21-001362 Celeste Lyons vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, November 2, 2021.

Summary: Petitioner was not entitled to participate in DROP where she provided DROP paperwork to employer, but it was never received by Respondent in the 12-month eligibility period.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C ELESTE L YONS ,

Petitioner ,

vs. Case No. 21 - 1 362

D EPARTMENT OF M ANAGEMENT S ERVICES ,

D IVISION OF R ETIREMENT ,

Respondent .

/

R ECOMMENDED O RDER

On September 16, 2021 , Hetal Desai, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), conducted the final hearing by

Zoom.

A PPEARANCES

For Petitioner: George T. Levesque, Esquire

James Timothy Mo ore, Esquire

Patrick Hagen, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Tallahassee, Florida 32301

For Respondent: Gayla Grant, Esquire

Thomas E. Wright, Esquire

Whitney Rebecca Hays, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

S TATEMENT OF T HE I SSUE

Whether P etitioner is entitled to participate in the Florida Retirement

System Deferred Retirement Option Program (DROP) when she submitted

the DROP paperwork to her employer, but that paperwork was not submitted

to Respondent within the timeframe set forth by statute or administrative

rule.

P ROCEDURAL H ISTORY

On March 10, 2021, Respondent , the Department of Management

Services, Division of Retirement (the Division ), issued a letter to Petitioner,

Celeste Lyons (Ms. Lyons or Petitioner) , denying her application to

participate in DROP because the Division did not receive her application to

p articipate within the required time , pursuant to section 121.091(13 ) (a)2 .,

Florida Statutes (2020) , and no provision in Florida law w ould allow the

Division to approve her for participation in DROP after the eligibility period. 1

On April 7, 2021, Ms. Lyon s filed an Amended Request for Formal

Administrative Hearing with the Division . The Division transferred the

matter to DOAH, where it was assigned and set for hearing.

On June 28, 2021, Petitioner moved to amend her Request after

discovering the Division was also relying on Florida Administrative Code

Rule 60S - 11.002(2) and (3)(a) to deny her participation in DROP. Petitioner

was granted leave to amend her Petition for Formal Administrative Hearing,

and this matter proceed ed on the Second Amended Request f or Formal

Hearing submitted July 13, 2021 (Second Am. Req.).

After three continuances, the final hearing was held on September 16,

2021. Petitioner presented her own testimony and the testimony of

Kathy Gould, Bureau Chief of Retirement Calculations for the Division .

Petitioner ' s Exhibits P1 through P34 and P36 were admitted into evidence.

1 All references to the Florida Administrative Code Rules and Florida Statutes are to the

2020 codifications.

The Division presented the testimony of Garry Green, Policy Administrator

for the Division . Respondent ' s Exhibits R2 through R5, R6 - 1, R6 - 2, R7, R10

through R13, R15 , a nd R16 were admitted into evidence.

At the outset of the hearing, the parties agreed to submit a joint

stipulation of facts regarding the timeline of events. The Stipulation of Facts

was filed on October 4, 2021, and is incorporated into this Recommended

Order when appropriate.

The Transcript of the hearing was filed on October 4, 2021. Both parties

timely filed proposed recommended orders, which have been considered in the

preparation of this Recommended Order.

F INDINGS OF F ACT

P ARTIES , E NTITIES , AND P ROGRAM

1. Petitioner, Ms. Lyons , is a Fiscal Administrator for the Office of the

State Attorney, Twentieth Judicial Circuit (SAO - 20).

2. Respondent, the Division , is a part of the Department of Manage ment

Services (Department). The Division is responsible for administering the

retirement plan s and programs under the Florida Retirement System (FRS).

3. DROP is a retirement benefits program that entitles an eligible member

of FRS to defer receipt of retirement benefits while continuing employment

with the e mployer. § 121.091(13) , Fla. Stat. The deferred benefits accrue with

FRS on behalf of the member, with interest compounded monthly, for the

specified period of DROP participation . I d. After the member terminat es

employment with the employer , the member rec eive s the total DROP benefits

and begin s to receive the previously determined normal retirement benefits.

Id.

4 . SAO - 20 has been Ms. Lyons ' employer for more than thirty years.

Employees of SAO - 20 participate in FRS and , if eligible , can ch o ose to

partic ipate in DROP.

5 . SAO - 20 obtained administrative services through t he Justice

Administrative Commission (JAC) . JAC is a statutorily created " central state

office " that provides " administrative services and assistance when possible to

and on behalf of the s tate attorneys and public defenders of Florida, the

capital collateral regional counsel of Florida, the criminal conflict and civil

regional counsel, and the Guardian Ad Litem Program. " § 43.16(5), Fla. Stat.

These services include accounting , payroll , ben efit s , and retirement

assistance to the above cited entities that participate in FRS .

6. Although JAC was not Ms. Lyons ' employer, it d id have access to

employees ' p ersonnel files. Moreover, the Division had trained JAC personnel

on FRS and DROP, and the Division authorized JAC t o accept DROP

paperwork from various employers and submit it to the Division . JAC ,

however, was not part of the Department or the Division . Rather, JAC serve d

as a conduit between SAO - 20 ' s human resources office and the Division fo r

the process ing of all the retirement benefit paperwork .

M S . L YONS ' DROP E LIGIBILITY AND P APERWORK

7 . Ms. Lyons ' normal retirement date was January 1, 2020. Ms. Lyons '

12 - m onth eligibility window to elect to participate in DROP was between

January 1 an d December 31, 2020 . § 121.091(13)(a)2 . , Fla. Stat.

8. Before this date, in February and August 2019 , Ms. Lyons requested

estimates of her retirement benefits from the D ivision . These estimates were

generated by the Division and sent directly to Ms. Lyons ' home address. In

the " Comments " section of the estimates created by the Division, it explicitly

states, " If the DP - ELE is not received in our office by 12/31/2020, your

eligibility to participate in DROP is forfeited. "

9 . The August 2019 estimate proje cted that after 60 months, Ms. Lyons

would have received $113,826.03 if she entered ( or began participation in)

DROP during her first month of eligibility , January 2020 .

10 . In January 2020, Ms. Lyons continued to work for SAO - 20 but filled

out the Divisi on ' s paperwork for participating in DROP with the help of

Rosemarie Mitchell, Director of Human Resources for SAO - 20 . These forms

included the following :

• Notice of Election to Participa te in [DROP] and Resignation of

Employment ( DP - ELE ) ;

• Application for Se rvice Retirement and [DROP] (DP - 11) ;

• Option Selection for FRS Member ( FRS - 11o) ;

• [ FRS] Pension Plan Spousal Acknowledgment Form ( SA - 1 ) ; and

• [FRS] Pension Plan Retired Member and DROP Participant

Beneficiary Designation Form. (F ST - 12 ).

1 1 . On these forms, M s. Lyons certified she elected to participate in DROP

and would resign her employment on the date she terminated from DROP .

Ms. Lyons listed " January 1, 2020, " as her DROP start date and

" December 31, 2024 , " as her DROP termination resignation date .

1 2 . Petitioner ' s employer, SAO - 20, also certified that Ms. Lyons would " be

enrolled as a DROP Participant " on January 1, 2020 , and that Ms. Lyons

would " terminate ... her employment " on December 31, 2024.

13 . All of the above forms were filled out, s igned by Ms. Lyons, and

notarized on January 9, 2020.

14 . On January 9, 2020, Ms. Lyons submitted the above forms to

Ms. Mitchell.

15 . O n that same day , Ms. Mitchell emailed Ms. Lyons' DROP paperwork

to the JAC Retirement Coordinator. Jessica Estes (formerly k nown as

Jessica Liang) , a Senior Human Resources Coordinator for JAC,

acknowledged JAC ' s receipt of Ms. Lyons ' DROP paperwork and requested

two new FST - 12 forms and more document ation verifying Ms. Lyons ' date of

birth. Th e requested information was not re quired to be eligible or participate

in DROP.

16 . Ms. Estes ' normal procedure was to forward DROP paperwork to the

Division before the end of the month in which it was received. If she had

followed this practice , she should have sent in Ms. Lyons ' DROP pa perwork

to the Division on or before January 31, 2020. She did not. In fact, no one in

SAO - 20 or JAC forward ed Ms. Lyons' DROP paperwork to the Division before

December 31, 2020.

17 . This mistake was not discovered until more than a year later. On

Februar y 25, 2021 , JAC discovered it had failed to submit the DROP

paperwork for Ms. Lyons to the D ivision .

18. O n February 26, 2021 , after JAC contacted t he Division , Ms. Estes

emailed Petitioner ' s DROP paperwork, including Forms DP - ELE and DP - 11,

to Kathy Goul d, Chief of the Bureau of Retirement Calculations at the

Division . Again, there is no dispute this was outside of Ms. Lyons ' 12 - month

eligibility window.

19. On March 5, 2021, SAO - 20 notified Ms. Lyon s of JAC ' s failure to

submit her DROP paperwork to the Division within the eligibility period. O n

March 10, 2021 , the D ivision issued an Administrative Notice to Ms. Lyons

denying her participation in DROP and informing her that she was not

eligible to participate in DROP because the application and election w ere

received outside her 12 - month eligibility window (and past the December 31,

2020 , deadline) . Relying on sections 121.091(13)(a)2 . and 121.021(29)(a), the

Division informed Ms. Lyons that a member must " submit a form DP - ELE ...

to the Division ... with in twelve months of the date you first bec[o]me eligible

to participate, " and because the Division " received [Ms. Lyons ' ] DP - ELE after

the end of [her] eligibility period, [ she was] not eligible to participate in

DROP. " The denial letter did not reference any administrative rule .

20. The testimony established that the Division has accepted DROP

paperwork after the eligibility period when there is a dispute about whether

the paperwork has been received by the Division within the 12 - month

eligibility window . In these cases, the Division has, after an investigation,

discovered that there was a technical mistake on the Division ' s end that

prevented submission of the DROP paperwork within the statutory deadline.

For example, in the past, the Division has accepted DROP paperwork as

timely received when a n FRS member submits DROP paperwork via

facsimile, but it does not print out on the Division ' s end because of a technical

issue; or where an email with DROP paperwork attached was sent by the

member to the Division within the eligibility period, but did not u pload or

arrive in the D ivision ' s inbox until after the end of that period.

21. That is not the case for Ms. Lyons. Her documentation was not sent to

the Division within the statutory timeframe, and there was no technical (or

human) error on the Division ' s end of the communication. Any error was on

the part of JAC or SAO - 20.

C ONCLUSIONS OF L AW

2 2 . DOAH has jurisdiction over the subject matter of, and the parties to,

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

2 3 . As the party challenging the agency ' s action, t he burden of proof is on

Petitioner . Wilson v. Dep ' t of Admin ., Div . of Ret . , 538 So. 2d 139, 141 - 42 (Fla.

4th DCA 1989). Moreover, t he standard of proof in this case is a

preponderance of the evidence. § 120.57(1)(j), Fl a. Stat. ( " Findings of fact

shall be based upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise provided by

statut e. " ).

E LIGIBILITY AND P ARTICIPAT ION IN DROP

2 4 . The DROP statutory provision, section 121.091(13), sets forth the

eligibility requirements to participate in DROP and receive benefits.

(a) Eligibility of member to participate in

DROP. Ð All active Florida Retirement System

members in a regularly established position È are

eligible to elect participation in DROP if:

* * *

2. [F] or members initially enrolled before July 1,

2011, election to participate is made within

12 months immediately following the date on which

the member first reaches normal retirement date , or,

for a member who reaches normal retirement date

based on service before he or she reaches age 62 . È

A member who d elays DROP participation during

the 12 - month period immediately following his or

her maximum DROP deferral date, except as

provided in subparagraph 6., loses a month of

DROP participation for each month delayed. A

member who fails to make an election withi n the 12 -

month limitation period forfeits all rights to

participate in DROP. The member shall advise his

or her employer and the division in writing of the

date DROP begins . The beginning date may be

subsequent to the 12 - month election period but

must be w ithin the original 60 - month participation

period provided in subparagraph (b)1.

* * *

3. The employer of a member electing to

participate in DROP È shall acknowledge in

writing to the division the date the member ' s

participation in DROP begins and the date the

member ' s employment and DROP participation

terminates. (emphasis added).

2 5 . H ere, there is no dispute the 12 - month eligibility timeframe for

Petitioner to " elect to participate " was from January 1 to December 31, 2020.

Although Petitioner advised her employer in writing of the date she wished

her DROP to begin, no one advised the D ivision of that date until

February 26, 2021, almost two months after Ms. Lyons ' eligib i lity period had

ended . Therefore, the statutory requirement in section 121.091(13)(a)2 . was

not met within the prescribed timeframe.

2 6 . SAO - 20 also failed to " acknow ledge in writing to the Division the date "

Ms. Lyons ' participation in DROP would begin, the date her employment

would terminate, and the date her DROP participation would terminate. As

such, the statutory requirement of section 121.091(13)(a) 3. was also n ot met.

2 7 . The statutory DROP provision also specifically designates what is

required to participate in DROP . Section 121.091(13)(b) states in relevant

part:

(b) Participation in DROP. Ð Except as provided in

this paragraph, an eligible member may elect to

participate in DROP for a period not to exceed a

maximum of 60 calendar months.

* * *

2. Upon deciding to participate in DROP, the

member shall subm it, on forms required by the

division :

a. A written election to participate in DROP;

b. Selection of DROP participation and

termination dates that satisfy the limitations

stated in paragraph (a) and subparagraph 1. The

termination date must be in a bindi ng letter of

resignation to the employer establishing a deferred

termination date. The member may change the

termination date within the limitations of

subparagraph 1., but only with the written

approval of the employer;

c. A properly completed DROP appli cation for

service retirement as provided in this section; and

d. Any other information required by the division.

(emphasis added).

2 8 . Petitioner seems to argue the statute only requires a member to make

an election to be eligible to participate, and th at there is no requirement that

the member also notify the Division that the election has been made. She also

argues that the statute only refers to forms for participation , not eligibility ,

and does not designate to whom " the member shall submit " the requ ired

forms " upon deciding to participate . " In other words, Petitioner argues the

statute does not necessarily require that the Division be made aware that

Petitioner has " elected to paticipate. " Under Petitioner ' s interpretation of the

statute, a member co uld simply say, " I elect to participate in DROP " within

12 months of her normal retirement date to make her eligible to participate

in DROP . No reasonable person would agree with this interpretation .

2 9 . Petitioner attempt s to dissect t he DROP eligibility , election, and

participation requirements even though they are intertwined in the statute.

Th e subsections in section 121.091(13) cannot be parsed out in this fashion;

they must be read together. A reading of subsection (a) for eligibility

purposes, and su bsection (b) for participation purposes, read together and in

the context of the rest of section 121.091, is unambiguous: the Division must

be aware of the election to participate in DROP within the 12 - month

eligibility period. See § 121.091(13)(a) 2. , Fla. Stat. (the member is eligible if

the member has advised the Division of the date DROP begins) ;

§ 121.091(13)(a) 3. , Fla. Stat. (the member is eligible only if the employer

acknowledges in writing to the Division the date of the member ' s

participati on in DR OP) ; § 121.091(13)(a)5.b. , Fla. Stat. (the member and new

employer must notify the division of the identity of any new employer on

forms required by the division ); § 121.091(13)(b)1. a. , Fla. Stat. (the member

and employer must notify the Division of any ch anges in termination date or

an additional period of DROP participation ) ; § 121.091(13)( c) 6. , Fla. Stat.

