15-005416
James B. Anderson vs.
Department Of Management Services, Division Of Retirement
Status: Closed
Recommended Order on Friday, January 22, 2016.
Recommended Order on Friday, January 22, 2016.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JAMES B. ANDERSON,
11Petitioner,
12vs. Case No. 15 - 5416
18DEPARTMENT OF MANAGEMENT
21SERVICES, DIVISION OF
24RETIREMENT,
25Respondent.
26_______________________________/
27RECOMMENDED ORDER
29On December 7, 2015, a disputed fact hearing was held in
40this case by video teleconferencing, with sites in Tampa and
50Tallahassee, before J. Lawrence Johnston, Administrative Law
57Judge, Division of Administrative Hearings (DOAH).
63APPEARANCES
64For Petitioner: Nicholas E. Karatinos, Esquire
70Law Office of Karatinos
74Suite 101
7618920 North Dale Mabry Highway,
81Lutz, Fl orida 33548
85For Respondent: Joe M. Thompson, Esquire
91Department of Management Services
95Suite 160
974050 Esplanade Way
100Tallahassee, Florida 32399
103STATEMENT OF THE ISSUE
107The issue in this case is whether James B. Anderson, a
118deceased retiree in the Florida Retirement S ystem Pension Plan,
128selected Option 1 (maximum retireeÓs monthly benefit without any
137spousal benefit after death of the retiree) or Option 3 (a
148reduced retireeÓs monthly benefit with continued spousal benefit
156after death of the retiree).
161PRELIMINARY STAT EMENT
164Mr. Anderson was a retiree in the Florida Retirement System
174Pension Plan when he died in February 2015. In March 2015, his
186widow, Mitzi Anderson, contacted the Department of Management
194Services, Division of Retirement, which informed her that she wa s
205not due a spousal benefit.
210In August 2015, M r s. Anderson sent the Division of
221Retirement a certified letter requesting a spousal benefit, which
230was denied.
232In September 2015, M r s. Anderson filed a Petition for Review
244in the name of her deceased husband to challenge the intended
255denial. The Division of Retirement forwarded the petition to
264DOAH for a hearing.
268On November 13, the Respondent filed a Notice of Filing
278Motion for Attorney Fees with PetitionerÓs Counsel. On
286November 24, the Petitioner filed a response in opposition and a
297motion to strike for filing the motion without complying with the
308Ðsafe harborÑ provision in section 57.105(5), Florida Statutes
316(2015). The motion to strike was denied because the motion was
327not yet filed at DOAH, but only served on the Petitioner in
339compliance with the safe harbor provision.
345The parties filed separate pre - hearing statements instead of
355a joint pre - hearing stipulation, supposedly because they could
365not agree on a joint pre - hearing stipulation. However, a
376comparison of the two pre - hearing statements revealed that the
387disputes between the parties were narrow.
393One difference between the partiesÓ pre - hearing statements
402was the PetitionerÓs statement that the RespondentÓs motion for
411attorney f ees was pending a nd required action, compared to the
423RespondentÓs statement that only the PetitionerÓs motion to
431strike the motion for attorneyÓs fees was pending. Two days
441after the RespondentÓs pre - hearing statement, the Respondent
450filed a Notice of Filing Second Motion for Attorney Fees with
461PetitionerÓs Counsel. However, no motion was attached, and none
470has been filed by the Respondent to date.
478The DOAH hearing confirmed that the dispute between the
487parties was indeed narrow. At the outset of the hearing, the
498Petit ioner sought to admit all of the RespondentÓs Exhibits in
509evidence, but the Respondent objected and insisted that the
518Petitioner move exhibits into evidence during the PetitionerÓs
526case - in - chief. The Petitioner then made an opening statement
538that admitted virtually every fact asserted by the Respondent.
547The Petitioner called Donna Pepper and Mitzi Anderson to
556testify and moved the RespondentÓs Exhibits 1, 6, and 7 into
567evidence. The Respondent called Theresa Bach, Allison Olson,
575Todd Gunderson, and Davi d Heidel to testify. The RespondentÓs
585Exhibits 2, 3, 4, 9, 11, 12, 13, 15, 18, and 19 were admitted
599into evidence without objection. The Respondent also had
607pertinent statutes and rules, a reference manual for Florida
616notaries, and a 2006 retirement guid e officially recognized and
626admitted into evidence.
629The Transcript of the final hearing was filed on
638December 15, 2015. The parties filed proposed recommended orders
647that have been considered in preparation of this Recommended
656Order.
657FINDING S OF FACT
6611 . On June 30, 2007, the named Petitioner, James B.
