93-001507
Beatrice Cofman (Jules Cofman) vs.
Division Of Retirement
Status: Closed
Recommended Order on Wednesday, December 29, 1993.
Recommended Order on Wednesday, December 29, 1993.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BEATRICE COFMAN, surviving )
12spouse of JULES COFMAN, deceased, )
18)
19Petitioner, )
21)
22vs. ) CASE NO. 93-1507
27)
28DEPARTMENT OF MANAGEMENT SERVICES, )
33DIVISION OF RETIREMENT, )
37)
38Respondent. )
40___________________________________)
41RECOMMENDED ORDER
43Pursuant to notice, the Division of Administrative Hearings, by its duly
54designated Hearing Officer, Claude B. Arrington, held a formal hearing in the
66above-styled case on October 8, 1993, in West Palm Beach, Florida.
77APPEARANCES
78For Petitioner: Stuart B. Klein, Esquire
84Attorney at Law
871551 Forum Place, Suite 400B
92West Palm Beach, Florida 33401
97For Respondent: Stanley M. Danek, Esquire
103Division Attorney
105Division of Retirement
108Cedars Executive Center
1112639 North Monroe Street, Building C
117Tallahassee, Florida 32399-1560
120STATEMENT OF THE ISSUES
124The retirement benefits to which Petitioner is entitled.
132PRELIMINARY STATEMENT
134Jules Cofman was a member of the Florida Retirement System as an employee
147of the City of Margate, Florida. Mr. Cofman retired effective March 1, 1990.
160In February 1990 Mr. Cofman selected a retirement benefit pay-out option
171referred to as Option One. Retirement benefits were received and cashed by Mr.
184Cofman until his death on September 23, 1990. On October 2, 1990, Respondent
197advised Mrs. Cofman by letter that Mr. Cofman had retired under Option 1, which
211provides the maximum monthly benefit for the lifetime of the member only and
224that there would be, therefore, no separate benefits payable to her as the
237surviving spouse. Thereafter, Mrs. Cofman requested that she be permitted to
248change the option under which Mr. Cofman retired, and provided the reasons that
261she thought justified her request. Mrs. Cofman's request to change the
272retirement option was denied by the Respondent. Mrs. Cofman timely requested a
284formal hearing to challenge that denial, and this proceeding followed.
294At the formal hearing, Mrs. Cofman and her brother, Jack Gold, testified.
306The parties presented twenty-six joint exhibits, each of which was accepted into
318evidence. Respondent presented no witnesses at the formal hearing, but did
329introduce as its exhibits the depositions of Stanley Colvin and Sharon Campbell.
341Mr. Colvin is an employee of the Respondent. Ms. Campbell was, at the times
355pertinent hereto, the payroll and benefits supervisor for the City of Margate,
367Florida. Both depositions were accepted into evidence without objection.
376No transcript of the proceedings has been filed. At the request of the
389parties, the time for filing post-hearing submissions was set for more than ten
402days following the conclusion of the hearing. Consequently, the parties waived
413the requirement that a recommended order be rendered within thirty days
424following the conclusion of the hearing. Rule 60Q-2.031, Florida Administrative
434Code. Rulings on the parties' proposed findings of fact may be found in the
448Appendix to this Recommended Order.
453FINDINGS OF FACT
4561. Jules Cofman was born September 20, 1911, and died September 23, 1990.
469Mr. Cofman was happily married to Petitioner, Beatrice Cofman, for 55 years, and
482they had two children.
4862. Prior to his death, Mr. Cofman was employed by the City of Margate,
500Florida, as an inspector and became entitled to retirement benefits from the
512Florida Retirement System. Mr. Cofman retired effective March 1, 1990, with
52310.14 years of credible service in the Florida Retirement System.
5333. On June 20, 1989, Mr. Cofman was diagnosed as having cancer of the
547bladder. On June 30, 1989, Mr. Cofman underwent surgery, but the cancer
559continued to spread following the surgery. After his surgery in June 1990, Mr.
