Michael A. Fewless, a 30-year law enforcement veteran with a spotless record, must pay back the $541,000 he received from the state’s Deferred Retirement Option Program, or DROP, lawyers for the state’s retirement system said.
They dispute an administrative law judge’s recommended order saying Fewless can keep the money and resume getting his retirement benefits — which he stopped receiving a year ago when his predicament came to light.
Fewless said that he got bad advice from David Kent, a retirement specialist with DMS whose job is to answer questions from pension members.
“I was shocked when they told me I was in violation of the FRS rules,” said Fewless, who testified that he had taken every step to make sure he wasn’t in violation of the retirement rules. “And I was more shocked when they said they didn’t have a fiduciary responsibility to give correct information to protect their members.”
According to DMS, Fewless wasn’t entitled to the money because he failed to complete the Florida Retirement System’s requirement that he wait at least six months after he retired from the Orange County Sheriff’s Office before taking a new job as Fruitland Park’s police chief.
On top of that, they said the Department of Management Services, which runs the retirement program, doesn’t have a legal obligation to provide accurate information.
“Neither Mr. Kent nor the Department can be held liable in negligence for giving out incorrect information because there is no duty of care to provide correct information,” Deputy General Counsel Sean Gillis said in the agency’s exception to the recommended order.
Utlimately, it is up to DMS Secretary Jonathan R. Satter, as pension plan administrator, to accept, reject, or come up with his own recommendation in the matter. Satter was appointed by Gov. Ron DeSantis in February.
“Secretary Satter has received a copy of the recommended order and is reviewing the case,” said David Frady, spokesman for the DMS.
In a formal hearing on decisions which affect substantial interests, the secretary has 90 days to render a final order after the administrative law judge submits a recommended order. The ALJ filed the recommended order in the Fewless case on July 18, which puts the deadline for issuing the final order at October 16.
Satter’s decision in this case could have far-reaching implications if he sides with his attorneys. DMS oversees 500,000 active pension plans with more than 430,000 people receiving benefits.
“The circumstances involved with this case are unique. However, we believe the continued attempt by the Department of Management Services to ignore the administrative law judge’s decision and pursue repayment by Mr. Fewless has much broader negative ramifications for retirees,” said Matt Puckett, Executive Director of the Florida Police Benevolent Association.
Employees in the state retirement system can elect to participate in the Deferred Retirement Option Program, or DROP, putting off receiving retirement benefits while continuing employment. The deferred payments accrue in the system on behalf of the member, plus interest compounded monthly, for specified period of DROP participation.
Upon retirement, the employee receives the total DROP benefits on top of the normal retirement payments.
However, the employee has to meet one of several conditions of termination, including ending all employment with a state agency or municipal entity that is enrolled in the Florida Retirement System for at least six months.
Two similar situations came up during the trial, said Tallahassee lawyer Ryan Andrews.
“We had two additional examples of it at our trial, a different issue with DMS providing incorrect information to Fruitland Park,” Andrews said. “Another time, a lady called the DMS Call Center and they told her that she couldn’t purchase retirement credits, when in fact, years later, she found out that she could have purchased them.”
And another lawyer, former judge Tom Bateman, is representing a state retiree whose pension is in jeopardy because she made $400 teaching yoga classes.
Administrative Law Judge Garnett W. Chisenhall in July said that Fewless is entitled to his retirement as long as he’s enrolled in the city’s pension plan and not the state’s plan because of the bad information he got. Also, the judge said, Fewless’s testimony was consistent and undisputed by the DMS.
“Morever, Mr Fewless was not attempting to ‘game the system.’ Given Mr. Fewless’s exceptional record of public service, it is very unlikely he would knowingly and intentionally attempt to engage in double dipping by violating the termination requirement,” the judge wrote.
Gellis agreed that is not “a best practice nor is it desirable for governmental employees to be providing inaccurate information to members of the public,” but said the judge’s recommendation is erroneous.
Instead, Gellis said, DMS should reject the judge’s order. A more appropriate recommendation would be for both Fewless and the Department to seek legal action against Fruitland Park, he said.
That’s just wrong, his attorney Andrews said.
“It’s money he earned and worked his whole life for,” Andrews said. “He never would have had a reemployment violation but for the DMS employee who told him the scenario methods he could employ and not run afoul of DROP rules.”
RETIREMENT HOTLINE ADVICE
During his tenure with the OCSO, Fewless rose through the ranks to the position of captain, working at various times in special investigations, gang enforcement and the criminal intelligence section.
He entered DROP in June 2011, and was scheduled to retire May 31, 2016.
But in 2015, as his DROP deadline neared, he decided he didn’t want to leave law enforcement and applied for the Chief of Police job at Fruitland Park. He was offered the job in June 2015, four months after Fruitland Park had joined the state retirement system.
The City Commission adopted a policy that all of its general employees and police officers be “compulsory members” of the retirement plan.
When Fewless learned that the city was part of the state retirement system, he told City Manager Gary Lavenia he couldn’t take the job. Lavenia, who had objected to the city council’s decision to join the state retirement system, told Fewless he wouldn’t be violating any FRS rules if he came to work as Fruitland Park’s police chief under the city’s retirement plan, according to court documents.
Fewless then called the retirement system hotline on July 9, 2015, to verify he wouldn’t endanger his retirement benefits by accepting the police chief job at Fruitland Park.
He spoke with Kent, who told him he could work for “Fruitland Park immediately without violating any FRS requirements so long as he was not enrolled in the FRS system.” Fewless could enroll in the city’s pension plan or enter a third-party contract.
Fewless received a one-time payment of $318,000, which they used to build their dream home. He also started getting extra monthly pension checks that allowed his wife to quit her job while she was treated for a brain tumor, court records show.
“When he left OCSO and accepted the police chief position with Fruitland Park, Mr. Fewless took a $33,000 annual pay cut and stood to receive $70,000 less from his DROP payout,” Judge Chisenhall wrote in his recommended order. “It highly unlikely he would have accepted those circumstances if he did not have a good faith basis for believing he was utilizing an exception to the termination requirement.
STATE AUDIT DISCOVERY
If not for a regularly scheduled routine audit of Fruitland Park by the department’s Office of Inspector General in November 2017, none of this would have come to light.
The audit report found several problems, including that it had failed to report Fewless’s employment with the city. The department sent Fewless a letter August 15, 2018, notifying him of the violation, that his DROP retirement had been voided, his membership in the retirement system would be retroactively reestablished and he owed the state $541,780.
Fewless first learned there was a problem two months earlier, when LaVenia informed him that the DMS Inspector General spotted an irregularity with his retirement plan. The next day he met with LaVenia and other city officials, who told him he didn’t take the required six-month break between his Orange County job and his Fruitland Park job.
Fewless quit his police chief job last August to prevent any further penalties. He also has not received a pension payment since September 1.
He has worked at the Groveland Police Department since March, and he and his wife are financially “wiped out.” They may have to sell their dream home, and they borrowed $60,000 from their daughter to hire a lawyer to litigate this case.
“I gave up a $100,000 a year job to take a $50,000 a year job and had my retirement benefits withheld,” he told the Democrat. “We are on the brink of bankruptcy and if this isn’t resolved soon we will have to file for bankruptcy.”