90-002085 Evelyn S. Day vs. Division Of Retirement Status: Closed Recommended Order on Thursday, January 3, 1991.

Summary: Petitioner can change retire status to disabled because not mentally competent to make earlier election, proof of alzheimers; allow reapplication.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN DAY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2085

)

DEPARTMENT OF ADMINISTRATION, )

DIVISION OF RETIREMENT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael

Ruff, duly-designated Hearing Officer, on October 12, 1990, in Crestview,

Florida. The appearances were as follows:

APPEARANCES

FOR PETITIONER: Joseph G. Stokes

911 "B" Street

Crestview, FL 32536

FOR RESPONDENT: Larry D. Scott, Esq.

Division of Retirement

Cedars Executive Center

Building C

1639 North Monroe Street

Tallahassee, FL 32399-1560

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the

Petitioner, Evelyn S. Day, is entitled to modify her type of retirement benefits

from "early service retirement" to "disability retirement."

PRELIMINARY STATEMENT

This action concerns a request by the Petitioner, through her husband and

other family members, to change her "early service retirement" benefits, which

were applied for on April 25, 1989, to disability retirement benefits. Although

the Petitioner has been receiving and negotiating retirement checks since July

1989 (by electronic bank deposit), the Petitioner maintains, through her

husband, brother, family members, and friends, that she was not competent to

knowingly and properly execute an application for disability retirement at the

time she sought early service retirement benefits, due to Alzheimer's disease.

The Petitioner, with the efforts of her husband and brother, who represented her

at the hearing, seeks to change her retirement status to disability retirement

for the reason that she was not competent to make a proper, knowing election of

the type of retirement benefits desired, and for which she was eligible, at the

time the original retirement application was submitted on April 25, 1989. The

Respondent agency takes a position, in accordance with Rule 22B-4.002(2),

Florida Administrative Code, that once a member of the retirement system files

an application for a specific type of retirement, and for which benefit payments

were issued and cashed or deposited, that the member's right of entitlement to a

different type of retirement is therefore forfeited.

The cause came on for hearing, as noticed, at which the Petitioner

presented the testimony of Kitty Davis, Linda Ray, Ernestine Hobby, and Joseph

G. Stokes. The Respondent presented the testimony of Mark Sadler,

Administrator, Disability Determination Section of the Division of Retirement.

Petitioner's Exhibits 1-5 were admitted, although Petitioner's Exhibits 3, 4,

and 5 were admitted as corroborative hearsay only, pursuant to Section 120.58,

Florida Statutes. Respondent's Exhibits 3-7 were admitted.

Upon the conclusion of the proceeding the parties were accorded the right

to file Proposed Findings of Fact and Conclusions of Law in the form of Proposed

Recommended Orders. Those pleadings have been timely filed and are treated in

this Recommended Order and specifically ruled upon, as to Proposed Findings of

Fact, in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Evelyn Day, was employed at Crestview High School in

the position of "Occupational Specialist" from August 19, 1974 until June, 1989.

Mrs. Day had a record of being a very valuable employee of the school system and

was a person who always completed her tasks in a highly competent manner, within

the allotted time period. She was well respected by faculty, staff and students

while employed there.

2. Linda Ray, is a guidance counselor at the Vocational-Technical School

which is an adjunct of the Crestview High School. She testified that the

Petitioner in her capacity as Occupational Specialist, had taught her all about

the duties of her own position seven years previously. The Petitioner had

helped her learn how to complete required forms, reports, and other paper work

and was the person to whom she looked to answer any questions she had about

occupational training for students and related forms and reports because the

Petitioner always demonstrated a high level of competence in such duties and had

the capacity to rapidly answer her questions and give clear instructions. Ms.

Ray established, however, that approximately one year before the Petitioner

retired in June, 1989, that the Petitioner began exhibiting confusion, loss of

memory, and the inability to accurately and clearly complete the same work, the

same forms and reports, that she had previously taught Ms. Ray how to execute

seven years previously. The Petitioner thus had to call on Ms. Ray herself for

help for the same duties that she had instructed Ms. Ray on some years

previously.

