20-004937 Town Of Miami Lakes, Florida vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, December 20, 2021.

Summary: Town of Miami Lakes is jointly and severally liable for repayment of overpayment paid to employee who violated DROP terms.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T OWN OF M IAMI L AKES , F LORIDA ,

Petitioner ,

vs. Case No. 20 - 4937

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 case was conducted before

Administrative Law Judge June C. McKinney by Zoom conference with

locations in Miami and Tallahassee, Florida , on October 26, 2021.

A PPEARANCES

For Petitioner: Onier Llopiz, Esquire

Joan Carlos Wizel, Esquire

Lydecker Diaz

1221 Brickell Avenue, 19th Floor

Miami, Florida 33131

For Respondent: Thomas E. Wright, Esquire

Gayla Grant, Esquire

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

S TATEMENT OF T HE I SSUE S

The issues to be determined are whether Dawn Jenkins ( Ñ Jenkins Ò ) failed

to meet the Deferred Retirement Opt ion Program ( Ñ DROP Ò ) termination

requirements set forth in chapter 121, Florida Statutes ; and, if so, whether

Petitioner, Town of Miami Lakes ( Ñ Miami Lakes , Ò the Ñ Town , Ò or

Ñ Petitioner Ò ) , is required to reimburse Respondent, Department of

Management Servic es ( Ñ DMS Ò ) , Division of Retirement ( Ñ DOR Ò or

Ñ Respondent Ò ) , for the overpayment of retirement benefits paid to Jenkins.

P RELIMINARY S TATEMENT

DMS issued a final agency action notice letter dated October 2, 2020,

notifying the Town that due to the hiring o f Jenkins on Sept e mber 13, 2018,

her Florida Retirement System ( Ñ FRS Ò ) termination requirement of ceasing

all employment with a n FRS employer for six calendar months was never

satisfied ; and , as a result, whenever a participating employer employs a

retired FRS member in violation of the termination requirements, both

employee and the participating employer are liable for repayment of the

money to the FRS Trust Fund in accordance with section 121.091(9)(c)3. The

notice letter included an invoice requiring th e Town to pay DMS the full

amount of the Ñoverpayment of benefitsÒ to Jenkins.

The Town timely filed a Petition for Formal Hearing contesting the

agency action , and the matter was referred to the Division of Administrative

Hearings ( Ñ DOAH Ò ) on November 9, 2020. The matter was originally set for

final hearing for February 2 through 4, 2021. However, the parties requested,

and were granted, several continuances for good cause .

Prior to the hearing, the parties filed a Joint Pre - hearing Stipulation,

which c ontained certain stipulated facts. Those stipulated facts have been

incorporated herein to the extent they were deemed relevant.

The final hearing proceeded as scheduled on October 26, 2021.

At hearing, the parties stipulated that the depositions and pri or hearing

transcript obtained from witnesses in Jenkins v. Dep artmen t of M anagement

Service s , Div ision of Retirement , Case No. 19 - 1692 (Fla. DOAH Feb. 18, 2020)

(Order Closing File and Relinquishing Jurisdiction), would constitute

additional testimony of witnesses for the purposes of this case. The identity of

the witnesses is set forth in the Transcript, Petitioner Ô s Exhibit 1. In this

case, Respondent also presented the testimony of Joyce Morgan and Kathy

Gould . Petitioner Ô s Exhibits 1 through 27 were ad mitted into evidence .

Respondent Ô s Exhibits 1 through 21 were admitted into evidence.

At the close of the hearing, the parties stipulated that the proposed

recommended orders would be due ten days after the filing of the transcript.

The Transcript of the final hearing was filed on November 16, 2021, which

started the timeline for submission of proposed recommended orders. DOAH

issued a Notice of Filing Transcript the same day . On November 29, 2021,

Respondent timely filed its P roposed R ecommended O rder, w hich has been

considered in the preparation of this Recommended Order. Petitioner filed its

P roposed R ecommended O rder on November 30, 2021. Petitioner also filed

Petitioner Ô s Motion to Deem its Filed Proposed Recommended Order as

Timely, or Alternatively, for a One - Day Extension to File the Proposed

Recommended Order. In response, Respondent filed Respondent Ô s Motion to

Strike. Next, Petitioner filed Petitioner Ô s Response in Opposition to

Respondent Ô s Motion to Strike. Petitioner Ô s P roposed R ecommended O rd er

was filed untimely, but the undersigned grants Petitioner Ô s motion for a one -

day extension, and Petitioner Ô s P roposed R ecommended O rder has been

considered in preparation of this Recommended Order.

Unless otherwise indicated, all statutory references a re to the versions in

effect at the time of the alleged violations.

F INDINGS OF F ACT

1. DMS is the state agency delegated to administer FRS. The Florida

Legislature created DOR to manage the retirement plans and programs

under FRS within DMS.

2. FRS is a retirement program for state and local government employees

administered pursuant to chapter 121. All state agencies participate in FRS.

Local governments have the option of joining the plan if they meet certain

requirements set out in statute and rule. Pa rticipating employers agree to

follow chapter 121 and Florida Administrative Code Chapter 60S when they

join FRS.

3. Petitioner is the Town, a State of Florida municipal government located

within Miami - Dade County and duly charted on December 5, 2000. In

J anuary 2004, the Town joined FRS as a participating employer.

4. Jenkins was a member of FRS through her employment with Miami -

Dade County Public Schools. Jenkins entered DROP and received two one -

year extensions (totaling seven years) until her retirement , effective June 8,

2018.

5. Before entering DROP, Jenkins signed a DP - Term form on May 7, 2018.

The DROP termination notification form specified that Jenkins had to

Ñ terminate all employment relationships with all participating FRS

employers for the first 6 calendar months after [her] DROP termination

date. Ò

6. Clary Garcia Ramos ( Ñ Clary Ò ) is a Town employee. In her regularly

established position, Clary teaches yoga part time at a community center for

the Town and is paid $25 .00 per hour per class. She ha s worked for Miami

Lakes for approximately 15 years and is covered under the FRS.

7. In the fall of 2018, Clary was having bilateral knee replacement surgery

and asked her longtime friend Jenkins to help her out and cover her yoga

classes with the Town whi le she was out after her surgery.

8. Clary and Jenkins have known each other for approximately 15 years

and obtained their yoga education together.

9. Jenkins, a certified yoga instructor, agreed to help Clary out with her

classes for September and Octob er 2018.

10. Miami Lakes did not post a position opening nor conduct interviews

for a back - up , part - time yoga instructor.

11. Before Jenkins started filling in for Clary, Jenkins was instructed to

fill out paperwork to start the position . She first filled out an employment

application dated August 22, 2015, and then a second one with the corrected

date of August 22, 2018, for the position of yoga instructor.

12. On the completed application, Jenkins informed the Town that she

had retired from Miami - Dade C ounty P ublic S chools with Ñ 40 years of

service Ò on June 8, 2018.

13. The last detachable page of the application allowed the Town to

perform Jenkins Ô required background screening since she would be teaching

yoga with seniors, a vulnerable population . Onl y the last page of the

application pertains to a background check.

14. On or about August 31, 2018, Jenkins received an offer of employment

letter signed by Town Manager Alex Rey ( Ñ Rey Ò ) regarding the position she

was filling in for Clary . The letter state d:

SUBJECT: EMPLOYMENT LETTER

Dear Ms. Jenkins:

On behalf of the Town of Miami Lakes, I would like

to offer you the position of Back up - Part - Time

Instructor, Yoga. Instructors work under the

supervision of the Leisure Services Manager and

are required to select, plan, and teach cultural

classes for youth and adults. Your supervisor will

determine your schedule for yoga classes.

This position start date is September [12], 2018 and

the rate of pay will be $26.00 per hour. Each time

you are scheduled to wor k, you will be required to

submit a time sheet to your supervisor. This

position qualifies for participation under the

Florida Retirement System (FRS), and

3% employee contribution is mandatory. This

employment offer is contingent upon satisfactory

results of the following pre - employment

requirements:

¤ Criminal Background check and Drug Screening

¤ Proof of required education, certifications and/or

licenses

This is an exciting step for the Town of Miami

Lakes, and we look forward to you joining our

team. Should this offer be considered acceptable,

please sign below and return [ i ] t to the attention of

Cynthia Alejo, Human Resources Specialist, to

complete your pre - employment process.

Jenkins signed the employment offer letter and accepted the FRS position

from Miami Lakes on September 4, 2018.

15. Rey was the t own m anager for Miami Lakes during all times material

to this case. He was the c hief e xecutive of the Town and oversaw human

resources. Cynthia Alejo ( Ñ Alejo Ò ) was the Town Ô s part - time h uman r esourc es

s pecialist, who served as the assistant to Rey in the Human Resources

Department.

16. Alejo used Clary Ô s offer letter as a template when she drafted the

employment offer letter that Jenkins signed.

17. Ismael Diaz ( Ñ Diaz Ò ), the Town Ô s c omptroller and c hief f inancial o fficer,

was off work during October 2018 on vacation.

18. While Clary was out recuperating, Jenkins performed yoga instruction

to the seniors for the Town in her place . Jenkins was paid a rate of pay of

$26 .00 per hour per class. However, while in Clary Ô s position, Jenkins did not

receive the benefits available for employees or receive orientation or training

for new employees.

19. Jenkins taught 16 one - hour yoga classes to senior citizens from

September 13, 2018, until October 11, 2018.

20 . Jenkins was paid and received , as agreed in the terms of her

employment offer letter , a total of $442.00 for the yoga classes she taught for

the Town.

21. The Town erroneously reported Jenkins to FRS . The Town Ô s monthly

reports specifically included Jen kins under a preretirement code, which

alerted DOR internally that a person who had retired was being reported

within the first 12 months after retirement.

22. Each month that Jenkins worked, the Town reported her wages to

DOR and made retirement contribut ions to DOR with the payroll reports .

23. During the period when the Town reported Jenkins to DOR as an

employee for three consecutive months on its retirement reports, the wrong

codes registered errors.

24. DOR notified the Town that Jenkins should not b e reported in that

way.

25. The Town could have corrected the errors. However, the Town never

provided a correction report to change Jenkins Ô status. Instead, by the Town

continuously reporting Jenkins as an employee, a DOR review of Jenkins Ô

retirement st atus was triggered.

26. Eventually, Jenkins found out that she was being reported as an

employee to DOR by the Town and her DROP retirement funds were in

jeopardy.

27. On or about December 3, 2018, Jenkins complained to DMS , Office of

Inspector General , r egarding her potential violation of FRS rules . Jenkins

was informed in writing that her complaint was being referred to DOR for

review.

28. Jenkins also telephoned DMS several times , including December 3, 10 ,

and 11, 2018, and February 8, 2019, requesting a review of her reemployment

status and possible voiding of DROP . Jenkins requested to speak with a n

FRS specialist regarding her FRS retirement issue by email on December 10,

2018.

29. At one point, Jenkins spoke to Kathy Gould, DOR b ureau c hief of

c alcul ations, and informed her that the reporting of her as an employee was a

mistake and she was just covering for a friend who was out after having

surgery.

30. Because of the variety of Jenkins Ô requests to review her retirement

issue, which included the insp ector general complaint and the multiple

payroll report errors reported for Jenkins, DOR investigated Jenkins Ô

retirement status.

31. June Moore ( Ñ Moore Ò ), from the retirement calculations section at

DOR, handled Jenkins Ô review for DOR . On or about Decem ber 13, 2018,

Moore started looking into the Jenkins Ô retirement issue and contacted the

Town Ô s comptroller , Diaz , by email requesting Jenkins Ô personnel action form

when she was hired and informing the Town that Jenkins was reemployed

with Miami Lakes and Ñ in violation of [her] termination date. Ò

32. That same day , Diaz emailed Alejo , copying Moore , to updat e Alejo

that he had spoken with Moore and told her the Town had also issued

Jenkins an offer letter . In the email, Diaz asked Alejo to provide Moore Ô s

requested information and suggested that the situation be mitigated so that

Jenkins did not suffer any financial loss . Diaz also suggested that Jenkins

could perhaps return the $400 .00 earned.

33. Moore responded 30 minutes later by email, Ñ We are still re viewing

this account . Once we receive the documents from your agency we will let you

know what the outcome is. Ò

34. The next day, Alejo sent Moore Jenkins Ô two personnel action forms

dated September 25, 2018, and October 12, 2018, and the August 31, 2018,

offer letter that had been executed by Jenkins . Alejo stated in the email that :

[Jenkins] was also under the impression that as a

temporary employee, this would not affect her

retirement. As Mr. Diaz mentions, Ms. Jenkins is

willing to return all funds ba ck to the Town and

instead be considered a volunteer . While we don Ô t

know if that Ô s a possibility, we are willing to help in

any way so that Ms. Jenkins does not suffer a

financial loss.

35. Both personnel action forms dated September 25, 2018, and

Octobe r 12, 2018, listed Jenkins as a temporary part - time, hourly wage, non -

exempt employee . Each form had FRS checked under the benefits section .

Additionally, the September form had Ñ temporary coverage for Clary Ò written

on it and the October form had checked resigned with notice and Ñ temp

position Ò written on it.

36. Jenkins also received an Internal Revenue Service W - 2 wage and tax

statement from Miami Lakes for her services of working as a yoga instructor

at the Town in Clary Ô s place.

37. On or about Febru ary 12, 2019, Alejo sent a memorandum to Diaz that

was contrary to all the previous employment records the Town had regarding

Jenkins Ô employment . The memorandum changed Jenkins Ô status to a

volunteer and referenced her $26 per hour payments as a stipend . The

memorandum stated:

After a review of our records, it has come to my

attention that Ms. Dawn Jenkins, who assisted the

Town of Miami Lakes (the Ñ Town Ò ) as a senior

fitness class volunteer during September 19, 2018

thru October 11, 2018 and was inadvert ently

classified as a Town of Miami Lakes employee.

Additionally, a review of our records reveals that

Ms. Jenkins did not receive a salary for her

services. The only monetary contribution from the

Town was in the form of a $26.00 daily stipend.

Ms. Jenki ns became a volunteer following her

friend Ô s knee incident which required surgery. The

Town required Ms. Jenkins to complete an

application and consent to a criminal background

search, which is standard policy for any volunteer

that engages with vulnerable children or adults.

Upon receipt of Ms. Jenkins application, the Town

in error, reported Ms. Jenkins wages to the Florida

Retirement System ( Ñ FRS Ò ). The error was

discovered within a month or so, and by that time,

Ms. Jenkins had already stopped voluntee ring and

was thereby removed from our payroll system.

As a follow - up, the Town will need the assistance of

the FRS administration to correct the error

reported . FRS is under the impression that

Ms. Jenkins abused the system by seeking re -

employment after retirement . As detailed in this

memorandum, this is not the case . Ms. Jenkins , at

no time during the period of September 19 thru

October 11, 2018 served the Town as a salaried

employee. Should you have any questions, please

do not hesitate to contact us.

38. On February 19, 2019, D OR issued a final agency action letter,

notifying Jenkins that she was Ñ subject to the termination requirement found

in [section] 121.021(39)(b), Florida Statutes, Ò and that she was required to

Ñ repay all retirement benefits prev iously paid to [ her ] , as provided in

Rule 60S - 4.012, Florida Administrative Code, Ò in the amount of $445,013.04.

39. Jenkins petitioned for, and received, a section 120.57(1) , Florida

Statutes, hearing in response to the notice of intended agency action th at

would have required her to repay her DROP payout and the retirement

benefits she had received . The DOAH case number assigned to that

proceeding is 19 - 1692.

40. Case No. 19 - 1692 was litigated through the final hearing . At that final

hearing, the parties presented evidence and testimony of the same witnesses

in this proceeding.

41. After the administrative hearing on December 20, 2019, DMS and

Jenkins entered into a Settlement Agreement to resolve the issues related to

her termination of DROP and retireme nt benefits . As part of the Settlement

Agreement, Jenkins Ô benefit amount was recalculated based on the additional

service credit she earned for the years she participated in DROP . The

Settlement Agreement also deducted $464.86 monthly from Jenkins Ô

retire ment benefits for a lifetime to repay $445,013.04, the overpayment

amount in DROP benefits.

42. In addition, a part of the Settlement Agreement obligated DMS to seek

reimbursement for the entire debt, $445,013.04, from Miami Lakes.

43. After settling the case with DMS, Jenkins voluntarily dismissed Case

No. 19 - 1692 with prejudice.

44. On October 2, 2020, DMS then issued its Notice of Intended Agency

Action against the Town, informing Miami Lakes that due to hiring Jenkins

on September 12, 2018, her FRS te rmination requirement of ceasing all

employment with a n FRS employer for six calendar months was never

satisfied and , as a result, whenever a participating employer employs a

retired FRS member in violation of the termination requirements, both the

employe e and the participating employer are liable for repayment of the

money to the FRS Trust Fund in accordance with section 121.091(9)(c)3. The

notice included an invoice demanding payment from the Town of the full

amount of the Ñoverpayment of benefitsÒ to Je nkins.

45. The Town timely filed a Petition for Formal Hearing contesting the

agency action letter.

Ultimate Findings of Fact

46. Upon careful consideration of the entire record, it is determined that

DMS has demonstrated by the preponderance of the evide nce that Jenkins

was an employee of Miami Lakes instructing yoga from September 2018 to

October 2018, while Clary was out recuperating.

47. It is interesting to note that, even though Jenkins testified at hearing ,

she did not believe providing services to the Town to help a friend who was

having knee surgery was violating the DROP agreement , and she did not

realize that Miami Lakes was a participating employer with FRS when she

substituted for Clary while she was out recuperating . Jenkins did admit that

she understood the DP - Term form she signed, which specified that she could

not work for any FRS entities.

48. Jenkins was also honest and forthright and admitted at hearing that

she did not read the September 4, 2018, employment offer letter that she

signed when she accepted the FRS position . Had she read the employment

letter, she would have been put on notice that the position she was taking

was Ñ under the Florida Retirement System, and 3% employee contribution is

mandatory. Ò

49. At hearing, Alejo testified that it was her first time processing an

employee covering for another employee . Notwithstanding her lack of

experience, the evidence establishes Jenkins was employed with Miami

Lakes .

50. In this matter, Miami Lakes was notified of Jenkins Ô retirement o n

June 8, 2018, from Miami - Dade County P ublic S chools on her employment

application before she started the position . Also, the Town offered Jenkins

employment through Rey, the Town Ô s h uman r esources c hief e xecutive . The

employment offer letter informed Jen kins who her supervisor was and

specified participation in FRS, which both Rey and Jenkins signed .

Additionally, the Town checked FRS twice under Jenkins Ô benefit sections on

both her personnel action forms . Likewise, the September personnel action

form ha d Ñ temporary coverage for Clary Ò written on it and the other form had

Ñ temp position Ò written on it.

51. The evidence also demonstrates that the Town reported Jenkins Ô

wages as an employee three months in a row and made retirement

contributions to DOR on t hree consecutive payroll reports .

52. At hearing, Dr. Joyce Morgan credibly testified that even after DOR

notified Miami Lakes that there was an error in reporting Jenkins, they

continued to report her in November and December 2018, and the Town

never att empted to correct the error or contact DOR to get help in correcting

any errors . 1

53. In addition, the Town properly issued Jenkins a W - 2 tax statement as

an employee for instructing yoga for Miami Lakes not a 1099 statement.

54. At hearing, the record n ot only shows Miami Lakes hired Jenkins as

an employee, but was fully aware of her employee status with the Town . The

evidence demonstrates that Diaz, the comptroller, confirmed by his

December 13, 2018, email that Jenkins Ô status was a Town employee when he

informed Moore that Jenkins had executed an employment offer letter and

Diaz attempted to assist mitigate Jenkins Ô financial loss with DOR by

suggesting her pay be returned to the Town .

55. Additionally, Alejo further established Miami Lakes Ô full know ledge of

Jenkins Ô status as an employee with the Town in her email of December 14,

2018, when she admitted she did not know if it were possible, but offered to

help Jenkins not suffer a financial loss by suggesting to Moore to change

Jenkins Ô title so Jenk ins could be considered a volunteer and return the

money paid.

56. The record also demonstrates that it was not until almost two months

later in February 2019 , that the Town Ô s H uman R esource D epartment

actually reclassified Jenkins Ô title to a senior fitn ess volunteer and renamed

her Ñ rate of pay Ò that had formally been $26.00 per hour in the employment

offer letter to a Ñ $26.00 daily stipend Ò in an internal memorandum 2 that Alejo

sent to Diaz.

1 The undersigned is not persuaded that the TownÔs reporting error was caused because

Comptroller Diaz was out on vacation d uring October 2018, because the errors were not

corrected after Diaz returned and have not been corrected as of the date of the hearing.

Additionally, the TownÔs errors are not determinative of Jenkins Ô employment status. Any

contention that correcting the error in the payroll report would have an impact on changing

JenkinsÔ employee status is misplaced. To that end, the payroll report does not determine

Jenkins Ô employment status.

2 The undersigned rejects the memorandum as reliable evidence to help deter mine JenkinsÔ

employment status since the record demonstrates that Alejo had been working on JenkinsÔ

behalf to help her from receiving a financial loss for approximately two months.

57. An internal title change by the Town did not change Jenki ns Ô status as

a temporary yoga employee for Miami Lakes . Additionally, the record shows

that the Town did not process Jenkins as it did for other volunteers.

58. At hearing, Rey testified that there were categories of volunteers:

resident volunteers that s erved on different committees and volunteers

through agreements . Rey explained that volunteers with the Town are non -

paid persons and the Town only reimburses volunteers for supplies by

providing the funds or obtaining a receipt for reimbursement, neither of

which occurred with Jenkins.

59. Rey also testified that upon learning there was an issue with Jenkins Ô

employment, he explained to Jenkins that she had been hired by Miami

Lakes as a Ñ temporary employee to cover for a limited period of time. Ò

60. Rey also testified that Jenkins was never considered a volunteer for

the Town.

61. Therefore, the greater weight of the evidence in this cause establishes

that Miami Lakes employed Jenkins as a temporary yoga instructor . Hence,

Jenkins was reemployed by a n FR S employer, Miami Lakes.

C ONCLUSIONS OF L AW

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

this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2021).

63. In an administrative proceeding, the burden of proof is on the party

asserting the affirmative of the issue unless the burden is established by

statute . Wilson v. Dep Ô t of Admin., Div. of Ret., 538 So. 2d 139 (Fla. 4th DCA

1989); Balino v. Dep Ô t of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). In this

matte r, DMS is asserting that Jenkins violated the termination provisions ,

and Miami Lakes is jointly and severally liable and must reimburse FRS for

the money paid to Jenkins in violation of her DROP termination

requirements . DMS, as the party asserting that P etitioner repay , has the

burden of proof to demonstrate its entitlement to the monies it is seeking.

64. Section 120.57(1)(j) requires that evidence be considered by the

preponderance of the evidence standard . A preponderance of the evidence is

defined as Ñ the greater weight of the evidence, Ò or evidence that Ñ more likely

than not Ò tends to prove a certain outcome . Gross v. Lyons , 763 So. 2d 276,

280 n.1 (Fla. 2000).

65. Chapter 121 sets the parameters for the implementation of FRS . The

Legislature establis hed limitations on individuals who participate in DROP .

After termination of employment and before a participant can return to

employment with an FRS employer, there is a six - month waiting period .

Termination is defined in section 121.021(39)(b) and states , in pertinent part:

(b) Ñ Termination Ò for a member electing to

participate in the Deferred Retirement Option

Program occurs when the program participant

ceases all employment relationships with

participating employers in accordance with

s. 121.091(13), h owever:

* * *

2. For termination dates occurring on or after

July 1, 2010, if the member becomes employed by

any such employer within the next 6 calendar

months, termination will be deemed not to have

occurred, except as provided in s. 121.091(1 3)(b)4.c.

A leave of absence constitutes a continuation of the

employment relationship.

66. In this matter, the evidence demonstrates Jenkins retired from

DROP on June 8, 2018, and she was reemployed with Miami Lakes on

September 13, 2018 . Therefore, Jenk ins failed to cease all employment

relationships with FRS participating employers for the first six calendar

months of her DROP . Consequently, Jenkins is in violation of her

termination date.

67. Section 121.091(9)(c) provides, in relevant part:

(c) Any pe rson whose retirement is effective on or

after July 1, 2010, or whose participation in the

Deferred Retirement Option Program terminates

on or after July 1, 2010, who is retired under this

chapter, except under the disability retirement

provisions of subse ction (4) or as provided in s.

121.053, may be reemployed by an employer that

participates in a state - administered retirement

system and receive retirement benefits and

compensation from that employer. However, a

person may not be reemployed by an employer

participating in the Florida Retirement System

before meeting the definition of termination in

s. 121.021 and may not receive both a salary from

the employer and retirement benefits for 6 calendar

months after meeting the definition of termination,

except as provided in paragraph (f). However, a

DROP participant shall continue employment and

receive a salary during the period of participation

in the Deferred Retirement Option Program, as

provided in subsection (13).

1. The reemployed retiree may not rene w

membership in the Florida Retirement System,

except as provided in s. 121.122

2. The employer shall pay retirement contributions

in an amount equal to the unfunded actuarial

liability portion of the employer contribution that

would be required for activ e members of the Florida

Retirement System in addition to the contributions

required by s. 121.76.

3. A retiree initially reemployed in violation of this

paragraph and an employer that employs or

appoints such person are jointly and severally

liable for reimbursement of any retirement benefits

paid to the retirement trust fund from which the

benefits were paid, including the Florida

Retirement System Trust Fund and the Florida

Retirement System Investment Plan Trust Fund,

as appropriate. The employer must have a written

statement from the employee that he or she is not

retired from a state - administered retirement

system. Retirement benefits shall remain

suspended until repayment is made. Benefits

suspended beyond the end of the retiree Ô s 6 - month

reemployme nt limitation period shall apply toward

the repayment of benefits received in violation of

this paragraph.

68. Section 121.091(13)(c)5 . provides, in relevant part:

d. A DROP participant who fails to terminate all

employment relationships as provided in

s. 121.021(39) shall be deemed as not retired, and

the DROP election is null and void. Florida

Retirement System membership shall be

reestablished retroactively to the date of the

commencement of DROP, and each employer with

whom the member continues employm ent must pay

to the Florida Retirement System Trust Fund the

difference between the DROP contributions paid in

paragraph (i) and the contributions required for the

applicable Florida Retirement System class of

membership during the period the member

partic ipated in DROP, plus 6.5 percent interest

compounded annually.

69. The record shows that Jenkins and DMS entered into a Settlement

Agreement , and Jenkins is repaying her overpayment amount in DROP

benefits at the rate of $464.86 monthly for a lifetime -- $4 45,013.04 is owed.

70. However, this case is not about Jenkins Ô liability to FRS based on her

violation of the termination provisions related to DROP, but rather, whether

Miami Lakes has liability for employing her in violation of those provisions.

71. The Florida Legislature has directed that whenever a participating

employer employs a retired FRS member in violation of the termination

requirements , both the employee and participating employer are liable

for repayment of the money to the FRS Trust Fund pur suant to

section 121.091(9)(c)3.

7 2 . Section 121.091(9)(c)3. also provides a method for FRS employers to

avoid liability for hiring FRS retirees who do not wait the required six

months before becoming reemployed . The established method is the employer

proc ures a form or letter signed by the employee attesting that they are not a

retiree under the FRS . In this cause, the record is void of evidence the Town

obtained such a letter from Jenkins . Instead, the evidence shows Jenkins

informed the Town on her appli cation that she had retired from Miami - Dade

County Public Schools on June 18, 2018, after working 40 years.

73. The Town contends that the exceptions DOR have established for

DROP termination requirements are applicable in this matter . Specifically,

in pa ragraph 55 of Respondent Ô s Proposed Recommended Order, the Town

maintains that Jenkins Ñ was a volunteer or may be deemed an independent

contractor, Ò which are both exceptions to the termination requirements .

However, the undersigned is not convinced by suc h arguments . For the

reasons set forth in the Findings of Fact above, the record has demonstrated

that Jenkins was an hourly employee of Miami Lakes when she covered the

yoga classes for her friend Clary.

74. Contrary to Petitioner Ô s claims, section 121.0 21(11) has also been met

in this case . Section 121.021(11) provides, in pertinent part:

(11) Ñ Officer or employee Ò means any person

receiving salary payments for work performed in a

regularly established position and, if employed by a

municipality, a metro politan planning

organization, or a special district, employed in a

covered group. The term does not apply to state

employees covered by a leasing agreement under

s. 110.191, other public employees covered by a

leasing agreement, or a coemployer relationsh ip .

The Findings of Fact above show Jenkins worked in Clary Ô s regularly

established position of yoga instructor with a designated supervisor employed

by the municipality, Miami Lakes . In fact, the salary she received for the

position was higher than what Clary was earning in the same position.

Hence, the evidence tends to prove Jenkins employment satisfies the

standard for employee set forth by the Legislature .

7 5 . Section 121.021(52) defines regularly established position and

provides, in pertinent part:

Ñ Regularly established position Ò means:

* * *

(b) With respect to a local agency employer (district

school board, county agency, Florida College

System institution, municipality, metropolitan

planning organization, charter school, charter

techn ical career center, or special district), other

than a water management district operating

pursuant to chapter 373, a regularly established

position that will be in existence for a period

beyond 6 consecutive months, except as provided by

rule.

7 6 . The Le gislature Ô s requirement for a regularly established position has

been met as well in this case . Additionally, Clary had taught in the position

for years before Jenkins filled out her Town application in August 2018 , and

Clary returned to teaching after Oct ober 2018 . Jenkins was a Ñ temp[orary]

employee Ò as written on the personnel form, who worked in Clary Ô s place

while she was out recuperating, and Jenkins was brought on board so that

there would be no stopping the classes for the seniors . The Town Ô s yoga

p rogram and instructor position is well - established and long term, well

beyond six consecutive months . No evidence was presented at hearing that

the yoga instruction position was ending . Therefore, the greater weight of the

evidence establishes Jenkins took on the yoga instruction duties as an

employee for a municipality in a regularly established position.

7 7 . Petitioner also contends that Jenkins was receiving a stipend and not

getting paid . This claim is without merit since the evidence at hearing

contra dicts such a position . After all, the record demonstrates that Jenkins

was an hourly employee with an executed employment offer letter that

stated, Ñ the rate of pay will be $26.00 per hour. Ò Additionally, Town Manager

Rey testified that Jenkins was hired a s an hourly employee . Even though the

Town was understanding of the predicament Jenkins was facing with DOR

voiding her DROP benefits , and the Town made supportive efforts to try and

help Jenkins not to suffer a financial loss, the record is void of any cr edible

evidence to support the money she received from the Town was a stipend.

7 8 . The undersigned is not persuaded by the Town Ô s reliance on Florida

Supreme Court cases, Roper v . Florida Pub lic Utilities Co ., 179 So . 904, 905

(Fla. 1938) , and Louisville & N.R. v . Allen, 67 Fla. 257, 65 So. 2d 8 (1914),

contending that DMS cannot seek payment from Miami Lakes based on the

premise that once a plaintiff has settled with one of the persons jointly and

severally liable to the plaintiff for all damages, it oper ates as a release of the

other joint tortfeasor . To the contrary, in matters such as this case, the

Florida Legislature has carved out a category of liability for employers in

section 121.091(9)(c)3.

79 . Likewise, the Town Ô s assertion that Jenkins Ô Settlem ent Agreement

discharges Ñ the debt of Jenkins who is alleged to be jointly and severally

liable to the Department for repayment of the overpayment retirement funds Ò

fails in this matter . Again, the Legislature has specifically addressed the

joint and sever al liability for the repayment of the overpayment of retirement

funds in circumstances such as this case in section 121.091(9)(c)3 .

Accordingly, DOR has met its burden of proof and the law clearly requires

that Miami Lakes is liable to pay the amount DMS i s seeking in this case,

$445.013.04 . However, it is recommended that DMS allow Miami Lakes to

repay the FRS trust fund on an installment plan, over the course of three to

five years, to lessen what may be a financial strain on the Town.

R ECOMMENDATION

Ba sed on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Management Services , Division of

Retirement , enter a final order that:

1. Finds that Jenkins Ô reemployment with Miami Lakes, a n FRS

municipality, failed to meet the DROP termination requirements ;

2. Uphold s DMS Ô s October 2, 2020, notice of intended agency action that

the Town of Miami Lakes is jointly and severally liable for repayment ;

3. Require s the Town of Miami Lakes to pay back the total overpayment of

Jenkins Ô benefits in the amount of $445.013.04 ; and

4. Allow s the Town of Miami Lakes to repay the overpayment in

installments over a three - to five - year period.

D ONE A ND E NTERED this 20th day of December , 2021 , in Tallahassee,

Leon County, Florida.

S

J UNE C. M CKINNEY

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 20th day of December , 2021 .

C OPIES F URNISHED :

T homas E. Wright, Esquire Onier Llopiz, Esquire

Office of the General Counsel Lydecker LLP

Department of Management Services 1221 Brickell Avenue , 19th Floor

4050 Esplanade Way , Suite 160 Miami, Florida 33131

Tallahassee, Florida 32399 - 0950

Joan Carlo s Wizel, Esquire

Gayla Grant, Esquire Lydecker LLP

Office of the General Counsel 1221 Brickell Avenue , 19th Floor

Department of Management Services Miami, Florida 33131

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

Kristen Larson, Interim General Counsel Trey D. Evans, Esquire

Office of the General Counsel Lydecker LLP

Department of Management Services 1221 Brickell Avenue , 19th Floor

4050 Esplanade Way, S ui te 160 Miami, Florida 33131

Tallahassee, Florida 32399 - 0950

David DiSalvo, Director

Division of Retire ment

Department of Management Services

Post Office Box 9000

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 Recomm ended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.