Third District Court of Appeal State of Florida
Opinion filed July 26, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-672 Lower Tribunal Nos. DOAH 20-4937, 22-0018 ________________
Town of Miami Lakes, Appellant,
vs.
State of Florida, Department of Management Services, etc., Appellee.
An Appeal from the State of Florida, Department of Management Services.
Llopiz Wizel LLP, and Joan Carlos Wizel and Onier Llopiz (Fort Lauderdale), for appellant.
Clark N. Gates, Assistant General Counsel, and Olorunfunmi Ojetayo, Deputy General Counsel (Tallahassee), for appellee.
Before EMAS, FERNANDEZ, and HENDON, JJ.
HENDON, J. The Town of Miami Lakes (“the Town”) appeals from a Final Order
entered by the Department of Management Services (“DMS”), adopting the
Administrative Law Judge’s (“ALJ”) Recommended Order, requiring that
the Town repay to DMS the retirement benefits it paid to one of its
employees. We affirm.
The Florida Retirement System (“FRS”) is a retirement program
offered to state and local government employees governed by chapter 121,
Florida Statutes and Title 60S, Florida Administrative Code. Members of
FRS may elect to participate in a program known as the Deferred
Retirement Option Program (“DROP”), which allows for the member to
defer the receipt of their retirement benefits while continuously working for
the FRS employer. §121.091(13)(a), Fla. Stat. (2018) A member is eligible
to participate in the DROP program if they are employed and work in a
“regularly established position.” Id. A regularly established position “is an
employment position which will be in existence beyond 6 consecutive
calendar months. . . .” Fla. Admin. Code R. 60S-1.004(4)(b).
A member of FRS who wishes to seek employment after retirement is
subject to the limitations set forth in section 121.091. That statute provides
that “a retiree may not be reemployed with an employer participating in the
Florida Retirement System until such person has been retired for 6
2 calendar months.” § 121.091(9)(d)1., Fla. Stat. (2018). The reemployment
limitations state that if the member is employed by an FRS employer within
the first six (6) months of retirement, in violation of the prohibition, both the
member and the FRS employer will be held jointly and severally liable for
the retirement benefits that were paid to the member. §121.091 (9)(b)(1),
Fla. Stat. (2018).
Ms. Dawn Jenkins (“Ms. Jenkins”) was a Miami-Dade Public School
teacher for forty years before her retirement on June 8, 2018. Ms. Jenkins
was enrolled in the DROP program and began receiving her monthly
retirement benefits immediately upon termination of her employment
status. At that time, DMS put Ms. Jenkins on notice that she would have to
“terminate all employment relationships with all participating FRS
employers for the first 6 calendar months after the DROP termination date.”
FRS requires employers to submit monthly reports to the Department’s
Division of Retirement for the purpose of tracking wages, retirement
contributions, and years of service. If the monthly reports include a recent
retiree, an investigation will ensue to ensure that retirement contributions
are not made to the employee.
Two months after her official retirement, Ms. Jenkins filled out an
employment application to be a yoga instructor for the Town, to temporarily
3 fill in for the Town’s regular instructor who was on medical leave. Ms.
Jenkins received and accepted the Town’s offer of employment for the
position of “Back Up Part-Time Instructor, Yoga.” The Town’s offer letter
included the statement that the position is an FRS-covered position and
that a percentage of pay would be withheld for retirement. Ms. Jenkins
was hired by the Town to serve as its senior yoga instructor, and was paid
$26 an hour. The Town’s personnel action forms identified Ms. Jenkins’
employment as part-time and non-exempt, and checked “FRS” under
Benefits. For the sixteen yoga classes Ms. Jenkins taught, the Town sent
her an IRS W-2 wage and tax statement.
As an FRS employer, the Town sent its required monthly report to the
Department’s Division of Retirement, which triggered an investigation of
Ms. Jenkins’ employment as a violation of the statutory reemployment
prohibition under Chapter 121, Florida Statutes. Despite the Town’s
attempts to remedy the situation, DMS found Ms. Jenkins in violation of the
reemployment prohibition and ultimately settled the matter with her. The
settlement agreement required Ms. Jenkins to repay the money owed to
the FRS Trust Fund through monthly deductions from her retirement
benefits. The settlement agreement also obligated DMS, to in good faith,
seek reimbursement for the entire debt from the Town. The settlement
4 agreement provided that if DMS was able to recover the entire amount
from the Town, DMS would cease the monthly deductions, notify Ms.
Jenkins, and refund her the deductions withheld. The Department issued a
Notice of Intended Agency Action letter against the Town on October 2,
2020, informing the Town that it was jointly and severally liable for the
repayment of Ms. Jenkins’ retirement benefits in accordance with section
121.091(9)(c)3., Florida Statutes.
The Town requested an administrative hearing before an ALJ at the
Department of Administrative Hearings. After hearing testimony of several
witnesses, the ALJ issued a recommended order, finding that the Town
employed Ms. Jenkins as an FRS employee less than six months after her
retirement, in violation of the statutory reemployment prohibitions. The ALJ
concluded that the Town is jointly and severally liable for repayment of Ms.
