11-005491 Renee Radicella vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, February 27, 2012.

Summary: Petitioner cannot change her retirement type to disability after accepting early service retirement benefit checks; claimed defenses of legal incapacity, duress and unilateral mistake were not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENE É RADICELLA , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5491

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT , )

)

Respondent . )

)

RECOMMENDED ORDER

On January 25, 2012, a final administrative hearing was

held in this case by video teleconference at sites in Tampa and

Tallahassee, Florida, before Administrative Law Judge

Elizabeth W. McArthur of the Division of Administrative

Hear ings.

APPEARANCES

For Petitioner: Edward K. Kim, Esquire

Law Office of Edward K. Kim

1907 West Kennedy Boulevard

Tampa, Florida 33606 - 1530

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to

change the type of her retirement benefits from early service

retirement to disability retirement.

P RELIMINARY STATEMENT

By certified letter dated June 15, 2011, Respondent,

Department of Management Services, Division of Retirement

(Respondent or Division) , notified Petitioner, Reneé Radicella

(Petitioner or Ms. Radicella) that the Division was unable to

honor Ms. Radicella's request to receive disability retirement

benefits. According to the Division's records, Ms. Radicella

was already receiving early service retirement benefits, and by

Division rule, she could not change the type of retirement

benef its after having cashed or deposited benefit payments. The

letter notified Ms. Radicella of her right to an administrative

hearing to contest the decision.

Ms. Radicella timely submitted a request for a disputed -

fact administrative hearing, and this cas e was forwarded to the

Division of Administrative Hearings for the assignment of an

Administrative Law Judge to conduct the hearing requested by

Petitioner.

At the final hearing, Edward K. Kim, Esquire, entered his

appearance on the record to represent Ms . Radicella. Mr. Kim

had been informally assisting Ms. Radicella prior to the final

hearing, but this was his first record appearance on her behalf.

Also at the beginning of the final hearing, the parties

placed on the record several stipulations regardi ng material

facts, for which no evidence would be required. 1/ These

stipulations are incorporated into the Findings of Fact below.

Petitioner testified on her own behalf and also presented

the testimony of Pat Beals and Alvin Ellenwood. Petitioner's

Ex hibit A, her request for an administrative hearing, was

admitted in evidence for the limited purpose of establishing

that she requested a disputed - fact hearing and not for the truth

of the disputed facts identified in the letter. Petitioner's

Exhibits B t hrough H were initially offered, but after

discussion about the use and limitations on the use of hearsay,

these exhibits were ultimately withdrawn by counsel for

Petitioner without proffer, and , therefore, are not part of the

record. Respondent presented the testimony of Debra W. Roberts

and Respondent's Exhibits 1 through 5, 7, 8, and 10 were

admitted in evidence. Respondent's Exhibits 6 and 9 were

initially offered, but were ultimately withdrawn without

proffer, and therefore, are not part of the recor d. In

addition, at the Division's request, without objection, official

recognition was taken of Florida Administrative Code R ule

60S - 4.002(4).

A court reporter was in attendance at the hearing to

preserve the testimony; however, a transcript was not orde red.

Both parties timely filed Proposed Recommended Orders, which

have been carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Respondent is charged with managing, governing, and

administering the Florida Retirement System (FRS).

2. The FRS is a public retirement system as defined by

Florida law. Nearly 1,000 public employers participate in the

FRS, including state agencies, local governments, and district

school boards. There are more than 600,000 individual acti ve

members in the FRS.

3. Petitioner was an employee of the Pasco County School

Board until she submitted her resignation on February 28, 2011,

in order to retire. By reason of her employment with the Pasco

County School Board, Petitioner is a member of the FRS.

4. After Petitioner resigned, she met with Michael Hudson,

the d irector of Employee Benefits for the Pasco County District

School Board, on March 4, 2011, to complete the paperwork for

her retirement.

5. At the March 4, 2011, meeting, Petitio ner completed and

signed the form application for service retirement. The

information filled out on the form in Petitioner's clear

handwriting included her name, position, address, telephone

number, social security number, birth date, and service

terminat ion date.

6. The following statement appears on the application form

immediately above Petitioner's notarized signature:

I understand I must terminate all employment

with FRS employers to receive a retirement

benefit under Chapter 121, Florida Statutes .

