21-000108 Deborah Barrington vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, June 3, 2021.

Summary: Petitioner, a surviving spouse, failed to establish, by a preponderance of the evidence, entitlement to a continuing monthly benefit from her deceased husband's FRS pension plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EBORAH B ARRINGTON ,

Petitioner ,

vs. Case No. 21 - 0108

D EPARTMENT OF M ANAGEMENT S ERVICES ,

D IVISION OF R ETIREMENT ,

Respondent .

/

R ECOMMENDED O RDER

On April 22, 2021, Administrative Law Judge Robert J. Telfer III, of the

Florida Division of Administrative Hearings (DOAH), conducted an

evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2017), in

Tallahas see, Florida, via Zoom web - conference .

A PPEARANCES

For Petitioner: Deborah Barrington , pro se

44 Parkside Circle

Crawfordville, Florida 32327 - 7413

For Respondent: Gayla Grant, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

W hether Petitioner Deborah Barrington, the surviving spouse of Ronald

Mitchell Barrington, is entitled to a monthly benefit from Mr. BarringtonÔs

Florida Retirement System (FRS) pension plan.

P RELIM INARY S TATEMENT

On November 30, 2020, Respondent , Department of Management

Services, Division of Retirement (Respondent), issued a final agency action

letter to Ms. Barrington, informing her that her request that Respondent pay

her FRS benefits from Mr. Ba rringtonÔs retirement account was denied.

Dissatisfied with RespondentÔs decision, Ms. Barrington timely filed, via an

email dated December 29, 2020, a request for a formal administrative

hearing, Ñbased on the fact that the entire form FRS - 11o was not pro perly

notarized or may have been unlawfully notarized.Ò On January 12, 2021,

Respondent referred the matter to DOAH to assign an administrative law

judge to conduct a formal hearing.

On January 20, 2021, the undersigned noticed the final hearing for

Marc h 15, 2021. On March 8, 2021, Respondent filed an Emergency Motion to

Continue Final Hearing, which was unopposed. On that same date, the

undersigned entered an Order Granting Continuance and Rescheduling

Hearing by Zoom Conference, which reset the final h earing for April 22, 2021.

The undersigned conducted the final hearing on April 22, 2021, by Zoom

web - conference. Ms. Barrington testified on her own behalf, and did not

tender any exhibits for admission into evidence. Respondent presented the

testimony o f Harry Halley, the Benefits Administrator in the Survivor

Benefits section of Respondent. The undersigned admitted RespondentÔs

Exhibits R1 through R13 into evidence.

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

May 7, 2021. Resp ondent timely submitted a Proposed Recommended Order

on May 17, 2021, which the undersigned has considered in the preparation of

this Recommended Order. Petitioner did not submit a proposed recommended

order.

All statutory references are to the 2017 codifi cation of the Florida

Statutes, unless otherwise indicated.

F INDINGS OF F ACT

1. Respondent is the state agency charged under chapter 121, Florida

Statutes, with administering the FRS.

2. In 1986, Mr. Barrington began employment with the Department of

Reve nue (DOR). Mr. Barrington was a member of the FRS pension plan

based on his employment with DOR.

3. Ms. Barrington was the spouse of Mr. Barrington. Ms. Barrington

testified that she was married to Mr. Barrington for 43 years.

4. On June 6, 2007, Mr. Barri ngton contacted Respondent, via email, to

inquire as to when he could enter the Deferred Retirement Option Program

(DROP) administered by Respondent. Respondent requested some additional

information from Mr. Barrington, which he provided, including the ide ntity of

his spouse, Ms. Barrington.

5. Respondent received, on January 11, 2011, a form entitled ÑFlorida

Retirement System Pension Plan, Notice of Election to Participate in the

Deferred Retirement Option Program (DROP) and Resignation of

Employment,Ò fr om Mr. Barrington. This form shows that Mr. Barrington

intended to enter the DROP program on April 1, 2011, and that his

termination and resignation date would be March 31, 2016.

6. Mr. Barrington also completed a ÑFlorida Retirement System Pension

Plan, A pplication for Service Retirement and the Deferred Retirement Option

Program (DROP)Ò form, which Respondent also received on January 11, 2011.

This form, similar to the form described in paragraph 5 above, listed

Mr. BarringtonÔs intended dates to enter t he DROP program, and his

intended termination and resignation dates, but also listed Ms. Barrington as

his primary beneficiary.

7. Respondent also received Form FRS - 11o, entitled ÑFlorida Retirement

System Pension Plan Option Selection for FRS MembersÒ (Op tion Selection

Form), on January 14, 2011 (according to the facsimile header on this form).

The Option Selection Form required Mr. Barrington to select one of four

retirement benefit payment options. The Option Selection Form provided an

explanation for ea ch of the four options. The Option Selection Form reflects

that Mr. Barrington initially selected to receive an Option 3 retirement

benefit by checking the line next to the Option 3 benefit payment option.

However, the Option Selection Form also reflects t hat Mr. Barrington struck

through the checkmark next to the Option 3 benefit payment option, wrote

his initials ÑRB,Ò and then checked the line next to the Option 1 benefit

payment option, indicating he selected to receive the Option 1 retirement

benefit. A significant difference exists between Options 1 and 3: Option 3

provides for a Ñreduced monthly benefitÒ during the memberÔs lifetime, and

after death, the memberÔs joint annuitant would receive a lifetime monthly

benefit in that same amount; while under Option 1, the member would

receive the maximum benefit for the memberÔs life, with no continuing

benefit to a joint annuitant after the memberÔs death. The Option Selection

Form reflects that Deborah Holley notarized the signature of Mr. Barrington.

8. Al ong with the Option Selection Form, Respondent received a form

entitled ÑFlorida Retirement System Pension Plan Spousal Acknowledgement

Form,Ò (Spousal Acknowledgment Form) on January 14, 2011 (according to

the facsimile header on this form). The Spousal A cknowledgment Form

provides that if the member is married and has selected Option 1 or 2 on the

Option Selection Form, the memberÔs spouse must complete ÑBox 2Ò on the

Spousal Acknowledgment Form.

9. The Spousal Acknowledgment Form reflects that Ms. Barrin gton

completed ÑBox 2,Ò but in the portion that states that she Ñacknowledge[s]

that the member has selected Option 1 or 2[,]Ò the Spousal Acknowledgment

Form reflects that Ñ1 or 2Ò is stricken through, and instead, the number Ñ3Ò is

hand written nearby. T he Spousal Acknowledgment Form further reflects the

signature of Ms. Barrington, dated September 10, 2010, and that Deborah

Holley notarized the signatures of both Mr. and Ms. Barrington.

10. Respondent introduced into evidence Ms. HolleyÔs public commissi on

as a notary in the State of Florida, indicating that Ms. Holley was a duly

licensed notary, and which was effective when Mr. and Ms. Barrington

executed the Spousal Acknowledgment Form.

11. On February 1, 2011, Respondent mailed Mr. Barrington an

ÑAckno wledgment of DROP Application,Ò acknowledging: (a) receipt of

Mr. BarringtonÔs Application for Service Retirement and the Deferred

Retirement Option Program (DROP); (b) his selection of Option 1 as the

benefit payment option; and (c) his DROP begin date o f April 1, 2011, and

this DROP end date of March 31, 2016. The Acknowledgment of DROP

application expressly states, in bold, all - caps letters, the following:

AFTER YOUR FIRST MONTH OF DROP

PARTICIPATION (OR 30 DAYS FROM THE

DATE OF THIS LETTER IS MAILED, IF

LATER) RETIREMENT IS FINAL. YOU

CANNOT ADD SERVICE, CHANGE OPTIONS,

CHANGE YOUR DROP BEGIN DATE,

CHANGE YOUR TYPE OF RETIREMENT OR

ELECT THE INVESTMENT PLAN .

12. On May 10, 2011, Respondent mailed Mr. Barrington a ÑFinal Notice

of DROP Benefit,Ò which included his final benefit accrual calculation based

on Option 1.

13. Respondent received (according to the facsimile header on this form)

on December 14, 2015, a ÑFlorida Retirement System Pension Plan Deferred

Retirement Option Program (DROP) Termination Notification,Ò from

Mr. Barrington, which reflected that he would terminate his employment

with an FRS employer on March 31, 2016.

14. On January 11, 2017, Mr. Barrington passed away.

15. On February 23, 2017, Respondent sent a survivor letter to

Ms. B arrington informing her that Ñ[t]he option selected by the member does

not provide a continuing benefit beyond the month of death.Ò

16. After Ms. Barrington contacted Respondent to inquire about receiving

a monthly benefit, Respondent sent Ms. Barrington a letter, dated

November 30, 2020, which constituted final agency action, and which

informed Ms. Barrington that Respondent paid Mr. BarringtonÔs retirement

benefits according to his retirement option selection Ð Option 1 Ð and that

denied Ms. BarringtonÔs req uest to receive a monthly benefit.

Testimony of Ms. Barrington and Mr. Halley

17. Ms. Barrington testified that she never signed the Spousal

Acknowledgment Form, that Mr. Barrington mistakenly selected Option 1 on

the Option Selection Form, and that Ms. Ho lley failed to properly notarize

these documents. Ms. Barrington further testified that Mr. Barrington was ill

and, according to her, must have been confused when he selected Option 1.

Ms. Barrington testified that she was not with Mr. Barrington when he

c ompleted the Option Selection Form.

18. Ms. Barrington did not present any medical or other evidence to

establish that Mr. Barrington lacked mental capacity at the time he executed

the Option Selection Form or the Spousal Acknowledgment Form.

19. Ms. Barri ngton did not present any additional evidence, other than

her own testimony, to establish that Ms. Holley failed to properly notarize

the Option Selection Form or the Spousal Acknowledgment Form.

20. Mr. Halley testified that when Respondent receives the f orms for

processing a FRS memberÔs application to enter the DROP program, it

reviews the forms Ñto make sure they are not blank or any information that is

necessary is not omitted[,]Ò and Ñfor any irregularities on the forms and

things of that nature[.]Ò H e testified that at any given time, there are more

than one million members in FRS. He testified that it is an ÑimpossibilityÒ for

Respondent to reach out to each FRS member to confirm that their signature

is authentic, or to call and confirm with each FRS member that they intended

the particular option that they selected.

21. Based on the persuasive and credible evidence adduced at the final

hearing, Ms. Barrington failed to establish that Mr. Barrington lacked the

mental capacity to select a retirement op tion at the time he completed the

Option Selection Form.

22. Based on the persuasive and credible evidence adduced at the final

hearing, Ms. Barrington failed to establish that Ms. Holley improperly

notarized the Option Section Form or the Spousal Acknowle dgment Form.

C ONCLUSIONS OF L AW

23. DOAH has jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569 and 120.57(1) , Florida

Statutes .

24. As the party seeking the affirmative of an issue, Ms. Barrington has

the burden of proving, by a preponderance of the evidence, that she is

entitled to receive a continuing benefit. Wilson v. DepÔt of Admin. , Div. of Ret. ,

538 So. 2d 139, 141 - 42 (Fla. 4th DCA 1989).

25. The rights of FRS members are contractual in natur e between the

member and the State of Florida. A party to a contract is conclusively

presumed to know and understand the contents, terms, and conditions of a

contract before signing it, and any inquiries concerning the ramifications of

the contract should be made before signing it. See Semerena v. Dist. Bd. of

Trs. o f Miami Dade Coll . , 282 So. 3d 974, 977 (Fla. 3d DCA 2019).

26. With these legal principles in mind, the four retirement benefit

payment options available to FRS employees are explained in

sect ion 121.091(6)(a):

(6) OPTIONAL FORMS OF RETIREMENT

BENEFITS AND DISABILITY RETIREMENT

BENEFITS. Ð

(a) Prior to the receipt of the first monthly

retirement payment, a member shall elect to

receive the retirement benefits to which he or she is

entitled unde r subsection (1), subsection (2),

subsection (3), or subsection (4) in accordance with

one of the following options:

1. The maximum retirement benefit payable to the

member during his or her lifetime.

2. A decreased retirement benefit payable to the

memb er during his or her lifetime and, in the event

of his or her death within a period of 10 years after

retirement, the same monthly amount payable for

the balance of such 10 - year period to his or her

beneficiary or, in case the beneficiary is deceased,

in a ccordance with subsection (8) as though no

beneficiary had been named.

3. A decreased retirement benefit payable during

the joint lifetime of both the member and his or her

joint annuitant and which, after the death of either,

shall continue during the li fetime of the survivor in

the same amount, subject to the provisions of

subsection (12).

4. A decreased retirement benefit payable during

the joint lifetime of the member and his or her joint

annuitant and which, after the death of either,

shall continue during the lifetime of the survivor in

an amount equal to 66 2/3 percent of the amount

that was payable during the joint lifetime of the

member and his or her joint annuitant, subject to

the provisions of subsection (12).

The spouse of any member who elec ts to receive the

benefit provided under subparagraph 1. or

subparagraph 2. shall be notified of and shall

acknowledge any such election. The division shall

establish by rule a method for selecting the

appropriate actuarial factor for optional forms of

ben efits selected under subparagraphs 3. and 4.,

based on the age of the member and the joint

annuitant.

27. Florida Administrative Code R ule 60S - 4.010(9) provides:

(9) A married member who selects option 1 as

provided in paragraph 60S - 4.010(1)(a), F.A.C., o r

option 2 as provided in paragraph 60S - 4.010(1)(b),

F.A.C., shall notify his or her spouse of such option

selection, and the spouse shall acknowledge such

option selection as follows:

(a) A member who selects option 1 or 2 shall be

required to indicate i f he or she is married or not

married on Form SA - 1, Florida Retirement System

Spousal Acknowledgment Form, as adopted in Rule

60S - 4.010, F.A.C. If the member is married, his or

her spouse shall complete the spousal

acknowledgment section of such form

ackno wledging that the member has selected option

1 or 2.

(b) If the Division does not receive a completed

spousal acknowledgment of option selection, the

Division will advise the member in writing that his

or her benefits will not commence until:

1. Such com pleted spousal acknowledgment of

option selection is received by the Division; or

2. It is established in writing to the satisfaction of

the Division that the spouse cannot be located; or

3. In the case of refusal by the spouse to sign the

spousal acknow ledgment of option selection, the

Division shall notify the spouse in writing of the

option selection. Such notification shall constitute

acknowledgment by the spouse of such selection.

28. As detailed above, Respondent received Mr. BarringtonÔs Option

Se lection Form and Spousal Acknowledgment Form that reflected that

Mr. Barrington selected Option 1 for his choice of retirement benefit payment

option. Respondent provided Mr. Barrington an Acknowledgment of DROP

Application, which confirmed he had selecte d Option 1, and which provided,

explicitly, that this choice of retirement benefit payment option would become

final within his first month of DROP participation, or 30 days from the date

of the Acknowledgment of DROP application, if later.

29. The rights of FRS members are of a contractual nature, entered into

between the FRS member and the State of Florida. § 121.011(3)(d) , Fla. Stat .

Mr. Barrington, as an FRS member, solely possessed the right to select the

option for his retirement benefit payment opt ion, and the right to change his

retirement benefit payment option within the time period prior to it becoming

irrevocable. See Williams v. DepÔt of Mgmt. Servs., Div. of Ret . , Case No. 19 -

5499 (Fla. DOAH Mar . 4, 2019; Fla. DMS July 28, 2020).

30. The comp etent and persuasive evidence presented at the final hearing

was that Mr. Barrington selected Option 1 for his retirement benefit payment

option, consistent with operative law.

31. Ms. Barrington failed to establish, by a preponderance of the evidence,

tha t Mr. Barrington lacked the mental capacity to select a retirement benefit

payment option at the time he completed the Option Selection Form, or that

Ms. Holley improperly notarized the Option Section Form or the Spousal

Acknowledgment Form.

32. Based on t he evidence presented at the final hearing, the undersigned

concludes that Ms. Barrington is not entitled to a continuing monthly benefit

from Mr. BarringtonÔs FRS pension plan.

33. The undersigned is sympathetic to Ms. BarringtonÔs situation.

However, he is required to uphold the applicable law, which dictates the

result reached in this case.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that Respondent, Department of

Management Services , Division of Retirement, enter a final order denying

PetitionerÔs request for a continuing monthly benefit from Mr. BarringtonÔs

FRS pension plan.

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

County, Florida.

S

R OBERT J. T ELFER III

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 3rd day of June, 2021 .

C OPIES F URNISHED :

Deborah Barrington Gayla Grant, Esquire

44 Par kside Circle Department of Management Ser vices

Crawfordville, Florida 32327 - 7413 Suite 160

4050 Esplanade Way

William Chorba, General Counsel Tallahassee, Florida 32399

Office of the General Counsel

Department of Management Services David DiSalvo, Director

Suite 160 Division of Retirement

4050 Esplanade Way Department of Management Services

Tallahassee, Florida 32399 - 0950 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 Recommended Order. Any exceptions to this Recommended

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

case.