ALJDEC decisions subject to certification as final

20F-001-ADM · Department of Administration · 2020-10-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DENISE NASSER

ARIZONA DEPARTMENT OF ADMINISTRATION

No. 20F-001-ADM

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 30, 2020

APPEARANCES: Appellant Denise Nasser appeared on her own behalf. Assistant Attorney General Pamela Peiser represented Respondent Arizona Department of Administration. Witnesses Tracey Cappuccio and Joy Bridges testified.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Appellant Denise Nasser (“Appellant”) appealed Respondent Arizona Department of Administration’s (“DOA”) determination that she is not eligible to participate in the Retiree Accumulated Sick Leave (“RASL”) program.

A hearing was held on September 30, 2020. DOA submitted its exhibits collectively marked with Bates numbers 001-033 and presented the testimony of Tracey Cappuccio, Statewide Payroll Manager. Appellant testified on her own behalf and presented the testimony of Joy Bridges, RASL Coordinator.

Hearing Evidence

DOA’s General Accounting Office’s State of Arizona Accounting Manual (“SAAM”) sets forth the policies and procedures for RASL. See Department’s Exhibit 024-033.

SAAM states that “[a] State employee who is eligible to participate in an authorized State Retirement System may be eligible to receive partial payment for his accumulated sick leave balance of five hundred (500) or more hours, if he fulfills the terms and conditions set forth in this section of SAAM.” Id at 024.

SAAM further sets forth the eligibility requirements for RASL as follows:

2. Eligibility

. . . .

2.2 Eligible State employees having at least five hundred (500) accumulated sick leave hours that have been accumulated in accordance with the State-approved personnel policies are eligible under this Program. The accumulated sick leave hours must be available for use at the time of separation from employment.

. . . .

2.4 In order to be eligible for this Program, a retiree must have an effective retirement date on file with an Authorized State Retirement System that is at least one (1) calendar day after the retiree’s separation from State employment and is not later than thirty-one (31) calendar days following the date of his separation from State employment.

2.5. A completed Form GAO-SL-50 must be filed with the GAO within one hundred eighty (180) calendar days following his effective retirement date; failure to do so shall constitute abandonment and forfeiture of the retiree’s right to the Program benefit.

Id. at 025. (Emphasis in original.)

SAAM further sets forth a retiree’s responsibilities for RASL as follows:

10. Retiree’s Responsibilities

. . . .

10.2. The retiree must have an effective retirement date that is not later than thirty-one (31) calendar days after their separation from employment.

. . . .

10.3.4. Failure to file a completed Form GAO-SL-50 with the GAO within one hundred eighty (180) calendar days following his effective retirement date shall constitute abandonment and forfeiture of the retiree’s right to the Program benefit.

10.3.5. The completed Form GAO-SL-50 may be submitted by either the retiree or his agency, but the responsibility for claiming this benefit rests exclusively with the retiree (or his beneficiary).

Id. at 029. (Emphasis in original.)

Appellant was employed with the Arizona Department of Economic Security (“DES”) for almost forty years. As a result of such employment, Appellant is a member of the Arizona State Retirement System (“ASRS”).

The parties stipulated to the following facts:

Appellant’s employment separation date is December 27, 2019;

Appellant’s effective date of ASRS retirement is February 27, 2020;

At the time of Appellant’s separation, her sick leave balance was 1,568.49 hours.

Appellant’s RASL application is dated on or about December 10, 2019.

Ms. Cappuccio testified that a State employee’s retirement date is established between the employee and the State retirement system of which they are a member. In this case, Appellant is a member of ASRS. Consequently, Appellant’s retirement date was established with ASRS, not DOA. RASL requires that a retirement date be set and confirms such retirement date with the retirement plan. In this case, RASL confirmed Appellant’s retirement date with ASRS.