I also understand that I cannot add service,

change options, change my type of retirement

(Regular, Disability, and Early) or elect

the Investment Plan once my retirement

becomes final. My retirement becomes final

when any benefit payment is cashed or

d eposited. (Bold in original).

7. Petitioner also filled out the payment option selection

form, selecting Option 1 as the option for how her retirement

benefits are to be paid out. Immediately above Petitioner's

signature on the option selection form i s this statement:

I understand I must terminate all employment

with FRS employers to receive a retirement

benefit under Chapter 121, Florida statutes.

I also understand that I cannot add service,

change options or change my type of

retirement (Regular, D isability, and Early)

once my retirement becomes final. My

retirement becomes final when any benefit

payment is cashed, deposited or when my

Deferred Retirement Option Program (DROP)

participation begins. (Bold in original).

8. Petitioner was aware th at she could seek to qualify for

disability retirement benefits, but that in order to apply for

disability retirement, she would have to submit certifications

by two doctors that she was totally and permanently disabled,

meaning that she was unable to work .

9. Petitioner also knew that she could apply for early

service retirement, which would not require proof of total,

permanent disability. However, because Petitioner would be

retiring early, her benefits would be discounted, so she would

receive less.

10. Petitioner understood, when she completed the

application on March 4, 2011, that the type of retirement for

which she applied was early service retirement. At retirement,

she was 52 years and nine months old.

11. In Petitioner's view, she was "forc ed" to retire.

Petitioner had been employed as an adult education - health

instructor at Marchman Technical Education Center, which she

described as a stressful job. In 2010, she had to undergo three

major abdominal and pelvic reconstructive surgeries. As she

dealt with the challenges of complications and slow recoveries,

she developed psychological issues that caused her to seek

treatment from a psychiatrist. She was depressed and cried a

lot, felt anxious and stressed, and experienced panic attacks.

Pe titioner took medication prescribed by her psychiatrist for

her panic attacks and depression. She testified that the

medication helped and that when she took her medication, she no

longer cried all the time. However, she experienced side

effects, includi ng some drowsiness and difficulty processing

information.

12. By early 2011, Petitioner felt unable to return to her

stressful job and had been attempting, without success, to find

an appropriate job that she thought she could do with her

limitations. Sh e was worried and felt pressure , as a single

mother who was supporting herself and her 17 - year - old son , who

lived with her. She was particularly concerned about ensuring a

stream of income to pay for health insurance.

13. Before Petitioner met with Mr. H udson to apply for

early service retirement, she discussed the different types of

retirement with her good friend, Pat Beals. Ms. Beals had

worked at Marchman Technical Education Center with

Ms. Radicella.

14. Both Petitioner and Ms. Beals testified that in

discussing the different types of retirement, Petitioner

believed at the time that she would not qualify for disability

retirement. At the time in early 2011, Petitioner's belief was

that she would be unable to obtain letters from two doctors who

woul d render the opinion that Petitioner was unable to work.

Ms. Beals apparently did not disagree with that opinion.

Ms. Beals noted that Petitioner had been trying to get another

job that she would be able to handle with her limitations.

Ms. Beals said on ly that she thought Petitioner had tried to go

back to work too soon, before she was fully healed.

15. Petitioner went alone to her meeting with Mr. Hudson

and did not ask any of her close friends or advisors, such as

Ms. Beals or her neighbor, Mr. Edelm an, to go with her.

Petitioner testified that she had taken her medication to

control her depression and her panic attacks that day.

Petitioner was in good enough shape, mentally and physically, to

safely drive herself to and from the school district

adm inistrative offices.

16. Petitioner testified that Mr. Hudson explained

Petitioner's choices to apply for early service retirement or to

apply for disability retirement. Petitioner testified that

Mr. Hudson explained that if she applied for disability

re tirement, two doctors would have to say she could never work

again. This led Petitioner to choose early service retirement

because, as she had discussed with Ms. Beals previously, she did

not think two doctors would give the opinion that she was unable

to work again. Moreover, at the time, Petitioner did not want

to say that she would never work again.

17. Petitioner found the meeting with Mr. Hudson to be

very sad and embarrassing; she found the prospect of retirement

itself to be very embarrassing, as she had always been

independent and had always taken care of herself.