3. Kitty Davis, a former assistant to the Director of Vocational Education

of the Okaloosa County School System, testified about her knowledge of the

Petitioner during the time the Petitioner worked for the school system as an

Occupational Specialist. She established that the Petitioner was extremely

intelligent and effective in her work. She was a good leader and enjoyed the

high esteem of fellow workers and was always prompt and effective in instructing

other workers in their duties in the Occupational Training endeavor of the

school system and her school. She was instrumental in helping fellow employees

become more effective in their duties and was known as the best Occupational

Specialist in the county school system. In fact, the Petitioner, on her own

initiative started the Career Day Program at the Crestview High school. Ms.

Davis established that, for approximately a two-year period immediately before

the Petitioner's retirement, she began having difficulty with her forms and

other paper work and reports. This difficulty got progressively worse and Ms.

Davis referred to one specific instance in which a report which the Petitioner

had commonly executed throughout her years as an Occupational Specialist, had to

be returned to the Petitioner seven times for correction and that finally the

Petitioner had to get the assistance of another person to complete the report.

For the last six months of the Petitioner's employment, Ms. Davis established

that she could no longer do the simplest duties in connection with her position

as an Occupational Specialist. The Petitioner previously, throughout her years

of employment, had demonstrated excellent personal appearance and grooming

habits. For approximately the last six months of her duties, she had allowed

her personal appearance to deteriorate to a state of poor grooming which had

never been a characteristic of her personal habits in the past.

4. Ms. Davis established that in Ms. Day's position it was very important

that student progress reports from employers, for students placed for

occupational training, be promptly filed. By 1989, Ms. Day was unable to

promptly file reports and soon was unable to do them at all. In fact, she soon

became unable to complete the reports at all and was observed to simply "turn

forms over" aimlessly without being able to work on them and execute them. She

would make phone calls and forget why she made the phone calls during the course

of the call. She was observed to forget, minutes later, that she had just met a

certain person. This aberrant behavior, first observed a year or two before her

retirement in June of 1989, was totally out of character for the Petitioner.

She had always been intelligent, energetic and outgoing. In fact, she had been

chosen to be the hostess for her high school because of her outgoing, friendly

nature. That progressively changed such that her personality appeared

characterized by mental confusion, disorientation, memory loss, and poor

grooming habits. In fact, it is established, by Ms. Ray and Ms. Davis, that by

1989, Ms. Day was unable to follow any directions at all, in essence, and could

not keep her mind on a single subject matter. Indeed, she would forget the

subject matter of a conversation in mid-discussion.

5. Ms. Ernestine Hobby is Mrs. Day's older sister. She is a retired

Finance Officer for the Santa Rosa County School System. Sometime in the spring

of 1988 Ms. Day first expressed the wish to retire. Her memory and thought

processes had evidentially had already begun deteriorating because Mrs. Day was

unable to ask questions concerning her retirement rights, responsibilities, and

entitlements very well. Because of this condition, Ms. Hobby agreed to

accompany her to the offices of the Division of Retirement in order to ascertain

what her retirement rights, entitlements, and responsibilities might be

preparatory to Mrs. Day electing to retire. Ms. Hobby made notes of that

meeting in order to have written informatibn for Mrs. Day to refer to in making

her retirement arrangements, because of her faulty memory. She gave the notes

of that meeting to Mrs. Day after the meeting, but Mrs. Day lost the notes.

Ultimately, Mrs. Day elected not to retire at that time but rather to try work

one more year.

6. Approximately one year later, Mrs. Day decided to retire, apparently at

the urging of friends, colleagues and family members. Because of her

deteriorated mental state, Mrs. Day was unable to properly fill out the

necessary retirement forms, including the application for retirement and,

therefore, Ms. Hobby did this for her. Ms. Hobby actually filled out her

retirement application in April or May of 1989. Neither the Petitioner nor Ms.