Jenkins’ retirement benefits paid. After considering the Town’s exceptions
to the recommended order, DMS issued a final order rejecting the Town’s
exceptions and accepting the ALJ’s recommended order in its entirety.
The Town appeals.
Our standard of review of an agency's conclusions of law is de novo.
Estrada v. Mercy Hosp., Inc., 121 So. 3d 51, 54 (Fla. 3d DCA 2013); see
also § 120.68(7)(d), Fla. Stat. (2019). “The record is reviewed to determine
5 whether competent and substantial evidence supports an administrative
agency's decision.” Brennan v. City of Miami, 146 So. 3d 119, 123 (Fla. 3d
DCA 2014); see also § 120.68(7)(b), Fla. Stat. “If supported by competent,
substantial evidence, an appellate court must accept those findings.”
Mobley v. State, 181 So. 3d 1233, 1236 (Fla. 1st DCA 2015). “However, if
the agency's decision is not supported by substantial, competent evidence
established in the record of the administrative hearing, it will be
overturned.” Wise v. Dep't of Mgmt. Servs., Div. of Ret., 930 So. 2d 867,
870–71 (Fla. 2d DCA 2006). Finally, and pursuant to a recent constitutional
adoption, we give no deference to agency interpretations of statutes or
rules. A.C. v. Agency for Health Care Admin., 322 So.
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Third District Court of Appeal State of Florida
Opinion filed July 26, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-672 Lower Tribunal Nos. DOAH 20-4937, 22-0018 ________________
Town of Miami Lakes, Appellant,
vs.
State of Florida, Department of Management Services, etc., Appellee.
An Appeal from the State of Florida, Department of Management Services.
Llopiz Wizel LLP, and Joan Carlos Wizel and Onier Llopiz (Fort Lauderdale), for appellant.
Clark N. Gates, Assistant General Counsel, and Olorunfunmi Ojetayo, Deputy General Counsel (Tallahassee), for appellee.
Before EMAS, FERNANDEZ, and HENDON, JJ.
HENDON, J. The Town of Miami Lakes (“the Town”) appeals from a Final Order
entered by the Department of Management Services (“DMS”), adopting the
Administrative Law Judge’s (“ALJ”) Recommended Order, requiring that
the Town repay to DMS the retirement benefits it paid to one of its
employees. We affirm.
The Florida Retirement System (“FRS”) is a retirement program
offered to state and local government employees governed by chapter 121,
Florida Statutes and Title 60S, Florida Administrative Code. Members of
FRS may elect to participate in a program known as the Deferred
Retirement Option Program (“DROP”), which allows for the member to
defer the receipt of their retirement benefits while continuously working for
the FRS employer. §121.091(13)(a), Fla. Stat. (2018) A member is eligible
to participate in the DROP program if they are employed and work in a
“regularly established position.” Id. A regularly established position “is an
employment position which will be in existence beyond 6 consecutive
calendar months. . . .” Fla. Admin. Code R. 60S-1.004(4)(b).
A member of FRS who wishes to seek employment after retirement is
subject to the limitations set forth in section 121.091. That statute provides
that “a retiree may not be reemployed with an employer participating in the
Florida Retirement System until such person has been retired for 6
2 calendar months.” § 121.091(9)(d)1., Fla. Stat. (2018). The reemployment
limitations state that if the member is employed by an FRS employer within
the first six (6) months of retirement, in violation of the prohibition, both the
member and the FRS employer will be held jointly and severally liable for
the retirement benefits that were paid to the member. §121.091 (9)(b)(1),
Fla. Stat. (2018).
Ms. Dawn Jenkins (“Ms. Jenkins”) was a Miami-Dade Public School
teacher for forty years before her retirement on June 8, 2018. Ms. Jenkins
was enrolled in the DROP program and began receiving her monthly
retirement benefits immediately upon termination of her employment
status. At that time, DMS put Ms. Jenkins on notice that she would have to
“terminate all employment relationships with all participating FRS
employers for the first 6 calendar months after the DROP termination date.”
FRS requires employers to submit monthly reports to the Department’s
Division of Retirement for the purpose of tracking wages, retirement
contributions, and years of service. If the monthly reports include a recent
retiree, an investigation will ensue to ensure that retirement contributions
are not made to the employee.
Two months after her official retirement, Ms. Jenkins filled out an
employment application to be a yoga instructor for the Town, to temporarily
3 fill in for the Town’s regular instructor who was on medical leave. Ms.
Jenkins received and accepted the Town’s offer of employment for the
position of “Back Up Part-Time Instructor, Yoga.” The Town’s offer letter
included the statement that the position is an FRS-covered position and
that a percentage of pay would be withheld for retirement. Ms. Jenkins
was hired by the Town to serve as its senior yoga instructor, and was paid
$26 an hour. The Town’s personnel action forms identified Ms. Jenkins’
employment as part-time and non-exempt, and checked “FRS” under
Benefits. For the sixteen yoga classes Ms. Jenkins taught, the Town sent
her an IRS W-2 wage and tax statement.
