ALJDEC decisions subject to certification as final

24F-005-ADM · Department of Administration · 2024-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

JOHN MISNER

Appellant.

ARIZONA DEPARTMENT OF ADMINISTRATION

Respondent.

No. 24F-005-ADM

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2024

APPEARANCES: Appellant John Misner represented himself. Assistant Attorney General Pam Peiser represented Respondent Arizona Department of Administration.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 1 through 8.

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STIPULATED FACTS

1. John Misner was a State of Arizona/ASU employee with ASU.

2. Mr. Misner separated from State of Arizona/ASU employment on May 15, 2023.

3. At the time of Mr. Misner’s termination from State of Arizona/ASU employment, he had accumulated 537.47 hours of sick leave.

4. Mr. Misner established and made effective his retirement with his retirement system, Optional Retirement Plan (ORP), on May 15, 2023.

5. Mr. Misner elected his retirement benefit distribution on June 16, 2023 and Mr. Misner submitted a RASL application and certification form to ASU.

FINDINGS OF FACT

6. On August 24, 2023, Respondent Arizona Department of Administration (Respondent or ADOA) notified Mr. Misner that he was not eligible to participate in the RASL Program because he retired more than 31 days after his separation date.

The August 24, 2023 notice included the following language, “The last date that you could have retired from the Optional Retirement System (“ORP”) and still meet the 31-day requirement was 6/15/2023.”

7. On or about September 6, 2023, Respondent received a letter from Mr. Misner disputing the August 24, 2023 determination.

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

9. Mr. Misner requested a state fair hearing.

10. On November 21, 2023, Respondent issued a Notice of Hearing setting the matter for hearing on January 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 January 12, 2023.

12. At hearing, Mr. Misner testified on behalf of himself. Respondent presented the testimony of James Robinson, the Statewide Manager of Central Payroll.

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

14. Mr. Misner testified to the effect that it is implied that when employees at ASU are communicating with the ASU Benefits Department (BD), the employee is communicating with the ADOA. Mr. Misner asserted that he relied on effective and timely communication from the ASU BD regarding his retirement and eligibility for the RASL program. Mr. Misner contended that the ASU BD and ADOA should be treated as the same entity. Mr. Misner contended that he should qualify for the RASL program.

Mr. Misner further argued that he was not properly informed of the eligibility requirements for RASL.

15. Respondent contended that the Department is limited to the eligibility requirements enacted by the legislature. Respondent argued that failure to know the law is not justification for failing to follow it. Respondent contended that Mr. Misner is not eligible for RASL because he did not retire and begin taking distributions from ORP within 31 days of his separation date, as required under Ariz. Rev. Stat. § 38-615.

CONCLUSIONS OF LAW

Mr. Misner 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.

ADOA’s Director has authority over this matter. Ariz. Rev. Stat. § 41-2704.

In order to qualify for payments under the 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 Mr. Misner 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 Mr. Misner did not elect retirement benefits within 31 days after his separation date. Therefore, Mr. Misner is not eligible for payments under the RASL program.

Consequently, Mr. Misner’s appeal should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that Mr. Misner John Misner’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, February 1, 2024.

/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