ALJDEC decisions subject to certification as final

24F-002-ADM · Department of Administration · 2023-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DALE BEATTY

Appellant,

ARIZONA DEPARTMENT OF ADMINISTRATION

Respondent.

No. 24F-002-ADM

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 11, 2023

APPEARANCES: Appellant Dale Beatty represented himself. Assistant Attorney General Pamela Peiser-Sullivan represented Respondent Arizona Department of Administration.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: ADOA Bates RASL 01-096;

_____________________________________________________________________

FINDINGS OF FACT

1. At all times relevant to this matter, Appellant Dale Beatty’s authorized Arizona retirement system was the Nationwide Annuity Plan (Nationwide or Nationwide Annuity Plan.

2. On February 3, 2023, Appellant separated from employment from the Arizona Department of Corrections.

3. On April 4, 2023, Respondent Arizona Department of Administration received a Retiree Accumulated Sick Leave (RASL) Program Application and Certification from Appellant.

4. On April 24, 2023, Respondent confirmed with Nationwide that Appellant had not yet started receiving distributions from his plan.

5. On May 31, 2023, Respondent notified Appellant that he was not eligible to participate in the RASL Program because he retired more than 31 days after his separation date. The May 31, 2023 notice included the following language, “The last date that you could have retired from the Nationwide Annuity Plan and still meet the 31-day requirement was 3/6/2023.”

6. On June 23, 2023, Respondent received a letter from Appellant disputing the May 31, 2023 determination. In the June 23, 2023 letter, Appellant stated, “My entry for resignation from the State of Arizona was dated September 12, 2002.”

7. On July 7, 2023, Respondent confirmed with a Program Director from Nationwide that Appellant had not began taking distributions from the Nationwide Annuity Plan. See ADOA Bates RASL 019.

8. On July 20, 2023, through a final determination, Respondent notified Appellant that he was not eligible to participate in the RASL Program.

9. Appellant requested a state fair hearing.

10. On August 31, 2023, Respondent issued a Notice of Hearing setting the matter for hearing on October 12, 2023. The Notice of Hearing provided that the issue set for determination was, “the Agency determination under A.R.S. § 38-615 et seq pertaining to the Retiree Accumulated Sick Leave (RASL) program.”

11. A hearing was held on December 11, 2023.

12. At hearing, Appellant testified on behalf of himself. Respondent presented the testimony of Tracey Smith, the Statewide Payroll Manager.

13. At hearing, ADOA contended that Appellant was not eligible for the RASL program because he did not retire and begin taking distributions from Nationwide within 31 days of his separation date, as required under Ariz. Rev. Stat. § 38-615.

14. Appellant contended that he should qualify for the RASL program. Appellant further argued that he should have the freedom to choose when to begin receiving distributions from his retirement account. Appellant contended that Ariz. Rev. Stat. § 38-615(B) does not apply to him because he does not have defined benefits under the Nationwide Annuity Plan. Appellant stated that his payments are variable and not promised.

15. Respondent contended that the word “defined” as used in Ariz. Rev. Stat. § 38-615(B)(3) does not refer specifically to a defined benefit plan. Respondent contended that if the legislature had intended for the word “defined” to mean a defined contribution plan or a defined benefit plan, the legislature would have included such language in the statute. Respondent contended that the legislature intended for the word “defined” in Ariz. Rev. Stat. § 38-615 (B)(3) that a person would choose how their pension would be distributed.

CONCLUSIONS OF LAW

Appellant has the burden of proof. Arizona Administrative Code R2-19-119(B). The standard of proof on all issues is the preponderance of the evidence. A.A.C. R2-19-119(A). The standard of proof is that of a preponderance of the evidence. See Ariz. Admin. Code § R2-19-119(B).

A preponderance of the evidence is:

The 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).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted). Statutes and rules are construed using the same principles. Id.

The Department of Administration’s Director has authority over this matter. Ariz. Rev. Stat. § 41-2704.

In order to qualify for payments under the Retiree Accumulated Sick Leave (RASL) program, 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 Arizona. See Ariz. Rev. Stat. § 38-615(B)(1) and (2). Furthermore, the officer or employee must “elect retirement benefits that are defined not later than thirty-one days after termination of employment.” See Ariz. Rev. Stat. § 38-615(B)(3).

The preponderance of the evidence shows that Appellant established a retirement date later than thirty-one days after he separated from employment for the State of Arizona. The preponderance of the evidence shows that Appellant did not elect retirement benefits that were defined within 31 days after his separation date. Therefore, Appellant is not eligible for payments under the RASL program.

Consequently, Appellant’s appeal should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that Appellant Dale Beatty’s appeal is dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, December 30, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Elizabeth Alvarado-Thorson,

Department of Administration

By: OAH Staff