572Cofman was in constant pain and was on medication, including narcotic
583analgesics. Following his surgery, Mr. Cofman was treated at Bethesda Memorial
594Hospital between July 20, 1989, and September 14, 1990, on seven occasions as an
608inpatient and on twelve occasions as an outpatient. Between January 11, 1990,
620and July 23, 1990, Mr. Cofman was treated at Boca Medical Center on 16 separate
635occasions. The record does not reflect the nature of his treatments at Boca
648Medical Center or whether Mr. Cofman was treated as an inpatient or as an
662outpatient. No medical records were introduced into evidence. A letter from
673Dr. Mark Ziffer, the urologist who treated Mr. Cofman, was admitted into
685evidence as a joint exhibit, but there was no testimony from any of Mr. Cofman's
700treating physicians. There was no competent medical evidence introduced in this
711proceeding upon which it can be concluded that Mr. Cofman was incompetent when
724he selected his retirement option or when he cashed his retirement checks.
7364. On July 21, 1989, the Respondent mailed to Mr. Cofman an estimate that
750provided him with an explanation of his options under the Florida Retirement
762System and provided him with an estimate of the benefits under each option.
7755. On February 16, 1990, Mr. Cofman executed a Florida Retirement System
787form styled "Application for Service Retirement" (Form FR-11). This form
797provides the retiree with information pertaining to the four options by which
809his retirement benefits can be paid. On the reverse side of the form is an
824explanation of each option. By this form, Mr. Cofman selected retirement
835benefit Option 1, which is described as being a "member benefit only." The
848explanation of Option 1 on the reverse side of FR-11 is as follows:
861Option 1: A monthly benefit payable to you
869for your lifetime. Upon your death, the
876monthly benefit will cease and your
882beneficiary will receive only a refund of any
890contributions you paid which are in excess of
898the amount you received in benefits. This
905option does not provide a continuing benefit
912to a beneficiary. If you wish to provide a
921beneficiary with a continuing monthly benefit
927after your death, you should consider
933selecting one of the other three options.
940The option 1 benefit is the maximum form of
949lifetime payment and all other optional
955payments are derived by applying actuarial
961equivalency factors to the option 1 benefit.
9686. The FR-11 also contained the following statement in capital letters:
979ONCE YOU RETIRE, YOU CANNOT ADD ADDITIONAL SERVICE NOR CHANGE OPTIONS.
990RETIREMENT BECOMES FINAL WHEN THE FIRST BENEFIT CHECK IS CASHED OR DEPOSITED!
10027. Between the date of his retirement and the date of his death, Mr.
1016Cofman received seven retirement benefit checks from the Florida Retirement
1026System and cashed those benefit checks.
10328. The Respondent was notified of the death of Mr. Cofman by a telephone
1046call from Mrs. Cofman on September 24, 1990. On October 2, 1990, the Respondent
1060notified Mrs. Cofman by letter that Mr. Cofman had ". . . elected to retire
1075under Option 1 of the Florida Retirement System which provides the maximum
1087monthly benefit for the lifetime of the member only." This was the first time
1101that Mrs. Cofman was aware that Mr. Cofman had selected a retirement option that
1115would not provide her benefits after his death.
11239. By letter to Respondent dated December 7, 1992, Ms. Cofman stated, in
1136pertinent part, as follows:
1140My husband, Jules Cofman (Social Security
1146No. 028-01-6868) has worked as Lot Inspector
1153at the Public Works Department of Margate,
1160Florida for 13 years.
1164In June of 1989 he was diagnosed with
1172bladder cancer. Because of surgery,
1177chemotherapy and radiation he found it
1183necessary to retire.
1186He received notice that he would receive
1193his retirement check the end of April, 1990.
1201In conversations I have had with him in
1209regard to his retirement, he said "of course
1217I would be his beneficiary". He did not
1226discuss the Options with anyone.