672Anderson, terminated his employment with the University of South
681Florida (USF) at the age of 69 years and 9 months. At the time,
695his tenure at USF spanned 27 years and entitled him to receive
707pension ben efits under the Florida State Retirement System
716Pension Plan.
7182. Also o n June 30 , 2007, Mr. Anderson completed an
729application for retirement . By applying Mr. Anderson, who was
739USFÓs Director of Insurance and Risk Management, acknowledged
747that he would no t be able to add service, change options, change
760his type of retirement (regular, disability, and early) or elect
770the Invest ment Plan once his retirement became final, which would
781be when he cashed or deposited any benefit payment.
7903. Also o n July 2, 20 07, Mr. Anderson and his wife, Mitzi
804Anderson, executed a Statutory Official Form FRS 110 before a
814notary public. By doing so, they selected Option 1, which
824provides the maximum pension benefits to Mr. Anderson until his
834death and no pension benefits to h is wife after his death. The
847form stated clearly, in bold print, that Option 1 did not provide
859a continuing benefit after Mr. AndersonÓs death and that the
869selection of Option 1 would be final when Mr. Anderson cashed or
881deposited any benefit payment.
8854 . The next day, Mr. Anderson faxed the executed form to
897the Division of Retirement, which mailed Mr. Anderson an
906acknowledgement of receipt of the executed form. The
914acknowledgement included a clear statement, in bold print, that
923Mr. Anderson would not b e able to change his benefit option
935selection after retirement and that his retirement would become
944final when he cashed or deposited any benefit payment.
9535 . Mr. Anderson had second thoughts about his benefit
963option selection and contacted Donna Pepp er, a retirement
972specialist employed by USF, to discuss changing to Option 3,
982which would give him a reduced pension benefit that would
992continue and be paid to his wife after his death.
10026 . On July 6, 2007, Ms. Pepper sent an email to
1014Mr. Anderson statin g: ÐHere is another option selection form so
1025that you can change your option.Ñ The email attached a blank
1036Statutory Official Form FRS 110. Ms. PepperÓs email also stated:
1046ÐAs we discussed, you may want to indicate that this form should
1058supersede the pr eviously submitted form.Ñ It also ad vised the
1069Petitioner to keep a copy for his records and send the original
1081to the Division of Retirement as soon as possible.
10907 . On July 20, 2007, at 12:53 p.m., a comment was entered
1103on the Integrated Retirement Infor mation System (IRIS) telephone
1112log, documenting that Mr. Anderson was considering changing his
1121benefit option selection and would Ðeither FAX a form with a
1132change of option on it or call to let them know he would not make
1147the change.Ñ The comment also doc umented that Jan Steller in
1158retirement payroll was asked to hold Mr. AndersonÓs first check
1168until Ðthis is resolved.Ñ Later the same day, at 2:30 p.m.,
1179another comment was added to document that Mr. Anderson had
1189called back to say he had decided to stay w ith Option 1 and that
1204Jan Steller had been called back and asked Ðto release his
1215check.Ñ
12168 . On July 31, 2007, an initial pension check was sent to
1229Mr. Anderson in the amount of $4,188.45, in accordance with his
1241selection of benefit Option 1, which was abo ut $1,200 more than
1254it would be under Option 3. This check was not immediately
1265cashed.
12669 . On August 31, 2007, a second Option 1 pension check in
1279the same amount was sent to Mr. Anderson.
128710 . On September 4, 2007, Mr. Anderson deposited the first
1298two benefit checks into his Bank of America account. He
1308continued to receive and cash or deposit monthly Option 1 benefit
1319checks through January 2015.
132311 . Mr. Anderson died on February 14, 2015. His wife
1334notified the Division of Retirement, which stopped benefit
1342payments in accordance with Mr. AndersonÓs Option 1 selection.
135112 . In March 2015, Mrs. Anderson found among her husbandÓs
1362papers a copy of an executed Form FRS 110 that selected Option 3.
1375Notwithstanding the telephonic communications with the D ivision
1383of Retirement on July 20, 2007, the executed form indicates that
1394it was notarized on July 23, 2007. Included in handwriting at
1405the bottom of the executed form was the language, as suggested by
1417Ms. Pepper: ÐThis option supersedes option dated 7 - 02 - 07.Ñ
1429Mrs. Anderson also found a copy of Donna PepperÓs e - mail dated
1442July 6, 2007, with instructions on how to change the selection of
1454pension payments. Mrs. Anderson sent copies to the Division of
1464Retirement and requested Option 3 spousal benefit payme nts.