(an y retiree who is reemployed in violation of this subparagraph " and any

employer that employs or appoints such person without notifying the division

to suspend retirement benefits are jointly and severally liable for any benefits

paid during the reemployment limitation period. " ) (emphasis added).

30 . In fai l ing to elect to participate in DROP within the statutorily

prescribed period in the prescribe d manner , Petitioner " forfeit[ed] all rights

to participate in DROP . " § 121.091(13)(a) 2 . , Fla. Stat .

31 . To be clear, this result is through no fault of Petitioner. It was JAC ' s

failure to submit the paperwork to the Division, and the reliance of SAO - 20

o n JAC that led to the forfeiture of Petitioner ' s right to participate in DROP .

32 . Petitioner did offer evidence to establish that JAC had access to the

State ' s personnel files, the Division had trained JAC personnel on the state

retirement system and on DROP , and JAC was authorized to accept DROP

paperwork from employers directly and submit it to the Division . The

Legislature, however, has established that neither SAO - 20 nor JAC (as SAO -

20 ' s representative) are agents of the Division . Section 121.021(10) provides:

" Employer " means any agency, branch,

department, institution, university, institution of

higher education, or board of the state, or any

county agency, branch, department, board, district

school board, municipality, metropolitan planning

organiza tion, or special district of the state which

participates in the system for the benefit of certain

of its employees. È Employers are not agents of the

department, the state board, or the Division of

Retirement, and the department, the state board,

and the division are not responsible for erroneous

information provided by representatives of

employers . (emphasis added ) .

33 . Because, by law, the Division cannot be bound by the actions of

employers participating in FRS, SAO - 20's submittal and JAC's receipt of

Petitioner's forms cannot be equated with the Division "receiving" the DROP

forms. Moreover, b ecause Petitioner failed to provide the Division with the

required information within the timeframe outlined in the statute, as a

matter of law, Petitioner is no t eligible to participate in DROP .

34. The undersigned is sympathetic to Petitioner ' s predicament ; the strict

enforcement of the statute seems harsh. Re grettabl y, neither the undersigned

nor Respondent has the statutory authority to allow Petitioner to jo in the

program retroactively . See Schiffman v. Dep 't of Prof ' l Reg . , Bd . of Pharmacy ,

581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ( " An administrative agency has

only the authority that the legislature has conferred it by statute. " ).

Furthermore, neither SAO - 20 n or JAC were made parties to this action, nor

does DOAH have the power to award monetary or equitable relief to

Petitioner for any errors JAC may have committed resulting in Petitioner ' s

loss of eligibility in DROP. See generally § 43.16(7), Fla. Stat. (exempting JAC

from c hapter 120, Florida Statutes).

R ULE C HALLENGE

35 . During these proceedings , the Division indicated that, in addition to

failing to comply with the requirements of section 121.091(13), it also relied

upon Petitioner ' s failure to comply with r ule 60S - 11.002(2) and (3)(a), to

support its decision that Ms. Lyons could not participate in DROP .

36 . In response, Petitioner argued that these rules were " an invalid

exercise of delegated legislative authority and therefore shall not serve as the

basis for DMS ' determination that Ms. Lyons is not eligible to participate in

DROP. " Second Am . Req . , p.7. Neither the Division nor the undersigned can

rely on a rule that is an invalid exercise of delegated legislative authority in

taking agency action. § 120.57(1)(e)1., Fla. Stat. 2

37 . Petitioner, as the party challenging the rule as an invalid exercise of

delegated legislative authority, bears the burden by a preponderance of the

evidence. Goodman v. Fla. Dep ' t of Law Enf ' t , 238 So. 3d 102, 108 (Fla. 2 018) .