1231He received about four checks before he
1238passed away on September 23, 1990.
1244I was shocked to learn that because of his
1253state of mind, he had inadvertently put down
1261Option One instead of Option Two.
1267He had been unable to accept the fact that
1276he was so sick and could not discuss his
1285possible death even with me.
1290He never made any arrangements for my
1297financial security. He had no insurance and
1304no savings. We always planned on his
1311retirement to augment our Social Security.
1317I cannot believe that he would knowingly do
1325this to me. We had been happily married for
133455 years.
1336If he had been in a rational state of mind,
1346knowing that he had less than a year to live,
1356he would have certainly chosen OPTION TWO.
1363I would greatly appreciate it if you would
1371review his case and determine whether it
1378would be possible for me to receive his
1386Retirement Benefit.
1388Thank you for your consideration.
139310. By letter dated January 28, 1993, the Respondent denied Petitioner's
1404request to change the option selected by Mr. Cofman. The letter asserted the
1417position that the selection cannot be changed since the retirement checks were
1429cashed and cited the following portion of Rule 60S-4.002(4)(b), Florida
1439Administrative Code:
1441After a retirement benefit payment has been
1448cashed or deposited:
1451* * *
1454(b) The selection of an option may not be
1463changed . . .
146711. Mrs. Cofman does not believe that her husband made a rational choice
1480in selecting retirement Option 1. Mrs. Cofman believes that her husband would
1492not accept the fact that he had cancer and that he was in a state of denial to
1510the extent he refused to discuss his illness. The testimony of Mrs. Cofman and
1524that of Mr. Gold established that Mr. Cofman's personality changed after he
1536became ill. Prior to his illness, Mr. Cofman was a warm, extroverted person.
1549After his illness, he became withdrawn, moody, depressed, and lifeless. The
1560testimony of Mrs. Cofman and the testimony of Mr. Gold do not, however,
1573establish that Mr. Cofman was incompetent at the time that he selected his
1586retirement option or at the times he cashed his retirement checks.
159712. Mrs. Cofman attempted to talk to her husband about his condition and
1610about family financial matters, but he would not talk to her. When Mr. Cofman
1624executed his retirement option, the form did not require the consent or
1636signature of the spouse. Since Mr. Cofman's death, the form has been changed to
1650require that the spouse sign if the retiree selects Option 1. Mrs. Cofman
1663testified that had she been informed as to Mr. Cofman's retirement options, she
1676would have insisted that he select Option 2.
168413. Mr. Cofman executed FR-11 on February 16, 1990. The form appears to
1697have been completed in type on February 15, 1990. The evidence in this matter
1711does not establish that Mr. Cofman was incompetent to execute the FR-11 on
1724February 15 or 16, 1990, or that there was any irregularity in the execution of
1739this form or in its delivery to the personnel office of the City of Margate.
175414. Between March 1, 1990, and the date of his death, Mr. Cofman received
1768and cashed seven retirement benefit checks. Mrs. Cofman testified that she
1779would not have permitted those checks to have been cashed had she been informed
1793as to Mr. Cofman's retirement options.
1799CONCLUSIONS OF LAW
180215. The Division of Administrative Hearings has jurisdiction of the
1812parties to and the subject matter of this proceeding. Section 120.57(1),
1823Florida Statutes.
182516. Petitioner has the burden of proving by a preponderance of the
1837evidence that she is entitled to the relief she seeks. Rule 28-6.08(3), Florida
1850Administrative Code. See also, Florida Department of Transportation v. J.W.C.,
1860Co., 396 So.2d 778 (Fla. 1st DCA 1981).
186817. Chapter 121, Florida Statutes (1989), also known as the Florida
1879Retirement System Act, established the Florida Retirement System. Pursuant to
1889the provisions of Section 121.091(6), Florida Statutes, there are four payment
1900options available under the Florida Retirement System that are pertinent to this
1912proceeding. Included among those options is the one selected by Mr. Cofman.
