15-001528 Vivian Renaud vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Wednesday, June 24, 2015.

Summary: Petitioner did not meet burden of proving entitlement to deceased husband's retirement benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIVIAN RENAUD ,

Petitioner,

vs. Case No. 1 5 - 1528

DEPARTMENT OF MANAGEMENT

SERVICES , DIVISION OF

RETIREMENT ,

Respondent.

________________________________/

RECOMMENDED ORDER

Pursuant t o notice, a final hearing was conducted in this

case on May 21, 2015 , in Tallahassee , Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Vivian Renaud , pro se

2759 Sharpes Court

Orange Park, F lorida 32065

For Respondent: Joe Thompson , Esquire

Assistant General Counsel

Department of Management Services

4050 Esplande Way, Suite 160

Tallahassee, Florida 32399 - 095 0

STATEMENT OF THE ISSUE

The issue in this case is whether PetitionerÓs husbandÓs

selection of Option 1 for his pension plan benefits could be

changed .

PRELIMINARY STATEMENT

By letter dated July 10, 2014 , Respondent , Department of

Management Serv ices /Division of Retirement (the "Department") ,

issued a letter to Petitione r, Vivian Renaud (ÐMrs. RenaudÑ),

stating that her request to receive monthly benefits from the

retirement account of her late husband, Edward W. Renaud, Jr.

(ÐMr. RenaudÑ), was de nied. Mrs. Renaud requested an informal

administrative hearing to contest the decision. Subsequently,

the parties determined that there were disputed issues of

material fact, and the case was referred to the Division of

Administrative Hearings (DOAH) . P ursuant to notice, a final

hearing was scheduled on the date and time set forth above.

Mrs. Renaud was assisted at final hearing by her son, Ed Renaud .

Mrs. Renaud is deaf, so a certified sign interpreter was

provided fo r her at final hearing as well.

At the final hearing, Mrs. Renaud appeared pro se, with

assistance from her son . Each of them testified at the final

hearing. Mrs. Renaud offered three exhibits into evidence, but

they were rejected due to objections from the Department as to

authenticity, relevance, and hearsay . Mrs. RenaudÓs exhibit

entitled ÐGeneral Effective Communication Requirements Under

Title II of the ADAÑ was not admitted; however, it was allowed

as a demonstrative exhibit and leave was given to make legal

arguments concerning th e content of the document as part of the

proposed recommended order (PRO) .

The Department called one witness, David H ei del, survivor

benefits administrator for the Division of Retirement . The

Department 's E xhib its 1, 5 - 7, 9 - 1 1, 13, and 15 were accepted

in to evidence. The parties advised that a transcript of the

final hearing would be ordered. By rule, parties are allowed 10

days from the filing of the t ranscript at DOAH to file PROs.

The Transcript was filed on June 5 , 2015. Each party timely

submitted a PRO and each was duly considered in the prepara tion

of this Recommended Order.

FINDINGS OF FACT

1. Mrs. Renaud, who is deaf, was married to Mr. Renaud for

approximately 40 years . Mr. Renaud was employed by the State of

Florida as a correctional o fficer at all times relevant hereto.

He entered the State retirement program (in the pension plan) in

November 1994. Mr. Renaud was in the Ðspecial riskÑ category of

retirement class based on his position as a correctional

officer.

2. On October 24 , 2013, Mr. Renaud signed and submitted a

Ð Florida Retirement System Pension Plan Application for Service

Retirement Ñ form to the Department , indicating his intent to

retire . The application was signed and notarized; it designated

Mrs. Renaud as the sole beneficiary of his retirement benefits .

On the same day, Mr. Renaud signed an ÐOption SelectionÑ form,

wherein he designated which of four payment options he wanted to

utilize for payment of his retirement income . He selected

Option 1, which states:

A mo nthly benefit payable for my lifetime.

Upon my death the monthly benefit will stop

and my beneficiary will receive only a

refund of any contributions I have paid

which are in excess of the amount I have

received in benefits. This option does not

provide a contin uing benefit to my

beneficiary.