147313 . The Division of Retirement denied Mrs. AndersonÓs
1482request because it did not receive an Option 3 benefit selection
1493before the copy Mrs. Anderson sent in March 2015 . There was no
1506evidence that the form was sent to the Division of Retirement
1517befo re then . This, together with the fact that Mr. Anderson
1529received and cashed or deposited seven and a half yearsÓ worth of
1541monthly Option 1 benefit checks, which were each over $1,200 more
1553than the Option 3 benefit would have been, support a finding that
1565M r. Anderson actually selected Option 1 and never switched to
1576Option 3. It is not clear from the evidence why Mr. Anderson
1588kept a copy of an executed change from Option 1 to Option 3 after
1602deciding not to send it to the Division of Retirement.
1612CONCLUSION S OF LAW
161614. The Respondent administers the Florida Retirement
1623System under chapter 121, Florida Statutes (2015).
163015. Section 121.091(6)(a)1. and 3. set out the Option 1 and
1641Option 3 benefit options. The statutes, rules, and retirement
1650guide are clear that the benefit option must be selected before
1661retirement and is Ðfinal and irrevocable at the time a benefit
1672payment is cashed or deposited . . . .Ñ £ 121.091(6)(h), Fla.
1684Stat. (2015).
168616. In this case, the Petitioner -- nominally Mr. Anderson,
1696but ac tually his w idow -- has the burden to prove entitlement to
1710Option 3 benefits. See Wilson v. Dep't of Admin., Div. of Ret. ,
1722538 So. 2d 139, 141 - 142 (Fla. 4th DCA 1989); Fla. Dep't of
1736Transp. v. J.W.C. Co. , Inc., 396 So. 2d 778 (Fla. 1st DCA 1981);
1749Balino v. DepÓt of Health , etc., 348 So. 2d 349 (Fla. 1st DCA
17621977)(unless otherwise provided by statute, the party asserting
1770the affirmative of an issue has the burden of proof). The
1781standard of proof is a preponderance of the evidence.
1790§ 120.57(1)(j), Fla. Stat .
179517. The Petitioner did not prove that Mr. Anderson chose
1805Option 3 before retirement. To the contrary, the evidence was
1815that he chose Option 1 and received monthly benefits accordingly
1825for over seven years.
182918. The Petitioner takes the position that he chose Option
18393 because he executed a notarized change to Option 3 even if he
1852never filed it with the Division of Retirement. To maintain this
1863position, he must argue from the absence of an explicit statement
1874in the statutes, rules, and retirement guid e that an executed
1885option selection form must be sent to and received by the
1896Division of Retirement, that it is unnecessary to do so to change
1908a benefit option selection. This tortured reading of the
1917statutes, rules, and retirement guide is unreasonable a nd
1926untenable. It would mean that the Division of Retirement would
1936never know what benefit option a retiree selected because there
1946always would be the possibility of an executed and notarized
1956option change form that was not sent to or received by the
1968Divis ion of Retirement. See DepÓt of Hwy. Safety v. Patrick , 895
1980So. 2d 1131, 1135 (Fla 5th DCA 2005) (ÐCourts ought to avoid an
1993interpretation of a statute that would lead to an unreasonable,
2003absurd, or ridiculous result, provided the language of the
2012statute is susceptible of an alternative interpretation.Ñ).
201919. This case is similar to Hylton - Julius v. Depar t ment of
2033Management Services, Division of Retirement , DOAH Case 11 - 4534
2043(RO Feb. 9, 2012 ; FO May 2, 2012 ) , affÓd per curiam , 110 So. 3d
2058463 (Fla. 4t h DCA 2013). There, an employ ee retired early and
2071cashed or deposited benefit checks for almost a year, then
2081attempted to change to disability benefits. The Respondent held
2090that the choice of early retirement benefits was final and
2100irrevocable, and could not be changed to disability benefits. An
2110agencyÓs interpretations of statutes it administers and rules it
2119promulgates are given deference and will not be overturned by a
2130court unless clearly erroneous. See Republic Media, Inc. v.
2139DepÓt of Transp. , 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998);
2151Atlantic Outdoor Advertising v. Fla. DepÓt of Transp. , 581 So. 2d
2162384, 386 (Fla. 1st DCA 1987); Natelson v. DepÓt of Ins. , 454 So.
21752d 31, 32 (Fla. 1st DCA 1984). Here, the RespondentÓs
2185interpretations of its statut es and rules are very reasonable.
2195RECOMMENDATION
2196Based on the foregoing Findings of Fact and Conclusions of
2206Law, it is RECOMMENDED that the Department of Management
2215Services, Division of Retirement, enter a final order finding
2224that Mr. Anderson selected benefit Option 1, finally and
2233irrevocably and that Mrs. Anderson is not entitled to Option 3
2244spousal benefits.
2246DONE AND ENTERED this 22nd day of January , 2016 , in
2256Tallahassee, Leon County, Florida.
2260S
2261J. LAWRENCE JOHNSTO N
2265Administrative Law Judge
2268Division of Administrative Hearings
2272The DeSoto Building
22751230 Apalachee Parkway
2278Tallahassee, Florida 32399 - 3060
2283(850) 488 - 9675
2287Fax Filing (850) 921 - 6847
2293www.doah.state.fl.us
2294Filed with the Clerk of the
2300Division of Administrative Hearings
2304this 22nd day of January , 2016 .
2311COPIES FURNISHED:
2313Nicholas E. Karatinos, Esquire
2317Law Office of Karatinos
2321Suite 101
232318920 North Dale Mabry Highway
2328Lutz, Florida 33540
2331(eServed)
2332Joe Thompson, Esquire
2335Department of Management Services
2339Suite 160
23414050 Esplanade Way
2344Tallahassee, Florida 32399
2347(eServed)
2348Dan Drake, Director
2351Division of Retirement
2354Department of Management Services
2358Post Office Box 9000
2362Tallahassee, Florida 32315 - 9000
2367(eServed)
2368J. Andrew Atkinson, General Counsel
2373Office of the Gener al Counsel
2379Department of Management Services
23834050 Esplanade Way, Ste. 160
2388Tallahassee, Florida 32399 - 0950
2393(eServed)
2394NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2400All parties have the right to submit written exceptions within
241015 days from the date of this Recomme nded Order. Any exceptions
2422to this Recommended Order should be filed with the agency that
2433will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 01/22/2016
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 12/15/2015
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 12/07/2015
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/04/2015
- Proceedings: Respondent's Notice Of Filing Second Motion For Attorney Fees With Petitioner's Counsel filed.
- Date: 12/02/2015
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 12/01/2015
- Proceedings: Respondent's Response to, and Motion to Dismiss with Prejudice, Petitioner's Motion to Strike Agency's Motion for Attorney's Fees filed.
- PDF:
- Date: 11/24/2015
- Proceedings: Petitioner's Response to and Motion to Strike the Agency's Motion for Attorney Fees filed.
- PDF:
- Date: 11/23/2015
- Proceedings: Respondent's Motion for Official Recognition of Retirement Guide for the Regular Class, 2006 Edition filed.
- PDF:
- Date: 11/18/2015
- Proceedings: Notice of Filing Petitioner's Response to the Administrative Law Judge's Order of November 12, 2015, Compelling Discovery Responses filed.
- PDF:
- Date: 11/13/2015
- Proceedings: Respondents Notice of Filing Motion for Attorney Fees with Petitioners Counsel filed.
- Date: 11/09/2015
- Proceedings: Petitioner's Motion to Compel Discovery Answers and Responses Exhibit 1 filed (not available for viewing).
- PDF:
- Date: 11/09/2015
- Proceedings: Petitioner's Reply to Respondent's Motion to Compel Discovery filed.
- PDF:
- Date: 11/06/2015
- Proceedings: Respondent's Motion to Compel Discovery Answers and Reponses filed.
- PDF:
- Date: 11/05/2015
- Proceedings: Respondent's Notice of Filing First Supplemental Discovery Answers and Responses filed.
- PDF:
- Date: 11/03/2015
- Proceedings: Respondent's Notice of Intent to Offer Certified Business Record as Evidence at Final Hearing filed.
- PDF:
- Date: 10/28/2015
- Proceedings: Respondent's Notice of Submitting Discovery Answers and Responses to Petitioner filed.
- PDF:
- Date: 10/27/2015
- Proceedings: Petitioners Motion For Official Recognition of Governors Reference Manual For Notaries filed.
- PDF:
- Date: 10/26/2015
- Proceedings: Respondent's Motion for Official Recognition of Statutes and Rules filed.
- PDF:
- Date: 10/21/2015
- Proceedings: Respondent's Notice of Submitting Second Discovery Request to Petitioner filed.
- PDF:
- Date: 10/12/2015
- Proceedings: Respondent's Notice of Submitting Combined First Discovery Request to Petitioner filed.
- PDF:
- Date: 10/09/2015
- Proceedings: Petitioner's Request that the Administrative Law Issue Subpoenas in this Case filed.
Case Information
- Judge:
- J. LAWRENCE JOHNSTON
- Date Filed:
- 09/25/2015
- Date Assignment:
- 12/02/2015
- Last Docket Entry:
- 03/18/2016
- Location:
- Tampa, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Nicholas E. Karatinos, Esquire
Address of Record -
Joe Thompson, Esquire
Address of Record