20-004558 Judith A. Richards vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, March 3, 2021.

Summary: Petitioner failed to prove that she is eligible to receive the health insurance subsidy offered to FRS retirees. DOAH does not have jurisdiction of Petitioner's claim(s) sounding in tort.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J UDITH A. R ICHARDS ,

Petitioner ,

vs. Case No. 20 - 4558

D EPARTMENT OF M ANAGEMENT S ERVICES ,

D IVISION OF R ETIREMENT ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this cause was held by Z oom video

teleconference on January 25, 2021 , before the Division of Administrative

Hearings by its designated Administrative Law Judge Linzie F. Bogan.

A PPEARANC ES

For Petitioner: Judith Richards , pro se

2337 Louise Street

Kissimmee, Florida 34741

For Respondent: Gayla Grant, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399

S TATEM ENT OF T HE I SSUE

Whether Petitioner, Judith Richards, is eligible for the health insurance

subsidy offered to Florida Retirement System retirees.

P RELIMINARY S TATEMENT

Mrs. Judith A. Richards (Petitioner/Mrs. Richards) was employed by the

Osceola County S heriffÔs Office from November 2011 through July 18, 2019.

Throughout the duration of her employment, M r s. Richards was enrolled in

the Florida Retirement System (FRS) investment plan option. By

correspondence dated January 30, 2020, the Department of Manag ement

Services, Division of Retirement (Respondent/DMS), informed Mrs. Richards

that her application for the FRS retiree health insurance subsidy (HIS) was

denied due to her failure to meet the HIS vesting requirement. This

correspondence also advised Mrs. Richards of her rights under c hapter 120,

Florida Statute s (2020) , 1 and, in response thereto, Mrs. Richards timely

submitted a request for administrative review. F ollowing a proceeding under

section 120.57(2), the instant matter was referred to the Divisi on of

Administrative Hearings (DOAH) for a disputed fact hearing.

According to Petitioner, on September 26, 2019, she contacted DMS and

was verbally informed that she was eligible for the HIS . On or about

October 10, 2019, Petitioner filed with DMS her a pplication for the HIS , and

was subsequently informed by DMS that her application for the HIS was

rejected because she failed to Ñsatisfy the vesting requirements for [her]

membership class (8 years) under the pension plan.Ò Petitioner contends that

had sh e been given accurate advice by DMS, she would have deferred receipt

of her benefits, and secured FRS - eligible employment for the approximate

three additional months needed to satisfy the requisite vesting period. In

other words, Mrs. Richards suggests tha t she relied to her detriment on the

false information provided to her by DMS. Petitioner does not seek to und ue

or reverse her retirement decision; however, Petitioner seeks affirmative

relief in the form of DMS authorizing payment to her of the monthly H IS

benefit.

1 All references are to the 2020 version of the Florida Statutes, unless otherwise indicated.

Generally, in civil actions, allegations concerning the alleged supplying of

false information may result in a claim sounding in tort. See Baggett v.

Electricians Local 915 , 620 So. 2d 784 (Fla. 2d DCA 1993) (requirements for

claims based on negligent misrepresentation); see also R ESTATEMENT

(S ECOND ) OF T ORTS § 552 (1977) . Section 768.28, Florida Statutes, governs

tort claims filed against the State of Florida, and the same does not grant

jurisdiction to DOAH to resolve such disputes. Accordin gly, DOAH does not

hav e subject matter jurisdiction over any aspect of PetitionerÔs claim related

to alleged negligent misrepresentation by DMS . 2 DOAH does, however, have

jurisdiction to consider the issue of whether Petitioner sati sfies the

requirements t o receive the HIS benefit afforded to FRS retirees.

At the final hearing, Petitioner testified , and did not offer the testimony of

any other witness. DMS offered the testimony of Kathy Gould (DMS bureau

chief of retirement calculations), and Jason Beard ( DMS bureau chief of the

contact center). Petitioner did not offer any exhibits into evidence. DMS

Exhibits 1 through 15 were admitted into evidence.

A one - volume Transcript of the final hearing was filed with DOAH on

February 9 , 2021. Petitioner filed her Proposed Recommended Order (PRO)

on February 11, 2021, and DMS filed its PRO on February 19, 2021. Each

PRO was considered in preparing this Recommended Order.

F INDINGS OF F ACT

1. In November 2011, Petitioner was hired by the Osceola County Sheriff Ôs

Off ice to work as a crossing guard. The Osceola County Sheriff Ôs Office is an

FRS - participating employer , and the position held by Petitioner was in the

2 It is well established that issues related to subject matter jurisdiction can be raised at any

time during the pendency of a proceeding. 84 Lumbe r Co. v. Cooper , 656 So. 2d 1297 (F la. 2d

DCA 1994) .

ÑRegular ClassÒ of FRS membership. In 2011, newly hired eligible employees

(members) of the Osceola County SheriffÔs O ffice were required to participate

in either the FRS pension plan or the investment plan. Petitioner elected to

participate in the investment plan.

2. Generally, the pension plan offers eligible employees a formulaic fixed

monthly retirement be nefit, whereas an employeeÔs investment plan benefits

are Ñ provided through member - directed investments .Ò

3. Pursuant to section 112.363, Florida Statutes, retired members of any

state - administered retirement system will receive an HIS benefit if certain

eligibility requirements are satisfied. Section 112.363(1) provides that a

monthly subsidy payment will be provided Ñto retired members of any state -

administered retirement system in order to assist such retired members in

paying the costs of health insura nce.Ò

4. Section 112.363(3)(e)2. provides that beginning July 1, 2002, each

eligible member of the investment plan shall receive Ña monthly retiree

health insurance subsidy payment equal to the number of years of creditable

service, as provided in this su bparagraph, completed at the time of

retirement, multiplied by $5; È [and] an eligible retiree or beneficiary may

not receive a subsidy payment of more than $150 or less than $30.Ò

5. On July 18, 2019, PetitionerÔs employment with the Osceola County

Sheri ffÔs O ffice ended, and at that time she had 7.77 years of FRS creditable

service.

C ONCLUSIONS OF L AW

6. Subject to the limitations set forth in the Preliminary Statement,

DOAH has jurisdiction over the parties to, and the subject matter of, this

proceedin g, pursuant to sections 120.569 and 120.57(1).

7. Petitioner contends that she is entitled to the health insurance subsidy

offered to FRS retirees. Because Petitioner is asserting the affirmative of the

issue in this proceeding, she bears the ultimate burd en to establish, by a

preponderance of the evidence, eligibility to receive the subsidy. Balino v.

DepÔt of HRS , 348 So. 2d. 349, 350 (Fla. 1st DCA 1977)(unless otherwise

established by statute, the burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal).

8. DMS is the state agency delegated the authority by the Legislature to

administer the FRS pursuant to chapter 121, Florida Statutes.

9. Section 112.363(c) provides, in part, as follows:

E ffective July 1, 2 001, any person retiring on or

after that date as a member of the Florida

Retirement System, including a member of the

investment plan administered pursuant to part II

of chapter 121, must have satisfied the vesting

requirements for his or her membership c lass under

the pension plan as administered under part I of

chapter 121. (emphasis added) .

10. Section 121.021(45) provides that ÑÓ VestedÔ or ÓvestingÔ means the

guarantee that a member is eligible to receive a future retirement benefit

upon completion of the required years of creditable service for the employee's

class of membership, even though the member may have terminated covered

employment before reaching normal or early retirement date. Ò

11. Section 121.021(45)(b) provides that Ñ[a]ny member enrolle d on or

after July 1, 2011, shall be vested in the pension plan upon 8 years of

creditable service.Ò Petitioner was hired by the Osceola County SheriffÔs

Office in November 2011, and , based on her class of membership, is required

to have eight years of FRS creditable service in order to satisfy the HIS

duration of employment requirement.

12. The requirements of section 112.363(c) clearly provide that FRS

investment plan members must satisf y the Ñ vesting requirements for his or

her membership class under th e pension plan Ò in order to receive the HIS.

Because Petitioner had not satisfied this requirement when she retired from

FRS employment, she is not eligible to receive the health insurance subsidy.

R ECOMMENDATION

Based on the foregoing Findings of Facts a nd Conclusions of Law, it is

RECOMMENDED that the Department of Management Services, Division of

Retirement, enter a final order denying the application for retiree health

insurance subsidy submitted by Mrs. Richards.

D ONE A ND E NTERED this 3rd day of Marc h , 2021 , in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3r d day of March , 2021 .

C OPIES F URNISHED :

Gayla Grant, Esquire Judith Richards

Department of Management Services 2337 Louise Street

4050 Esplanade Way , Suite 160 Kissimmee, Florida 34741

Tallahassee, Florida 32399

William Chorba, General Counsel

David DiSalvo, Director Office of the General Counsel

Division of Retirement Department of Management Services

Department of Management Services 4050 Esplanade Way, S ui te 160

Post Office Box 900 0 Tallahassee, Florida 32399 - 0950

Tallahassee, Florida 32315 - 9000

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.