18. Petitioner attempted to blame Mr. Hudson for the

pressure she was feeling to make a choice and sign the paperwork

presented to her, but Petitioner did not prove that Mr. Hudson

was to blame for any pressure she felt. Petitioner failed to

identify anything specific that Mr. Hudson said or did to create

pressure, such as if he had told Petitioner she had to sign all

of the paperwork then and there. Indeed, when asked if she felt

pre ssured by Mr. Hudson, Petitioner's response was that "it was

strictly business." Petitioner explained that she just "shut

down," letting him give her papers, and she just signed them.

19. Petitioner did not claim to misunderstand the

different types of r etirement benefits -- early service retirement

versus disability retirement -- and indeed, expressed a very clear

rationale for making the choice that she did. Petitioner had

expressed that same rationale in conversations before March 4,

2011, with Ms. Beals.

20. Petitioner testified that she did not understand the

paperwork that Mr. Hudson presented her to sign and that she did

not understand that she could not change the type of retirement

from early service to disability retirement at a later date.

Inco nsistently, she testified that she understood that she would

not be able to change her payment options after she cashed her

first benefit check. That is part of the warning message

appearing right above her signature. Petitioner did not

credibly explain how she was able to understand that part of the

warning message, while not understanding the other part of the

warning message that she also could not "change my type of

retirement (Regular, Disability, and Early)" after cashing her

first benefit check. T he notice appeared on both forms she

signed that day in plain, clear language.

21. Petitioner did not testify that she was given any

misinformation or that she asked for explanations that were not

forthcoming. Petitioner did not testify that she asked to delay

signing the paperwork presented to her at the March 4, 2011,

meeting, until she had had a chance to review it with one of her

friends and advisors. Instead, Petitioner did not want to wait;

she was in a hurry to sign the paperwork because the soone r she

signed the paperwork, the sooner the payments would start.

22. Petitioner attempted to disavow her March 4, 2011,

early service retirement application on the theory that she

lacked the mental capacity to understand the nature and

consequences of her actions that day. Petitioner offered no

competent medical opinion testimony or medical records to

support her claim. Petitioner's two friends tried to support

her theory, but they lacked the medical expertise to offer an

opinion that Petitioner did not understand the nature or

consequences of her actions that day. To the contrary, their

testimony tended to confirm that Petitioner not only understood

what she did on March 4, 2011, but that she acted as she did for

a very rational, logical reason.

23. The evidence did not establish that Petitioner was

impaired to any great extent because of her physical or mental

conditions or because of her medication taken to control her

conditions. Petitioner may lack confidence and doubt herself;

she may seek out o pinions of her close friends when making

important decisions because she did not trust her own ability to

make decisions. However, as she acknowledged and certainly

exhibited at the hearing, she is intelligent and capable.

Petitioner was capable of functi oning independently, living

alone with her 17 - year - old son and taking care of him.

Petitioner was able to drive alone and did so. Petitioner took

care of her own paperwork, writing out checks , and paying her

own bills. Petitioner was not hospitalized or adjudicated

incompetent because of her mental condition, nor was there any

suggestion that her psychiatrist or good friends thought such

steps were necessary for Petitioner 's competency to manag e her

own affairs.

24. After Petitioner returned from her me eting with

Mr. Hudson on March 4, 2011, she called Ms. Beals to tell her

about the paperwork she completed in her meeting with

Mr. Hudson. Ms. Beals testified that she could tell Petitioner

was anxious, because she was talking very fast. Nonetheless,

Pet itioner understood the nature and consequences of her actions

on March 4, 2011, well enough to tell Ms. Beals that she had

applied for early service retirement benefits. Ms. Beals was

concerned and said that she may have made a mistake by not

applying for disability retirement. While Ms. Beals expressed

surprise that Petitioner did not ask her to go with her on

March 4, 2011, she admitted that they had talked about the

retirement issue previously and that Petitioner's actions on

March 4, 2011, were consis tent with what they had previously

discussed.

25. Petitioner's neighbor, Alvin Ellenwood, also testified

that Petitioner called him later on March 4, 2011, and reported

to him that she had completed the paperwork for early service

retirement benefits. Mr . Ellenwood testified that he, too, was

concerned and told Ms. Radicella that she may have made a

mistake by not applying for disability retirement.

26. Despite the concerns of both Ms. Beals and

Mr. El l enwood, apparently no steps were taken in the days after

March 4, 2011, to review the forms that Petitioner had signed or

to seek out any information from the Division regarding whether

Petitioner could try to change the type of retirement benefits

from early service retirement to disability retirement.

27. On March 9, 2011, the Division issued and transmitted

to Petitioner the following documents related to her

application: Acknowledgement of Service Retirement Application

(Acknowledgement); Estimate of Retirement Benefits (Estimate);

an information sh eet entitled , "What Retirement Option Should

You Choose" (Option); and a FRS booklet published by the

Division entitled , "Preparing to Retire" (Booklet).

28. The Acknowledgement document confirmed receipt of

Petitioner's service retirement application and repeated a

similar warning as those appearing above Petitioner's signature

on the forms she signed on March 4, 2011; this time, the notice

was in all capital letters and in all bold print: " ONCE YOU

RETIRE, YOU CANNOT ADD SERVICE, CHANGE OPTIONS, CHANGE Y OUR TYPE

OF RETIREMENT OR ELECT THE INVESTMENT PLAN. RETIREMENT BECOMES

FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED."

29. Detailed information was provided about FRS retirement

in the 15 - page Booklet. The Booklet's first four pages are

devoted to information for contacting the Division, including

how to access the Division's website, and how to contact

individuals, via numerous toll - free telephone numbers and e - mail

addresses, to ask questions. And yet another warning message

appears on page 1 1 of the Booklet, set apart from the rest of

the text by a bold text box:

Remember, once you cash or deposit any

benefit payment or after the first payment

is credited during your DROP participation

period, you cannot add service credit,

change your retire ment benefit option

selection, change your type of retirement

from early to normal or from service to

disability retirement, transfer to the FRS

Investment Plan or cancel your DROP

participation.

30. The two other documents sent on March 9, 2011, the

Es timate and Option documents, specifically addressed the

retirement payment option choice. These two documents warned

that Petitioner had selected O ption 1 and could not change that

option after cashing or depositing her first benefit check.

31. Petitio ner did not say what she did upon receipt of

March 9, 2011, package of materials, whether s he reviewed the

material or whether she asked her friends to review it. Had

these documents been reviewed, it would have been clear that

once Petitioner cashed or d eposited the first benefit payment,

she could no longer change the type of retirement from early

service retirement to disability retirement. 2/

32. At any point in time before Petitioner received and

cashed or deposited her first retirement benefit chec k, she

could have sought to change the type of retirement benefit from

early service to disability retirement. However, no such steps

were taken. As Petitioner testified and Ms. Beals acknowledged,

Petitioner did not believe at that time that she would q ualify

for disability retirement. In any event, it would have taken

longer to seek disability retirement benefits because of the

need to obtain verification by two doctors that Petitioner was

unable to work, and Petitioner did not want to wait.

33. Pet itioner received her first retirement benefit check

at the end of March 2011, and the state warrant was paid (cashed

or deposited) on April 8, 2011. As of the hearing date,

Petitioner had received an additional nine monthly payments for

her early service retirement benefit.

34. For some reason, i t was not until June 2011, after

receiving and cashing or depositing three early service

retirement benefit payments , that Petitioner decided to submit

an application for disability retirement benefits. The parti es

stipulated that Petitioner's disability retirement application

was mailed to the Division on June 14, 2011.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011). 3/

36. As the party asserting the affirmative of the issue,

Petitioner bears the burden of proving by a preponderance of the

evidence that she is entitled to change the type of retirement

benefits she has been rec eiving, from early service retirement

to disability retirement. 4/ § 120.57(1)(j)(standard of proof is

by a preponderance of the evidence); Wilson v. Dep't of Admin.,

Div. of Ret. , 538 So. 2d 139, 141 - 142 (Fla. 4th DCA 1989)

(petitioner challenging the Div ision's denial of credit for

prior service bears the burden of proving entitlement to prior

service credit, as the party asserting the affirmative of the

issue).

37. The preponderance of the evidence standard requires

proof by "the greater weight of the e vidence" or evidence that

"more likely than not" tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

38. This case is governed by the provisions of rule

60S - 4.002, which states in pertinent part:

(4) After a retir ement benefit payment

has been cashed or deposited or after a DROP

payment is credited:

(a) No additional service, which remained

unclaimed at retirement, may be claimed or

purchased;

(b) The selection of an option may not be

changed; and

(c) T he type of retirement, i.e. normal,

early, or disability, may not be changed ,

except for the following:

1. When a member recovers from disability

and subsequently applies for normal or early

retirement as provided in subsections 60S -

4.007(7) and (8), F .A.C.,

2. When a member begins receiving normal

or early service retirement benefits while

appealing a denial of his application for

disability retirement and such disability

application is subsequently approved as

provided in paragraph 60S - 4.007(3)(g) ,

F.A.C., or

3. When an elected officer requests,

prior to July 1, 1990, that his benefit be

suspended and recalculated as provided in

paragraph 60S - 4.012(6)(b), F.A.C. ( e mphasis

added) .

This rule has been in force at all times material to the facts

p resented here.

39. There is no dispute that Petitioner applied for early

service retirement benefits in March 2011 , that Petitioner's

first benefit check was cashed or deposited by April 8, 2011 ,

and that Petitioner did not submit an application for disab ility

retirement benefits until she mailed an application to the

Division on approximately June 14, 2011, after she had already

received and accepted t hree monthly payments of her early

service retirement benefits.

40. None of the three exceptions enumera ted in the rule

apply in this case, nor does Petitioner contend that one of the

enumerated exceptions applies. Thus, according to the plain

language of the rule, Petitioner cannot change the type of her

retirement benefits from early service to disability .

41. Notwithstanding the rule's clear terms, Petitioner

raises three "defenses," which she argues should excuse

application of the rule. First, Petitioner contends that she

was legally incapacitated on March 4, 2011, because she suffered

from a mental d isability that rendered her incapable of

understanding the nature or consequences of her acts. Second,

Petitioner contends that she was under duress, because she felt

pressured by the Pasco County School Board e mployee b enefits

c oordinator to make a decis ion and sign the paperwork. Finally,

Petitioner contends that she should be entitled to the equitable

remedy of rescission because she made a unilateral mistake of

fact under circumstances that would make i t inequitable for the

Division to have the benefi t of their "agreement."

42. Based on the credible evidence presented, Petitioner

failed to prove that she was incapacitated and incapable of

understanding the nature and consequences of her acts on

March 4, 2011, or within the approximately 35 days there after

before the state warrant for her first benefit payment was

cashed. Instead, the evidence showed that Petitioner made a

knowing and rational decision on March 4, 2011, by signing the

application for early service retirement benefits. Petitioner

had discussed her choice with her friend before that day and was

consistent in explaining her choice.

43. The evidence established that Petitioner was not

incapacitated , but instead, was generally capable of managing

her own affairs. Petitioner lived alone w ith her 17 - year - old

son, and Petitioner worried about taking care of him, not vice

versa . Petitioner dealt with her own paperwork and wrote checks

to pay her own bills. She obtained assistance , as needed , from

her friends, but there was no evidence to su ggest Petitioner was

not capable of managing her own affairs.

44. The fact that Petitioner suffered from a myriad of

medical challenges and related emotional challenges, such as

stress, anxiety, and depression, was not shown to render

Petitioner incapacit ated. Indeed, as Petitioner acknowledged,

she is intelligent, even though she sometimes has difficulty

processing things. By taking medication, Petitioner gained

sufficient control over her emotions to be able to function

quite well during the pertinent time: she discussed the matter

of retirement and the choice she thought she had to make with

her friend ; she wrote and submitted a letter of resignation to

her employer ; she arranged for a meeting with Mr. Hudson to go

through the paperwork ; she drove her self to and from that

meeting ; and she reported her actions to two different friends

immediately thereafter.

45. Petitioner's good friends testified on her behalf for

the purpose of supporting her incapacity defense, but neither

friend had the expertise t o provide medical opinions regarding

Petitioner's mental capabilities, nor did either witness provide

credible, unbiased testimony on the material issues. They were

trying to be good friends.

46. The evidence of Petitioner's medical and emotional

chall enges does not come close to the level that would be

necessary for civil proceedings to declare Petitioner

incompetent and appoint a guardian to manage her affairs. See

Ch. 744, Part V, Fla. Stat.