As an FRS employer, the Town sent its required monthly report to the
Department’s Division of Retirement, which triggered an investigation of
Ms. Jenkins’ employment as a violation of the statutory reemployment
prohibition under Chapter 121, Florida Statutes. Despite the Town’s
attempts to remedy the situation, DMS found Ms. Jenkins in violation of the
reemployment prohibition and ultimately settled the matter with her. The
settlement agreement required Ms. Jenkins to repay the money owed to
the FRS Trust Fund through monthly deductions from her retirement
benefits. The settlement agreement also obligated DMS, to in good faith,
seek reimbursement for the entire debt from the Town. The settlement
4 agreement provided that if DMS was able to recover the entire amount
from the Town, DMS would cease the monthly deductions, notify Ms.
Jenkins, and refund her the deductions withheld. The Department issued a
Notice of Intended Agency Action letter against the Town on October 2,
2020, informing the Town that it was jointly and severally liable for the
repayment of Ms. Jenkins’ retirement benefits in accordance with section
121.091(9)(c)3., Florida Statutes.
The Town requested an administrative hearing before an ALJ at the
Department of Administrative Hearings. After hearing testimony of several
witnesses, the ALJ issued a recommended order, finding that the Town
employed Ms. Jenkins as an FRS employee less than six months after her
retirement, in violation of the statutory reemployment prohibitions. The ALJ
concluded that the Town is jointly and severally liable for repayment of Ms.
Jenkins’ retirement benefits paid. After considering the Town’s exceptions
to the recommended order, DMS issued a final order rejecting the Town’s
exceptions and accepting the ALJ’s recommended order in its entirety.
The Town appeals.
Our standard of review of an agency's conclusions of law is de novo.
Estrada v. Mercy Hosp., Inc., 121 So. 3d 51, 54 (Fla. 3d DCA 2013); see
also § 120.68(7)(d), Fla. Stat. (2019). “The record is reviewed to determine
5 whether competent and substantial evidence supports an administrative
agency's decision.” Brennan v. City of Miami, 146 So. 3d 119, 123 (Fla. 3d
DCA 2014); see also § 120.68(7)(b), Fla. Stat. “If supported by competent,
substantial evidence, an appellate court must accept those findings.”
Mobley v. State, 181 So. 3d 1233, 1236 (Fla. 1st DCA 2015). “However, if
the agency's decision is not supported by substantial, competent evidence
established in the record of the administrative hearing, it will be
overturned.” Wise v. Dep't of Mgmt. Servs., Div. of Ret., 930 So. 2d 867,
870–71 (Fla. 2d DCA 2006). Finally, and pursuant to a recent constitutional
adoption, we give no deference to agency interpretations of statutes or
rules. A.C. v. Agency for Health Care Admin., 322 So. 3d 1182, 1187 (Fla.
3d DCA 2019).
On appeal, the Town first argues that the ALJ erroneously
determined the Town violated the reemployment prohibitions in Chapter
121, Florida Statutes. The record shows that DMS met its burden to prove
that Ms. Jenkins was employed as an FRS employee in a regularly
established position. The evidence to support the ALJ’s findings included
testimony from witnesses, including the Town Manager, and written
evidence, including the offer of employment letter with the stated rate of
pay, that showed Ms. Jenkins received compensation and was in a FRS
6 position that was regularly established. Record testimony provided that the
Town had not allowed for a regularly established position to be filled by an
independent contractor. Thus, we find the ALJ’s determinative factual
findings are supported by competent and substantial evidence in the
record.
The Town also asserts that the settlement agreement between Ms.
Jenkins and DMS acts to set off the Town’s statutory joint and several
liability. We disagree. The settlement agreement does not act to release
the Town from statutory joint and several liability. Rather, the settlement
agreement provides that DMS would, in good faith, pursue the full amount
of the monies owed to DMS from the Town as well as from Ms. Jenkins,
and states that once DMS is made whole, no further recovery is necessary.
DMS will not recoup more than it is due. As the Final Judgment notes,
The amount of the repayment in this section is the full amount of the overpayment made to Jenkins. The Petitioner alleges that the Department should not be entitled to recoup this full amount as the Department has been withholding monies from Jenkins's retirement benefits payments to satisfy some of the amount due to the Department for the overpayment. In making this claim, the Petitioner ignores that the settlement agreement between the Department and Jenkins specifies that if the Department recoups the full amount of the overpayment from the Petitioner, the Department will refund Jenkins the monthly payments that have been withheld. Though the Department is not entitled to collect more than the full amount of the overpayment from the Petitioner and Jenkins jointly, the Petitioner's payment of the full amount will not cause the
7 Department to have recouped such excess funds as any funds previously withheld from Jenkins will be refunded in accordance with the settlement agreement terms.
(Emphasis added). Accordingly, based on the above analysis, we affirm the
Final Order in all respects.
Affirmed.