Appellant completed an Application and Certification Form for the RASL program (“Application”) on or about December 10, 2019. Id. at 001. It appears from a date stamp in the top right corner of the document that DES received the Application on December 20, 2019. Id. The portion of the Application that is required to be completed by the retiree’s employer, in this case, DES, was completed on February 14, 2020. Id. Ms. Cappuccio testified that an employer must wait until after the issuance of a final paycheck in order to process an Application. At that point, the employer can change the employee’s status from active to retiree. Appellant’s final paycheck was issued on January 16, 2020.

The Application contains a “Retiree Certifications” section with eight certifications that must be initialed by the retiree. Id. The first certification states the following:

I understand that I must retire from an authorized State of Arizona retirement system with an effective retirement date not later than 31 CALENDAR DAYS following my separation of employment from State service. If I retire any later, I will not be eligible for RASL.

Id. (Emphasis in original.)

Appellant initialed the box next to this certification signifying that she read and understood the information. Id.

DOA received the Application on February 18, 2020. Id. at 002. The Application was routed to Ms. Bridges for processing.

On February 18, 2020, DOA confirmed with the State payroll system Appellant’s separation date of December 27, 2019. Id. at 003 and 004. In order to be eligible for RASL, Appellant was required to establish a retirement date within 31 days of December 27, 2019.

On February 18, 2020, DOA confirmed Appellant’s hourly rate of pay at the time of separation for the benefit calculation. Id. at 005 and 006.

On February 18, 2020, DOA confirmed Appellant’s accumulated sick leave hours of 1,568.49. Id. at 007 and 008.

On February 24, 2020, DOA attempted to confirm Appellant’s retirement date with ASRS. Id. at 016. ASRS responded with a code that indicates, “[a]t this time, this member has not applied for retirement, or the application is still being processe[d].” Id.

On March 3, 2020, DOA made a second attempt to confirm Appellant’s retirement date with ASRS. Id. at 017. ASRS responded with a code that indicates, “[n]ot verified through the employer,” with the date of February 27, 2020, adjacent to the code. Id.

On March 9, 2020, DOA made a third attempt to confirm Appellant’s retirement date with ASRS. Id. at 018. ASRS responded with a code that indicates, “[v]erified through the employer” with a retirement date of February 27, 2020. Id.

Appellant’s date of separation was December 27, 2019, and her retirement date, as determined by ASRS, was February 27, 2020. Therefore, Appellant’s retirement date was not within 31 days of separation from employment.

On March 26, 2020, DOA issued a denial letter to Appellant informing her that upon review of her Application, it had determined that she is not eligible to participate in the RASL program. Id. at 019. The denial letter explained that Appellant is ineligible for the RASL program because she did not establish a retirement date with ASRS within 31 days of separation as required. Id.

On April 17, 2020, Appellant filed a request for reconsideration of DOA’s determination. Id. at 020.

After receiving Appellant’s request for reconsideration, RASL contacted ASRS and was informed that Appellant had filed an appeal with ASRS to change her retirement date determination to December 27, 2019. Id. at 022. That appeal was denied by ASRS on March 16, 2020. Id. Appellant’s retirement date remains February 27, 2020. Id.

Ms. Cappuccio reiterated that ASRS, as the retirement system, sets the retirement date and DOA/RASL has no discretion to change the date. The only way to change a retirement date, according to Ms. Cappuccio, is a successful appeal to ASRS, or return to work, re-establish contributions into the retirement system, and suspend pension payments.

On April 23, 2020, DOA issued a letter to Appellant advising that it had reviewed Appellant’s request for reconsideration and determined that the “additional information provided is not sufficient to change the prior determination.” Id. at 023. The letter further advised that the determination was final and that Appellant could appeal the final agency determination to the Office of Administrative Hearings. Id.

Appellant testified that she was instructed at a retirement meeting to forward her RASL Application directly to Ms. Bridges. Appellant testified that she sent her Application to Ms. Bridges via interoffice mail with a note to please call Appellant to confirm that the Application had been received. Appellant asserted that she was not aware until February 2020 that there was an issue with her retirement date. Appellant contended that her Application was not timely processed and questioned “who has the obligation to assist” in the processing of the Application. Appellant contended that the agency goal is to support its employees and she believes her situation has not been handled appropriately given her forty years of State service. Appellant believes the situation could have been remedied if she had been made aware of the issue sooner. Appellant questioned why it took so long to process the Application and asserted that her documentation was “lost for 60 days.” Appellant complained that there is no communication and no tracking methodology, and feels the “process is lacking.” Appellant acknowledged that she did not independently confirm her retirement date with ASRS prior to February 2020 because she was told it could take up to two months to process her retirement. Appellant also acknowledged that she did not pursue an appeal of her retirement date with the Office of Administrative Hearings.