47. It is not entirely clear that , without an adjudicati on

of legal incapacity, such a "defense" could excuse the otherwise

binding effect of a duly - promulgated and unchallenged rule. But

it is clear that if such authority exists, it would have to be

limited to rare, extraordinary cases, with compelling eviden ce

of circumstances much more extreme than were shown to be

Petitioner's circumstances.

48. In the few cases in which incapacity was raised in an

effort to overcome an adverse result under the FRS, the

"defense" was rejected. For example, in Reeber v. Div ision of

Ret irement , Case No. 92 - 0215 (Fla. DOAH July 21, 1992 ; Fla. Div.

of Ret. July 7, 1992 ), a daughter was unsuccessful in her

attempt to have her mother's designation of a new beneficiary

declared void based on the mother's asserted incapacity. T he

evidence in that case established that the mother may have been

under emotional stress and unable to manage some of her

property, but she was not legally incapacitated when she filed a

new designation of beneficiary with the Division.

49. Similarly, in Holland v. Div ision of Ret irement , Case

No. 98 - 3886 (Fla. DOAH June 29, 1999 ; Fla. Div. of Ret. Sept. 9,

1999 ), a surviving spouse attempted to change her deceased

husband's selection of payment options , after benefit checks had

been paid and deposited, by claiming that her husband was

incapacitated when he made the selection. The surviving spouse

testified that at the time he completed the form, the husband

had had a stroke, was still strapped in a wheelchair, was

mentally confused, and could only brie fly converse with others.

However, the determination was that the deceased husband, who

had never been adjudicated incompetent by a court, was

sufficiently competent to understand the nature and consequences

of his actions when he filled out the option se lection form and

during the following time period until the first benefit check

was deposited.

50. In an analogous context, the subject of invoking

mental incapacity for equitable tolling of a limitations period

was recently analyzed in Steadman v. Dep a rtment of M ana g e m en t

Serv ice s, Div ision o f Ret irement , Case No. 10 - 8929 (Fla. DOAH

April 14, 2011). The conclusion in Steadman was that in cases

in which a party has attempted to invoke mental incapacity as a

basis for equitable tolling, courts have requi red a showing of

extreme circumstances, such as hospitalization or such complete

and total incapacity as to render the party claiming equitable

tolling completely unable to function in society. 5/ In this

case, Petitioner has not claimed or proven such com plete

inability to function.

51. Petitioner also raised the "defense" of duress,

arguing that she felt pressured to sign the paperwork on

March 4, 2011. Although Petitioner attempted to attribute the

source of this pressure to Mr. Hudson, that effort w as

unconvincing. Petitioner failed to prove that Mr. Hudson

pressured her in any way to sign the early service retirement

application that day. In any event, even if Petitioner had felt

pressure that day -- from whatever source -- she still would have

had ap proximately 35 days after her meeting with Mr. Hudson to

review the paperwork with her friends and change her decision

before her retirement was rendered final by her acceptance of

her first benefit check. Petitioner failed to prove that she

was subjected to duress that forced her to accept early service

retirement benefits.

52. Petitioner's third "defense" attempts to invoke the

equitable remedy of rescission based on a claim of unilateral

mistake of fact under circumstances where it would be

inequitab le to allow the other party to benefit from the

mistake. In rare cases, the defense of equitable estoppel has

been allowed in administrative proceedings, but Petitioner did

not attempt to raise or prove equitable estoppel. Petitioner

offered no authority to support the exercise of equitable powers

in administrative proceedings to allow the remedy of rescission

based on a claim of unilateral mistake. The authority appears

to be to the contrary. See , e.g. , Valdez v. Dep't of Mgmt.

Servs., Div. of Ret. , Ca se No. 05 - 1991 (Fla. DOAH Sept. 26,

2005 ; Fla. Div. of Ret. Nov. 21, 2005 ). 6/

53. Even if Petitioner's application for and receipt of

early service retirement benefits could be rescinded based on a

proven unilateral mistake and appropriate equitable

cir cumstances, Petitioner did not prove that grounds exist for

such a remedy. The only apparent mistake was Petitioner's

assumption that she would not be able to obtain letters from two

doctors certifying that she was permanently unable to work.