1924Section 121.031(1), Florida Statutes, grants the Division of Retirement
1933authority to promulgate rules for the effective and efficient operation of the
1945retirement system.
194718. Pursuant to its legislative grant of authority, the Respondent
1957promulgated Rule 60S-4.002(4)(b), Florida Administrative Code, which is
1965correctly quoted by Respondent's letter of January 28, 1993, and which clearly
1977provides that the selection of a retirement option cannot be changed once the
1990retirement benefit check has been cashed or deposited. Compare, Arnow v.
2001Williams, 343 So.2d 1309 (Fla. 1st DCA 1977). No challenge has been raised to
2015the validity of this rule by Petitioner. Respondent's Rule 60S-4.002(4)(b),
2025Florida Administrative Code, is presumed valid and dictates the resolution of
2036this proceeding.
203819. While the evidence in this proceeding established that Mr. Cofman made
2050a decision that was not in the best interest of his wife, the evidence does not
2066establish that he was irrational, incompetent, or otherwise incapable of
2076selecting his retirement option. It is concluded that Petitioner has failed to
2088meet her burden of proof in this proceeding and that her request to change her
2103husband's retirement option must be denied.
2109RECOMMENDATION
2110Based on the foregoing Findings of Fact and Conclusions of Law, it is
2123RECOMMENDED that the Respondent enter a final order which denies
2133Petitioner's request to change the retirement option selected by Jules Cofman.
2144DONE AND ENTERED this 29th day of December 1993, in Tallahassee, Leon
2156County, Florida.
2158__________________________________
2159CLAUDE B. ARRINGTON
2162Hearing Officer
2164Division of Administrative Hearings
2168The DeSoto Building
21711230 Apalachee Parkway
2174Tallahassee, Florida 32399-1550
2177(904) 488-9675
2179Filed with the Clerk of the
2185Division of Administrative Hearings
2189this 29th day of December, 1993.
2195APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1507
2202The following rulings are made on the proposed findings of fact submitted
2214by Petitioner.
22161. The proposed findings of fact in paragraphs 1, 2, and 3 are adopted in
2231material part by the Recommended Order.
22372. The proposed findings of fact in paragraphs 4, 5, and 6 are adopted in
2252part by the Recommended Order. The argument contained in those paragraphs are
2264rejected as findings of fact as being argument and as being, in part, contrary
2278to the findings made and the conclusions reached.
22863. The proposed findings of fact in paragraph 7 are rejected as being
2299contrary to the greater weight of the evidence and to the findings made.
23124. The proposed findings of fact in paragraph 8 are subordinate to the
2325findings made.
23275. The proposed findings of fact in paragraph 9 are rejected as being
2340unsubstantiated by the evidence or as being argument that is contrary to the
2353findings made or to the conclusions reached.
2360The following rulings are made on the proposed findings of fact submitted
2372by Respondent.
23741. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 12, and
239013 are adopted in material part by the Recommended Order.
24002. The proposed findings of fact in paragraph 6 are adopted in part by the
2415Recommended Order. As reflected by Joint Exhibit 1, Mr. Cofman had additional
2427hospital visits.
24293. The proposed findings of fact in paragraphs 8, 9, and 10 are rejected
2443as being subordinate to the findings made.
24504. The proposed findings of fact in paragraph 11 are adopted in material
2463part by the Recommended Order or are subordinate to the findings made.
2475COPIES FURNISHED:
2477Stanley M. Danek, Esquire
2481Department of Management Services
2485Division of Retirement
2488Cedars Executive Center
24912639 North Monroe Street
2495Tallahassee, Florida 32399-1560
2498Stuart B. Klein , Esquire
2502Klein & Klein, P.A.
