Petitioner's First Request for Admissions filed.
- PDF:
- Date: 09/23/2011
- Proceedings: Notice of Service of Respondent's First Interrogatories to Petitioner filed.
- PDF:
- Date: 09/09/2011
- Proceedings: Respondent's Notice of Substitution of Counsel (Elizabeth Stevens) filed.
- PDF:
- Date: 09/01/2011
- Proceedings: Notice of Hearing (hearing set for October 26, 2011; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 08/31/2011
- Proceedings: (Corrected) Petition for Formal Administrative Hearing (as to exhibits only) filed.
- PDF:
- Date: 08/31/2011
- Proceedings: Petitioner's Notice of Serving First Set of Interrogatories to Respondent filed.
Case Information
- Judge:
- BARBARA J. STAROS
- Date Filed:
- 08/24/2011
- Date Assignment:
- 08/24/2011
- Last Docket Entry:
- 06/07/2012
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Courtney Strickland Brogan, Esquire
Address of Record -
Jason Dimitris, General Counsel
Address of Record -
Amy W. Schrader, Esquire
Address of Record -
Elizabeth Regina Stevens, Esquire
Address of Record -
Amy W Schrader, Esquire
Address of Record