38 . Section 120.52(8) defin es an " invalid exercise of delegated legislative

authority " as an " action that goes beyond the powers, functions, and duties

delegated by the Legislature . " See also Fla. Dep ' t of Bus. & Pro 'l Reg., Div. of

Alcoholic Beverag es & Tobacco v. Target Corp ., 321 So. 3d 320, 323 (Fla. 1st

2 Section 120.57(1)(e)1. states: " An agency or an administrative law judge may not base

agency action that determines the substantial interests of a party on an unadopted rule or a

rule that is an invalid exercise of delegated legislative authority. This sub paragraph does not

preclude application of valid adopted rules and applicable provisions of law to the facts. "

DCA 2021 ). An existing rule is an invalid exercise of delegated legislative

authority if it " enlarges, modifies, or contravenes the specific provisions of

law implemented , " or if it is " arbitrary or capricious. " § 120.52 (8)(c) and (e) ,

Fla. Stat.

39 . A close compariso n of the statutes ( cited by the Division as authority

for the rule ) and the rule at issue is necessary to determine whether those

statutes explicitly grant the agency authority to ado pt the rule. 3 Thi s review

requires an analysis of " whether the statute contains a specific grant of

legislative authority for the rule, not whether the grant of authority is

specific enough. Either the enabling statute authorizes the rule at issue or it

d oes not . " MB Doral, LLC v. Dep't of Bus. & Prof'l Regulation, Div. of

Alcoholic Beverages & Tobacco , 295 So. 3d 850, 85 4 (Fla. 1st DCA 2020) .

40 . The Division cites the following statutes for the adoption of r ule 60S -

11.002: sections 121.031 and 121.091 (13 ) for its rulemaking authority, and

sections 121.021 and 121.091 for implementation.

41 . Sections 121.031 and 121.091 provide general rulemaking authority to

the Department. § 121.031(1), Fla. Stat. ( " The [ Department ] h as the

authority to adopt rules purs uant to ss. 120.536(1) and 120.54 to implement

3 Section 120.536(1) states:

An agency may adopt only rules that implement or interpret

the specific powers and duties granted by the enabling

statute. No agency shall have authority to adopt a rule only

because it is reasonably related to the purpose of the enabling

legislation and is not arbitrary and capricious or is within the

agency ' s class of powers and duties, nor shall an agency have

the authority to implement statutory provisions setting forth

general legislative intent or policy. Statutory language

granting rulemaking authority or generally describing the

powers and functions of an agency shall be construed to

extend no further than impl ementing or interpreting the

specific powers and duties conferred by the enabling statute.

See also § 120.52(8 ) , Fla. Stat. (containing similar language as section 120.536(1), with the

addition of " [a] grant of rulemaking authority is necessary but not su fficient to allow an

agency to adopt a rule; a specific law to be implemented is also required. An agency may

adopt only rules that implement or interpret the specific powers and duties granted by the

enabling statute. " ).

the provisions of law conferring duties upon the department and to adopt

rules as are necessary for the effective and efficient administration of this

system. " ) ; and § 121.091 , Fla. Stat. ( " The D epartment shal l adopt rules

establishing procedures for application for retirement benefits and for the

cancellation of such application when the required information or documents

are not received. " ).

42 . Section 121.021 (44) defines a " DROP participant " as " any member who

elects to retire and participate in the Deferred Retirement Option Program as

provided in s. 121.091(13) . "

43 . Finally, section 121.091(13) specifically gives rulemaking authority to

the Division for the administration of DROP :

(k) Administration of program. The division shall

adopt rules as necessary for the effective and

efficient administration of this subsection. The

division is not required to advise members of the

federal tax consequences of an election related to

the DROP but may advise members to seek

independent advice.

44. The statutory language also specifically requires that an eligible

member submit a written election to participate in DROP, selection of DROP

participation and termination dates, a p roperly completed DROP application

and " [a] ny other information required by the division. " § 121.091(13)(b)2 .d. ,

Fla. Stat. The statute also mandates that t his information be provided " on

forms required by the division . " Id.

