46 So.3d 1144 (Fla.App. 1 Dist. 2010), 1D09-5452, State Bd. of Admin. v. Huberty

• Docket Nº: 1D09-5452, 1D10-0534.
• Citation: 46 So.3d 1144, 35 Fla. L. Weekly D 2439
• Opinion Judge: WEBSTER, J.
• Party Name: STATE BOARD OF ADMINISTRATION, Appellant, v. Sharon R. HUBERTY, Appellee. Sharon R. Huberty, Appellant, v. State Board of Administration, Appellee.
• Attorney: Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for the State Board of Administration. Timothy P. Atkinson of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Sharon R. Huberty.
• Judge Panel: LEWIS and MARSTILLER, JJ., concur.
• Case Date: November 02, 2010
• Court: Florida Court of Appeals, First District

Page 1144

46 So.3d 1144 (Fla.App. 1 Dist. 2010)

35 Fla. L. Weekly D 2439

STATE BOARD OF ADMINISTRATION, Appellant,

v.

Sharon R. HUBERTY, Appellee.

Sharon R. Huberty, Appellant,

v.

State Board of Administration, Appellee.

Nos. 1D09-5452, 1D10-0534.

Florida Court of Appeal, First District.

November 2, 2010

Page 1145

Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for the State Board of Administration.

Timothy P. Atkinson of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Sharon R. Huberty.

WEBSTER, J.

In these two consolidated appeals, the State Board of Administration seeks review of a final order of the Division of Administrative Hearings invalidating what the administrative law judge held was an unadopted rule interpreting section 121.4501(4)(a)1.a., Florida Statutes (2002), as permitting state employees to leave the Florida Retirement System Pension Plan and enroll in the alternative Investment Plan by telephone; and Sharon Huberty seeks review of a final order of the Board of Administration denying her request that she be permitted to rescind her election to enroll in the Investment Plan and be returned to the Pension Plan without having to pay the statutorily required buy-back amount. Because we conclude that the Board's interpretation of section 121.4501(4)(a)1.a. as permitting state employees to leave the Pension Plan and enroll in the Investment Plan by telephone did not constitute an unadopted rule, we reverse the final order of the Division of Administrative Hearings. Because we conclude that there is no error of fact or law in the Board's final order denying Ms. Huberty's request that she be permitted to rescind her election to enroll in the Investment Plan and be returned to the Pension Plan without having to pay the statutorily required buy-back amount, we affirm that order.

In 2000, the Florida Legislature enacted section 121.4501, Florida Statutes, creating the Public Employee Optional Retirement Program, known as the " Investment Plan." It is a defined contribution plan, whereas the Pension Plan is a defined benefit plan. In defined contribution plans such as the Investment Plan, the employee bears the risk of loss in the value of investments chosen by the employee. Before the adoption of section 121.4501, all state employees were covered by the Pension Plan, wherein retirement benefits...