Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1870 _____________________________ MELODY MOORE, Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee. _____________________________ On appeal from the State Board of Administration. March 23, 2020 ROWE, J. Melody Moore appeals an order from the State Board of Administration denying her untimely request to rescind her election to transfer from the State’s Pension Plan to the State’s Investment Plan. We affirm. Facts Melody Moore is a law enforcement officer currently employed by the Miami-Dade Police Department. Before that, she was employed by the Broward County Sheriff’s Office. Both employers participate in the Florida Retirement System. When she began work with Broward County in 1990, Moore was enrolled in the Florida Retirement System. At that time, the only retirement plan was the FRS Pension Plan. But in 2002, the Legislature created a new retirement option, the FRS Investment Plan. State employees were given until November 30, 2002, to make an election between the Pension Plan and the Investment Plan. Moore did not make that election, so she defaulted into the Pension Plan. Between 2006 and 2010, Moore made several calls to the MyFRS Financial Guidance Line. This call center is an educational resource provided by the State Board of Administration, the body responsible for administering the state retirement plans. After multiple calls, Moore decided in 2010 to exercise her right to make a second election and switch to the Investment Plan. Moore was advised that she would have until January 2011 to rescind the second election. Otherwise, her election would be permanent, and Moore would not be able to revoke her election to switch to the Investment Plan. After being so advised, Moore made her second election and switched to the Investment Plan. Eight years later, Moore had second thoughts. She claimed that she discovered for the first time that her decision to switch to the Investment Plan was a poor one. Her monthly benefit at retirement would have been greater had she remained in the Pension Plan. So Moore filed a request asking the SBA to rescind her second election or grant her a third election. Moore argued that the SBA should grant the requested relief because her decision to switch to the Investment Plan was not an informed one. She claimed that the SBA failed to advise her about the specific consequences of switching plans. The SBA denied Moore’s request, finding that she did not timely seek to rescind her second election and that it lacked authority to grant her a third election. The SBA also found no evidence to show that Moore was misadvised. The SBA reviewed records of phone calls Moore made to the MyFRS Financial Guidance Line and found that SBA employees provided Moore with a comparison between the retirement plans and informed Moore that the Pension Plan would provide a greater retirement benefit for her than the plan she elected. Moore administratively appealed the denial of her request. After a hearing, the SBA’s hearing officer issued an order 2 recommending that the SBA deny Moore’s request to rescind her second election or make a third election. The SBA adopted the recommended order in its entirety. This timely appeal follows. Analysis Our review of an agency’s interpretation of a statute is de novo. Art. V, § 21, Fla. Const. (2019); S. Baptist Hosp. of Fla. v. Agency for Health Care Admin., 270 So. 3d 488, 502 (Fla. 1st DCA 2019). Moore argues that the SBA erred when it denied her request to rescind her second election because the SBA failed to advise her of the consequences of switching to the Investment Plan. This argument fails for two reasons. First, the SBA lacks statutory authority to rescind Moore’s second election outside the statutory grace period or to grant her a third election. The SBA has only the authority conferred on it by the Legislature. See Pesta v. Dep’t of Corr., 63 So. 3d 788, 790 (Fla. 1st DCA 2011) (observing that administrative agencies have only such powers as statutes confer). When the Investment Plan was created in 2002, eligible employees were given ninety days to decide whether to stay in the Pension Plan or to move to the Investment Plan. § 121.4501(4)(a), Fla. Stat. (2018). If the employee made no election, the employee remained in the Pension Plan. § 121.4501(4)(a), Fla. Stat. (2018). After this initial election period, eligible employees have only “one opportunity, at the employee’s discretion, to choose to move from the pension plan to the investment plan or from the investment plan to the pension plan.” § 121.4501(4)(f), Fla. Stat. (2018) (emphasis added). Although employees have only one opportunity to make a second election, the Legislature provided a grace period during which an employee may rescind that election. When an employee makes a second election, the employee may rescind the election during the same month: If a member files an election with the Plan Choice Administrator and the member realizes that the election was made in error, or if the member has reconsidered his 3 or her plan choice, the State Board of Administration (SBA) will consider, case-by-case, whether the election will be reversed, subject to the following: The member must notify the SBA by calling the toll free MyFRS Financial Guidance Line at: 1(866)446-9377, or by sending written correspondence directly to the SBA, to the Plan Choice Administrator, to the MyFRS Financial Guidance Line, or to the Division, no later than 4:00 p.m. (Eastern Time) on the last business day of the election effective month. Fla. Admin. Code R. 19-11.007(4)(a). But outside the authorized grace period, the SBA has no authority to rescind a second election. Moore’s request to rescind was eight years too late. Moore argues nonetheless that the SBA should allow her to rescind her election outside the grace period because the SBA did not properly advise her of the consequences of her decision. She argues that the SBA’s obligation to provide “an education component to provide system members with information necessary to make informed plan choice decisions” allows the SBA to grant the relief she requests because her decision was not informed. § 121.4501(10)(a), Fla. Stat. (2018). But Moore’s argument ignores another provision of the same statute that creates a presumption that any action taken by an FRS plan member five years before the member makes a complaint about that action is presumed to have been “taken at the request of the member and with the member’s full knowledge and consent.” § 121.4501(8)(g), Fla. Stat. (2018). (emphasis added). A member seeking to overcome the presumption “must present documentary evidence or an audio recording demonstrating otherwise.” § 121.4501(8)(g), Fla. Stat. (2018). Eight years passed before Moore complained to the SBA about her decision to make a second election. Thus, her decision is presumed to have been made with her full knowledge and consent. To overcome the presumption, Moore had to present documentary evidence or audio recordings showing that her decision to make a second election was made without her full knowledge and consent. 4 She did not meet that burden. * Instead, the evidence introduced at the hearing contradicted Moore’s claims. The SBA introduced a spreadsheet of notes recorded by employees of the MyFRS Financial Guidance Line summarizing multiple phone calls made by Moore between 2006 and 2010. During those calls, Moore asked about the differences between the Investment Plan and the Pension Plan and about making a second election. The SBA’s records show that in 2007, Moore was provided comparisons between the plans. She was advised that the Pension Plan would produce “far greater retirement benefits” for her than would the Investment Plan. She was also advised that after exercising her second election, she would not be able to make another election. Because Moore produced no documentary evidence to rebut the evidence produced by the SBA, she failed to overcome the statutory presumption that her decision to exercise her second election was made with her full knowledge and consent. In sum, the SBA has no authority to rescind Moore’s second election beyond the statutory grace period or to grant her a third election. And Moore did not rebut the presumption that her decision to exercise her second election was made with her full knowledge and consent. For these reasons, we affirm the SBA’s final order denying Moore’s request to rescind her second election or to make a third election. AFFIRMED. ROBERTS and BILBREY, JJ., concur. * Moore claims that the SBA never provided her with the audio recordings of the telephone calls or the transcripts of the calls. But she does not allege that she requested those records from the SBA, and the record does not suggest otherwise. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Randall Burks and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for Appellant. Ruth Ann Smith, State Board of Administration, Tallahassee, for Appellee. 6