45 . Based on the explicit language of the statut es discussed above , it is

clear that the Division ha s the authority to adopt rules and procedures to

administer DROP in general, and, importantly, to cancel those benefits when

the required documents are not received . Moreover, section 121.091(13)(b)2 .

spe cifically authorize s the Division to create and require forms in the

administration of DROP , and section 121.091(13)(k) specifically authorizes

the Division to adopt rules for the effective and efficient administration of

DROP.

46 . Petitioner challenges th e time requirements in rule 60S - 11 .002 that

the election " shall be received by the Division no later than the end of the last

month of the member ' s 12 - month election period " a s an invalid exercise of

delegated legislative authority . Rule 60S - 11.002(3)(a) s tates:

1. Failure to complete and submit Form DP - ELE within the

limitations of subsection 60S - 11.002(2), F.A.C., will result in the

member being ineligible for DROP participation.

2. If a member fails to apply for DROP by the last day of the

month in whi ch his or her intended DROP begin date occurs, the

effective date of retirement and the DROP begin date shall be

the first day of the month in which the Division receives the

member ' s application, provided the application is received

within the 12 - month el ection as provided in subsection 60S -

11.002(2), F.A.C.

47 . The time requirements in the rule, however, are consistent with the

explicit language in section 121.091(13) (a) 2 . , which states a member is

eligible if an election is made within 12 months of the retirement date, a

member who fails to make the election within 12 months forfeits his or her

rights to participate in DROP, and the member must advise the D ivision in

writing of the dates he or she intends on participating in DROP . Based on

this language, it is clear the Department could require a member to notify the

Division that she had made an election to participate in DROP within the 12 -

month eligiblity period, in order to be el i gible to participate in DROP.

48 . Additionally, sections 121.031 and 121 .091 give the Department broad

powers to enact rules for the administration of the retirement system, and

section 121.091(13) explicitly authorizes the Division to adopt forms and

procedures to facilitate the election to participate in DROP . As such, r ule

60S - 11 .002 does not exceed the authority provided by those statutes, and

does not enlarge, modify, or contravene the law implemented.

See § 120.52(8)(c), Fla. Stat.

49 . Likewise, because r ule 60S - 11 .002 simply implements the

requirements of section 121.091 (13), neither the time requirements in the

rule nor the forms created by the Division can be said to be illogical or

irrational. See § 120.52(8)(e), Fla. Stat. ( " A rule is arbitrary if it is not

supported by logic or the necessary facts; a rule is capricio us if it is adopted

without thought or reason or is irrational . " ) .

50 . As such, rule 60S - 11.002(2) and (3)(a) is a valid rule.

51. Because the Division did not receive Ms. Lyons ' DROP paperwork

within the timeframe set forth in r ule 60S - 11 .002 , Petitioner is ineligible for

participation in DROP.

R ECOMMENDATION

Based 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 denying Celest e Lyons from participation in

DROP.

D ONE A ND E NTERED this 2nd day of November , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

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 2nd day of November , 2021 .

C OPIES F URNISHED :

George T. Levesque, Esquire Thomas E. Wright, Esquire

G rayRobinson, P.A. Department of Management Services

301 S outh Bronough Street , Suite 600 Office of the General Counsel

Tallahassee, Florida 32301 4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

Gayla Grant, Esquire

Department of Ma nagement Services James Timothy Moore, Esquire

4050 Esplanade Way , Suite 160 G rayRobinson, P . A

Tallahassee, Florida 32399 - 0950 301 South Bronough Street , Suite 600

Tallahassee, Florida 32301

Patrick Hagen, Esquire

GrayRobinson, P.A. Whitney Rebecca Hays, Esquire

301 South Bronough Street , Suite 600 Department of Management Services

Tallahassee, Florida 32301 4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

David DiSalvo , Director

Division of Retirement Kristen Larson, Interim General Counsel

Depa rtment of Manag ement Services Department of Management Services

Post Office Box 9000 Office of the General Counsel

Tallahassee, Florida 32 315 - 9000 4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

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.