3. The form also contains the following statement:

ÐI understand that 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 . . . 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.Ñ

4. The option selection form was signed by Mr. Renaud and

notarized by a certified notary public . Inasmuch as Mr. Renaud

selected Option 1, it was necessary that he and his designated

beneficiary (Mrs. Renaud) also fill out form SA - 1, the ÐSpou sal

AcknowledgementÑ form. On the acknowledgement form, Mr. Renaud

indicated that he was married. Mrs. Renaud then signed the

Ðspousal acknowledgementÑ portion of the form . The

a cknowledgement statement included this statement: ÐI, Vivian

Renaud, bein g the spouse of the above named member [Mr. Renaud],

acknowledge that the member has selected either Option 1 or 2.Ñ

Option 2 provides for continued benefits during the retiring

personÓs lifetime. However, benefits to the personÓs spouse

will continue fo r only a 10 - year period. If the retiring person

dies within the first 10 years of retirement, the spouse would

only receive benefits for the balance of the 10 - year period

starting at the retirement date. The benefits under Option 2

are, therefore, limite d in nature. The state retirement system

requires a person selecting Option 1 or Option 2 to have their

spouse acknowledge that selection choice because those benefits

have finite ending dates, whereas retirement benefits under the

other options continue as long as either the retiree or his/her

beneficiary is living .

5 . By letter dated October 30, 2013, the Department

acknowledged receipt of Mr. RenaudÓs retirement application.

The letter referenced the date the application was received

(October 24 , 2013) and the option Mr. Renaud had selected

(Option 1). The letter was mailed to Mr. RenaudÓs address of

record , the same address he listed in his retirement

application . The letter was sent to Mr. Renaud some 30 days

before the first retirement benef it check was deposited in hi s

account . Mrs. Renaud does not remember seeing the letter, but

inasmuch as it was addressed to Mr. Renaud, her recollection of

its receipt is not relevant. After Mr. RenaudÓs death, his

family found numerous un - opened letters in his car; the

acknowledgement letter from the Department could well have been

in that group.

6 . Mr. Renaud retired on November 1, 2013. His first

payment of retirement benefits was transferred to his bank by

way of electronic fund transfer, commo nly referred to as direct

deposit, on November 27, 2013. The gross amount of his monthly

retirement benefit was $1,987.85; the net amount was $1,937.75

after $30.09 had been deducted for taxes. At that time,

Mr. Renaud had not signed form W4P, the form which showed how

many dependents the retiree was claiming for tax purposes.

After later filling out th at form (in which he indicated he

would prefer to file as ÐsingleÑ for tax purposes), his monthly

net benefit was reduced to about $1,735. Mr. Renaud re ceived a

direct deposit of retirement benefits on December 31, 2013; on

January 31, 2014; and again on February 28, 2014.

7 . Mr. Renaud passed away on March 26, 2014, only five

months after commencing his retirement . In accordance with the

provision s of Option 1, Mr. RenaudÓs retirement benefits ceased

at that time. His beneficiary was entitled to payment for the

entire month that he expired, but was not to be provided any

further retirement benefits. Thus , a final payment was

deposited in Mr. Rena udÓs account on March 31, 2014.

8 . Mrs. Renaud was provided notice of the cessation of

retirement benefits due to Mr. RenaudÓs death. She timely filed

a protest, seeking to have the payment of benefits reinstated.

The Department denied her request, resulting in the instant

matter.

9 . It is clear from the evidence tha t Mr. Renaud selected

Option 1 , Mrs. Renaud acknowledged that Mr. Renaud had selected

either Option 1 or Option 2, and that retirement benefits were

directly deposited to Mr. Renau dÓs bank account for several

months. Mr. and Mrs. RenaudÓs signatures were duly notarized

and have a presumption of legitimacy.

10 . Mrs. Renaud disagrees as to whether Mr. RenaudÓs

selection of Option 1 was legitimate, legal, or proper under the

cir cumstances as she views them .

1 1 . First, Mrs. Renaud contends that Mr. Renaud was not

mentally well at the time he signed the option selection form.

The basis for her contention is that Mr. Renaud had experienced

some seizure - related behavior during the year prior to signing

the form. He had driven his car north on US Highway 301 one day

in July 2012 , Ðheading to work,Ñ but ended up in Georgia without

remembering why or how he got there . He later apparently lost

his driverÓs license because of the seizures (although the

testimony on that issue was not clear). 1/ Mr. Renaud worked for

approximately 15 more months after his inexplicable drive to

Georgia.