25061551 Forum Place, Suite 400B
2511West Palm Beach, Florida 33445
2516A. J. McMullian, III, Director
2521Division of Retirement
2524Cedars Executive Center
2527Building C
25292639 North Monroe Street
2533Tallahassee, Florida 32399-1560
2536William H. Lindner, Secretary
2540Department of Management Services
2544Knight Building, Suite 307
2548Koger Executive Center
25512737 Centerview Drive
2554Tallahassee, Florida 32399-0950
2557Sylvan Strickland, Acting General Counsel
2562Department of Management Services
2566Knight Building, Suite 309
2570Koger Executive Center
25732737 Centerview Drive
2576Tallahassee, Florida 32399-0950
2579NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2585All parties have the right to submit written exceptions to this recommended
2597order. All agencies allow each party at least ten days in which to submit
2611written exceptions. Some agencies allow a larger period within which to submit
2623written exceptions. You should contact the agency that will issue the final
2635order in this case concerning agency rules on the deadline for filing exceptions
2648to this recommended order. Any exceptions to this recommended order should be
2660filed with the agency that will issue the final order in this case.
2673=================================================================
2674AGENCY FINAL ORDER
2677=================================================================
2678STATE OF FLORIDA
2681DEPARTMENT OF MANAGEMENT SERVICES
2685DIVISION OF RETIREMENT
2688BEATRICE COFMAN,
2690Petitioner,
2691vs. DOR Case No. DMS-DR 92-14
2697DOAH Case No. 93-1507
2701DEPARTMENT OF MANAGEMENT SERVICES,
2705DIVISION OF RETIREMENT.
2708Respondent.
2709___________________________________/
2710FINAL ORDER
2712This matter came up for hearing in West Palm Beach, Florida, on October 8,
27261993, before Claude B. Arrington, a duly appointed Hearing Officer of the
2738Division of Administrative Hearings. The Parties filed proposed findings of
2748fact and conclusions of law. The Parties are as follows:
2758For Petitioner:
2760Stuart B. Klein
2763Attorney at Law
27661551 Forum Place, Suite 400B
2771West Palm Beach, Florida 33401
2776For Respondent:
2778Stanley M. Danek
2781Division Attorney
2783Division of Retirement
2786Cedars Executive Center
27892639 North Monroe Street, Building C
2795Tallahassee, Florida 32399
2798A Recommended Order was issued on December 29, 1993. A copy of the
2811Recommended Order is attached hereto, incorporated by reference and made a part
2823of this Final Order as an exhibit. No Exceptions to the Recommended Order were
2837filed by the Petitioner as permitted by law. Under the Model Rules, a
2850petitioner may file exceptions to the recommended order within 20 days of the
2863issuance of the recommended order.
2868After deliberation of the record in this cause, the Recommended Order and
2880the exhibits introduced at the hearing, the Division now enters its final order.
2893In reviewing the Recommended Order and the exhibits, the Division has considered
2905all matters of record which have been reduced to writing and which are now
2919before the Division with the exception of Petitioner's Exceptions as stated
2930above. As of this time, the hearing conducted by the Hearing Officer has not
2944been transcribed. Therefore, the Division does not have the transcript of the
2956hearing before it in considering the Recommended Order and other information.
2967Under Section 120.57(1)(b)9, Florida Statutes, the Division cannot reject
2976or modify the Hearing Officer's proposed findings of fact, unless the Division
2988reviewed "the complete record", including the transcript of the hearing.
2998Therefore, since the Petitioner has not provided a copy of the hearing
3010transcript to the Division, we cannot modify the Recommended Order.
3020THEREFORE, based on the above and foregoing, it is
3029ORDERED and DIRECTED that the request of Beatrice Cofman to have option
3041selected by her husband changed from Option 1 to Option 3 so as to permit her to
3058obtain a continuing survivor's option and have her retirement benefit
3068recalculated accordingly be and the same is hereby DENIED. It is further
3080ORDERED and DIRECTED that the Petition of Beatrice Cofman be dismissed and
3092the case closed.