Hobby was aware that once the retiree elected a certain type of retirement and

negotiated the first retirement check, the type of retirement could not be

changed, according to the rule referenced below. The other witnesses on behalf

of the Petitioner, including Mr. Stokes, were unaware of this rule. Ms. Hobby

filled out all the forms required for the Petitioner to effect her retirement

status and the Petitioner only signed the application after being told to by Ms.

Hobby. Although the application on its face indicates an election to seek early

service retirement (instead of disability retirement), the totality of the

evidence of record, which was unrefuted by any evidence by the Respondent,

establishes that the Petitioner was not aware of the nature of the retirement

benefits she had applied for nor the type of retirement she had elected or the

consequences of that election. The evidence clearly shows that by the time the

application form was filled out, signed and submitted that the Petitioner was

incompetent to make the election to take early service retirement as opposed to

disability retirement. This is born out by testimony of Ms. Hobby, corroborated

by a letter from Dr. Axley, a neurologist in Pensacola, to the effect that the

Petitioner indeed suffered from Alzheimer's disease. In fact, the doctor

diagnosed her condition as the "second stage" of Alzheimer's disease sometime

before March 2, 1990 and opined that the disease had been progressing for

approximately one and half years. The doctor anticipates that the condition

will continue to deteriorate. Her condition is characterized by memory loss,

mental confusion, and disorientation. In fact, as of the time of the hearing,

as established by Ms. Hobby's testimony, the Petitioner is significantly

disoriented in her thought processes and memory such that she cannot accomplish

the simplest household tasks any longer.

7. Mr. Joseph G. Stokes is the Petitioner's brother. He was the Okaloosa

County Tax Collector for twenty-eight years. He lives next door to the

Petitioner and is in a position to constantly observe her behavior and

deteriorating mental and physical condition. Because of his concern for her

deteriorating condition in the past year or two he attempted to urge her to see

a doctor. Indeed, a family member is a doctor. The Petitioner however refused

to see a doctor for a substantial period of time apparently because she did not

wish to confront the fact of her illness and wanted to continue to try to

maintain employment. When the Petitioner finally was taken to the neurologist,

Dr. Axley, the witness learned that the problem had been slowly progressing for

some years and by that time the Petitioner could not even remember journeying to

Tallahassee to meet with representatives of the Division of Retirement to fill

out retirement forms. Like the other witnesses for Petitioner, Mr. Stokes

testified regarding the high level of competency the Petitioner had formerly

exhibited in performing her job as an Occupational Specialist at the Crestview

High School. Additionally, she had worked at intellectually demanding jobs as

Payroll Officer for the Okaloosa County School System, the Accountant for the

Okaloosa County Tax Collector's Office and had handled all the financial affairs

of that office. She had also in the past worked as an Accountant for a Lincoln-

Mercury dealership in Crestview and Fort Walton.

8. Mr. Stokes had suspected for more than a year that something was wrong

with his sister. He finally became convinced of that when, approximately one

year to one and one-half years prior to her retirement, a party from New York

contacted her about leasing a small parcel of land some 20 feet by 30 feet in

size for purposes of installing a microwave tower. The property had planted

pine trees growing on it at the time. The potential lessee offered the

Petitioner a monthly rental of $1,000.00 for this very small parcel of property

and yet she illogically rejected this offer because she believed that she and

her husband were going "to plant soy beans on the parcel". This was such an

irrational decision under the circumstances that Mr. Stokes became convinced

that the Petitioner's mental condition had significantly deteriorated. In fact,

according to Mr. Stokes testimony, his sister has reached the point where she is

unable to do anything to care for herself or her household. He bases this on

his opportunity to observe her on a daily basis because he resides next door.

He also testified, like Ms. Hobby, that Ms. Hobby had filled out her retirement

application papers because the Petitioner simply was not capable of doing so.