Petitioner could have, notwithstanding her assumption, attempted

to qualify for disability retirement benefits first. Her choice

to proceed with early service retirement was a reasonable one at

the time and allowed her to satisfy her goal of quickly

receiving a stre am of income. Her hindsight regret that she was

in a hurry to receive benefit payments is understandable, but

does not make her initial decision a mistake.

54. To the extent Petitioner's "mistake" argument is based

on her claim that she did not understan d that she could not

change the type of retirement after receiving benefit checks,

Petitioner's claim is not credible or reasonable. Petitioner

was plainly put on notice that she could not change from early

service retirement to disability retirement afte r receiving the

first benefit check.

55. Finally, Petitioner raised a new argument in her

Proposed Recommended Order: that she should be entitled to a

"rehearing , " because she did not understand what kind of

evidence she needed to present to meet her b urden of proof. In

particular, Petitioner's counsel claims that although he was

informally assisting Petitioner to prepare her theories,

Petitioner, as a technically self - represented party, could not

have been expected to understand the hearsay evidence r ule in

administrative proceedings. Apparently, Petitioner's argument

for a "rehearing" is that Petitioner should be given a do - over

of the entire evidentiary hearing, now that the limitations of

hearsay are understood.

56. Petitioner's new argument is d irected to the fact that

Petitioner offered no competent medical opinion testimony at the

final hearing to establish that she was legally incapacitated.

Petitioner's counsel initially offered a letter from a

psychiatrist, but the Division objected to the hearsay nature of

the document. After discussion on the record about the fact

that the letter could not be the sole basis for a finding of

fact and could not be used to supplement or corroborate other

non - hearsay evidence because there was no witness qual ified to

render a medical opinion, ultimately , Petitioner's counsel

withdrew the exhibit. No proffer of the letter was made ; hence ,

it is not part of the record.

57. Petitioner's new argument must be rejected for several

reasons. First, self - represented parties are subject to the

same evidentiary standards as parties represented by counsel.

Petitioner was on notice of the statutes and rules governing

this proceeding. Section 120.57(1)(c) codifies the limitation

on the use of hearsay evidence in adminis trative proceedings, as

follows: " Hearsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions." Re iterating and

elaborating on what the rule says, Florida Administrative Code

R ule 28 - 106.213, the uniform rule of procedure regarding

evidence in disputed - fact administrative hearings, provides as

follows in paragraph (3):

Hearsay evidence, whether receive d in

evidence over objection or not, may be used

to supplement or explain other evidence, but

shall not be sufficient in itself to support

a finding unless the evidence falls within

an exception to the hearsay rule as found in

Chapter 90, F.S.

58. The e videntiary standards codified in the governing

statute and rule were explained to Petitioner at the opening of

the hearing. While every effort is made to explain the

standards to self - represented parties, it is not the role of the

Division of Administrati ve Hearings to offer legal advice to

parties as to how they need to go about proving their cases.

That is particularly true here, where Petitioner had the benefit

of counsel, informally before the hearing and formally at the

hearing.

59. Petitioner's ar gument must also be rejected because it

is untimely. At no point throughout the evidentiary hearing was

there any suggestion that Petitioner was not prepared to go

forward with the witnesses and evidence she had disclosed before

hearing. If counsel had l egitimate concerns about whether

Petitioner needed additional witness es or evidence , it was

incumbent on counsel to make that known before the evidentiary

hearing, instead of raising the argument for the first time ten

days after the evidentiary record was closed . Counsel could

have sought to present testimony of a previously undisclosed

witness; or counsel could have asked for a continuance if deemed

necessary to adequately prepare. Petitioner cannot now obtain a

second evidentiary hearing.

RECOMMENDATIO N

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby:

RECOMMENDED that Respondent, Department of Management

Services, Division of Retirement , enter a f inal o rder denying

the request to change from early service retirement ben efits to

disability retirement benefits submitted by Petitioner, Reneé

Radicella.

DONE AND ENT ERED this 27th day of February , 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

D ivision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of F ebruary , 2012 .

ENDNOTE S

1/ Petitioner complained, for the first time in her Proposed

Recommended Order, that Respondent violated the Order of

Pre - Hearing Instructions by not contacting her for settlement

discussions at least seven days before the final hearing. The

Order of Pre - Hearing Instructions obligated both parties to

confer before the hearing in an attempt to resolve their

dispute; thus, any failure to comply falls on both parties.