CONCLUSIONS OF LAW

Appellant bears the burden of proof to show that DOA erred when it denied her Application for the RASL program. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.

A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1373 (10th ed. 2014).

The primary goal when construing statutes is to fulfill the intent of the legislature. Backus v. State of Arizona, 220 Ariz. 101, 203 P.3d 499 (2009).

An agency’s authority is limited to that which is found in its enabling legislation. Arizona State Board of Regents v. Arizona State Personnel Board, 195 Ariz. 173, 985 P.2d 1032 (1999).

The tribunal may not expand or extend a statute to include that which is not within its provisions. State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774 (1960).

A.R.S. § 38-615 delineates the requirements for the RASL program in pertinent part as follows

An officer or employee of this state, subject to legislative appropriation, or an officer or employee of a county, subject to authorization by the board of supervisors, is eligible, on retirement, to receive benefits as follows:

1. An officer or employee who has at least five hundred but less than seven hundred fifty hours of sick leave is entitled to receive payments equal to twenty-five per cent of the officer's or employee's salary at the officer's or employee's current hourly rate for each hour of accumulated sick leave.

2. An officer or employee who has at least seven hundred fifty but less than one thousand hours of sick leave is entitled to receive payments equal to thirty-three per cent of the officer's or employee's salary at the officer's or employee's current hourly rate for each hour of accumulated sick leave.

3. An officer or employee who has at least one thousand hours of sick leave is entitled to receive payments equal to fifty per cent of the officer's or employee's salary at the officer's or employee's current hourly rate for each hour of accumulated sick leave not to exceed one thousand five hundred hours of accumulated sick leave.

In order to be eligible to receive payments pursuant to subsection A of this section:

1. An officer or employee must establish a retirement date not later than thirty-one days after termination of employment by qualifying with an authorized retirement system or plan of this state.

2. The retirement date must be effective not later than thirty-one days after termination of employment.

3. An officer or employee shall elect retirement benefits that are defined not later than thirty-one days after termination of employment.

7. Pursuant to A.R.S. § 12-821.01(A), “[p]ersons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues.”

8. Appellant has not shown that DOA erred in denying her Application.

9. Appellant meets the requirement of having at least 500 hours of accumulated sick leave.

10. Appellant also meets the requirement of having filed her RASL Application within 180 days of her retirement date.

11. However, Appellant does not meet the requirement of having a retirement date within 31 days of separating from State service. A.R.S. § 38-615 requires that an employee “must establish a retirement date not later than thirty-one days after termination of employment by qualifying with an authorized retirement system or plan of this state” and the “retirement date must be effective not later than thirty-one days after termination of employment.” Appellant’s date of separation from State service was December 27, 2019. Therefore, the last date that Appellant could have retired and met the 31 day requirement was January 27, 2020. DOA confirmed with ASRS that Appellant’s retirement date was February 27, 2020. This date was established between Appellant and ASRS, not DOA, and was 62 days from Appellant’s separation date. Consequently, Appellant does not qualify for the RASL benefit.

12. Although Appellant’s frustration with, and criticism of the “system” is understandable, she did not provide any substantial evidence or legal authority showing that DOA violated or failed to comply with any applicable statutes or rules.

13. Consequently, Appellant’s appeal should be dismissed.

RECOMMENDED ORDER

Based on the foregoing, it is ordered dismissing Appellant’s appeal.

In the event of certification of the Administrative Law Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be the date of that certification.

-54864001

001

-137160-45720000Done this day, October 15, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Andy Tobin,

Department of Administration

-54864001

001

-137160-45720000