9. Mr. Mark Sadler, the Administrator of the Disability Determination

Section of the Respondent introduced retirement documents submitted on behalf of

the Petitioner. He testified concerning the language in the application, and

Respondent's Exhibit 6, to the effect that retirement could not be changed as to

option (that is as to the manner in which benefits are paid) or length of

service claimed, after the cashing of the first disability check. He

acknowledged that the rule at issue cited below, added one other condition that

was not in the notice to the Petitioner, represented by Exbibit 6, and that was

the fact that the rule language also contained the admonition that the type of

retirement could not be changed once the first retirement benefit check has been

cashed or deposited.

10. In any event, as to alluded to aboNe, in April or May of 1989 an

application was prepared for the Petitioner by Ms. Hobby and signed by the

Petitioner at the direction of Ms. Hobby or other family members, for "early

service retirement." After receiving retirement benefit checks for early service

retirement for some months a request for change of retirement status from early

service retirement to disability retirement was made on behalf of the

Petitioner. The Petitioner was not competent to make that election or decision

either and it was made for her by family members who in fact prepared and

submitted the request. On March 12, 1990 the Department of Administration,

Division of Retirement denied the requested change in retirement status because

of the admonition in Rule 22B-4.002(2), Florida Administrative Code, to the

effect that once a member files an application which is approved for a specific

type of retirement and a benefit payment is issued and cashed or deposited, the

member's entitlement to a different type of retirement is forfeited.

Thereafter, by letter of March 21, 1990 the Petitioner's husband formally

advised the Pespondent of disagreement with the denial of the request for change

of retirement type or status and requested a formal proceeding which ultimately

ensued before this Hearing Officer.

11. The estimate of retirement benefits form contained in Respondent's

Exhibit 6, as well as the "acknowledgment of retirement application",

Respondent's Exhibit 4 in evidence contains the admonition that "once you retire

you cannot add additional service or change options reetirement becomes final

when any benefit check is cashed or deposited!" These forms, containing this

notice to the Petitioner did not contain the additional caveat that retirement

type could not be changed based upon the cashing or depositing of the first

benefit check. The rule referenced above does contain that additional caveat,

however. That rule states, however, that the prohibition concerning entitlement

to a different type of retirement takes effect "once the member files an

application which is approved for a specific type of retirement and a benefit

payment is issued and cashed or deposited, . . ." Here, in actuality, the

"member", that is, Mrs. Day, did not actually file the application in point of

fact. Mrs. Day, without dispute, clearly signed the application but all the

information written on that application form and submitted to the Division of

Retirement, which was accepted by the Division, was executed by Ms. Hobby on

Mrs. Day's behalf. Mrs. Day, according to the unrefuted evidence in this

record, was clearly not competent to consider and reflect on the questions or

requests for information on the application form nor to make a rational decision

as to how to answer those questions or requests for information. Due to the

progression of her Alzheimer's disease disability, it is found that she was

clearly incompetent to make a rational, knowing election concerning arrangements

for her retirement. The unrefuted evidence of record shows that she simply

could not, as a member of the retirement system under the above-cited rule, make

a knowing, intelligent, rational election concerning the retirement status or

type she should seek and that, therefore, the application filed for early

service retirement was filed by mistake and in error due to her condition and

the uninformed assistance she received from Ms. Hobby concerning her retirement

rights and entitlements. This situation is corroborated by the fact that the

Federal Social Security Administration has adjudicated her as 100% disabled for

social security purposes due to her Alzheimer's disease condition and in fact

she was receiving 100% social security disability benefits at the time of the

hearing.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes (1989).

13. Section 121.031, Florida Statutes, provides pertinently as follows:

"The Department of Administration, through the Division of Retirement, shall

make such rules as are necessary for the effective and efficient administration

of the system."

14. In accordance with that statutory grant of authority the Department

and the Division have promulgated Chapter 22B-4, Florida Administrative Code

pertinent to this action, 22B- 4.002(1)(2), Florida Administrative Code provides

in pertinent part as follows:

22B-4.002 Statements of Policy.

(1) All benefits and refunds of accumulated

contributions provided for under this

Chapter shall be payable only upon

termination of employment and proper

application to the Administrator.

(2) It shall be the responsibility of the

member to notify the Administrator of

the date on which he wishes to retire

and make proper application for normal,

early, or disability retirement benefits

as provided in Sections 22B-4.004, 22B-

4.005, and 22B-4.007, respectively.

Once the member files an application

which is approved for a specific type of

retirement and a benefit payment is

issued and cashed or deposited, the

member's right of entitlement to a

different type of retirement is

forfeited and a different type of

application may not be submitted, except

in the following circumstances.

(a) A member who recovers from

disability and returns to work as

provided in 22B-4.007(a) and

subsequently applies for

retirement; or

(b) A member retired from an existing

system or the Florida Retirement

System who holds an elected public

office and participates again as an

active member as provided in 22B-

2.008.

(3) After a retirement benefit payment has

been cashed or deposited, no additional

service may be purchased and this

election of an option may not be

changed.

15. The Petitioner's request for change of retirement status to that of

disability retirement is based upon the contention that the Petitioner was

suffering from Alzheimer's disease at the time her request for "early service

retirement" was made in April or May of 1989. The Petitioner is not contending

that her request for modification meets the two exceptions cited at paragraph

2(a) and (b) of the rule above.

16. The gravamen of the Petitioner's case, which was supported by

unrefuted evidence culminating in the above Findings of Fact, is that the

Petitioner was incompetent to make a rational, intelligent election of her

retirement status at the time her initial retirement application was submitted

in April, 1989. In this regard, the testimony of Petitioner's witnesses,

supportive of the above Findings of Fact, shows that her mental health was

significantly deteriorated at the time she had her retirement application

completed by Ms. Hobby and signed that application. The evidence of record

contained in the testimony of the above noted witnesses for Petitioner, and

corroborated by the diagnosis contained in the letter from Dr. Axley,

establishes that at that time, she was suffering a significantly deteriorated

mental status due to progression of Alzheimer's disease which had been affecting

her for at least one and one-half to two years at the time of that application.

17. The unrefuted evidence of record clearly shows substantial indicia of

mental deterioration in terms of memory loss, irrational thought processes, and

progressive lack of ability, due to mental confusion, of the Petitioner to even

care for the simplest of her everyday needs. This condition was progressing

steadily both before and after her April, 1989 retirement date, as shown by the

above Findings of Fact. Thus, the conclusion is inescapable that she was

disabled due to Alzheimer's disease and resulting mental deterioration so that

she could not formulate a rational decision about her retirement arrangements,

including the election of what retirement type or status to apply for and

accept. Indeed, by the language of the above-quoted rule, the member files the

application but, yet, although Mrs. Day signed the application at issue, she did

not, in actuality, file the application because she did not complete the

information requested on the application form nor make any decisions regarding

what information to supply and what type of retirement status to elect to

receive. She was simply not sufficiently mentally competent to make a knowing

and intelligent election and file the application for the same.

18. The witnesses, who established this mental incapacity, established it

by their unrefuted testimony; and it is particularly persuasive because these

witnesses, friends, colleagues and family members observed the Petitioner on

almost a daily basis for years and were particularly competent to testify

regarding the progressive deterioration in her mental condition. See Section 90-

701, Florida Statutes, and Fields v State, 46 Fla. 84, 35 So. 185 (1903); Butler

v. State, App. 261 So.2d 508 (1972); U.S. v. Milne, C.A. 487 F.2d 1232 (1973),

appeal after remand, 498 F.2d 329, cert. den., 95 S.Ct. 808, 419 U.S. 1123, 42

L.Ed. 2d 823. Their testimony is clearly corroborated by the letter from her

treating neurologist and is also persuasively corroborated by the fact that the

Social Security Administration has found the Petitioner to be permanently,

totally disabled under the relevant Social Security Statute and Regulations and

that the Petitioner is entitled to disability benefits due to her Alzheimer's

disease condition as of approximately June, 1989. While that finding by the

Social Security Administration may not be binding as a matter of law on the

Respondent agency, it is factually persuasive of the fact of the Alzheimer's

disease- related disability, as well as the circumstance that it was progressing

well before the Petitioner's retirement date.