Moreover, any arguable detriment to either party by the omissio n

of settlement discussions before the final hearing could have

been cured by a request for such a discussion opportunity before

convening the hearing. Indeed, before the undersigned entered

the hearing room, the parties did engage in discussions to

ident ify and narrow the issues, as evidenced by their announced

stipulations of several material facts. Petitioner waived her

opportunity for pre - hearing settlement discussions by not

raising the issue pre - hearing.

2/ Petitioner attempted to argue that the warning messages in

the various documents were conflicting, because not every

warning repeated that the type of retirement could not be

changed after the first benefit check was cashed or deposited.

To the contrary, the warning messages were clear and num erous.

Both documents signed by Petitioner on March 4, 2011, warned

that Petitioner could not change the type of retirement from

early service to disability after cashing the first check. The

warning was reiterated in the Acknowledgement document , as wel l

as in the comprehensive Booklet. The mere fact that the two

option - specific documents had more limited warnings directed to

changing options does not create a conflict with the broader

warnings contained in the other documents. Petitioner did not

point to anything in writing in any document that remotely

suggested or implied that she could change her type of

retirement after cashing the first benefit check. Instead, all

of the clear warnings were to the contrary.

3/ Unless otherwise indicated, all re ferences to the Florida

Statutes are to the 2011 version.

4/ The parties acknowledged on the record that the issue in this

proceeding is limited to whether Petitioner is not allowed to

change the type of retirement benefits she has been receiving,

from early service retirement to disability retirement, or

whether Petitioner will be allowed to proceed to have the

Division consider the merits of Petitioner ' s application for

disability retirement benefits. The Division ' s initial

determination, challenged here, was that Petitioner cannot

change the type of retirement benefits she receives , because she

has already cashed or deposited early service retirement benefit

payments. The Division , therefore , did not consider the merits

of Petitioner ' s disability re tirement application, and no

determination is made on the question here.

5/ An example of the type of case cataloged in Steadman , in which

mental incapacity was unsuccessfully asserted as grounds for

equitable tolling, is Speiser v. U.S. Dep artment of He alth and

Human Serv ice s , 670 F. Supp. 380, 385 (D.D.C. 1986) (rejecting

as insufficient to invoke equitable tolling evidence from

plaintiff ' s psychiatrist that plaintiff suffered from atypical

depression, manifested by lethargy, excessive sleep,

disorienta tion, appetite changes, and impaired judgment; " While

plaintiff may have had impaired judgment, . . . [and] was

preoccupied, depressed, and obsessed . . . she has not shown

that she was ever adjudged incompetent, signed a power of

attorney, had a guardian or caretaker appointed, or otherwise

took measures to let someone else handle her affairs " as might

be done for someone who is incapable of handling his own affairs

or unable to function in society).

6/ Rescission of an application for early service reti rement

benefits based on a unilateral mistake was implicitly rejected

in Williams v. Dep artment of M ana g e m en t Serv ice s , Div ision of

Ret irement , Case No. 08 - 3326 (Fla. DOAH Oct. 30, 2008), aff ' d,

31 So. 3d 838 (Fla. 5th DCA 2010). In Williams , the retiree

claimed that he was told by someone at the Division that he

could not get disability retirement benefits and that was why he

applied for early service retirement benefits. Just as in this

case, the retiree apparently later realized that he might be

able t o qualify for disability retirement and submitted his

application. He was not allowed to pursue the change because he

had already accepted benefit payments for the early service

retirement. Because he could not prove that he was misled by a

Division empl oyee, so as to establish grounds for equitable

estoppel, his attempt to change the type of benefits was denied

pursuant to rule 60S - 4.002(4). His mistaken belief that he had

not been approved for disability retirement, but could apply

later, was deemed in sufficient to excuse application of the

clear dictates of the rule.

COPIES FURNISHED :

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

Jason Dimitris, General Couns el

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

[e-mail]

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

[e-mail]

Edward K . Kim, Esquire

Law Offices of Edward K. Kim

1907 West Kennedy Boulevard

Tampa, Florida 33606 - 1530

[e-mail]

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.