1 2 . Mrs. Renaud also argued that Mr. RenaudÓs signatures

on the three different forms he si gned on October 24, 2013, were

not similar to each other , indicating in her mind that he was

having some sort of medical or psychological difficulty at that

time . Inasmuch as there could have been any number of reasons

the signatures were different (wheth er he was in a hurry, what

base existed under the paperwork, etc.), there is insufficient

evidence to determine why the signatures did not match.

Mrs. RenaudÓs testimony regarding the signatures is not

persuasive.

1 3 . Ed Renaud said Mr. Renaud had been forced to retire

due to his medical condition , i.e., that he had lost his

driverÓs license due to having seizures and the Department of

Corrections would not let him work if he could not drive .

However, Ed Renaud also said Mr. Renaud was able to continue

working even when he was ÐforcedÑ to retire . Again, the

testimony on these facts was not clear.

1 4 . Mrs. Renaud said she should have been provided an

interpreter on the day she signed the acknowledgement form. She

did not state whether she requested an interpreter or whether

the agency employee who provided her the form was aware of her

disability. 2/ Again, no one from Mr. RenaudÓs employer, the

Department of Corrections, testified at final hearing as to what

happened on the day the forms were signed.

1 5 . Mrs. Renaud stated that she could read and write

English, so she knew what she was signing. 3/ She did claim to be

confused as to whether her husband had selected Option 1 or

Option 2, but candidly admitted that Mr. Renaud never told her

one way or the other which option he had chosen . He only told

her that he would Ð continue to provide for her in the future. Ñ

She believed the amount which was to be deposited in their

account each month under Option 2 would be approximately $1 9 00.

The first check was in that approximate amount (due to the fact

that Mr. Renaud had not established the amount of taxes to be

deducted from his check at that time). The next five checks

were in a lesser amount, approximately $1700. There is no

evidence t hat Mrs. Renaud questioned the amount of the later

checks. However, once the first check had been deposited in

Mr. RenaudÓs bank account, he would not have been allowed to

change his option anyway.

1 6 . Lastly, Mrs. Renaud said her husbandÓs medical and

mental condition was not conducive to making the option

selection in October 2013. However, there was no competent

evidence to support her claim. There was no direct testimony as

to Mr. RenaudÓs condition on the day he signed, nor as to

whether he w as or was not capable of understanding what he was

signing. The only statement about his condition that day was

that he wanted to park the car far enough away from the building

that his co - workers could not see that Mrs. Renaud had driven

the car. Ed Ren aud also pointed out the issue of Mr. RenaudÓs

three signatures that day looking different from each other , but

his lay opinion is not evidence upon which a finding of fact can

be made as t o Mr. RenaudÓs mental condition.

1 7 . On October 24, 2013, Mr. Renaud had not been adjudged

mentally incapacitated and no guardian had been appointed. Ed

Renaud said that Mr. Renaud still believed he could perform his

work assignments at that time and did not want to retire. But,

other than his wife, no one provide d any evidence that

Mr. Renaud did not understand wh at he was signing. Mrs. Renaud,

however, could not say which option he had selected because he

never told her. Her subsequent presumption that Mr. Renaud did

not intend to choose Option 1 is not persua sive.

1 8 . It should be noted that selection of Option 1 by

Mr. Renaud set his average pre - tax monthly benefit at around

$1,900.00; had he chosen Option 2, the benefit would have been

around $1,700. Thus, there was incentive to Ðroll the diceÑ and

s elect Option 1, hoping that he would survive long enough to

provide for his wife. In this case, sadly, that gamble did not

pay off.

1 9 . The facts of this case are sad in that Mr. Renaud had

every intention of providing for his wife financially as l ong as

she lived. However, he either made a mistake when he selected

his payment option or he attempted to tempt fate and hope for

the best. In either case, once he made his selection and began

receiving benefits, the die was cast. B ased upon the facts as

presented, there is no basis for overturning the DepartmentÓs

denial of Mrs. RenaudÓs requested amendment of the payment

option.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject ma tter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2014) . Unless specifically stated otherwise herein,

all references to Florida Statutes will be to the 2014 version.

2 1 . Petitioner has the burden of proof in this matter as

she is asserting the affirmative of the issue. Balino v. Dep Ó t

of Health and Rehab . Servs . , 348 So. 2d 349 (Fla. 1st DCA 1977).

Nonetheless, at final hearing the Department was asked to

present its case in chief first. This change in order of proof

did not alter the burden of proof. The standard of proof is by

a preponderance, or greater weight, of the evidence.

See Osborne Stern & Co. v. DepÓt of Banking and Fin. , 670 So. 2d

932 (Fla. 1996).

2 2 . In this case, Mrs. Renaud did no t meet her burden of

proof. There was no persuasive evidence that either Mr. Renaud

or Mrs. Renaud w as misinformed, given wrong information,

prevented from asking questions, or misled in any way on the day

they signed the relevant retirement forms.

2 3 . Further, there is no legal basis for changing

Mr. RenaudÓs retirement option decision at this time.

The form he signed contains the following

language: Ð I understand that I must

terminate all employment with FRS employers

to receive a retirement bene fit under

Chapter 121, Florida Statutes. I also

understand that I cannot add service, change

options or change my type of retirement

. . . once my retirement becomes final. My

retirement becomes final when any benefit

payment is cashed, deposited or whe n my

Deferred Retirement Option Program (DROP)

participation begins. Ñ

Once Mr. Renaud received his first retirement benefit by way of

direct deposit, he was estopped from making any changes

concerning his option. See , § 1 2 1.091(6)(h), Fl a. Stat. As th e

beneficiary of Mr. RenaudÓs retirement benefits, Mrs. Renaud

would also have been unable to alter the option choice once

retirement benefits were received.

2 4 . Even if Mr. RenaudÓs employer, the Department of

Corrections, had given him erroneous in formation (and there is

no evidence this occurred), the Department of Management

Services would not be responsible for that error.

See , § 12 1 .021(10), Fla. Stat. Any recourse for such an event

would be from the Department of Corrections.

2 5 . There is no legal basis for changing Mr. RenaudÓs

retirement payment option retroactively to meet his survivorÓs

wishes . 4/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the D epartment

of Management Services denying Petitioner's request for

entitlement to her husbandÓs retirement benefit s following his

untimely death.

DONE AND ENTERED this 24th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division 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 th e Clerk of the

Division of Administrative Hearings

this 2 4th day of June , 2015 .

ENDNOTES

1/ For example, it is unclear how Mr. Renaud would have numerous

un - opened letters in his car that his family had not seen if he

was no longer driving.

2/ At fin al hearing, Ed Renaud attempted to offer into evidence

an excerpt from an unidentified book or pamphlet concerning

effective communication requirements under Title II o f the

Americans with Disabilities Act. The excerpt, which Ed Renaud

cited as governing this matter, includes this statement

concerning assistance for persons with disabilities:

ÐGenerally, the requirement to provide an auxiliary aid or

service is triggered when a person with a disability requests

it.Ñ As far as can be determined from the r ecord in this case,

Mrs. Renaud never requested any assistance.

3/ When asked if she could read and write at the time Mr. Renaud

signed his option selection form, Mrs. Renaud replied: ÐCan I

read, write Î the same thing? Yeah, I can read and write, bu t

sometimes certain words is confusing. If words Î I sometimes,

if I donÓt understand something, IÓll look it up in a

dictionary. But I had no dictionary to look up the way the

wordings were. I assumed it was a 2.Ñ

4/ Neither the undersigned nor any o ther employee involved in

this decision takes any pleasure that Mrs. Renaud will be denied

any further benefits. However, the law in this matter must be

upheld in order to protect the integrity of the retirement

system.

COPIES FURNISHED :

Joe Thompson, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, F lorida 32399 - 0950

(eServed)

Vivian Renaud

2759 Sharpes Court

Orange Park, F lorida 32065

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplan ade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

Dan Drake, Director

Division of Retirement

Department of Management Services

Post Office Box 900 0

Tallahassee, Florida 32315 - 9000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.