19. In summary, it is concluded that the putative election by the

Petitioner to seek early service retirement was not a knowing and rational

election and should be treated as an improperly filed application which she was

not mentally competent to file. Therefore, it is concluded that the Petitioner

should be accorded the opportunity to seek disability retirement status by an

appropriately filed application, reviewed in accordance with the provisions of

Section 121.091., Florida Statutes, which permits the agency to have her

examined by two Florida-licensed physicians prior to a grant of her application.

It is specifically concluded, however, that the fact of her disability due to

Alzheimer's disease has been proven in this case.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law,

the candor and demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore

RECOMMENDED:

That a Final Order be entered by the Department of Administration, Division

of Retirement, according the Petitioner, Evelyn Day, the opportunity to change

the status of her retirement benefits from early retirement to disability

retirement, effective as of the date her earlier retirement application was

accepted by the agency.

DONE AND ORDERED this 3rd day of January, 1991, in Tallahassee, Leon

County, Florida.

___________________________________

P. MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 48B-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of January, 1991.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 90-2085

PETITIONER'S PROPOSED FINDINGS OF FACT

1-8. Accepted.

RESPONDENT'S PROPOSED FINDINGS OF FACT

1. Accepted.

2. Accepted to the extent that the record establishes that the Petitioner

signed the application.

3. Accepted to the extent that it was established that Petitioner has

received the retirement checks. It is not established that the Petitioner

cashed or deposited those retirement checks by preponderant evidence of record.

4. Accepted insofar as it recites the Respondent's position

in this matter.

5. Accepted.

6. Accepted.

COPIES FURNISHED:

Aletta Shutes, Secretary

Department of Administration

435 Carlton Building

Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr., Esq.

General Counsel

Department of Administration

435 Carlton Building

Tallahassee, FL 32399-1550

Mr. Joseph G. Stokes

911 "B" Street

Crestview, Florida 32536

Larry D. Scott, Esq.

Division of Retirement

Cedars Executive Center

Building C

1639 North Monroe Street

Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency which will issue the

Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency which will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF RETIREMENT

EVELYN DAY,

Petitioner, Case No. DR9O-O1

DOAH Case No. 90-2085

vs.

DIVISION OF RETIREMENT,

Respondent.

__________________________/

FINAL ORDER

On January 3, 1991, the duly appointed Hearing Officer of the Division of

Administrative Hearings in the above-styled and numbered cause, completed and

submitted to the Division of Retirement of the Department of Administration and

to all parties in the cause, a Recommended Order. A copy of that Recommended

Order is attached hereto, incorporated by reference herein, and made a part

hereof as "Exhibit A".

Pursuant to Rule 28-5.404, Florida Administrative Code, and Section

120.57(1)(b)4, Florida Statutes, the parties were allowed twenty (20) days

within which to submit written exceptions to that Recommended Order. Neither

petitioner nor the Respondent submitted any written exceptions. Pursuant to

Section 120.57(1)(b), Florida Statutes, that Recommended Order came before the

undersigned Director of the Division of Retirement, an agency head, for final

agency action and for a final agency order in the cause.

The Record in this cause consists of all documents filed in this cause

either with the Hearing Officer or with the Division of Retirement, including

all documents received in evidence at the hearing as exhibits.

FINDINGS OF FACT

The petitioner did not appear at the Hearing and therefore was not

available for examination by the Respondent or the Hearing Officer. In

addition, the petitioner's physician was not present to provide competent,

expert medical testimony regarding the petitioner's condition; therefore, those

findings that diagnosed the petitioner as having Alzheimer's disease are

rejected as not supported by competent, substantial evidence in the record.

Section 120.57(1)(b)(10). Florida Statutes (1989), in part provides:

The agency may adopt the recommended order as

the final order of the agency. The agency in

its final order may reject or modify the

conclusions of law and interpretation of

administrative rules in the recommended order,

but may not reject or modify the findings of

fact unless the agency first determines from a

review of the complete record, and states with

particularity in the order, that the findings

of fact were not based upon competent

substantial evidence or that the proceedings

on which the findings were based did not

comply with essential reguirements of law.