3095NOTICE OF RIGHT TO JUDICIAL REVIEW
3101A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL
3115REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE
3125GOVERNED BY TEE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE
3136COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE
3152DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY THE FILING FEES
3164PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH
3177THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES.
3190THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO
3206BE REVIEWED.
3208DONE and ORDERED this 28th day of January, 1994, at Tallahassee, Leon
3220County, Florida.
3222________________________________
3223A. J. McMullian, III
3227State Retirement Director
3230Division of Retirement
3233FILED WITH THE CLERK OF THE
3239DIVISION OF RETIREMENT, THE
324331st DAY OF JANUARY, 1994.
3248Copies furnished to:
3251Stuart B. Klein
3254Attorney at Law
32571551 Forum Place
3260Suite 400B
3262West Palm Beach, Florida 33401
3267Claude B. Arrington
3270Hearing Officer
3272Division of Administrative Hearings
32761230 DeSoto Building
3279Tallahassee, Florida 32399
3282Clerk
3283Division of Administrative Hearings
32871230 DeSoto Building
3290Tallahassee, Florida 32399
3293Stanley M. Danek
3296Division Attorney
3298Division of Retirement
3301Cedars Executive Center
33042639 North Monroe Street
3308Building C
3310Tallahassee, Florida 32399
- Date
- Proceedings
- Date: 02/02/1994
- Proceedings: Final Order filed.
- PDF:
- Date: 12/29/1993
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held October 8, 1993.
- Date: 11/15/1993
- Proceedings: Respondent's Proposed Findings of Fact and Conclusions of Law filed.
- Date: 11/12/1993
- Proceedings: Petitioner's Findings of Fact and Conclusions (unsigned) filed.
- Date: 10/12/1993
- Proceedings: J-1 Exhibit filed. (From Stuart B. Klein)
- Date: 10/12/1993
- Proceedings: Deposition of Sharon Campbell filed.
- Date: 10/08/1993
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/04/1993
- Proceedings: (Respondent) Notice of Service of Respondent's Interrogatories of Petitioner filed.
- Date: 10/01/1993
- Proceedings: Notice of Compliance with Request for Production filed.
- Date: 09/23/1993
- Proceedings: (Respondent) Notice of Taking Deposition filed.
- Date: 09/21/1993
- Proceedings: Petitioner's Response to Request to Produce; Petitioner's First Interrogs to Respondent filed.
- Date: 07/20/1993
- Proceedings: (Respondent) Notice of Service of Respondent`s Second Interrogatories to Petitioner (2); Respondent`s Second Request for Production of Documents to Petitioner filed.
- Date: 06/14/1993
- Proceedings: Notice of Cancellation of Taking Deposition filed.
- Date: 05/27/1993
- Proceedings: Letter to CBA from Betty Ann Ledford (re: mutual dates for hearing) filed.
- Date: 05/25/1993
- Proceedings: Order Granting Continuance and Amended Notice sent out. (hearing rescheduled for 10/8/93; 9:00am; WPB)
- Date: 05/17/1993
- Proceedings: Letter to CBA from Stuart B. Klein (re: petitioner's representation) filed.
- Date: 04/21/1993
- Proceedings: Letter to CBA from Beatrice Cofman (re: changing hearing date) filed.
- Date: 04/09/1993
- Proceedings: Notice of Hearing sent out. (hearing set for 7-23-93; 1:00pm; West Palm Beach)
- Date: 03/30/1993
- Proceedings: Joint Response to Initial Order w/cover ltr filed.
- Date: 03/22/1993
- Proceedings: Initial Order issued.
- Date: 03/19/1993
- Proceedings: Respondent's First Request for Production of Document to Petitioner filed.
- Date: 03/16/1993
- Proceedings: Petition; Notice of Election To Request Assignment of Hearing Officer filed.
Case Information
- Judge:
- CLAUDE B. ARRINGTON
- Date Filed:
- 03/16/1993
- Date Assignment:
- 03/22/1993
- Last Docket Entry:
- 02/02/1994
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED