16-002796 Qiu-Xing Jiang vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, December 6, 2016.

Summary: Petitioner did not prove by a preponderance of the evidence that he is entitled to enroll in the State University System Optional Retirement Program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QIU - XING JIANG,

Petitioner,

vs. Case No. 16 - 2796

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursua nt to notice, a final hearing was held in this case

on September 1 and October 18, 2016, via video teleconference in

Tallahassee and Gainesville, Florida, before Suzanne Van Wyk,

Administrative Law Judge of the Division of Administrative

Hearings (Division ).

APPEARANCES

For Petitioner: Q i u - Xing Jiang, pro se

Apartment 156

5333 Southwest 75th Street

Gainesville, Florida 32608

For Respondent: Larry D. Scott, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to membership in the State

University System Optional Retirement Program (SUSORP), rather

than the Florida Retirement System (FRS).

PRELIMINARY STATEMENT

Pet itioner was notified by letter dated March 25, 2016 ,

that his request to be enrolled in the SUSORP was denied.

Petitioner timely requested an administrative hearing to contest

the decision, which is taken as the Petition for Administrative

Hearing (Petiti on) in this case.

Respondent forwarded the Petition to the Division on

May 20, 2016. The matter was originally scheduled for hearing

on July 18 , 2016, but was continued twice due to conflicts with

PetitionerÓs schedule, and finally rescheduled for Septemb er 1,

2016.

The final hearing commenced as rescheduled, but due to

Hurricane Hermine, the hearing was not completed on that date.

The final hearing was continued to, and concluded on,

October 18, 2016.

At the final hearing, Petitioner testified on his own

behalf and offered no exhibits in evidence.

Respondent presented the testimony of Stephen Bardin,

RespondentÓs Benefits Administrator; Lisa Hodges, Assistant

Director of Benefits for University of Florida Human Resources

(UF HR); and Kathy Higgs, Employee Relations Specialist for

University of FloridaÓs Institute of Food and Agricultural

Sciences Human Resources (IFAS HR). RespondentÓs Exhibits 1

through 12 were admitted in evidence.

The proceedings were recorded. At the time the hearing

concluded, Petit ioner was unsure whethe r he would order a

transcript. None was ultimately filed. Respondent filed a

Proposed Recommended Order on October 28, 2016. Petitioner

filed a Summary of Hearing on November 28, 2016, to which

Respondent did not object, and which is taken as PetitionerÓs

proposed recommended order. Both partiesÓ post - hearing filings

have been considered in preparation of this Recommended Order.

All references herein to the Florida Statutes are to the

2015 version.

FINDING S OF FACT

1. Petitioner, Q i u - Xing Ji a ng , is a faculty member in the

Department of Microbiology and Cell Science at the University of

Florida Institute of Food and Agricultural Science (UF IFAS).

2 Respondent, Department of Management Services, Division

of Retirement, is the stat e agency with the responsibility to

administer the FRS and the SUSORP.

3. Petitioner was a professor at the University of Texas

Southwestern Medical Center in Dallas, Texas, when he received a

written offer letter from UF IFAS for his current faculty

posi tion on August 14, 2015.

4. The offer letter was delivered to Petitioner via his

personal e - mail address, which is a Yahoo account.

5. The offer letter is five pages long, including an

addendum containing conditions of employment.

6. The two - page adden dum includes the following

information regarding retirement options:

You are required to participate in at least

one of the retirement programs offered by

the State of Florida, unless you have

received a pension or distribution of

employer contributions, i ncluding a

rollover, from a retirement program

administered by the State of Florida. If

you have received a distribution as

described, you are not eligible to

participate or renew membership in a State

of Florida retirement plan. Otherwise, an

employee c ontribution of 3% is mandatory and

you may select the retirement program you

wish to enroll. For more information,

please attend new employee orientation or

visit the UF Retirement website at

http://hr.ufl.edu/benefits/retirement .

Should you have any que stions regarding

benefits or retirement, please contact

University B enefits and Retirement at

(352) 392 - 2477.

7. Petitioner electronically signed and accepted the offer

of employment, and initialed t he two - page addendum, on

August 14, 2015.

8. The websi te to which the offer letter to Petitioner

referred contained all the information regarding the SUSORP,

including eligibility, enrollment, contribution rates, forms,

publications, and other resources. With respect to enrollment,

the website informed new h ires of the two steps for enrollment:

Open an acco unt with an investment provider .

Fax completed Optional Retirement Program

Enrollment Form

( https://www.rol.frs.state.fl.us/forms/orp -

enr oll.pdf ) to UF Benefits at (352) 392 - 5166

within 90 calendar days from hire.

9. Prior to receiving the written offer letter, Petitioner

travelled to Gainesville to enroll his children in school and

complete other tasks to settle his family in a new loca tion.

PetitionerÓs children began school on August 15, 2015.

10. PetitionerÓs hire date was September 1, 2015.

11. UF has adopted an online hiring process, known as

ÐGatorStart,Ñ to expedite payroll enrollment of new hires. To

reduce the paperwork requ ired, the system requires new hires to

create an e - signature and review and initial all the necessary

forms online.

12. The GatorStart system shows that Petitioner accessed

the system on August 31, 2015, and acknowledged receipt by

initialing several form s, including the W - 4, Direct Deposit, the

FRS Certification, and the Benefits and Retirement Information.

13. The Benefits and Retirement Information form includes

the following pertinent information:

Welcome to the University of Florida! The

university offers a comprehensive array of

benefits to employees. This provides a

brief introduction to those benefits.

Specifically, please take note of the

enrollment deadlines associated with

insurance and retirement benefits. In

addition to our website, you ma y refer to

the New Employee Orientation Guide at

http://hr.ufl.edu/working - at - uf/new -

employees/employee - handbook/ . Throughout

your employment, you can always contact us

by em ail as well.

Benefits: [e-mail]

Retirement: [e-mail]

* * *

Retirement

Enrollment in a retirement plan is

mandatory. You have 90 days from your date

of hire to enroll in the SUSORP. To select

the FRS Investment Plan, you must enroll by

the end of the 5th month after your month of

hire. If you do not actively enroll in a

plan, you will default into the FRS Pension

Plan. Health Science Center faculty ar e

mandatory SUSORP participants. For more

information, visit

https://www.hr.ufl.edu/retirement .

The form then lists the three plan choices (SUSORP, FRS

Investment, and FRS Pension), as well as the volunta ry plans

(403(b) and 457).

14. At hearing, Petitioner denied that he accessed and

acknowledged receipt of the online hiring forms on August 31,

2015. Instead Petitioner maintained that someone in his

department must have done that on his behalf.

15. How ever, Petitioner admitted that he accessed the

online retirement tutorial at some point prior to September 1,

2015 , 1/ but was unable to enroll because he was not yet Ðin the

University system.Ñ

16. On or about September 17, 2015, Petitioner met with

Kathy Higgs. Ms. Higgs has been employed with IFAS HR for 10

years and assists new employees with benefits enrollment. Her

primary duties are with respect to enrollment in medical and

supplemental insurance plans. Ms. Higgs has no expertise in

state retireme nt options. With respect to retirement options,

it is her practice to inform new employees of the enrollment

deadlines and direct them to the website which lists investment

providers and their local representatives. Ms. Higgs has

prepared a summary chart of the three retirement options,

including eligibility, vesting time, and enrollment window,

which she generally provides to new employees.

17. New employees enroll in medical and supplemental

insurance plans through the People First portal. Every emplo yee

has a unique password to access the portal.

18. Petitioner faults Ms. Higgs for misleading him into

waiting to enroll in a retirement plan until after he received

his People First password.

19. Ms. Higgs denied having instructed, or otherwise

advised , Petitioner to wait until he received his People First

password to enroll in a retirement plan. Based on the evidence,

Petitioner misunderstood certain communications from Ms. Higgs.

20. PetitionerÓs employment at UF is a blend of two

different position s: 0.8 Full - Time Equivalent (FTE) for IFAS

and 0.2 FTE for Sponsored Research.

21. On September 21, 2015, Ms. Higgs e - mail ed Lisa Hodges,

UF HR Assistant Director of Benefits, to determine whether

Petitioner needed to enroll for benefits separately in ea ch

position. On September 22, 2015, Ms. Hodges replied via e - mail

that, for the state plans, Petitioner should enroll as usual in

People First and that the two FTEs would be combined, but for

UFSelect plans, Petitioner should enroll under the 0.8 FTE.

Ms . Hodges added, ÐThe only enrollment that he would need to

enter on both is LTD since it has to factor in the salary on the

.80 and .20 FTE job.Ñ

22. On September 22, 2015, Ms. Higgs forwarded Ms. HodgesÓ

e - mail explanation of benefits enrollment to Petit ioner at his

UF e - mail address. She included the following message by way of

introduction: ÐGood morning, Dr. Jiang, Please read below email

from University Benefits to make sure your enrollments are

processed successfully.Ñ On that same date, Petitione r

responded, ÐThanks for your help. I will wait for the

ID/ passwd. What is LTD? Best, Qiu - Xing . Ñ

23. Ms. Hodges was copied on that e - mail exchange between

Petitioner and Ms. Higgs, and rep lied to Petitioner on

September 30, 2015, that LTD means ÐLong - T erm DisabilityÑ and

referred Petitioner to the UF website containing a tutorial on

both the state and UFSelect benefits plans.

24. The e - mail exchanges were clearly limited to benefits

enrollment , not retirement.

25. Also on September 22, 2015, UF HR , th rough its

Benefits office, sent Petitioner an e - mail regarding all three

retirement options and instructions on how to enroll. The e -

mail was sent to PetitionerÓs e - mail address at Southwestern

Medical Center in Dallas, Texas. Petitioner did not receive the

e - mail .

26. Petitioner faults UF HR for failing to send the e - mail

to the correct address.

27. Ms. Hodges characterized the e - mail as a ÐcourtesyÑ

that is sent to all new employees as a reminder of the

retirement options. Respondent provided no sati sfactory

explanation for why the courtesy e - mail reminder was sent to

PetitionerÓs former university e - mail address.

28. On October 7, 2015, Petitioner sent Ms. Higgs an e -

mail in regard to hiring a scientist for his lab. Petitioner

only had an O ther Per sonal S ervice (OPS) position available, but

the scientist was a current UF employee enrolled in the F RS.

Petitioner inquired of Ms. Higgs if he could hire the scientist

in the OPS position but Ðpay extra money to continue his FRS

pension program he is cur rently in as he will continue to work

for UF.Ñ

29. On October 9, 2015, Ms. Higgs sent Petitioner an e -

mail wherein she included the link to the SUSORP page of the

retirement benefits website. This e - mail was sent to Petitioner

39 days after his hire dat e.

30. Petitioner did not make a retirement election within

90 days of his hire date and, thus, defaulted to membership in

the FRS.

31. Respondent notified Pet itioner by letter dated

January 11, 2016, that because he had not selected a SUSORP

provider co mpany within 90 days of his hire date, Respondent

transferred his retirement contributions to the FRS Trust Fund.

32. On or about February 19, 2016, Petitioner contacted

Ms. Hodges to determine why he was not enrolled in SUSORP.

Ms. Hodges explained that since Petitioner Ðdid not make an

active retirement plan election within 90 days from hire, [he

was] defaulted into the Pension Plan. Ms. Hodges also forwarded

PetitionerÓs request to Eric Kegley, a UF HR Retirement

Specialist, for review.

33. Mr. Kegle y subsequently investigated PetitionerÓs

allegations that he had been misled by Ms. Higgs into waiting

for his People First password in order to enroll in retirement,

faulting IFAS HR for failing to provide him with advice from

someone who was knowledgeabl e in retirement benefits, and

faulting UF HR for sending the courtesy reminder to an invalid

address.

34. On February 22, 2016, Petitioner completed a SUSORP

enrollment form, which UF submitted on his behalf to Respondent.

However, following UF HRÓs inve stigation, UF determined that its

staff were not to blame for PetitionerÓs failure to make an

active retirement election within 90 days of his hire date.

Thus, UF did not support PetitionerÓs instant request to

transfer from the FRS to the SUSORP plan.

CO NCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the subject matter of, and the parties to,

this proceeding. See § § 120.569 and 120.57(1), Fla. Stat .

36. Respondent administers the FRS under chapter 121,

Florida Statute s.

37. The SUSORP is authorized by section 121.35, Florida

Statutes. The plan is an optional retirement plan in which

Ðeligible employeesÑ can elec t to participate in lieu of

the FRS.

38. Section 121.35 provides, in pertinent part, as

follows:

(1) OPTI ONAL RETIREMENT PROGRAM

ESTABLISHED. Ï The Department of Management

Services shall establish an optional

retirement program under which contracts

providing retirement and death benefits may

be purchased for eligible members of the

State University System who elect to

participate in the program. The benefits to

be provided for or on behalf of participants

in such optional retirement program shall be

provided through individual contracts or

individual certificates issued for group

annuity or other contracts, w hich may be

fixed, variable, or a combination thereof,

in accordance with s. 403(b) of the Internal

Revenue Code.

* * *

(2) ELIGIBILITY FOR PARTICIPATION IN

OPTIONAL PROGRAM. Ï

(a) Participation in the optional

retirement program provided by this secti on

shall be limited to persons who are

otherwise eligible for membership or renewed

membership in the Florida Retirement System

and who are employed in one of the following

State University System positions:

1. Positions classified as instructional

and r esearch faculty which are exempt from

the career service under the provisions of

s. 110.205(2)(d).

* * *

(3) ELECTION OF OPTIONAL PROGRAM. Ï

* * *

(c)3. Notwithstanding the provisions of

this paragraph, effective July 1, 1997, any

employee who is eligi ble to participate in

the Optional Retirement Program and who

fails to execute a contract with one of the

approved companies and to notify the

department in writing as provided in

subsection (4) within 90 days after the date

of eligibility shall be deemed to have

elected membership in the Florida Retirement

System, except as provided in

s. 121.051 (1)(a).

39. The g overning statute is clear that an eligible

employee who fails to enroll in the SUSORP within 90 days after

the date of eligibility is automatically enrolled in the FRS.

40. Petitioner was directed, via his offer letter on

August 14, 2015, to the UF Benefi ts website, and again by

Ms. Higgs via e - mail on October 9, 2015. The website to which

Petitioner was directed clearly stated the two - step process for

enrolling in the SUSORP, explicitly recited the 90 - day deadline,

and contained links to the enrollment f orm, as well as numerous

other resources related to the SUSORP. Further, Petitioner

admitted that he accessed the GatorStart online tutorial, which

included information on retirement enrollment.

41. The undersigned is sympathetic to the overwhelming

natu re of PetitionerÓs job transition -- relocating his family

from out of state, finding housing, choosing and enrolli ng his

children in a new school , setting up a new laboratory and

identifying and recruiting other scientists, as well as

digesting and making d ecision s regarding employee benefits.

However, Petitioner was responsible to make his retirement

election within 90 days of his date of hire and failed to do so.

PetitionerÓs arguments that he was either misinformed of the

steps to be taken, or misled in to deferring his election beyond

the 90 days, are unpersuasive.

42. Petitioner did not prove by a preponderance of the

evidence that he is entitled to membership in the SUSORP rather

than the FRS.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Management

Services, Division of Retirement, enter a final order denying

PetitionerÓs request to enroll in the SUSORP.

DONE AND ENTERED this 6 th day of December , 2016 , in

Tallahassee, Leon Count y, Florida.

S

SUZANNE VAN WYK

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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of December , 2016 .

ENDNOTE

1/ Although PetitionerÓs recollection was unclear of the exact

date, Petitioner most likely accessed the system on August 15,

2016, the da te that his children began school in Gainesville .

COPIES FURNISHED:

Qiu - Xing Jiang

University of Florida

Room 1003

1355 Museum Drive

Gainesville, Florida 32611 - 0700

(eServed)

Qiu - Xing Jiang, Ph.D.

Apartment 156

5333 Southwest 75th Street

Gainesville, Florida 32608

Larry D. Scott, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Elizabeth Stevens, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Ta llahassee, Florida 32315 - 9000

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.