After review of the entire record in the case, the Division is unable to

accept all of the Findings of Fact as set forth by the Hearing Officer in his

Recommended Order.

RULING ON FINDINGS OF FACT

1. The Findings of Fact set forth in paragraph 1 are accepted.

2. The Findings of Fact set forth in paragraph 2 are accepted.

3. The Findings of Fact set forth in paragraph 3 are accepted.

4. The Findings of Fact set forth in paragraph 4 are accepted.

5. The Findings of Fact set forth in paragraph 5 are accepted in part. In

that paragraph, the Hearing Officer found as follows:

Her memory and thought processes had

evidentially [sic] already begun deteriorating

because Mrs. Day was unable to ask guestions

concerning her retirement rights,

responsibilities, and entitlements very well.

Because of this condition, Ms. Hobby agreed to

accompany her to the offices of the Division

of Retirement in order to ascertain what her

retirement rights, entitlements, and

responsibilities might be preparatory to

Mrs. Day electing to retire.

The above-quoted findings are rejected as conclusory and not supported by

competent, substantial evidence.

6. The Findings of Fact as set forth in paragraph 6 are rejected as not

supported by competent, substantial evidence, except the finding that Mrs. Day

retired and Ms. Hobby filled out her application for retirement. Additionally,

the Hearing Officer's findings that petitioner was incompetent and suffering

from Alzheimer's disease are rejected as being legal conclusions not supported

by any judicial order or by any competent, substantial evidence in the record.

7. The Findings of Fact as set forth in paragraph 7 are accepted.

8. The Findings of Fact as set forth in paragraph 8 are accepted.

9. The Findings of Fact as set forth in paragraph 9 are accepted.

10. That portion of the Findings of Fact in paragraph 10 which concluded

the petitioner was incompetent is rejected as not supported by competent,

substantial evidence. The petitioner has never been declared incompetent or

determined to be incompetent by a medical doctor.

11. Findings of Fact as set forth in paragraph 11 are accepted in part and

rejected in part. That portion of the Findings which states that the

application for retirement was not filed by Ms. Day is not supported by

competent, substantial evidence. In point of fact, the Division has a filed

application signed by the petitioner. The portion of the paragraph finding the

petitioner incompetent is rejected as not supported by competent, substantial

evidence. There has been no legal or medical determination that the Petitioner

is incompetent. Additionally, there is no competent, substantial evidence that

petitioner is suffering from Alzheimer's disease. The Hearing officer's finding

that the petitioner's application was filed in error is not supported by

competent, substantial evidence.

CONCLUSIONS OF LAW

1. The Division of Retirement has jurisdiction of the parties and the

subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

2. Chapter 121, Florida Statutes (1989), also known as the Florida

Retirement System Act, established the Florida Retirement System. Section

121.031(1), Florida Statutes (1989), grants the Division of Retirement authority

to promulgate rules for the effective and efficient operation of the retirement

system.

3. The Hearing Officer's conclusions of law are not supported by his

findings of fact and constitute a clearly erroneous application of law;

therefore, the Hearing Officer's conclusions are rejected.

4. Pursuant to the legislative grant of authority, the Division

promulgated Rule 22B-4.002(1)(2), Florida Administrative Code, which reads in

part as follows:

"22B-4 .002 Statements of Policy"

(1) All benefits and refunds of accumulated

contributions provided for under this

Chapter shall be payable only upon

termination of employment and proper

application to the Administrator.

(2) It shall be the responsibility of the

member to notify the Administrator of the

date on which he wishes to retire and make

proper application for normal, early or

disability retirement benefits as provided

in Sections 22B-4.004, 22B-4.005, and

22B-4.007, respectively. Once the member

files an application which is approved for a

specific type of retirement and a benefit

payment is issued and cashed or deposited,

the member's right of entitlement to a

different type of retirement is forfeited

and a different type of application may not

be submitted, except in the following

circumstances.

(a) A member who recovers from disability

and returns to work as provided in

22B-4.007(8) and subseguently applies for

retirement; or

(b) A member retired from an existing

system or the Florida Retirement System who

his an elected public office and

participates again as an active member as

provided in 22B-2.008.

(3) After a retirement benefit payment has

been cashed or deposited, no additional

service may be purchased and the selection

of an option may not be changed.

5. The Hearing Officer correctly concluded that rule 22B-4.002(l)(3),

Florida Administrative Code, precludes a change in the type of retirement.

6. A rule is presumed valid in any proceeding under Section 120.57,

Florida Statutes, unless it is successfully challenged under Section 120.56,

Florida Statutes (1989). T. G. Grantham v. State of Florida, Department of

Administration, Division of Retirement, No. 89-2455 (DOA; January 22, 1990).

The Hearing Officer did not find the rule invalid; rather, he failed to apply it

to the facts of this case.

7. Based upon the evidence presented, the Hearing Officer could not find

that the petitioner fit within the exceptions set forth in the rule; indeed, the

Hearing Officer recognized that petitioner was not contending that she met

either exception. The rule makes no exception for a lack of mental competency;

consequently, the Hearing Officer's conclusion that the Petitioner was

incompetent is irrelevant to this case.

8. In arriving at his conclusion the Hearing Officer stated, in pertinent

part, the following:

The gravamen of the petitioner's case, which

was supported by unrefuted evidence

culminating in the above Findings of Fact,

is that the Petitioner was incompetent to

make a rational, intelligent election of her

retirement status at the time her initial

retirement application was submitted in

April, 1989.

9. Chapter 744, Florida Statutes, sets forth a statutory procedure

established by the legislature to inquire into the competency of an individual.

See, Donnelly v. Mann, 68 So.2d 584 (Fla. 1953). In addressing the procedure to

be followed, the court in Rehrer v. Weeks, 106 So.2d 865, 869 (2d DCA 1958);

stated:

Ajudication of mental incapacity leaves an

individual bereft and shorn of certain

personal rights which give him identity and

make him an entity in his own right. The

public is interested in a proceeding of this

nature; and this court makes these

observations, not to indicate any opinion

as to the mental competency or incompetency

of appellee, but to lay stress upon his

right to due process of law in such a

significant and consequential action as an

incompetency inquisition.

The Recommended Order cited no authority in support of the directive to the

Division to allow the petitioner to change her type of retirement.

10. Under Rule 22B-4.002, Florida Administrative Code, the Petitioner is

not entitled to submit an application for

disability retirement because she previously applied for and has been receiving

early service retirement benefits for more than two years. T. G. Grantham v.

State of Florida Department of Administration, Division of Retirement, No. 89-

2455, (DOA; January 22, 1990).

IT IS ORDERED, that Petitioner, Evelyn Day, be denied the opportunity to

change the status of her retirement benefits from early retirement to disability

retirement.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED

BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT

COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE

OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

DONE AND ORDERED this 15th day of March, 1991, at Tallahassee, Leon County,

Florida.

____________________________

A. J. MCMULLEN III, Director

Division of Retirement

Cedars Executive Center

2639 North Monroe street

Tallahassee, FL 32399-1560

[phone]

CLERK'S CERTIFICATE

I HEREBY CERTIFY that this Final Order was filed with the clerk of the

Division of Retirement on this 18th day of March, 1991.

_____________________________

BETTY ANN LEDFORD

Clerk

Division of Retirement

Cedars Executive Center

2639 North Monroe street

Tallahassee, Florida 32399-1560

[phone]

Copies furnished to:

Mrs. Evelyn S. Day

911 B Street

Crestview, Florida 32536

Mr. Joseph G. Stokes

911 B street

Crestview, Florida 32536

P. Michael Ruff

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Larry D. Scott

Assistant Division Attorney

Department of Administration

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560