Florida Senate - 2020                                    SB 1734
       
       
        
       By Senator Taddeo
       
       
       
       
       
       40-00453A-20                                          20201734__
    1                        A bill to be entitled                      
    2         An act relating to reemployment after retirement of
    3         instructional personnel; amending s. 121.021, F.S.;
    4         revising the definition of “termination” to conform to
    5         changes made by the act; amending s. 121.091, F.S.;
    6         authorizing former members of the Florida Retirement
    7         System to be reemployed as instructional personnel
    8         following 1 calendar month of retirement or
    9         termination of participation in the Deferred
   10         Retirement Option Program; specifying limitations and
   11         restrictions; amending s. 121.591, F.S.; conforming a
   12         cross-reference; requiring the State Board of
   13         Administration and the Department of Management
   14         Services to request a determination letter and private
   15         letter ruling from the United States Internal Revenue
   16         Service; providing for nonapplicability; providing a
   17         declaration of important state interest; providing
   18         effective dates.
   19  
   20         WHEREAS, for many years, state law authorized retirees of
   21  the Florida Retirement System to return to employment with a
   22  participating employer after 1 calendar month had passed from
   23  the retiree’s date of retirement, while suspending the
   24  reemployed retiree’s receipt of retirement benefits for the 2nd
   25  through the 12th calendar months immediately following
   26  retirement, and
   27         WHEREAS, in 2009, the Legislature enacted chapter 2009-209,
   28  Laws of Florida, which made numerous changes to the laws
   29  governing the Florida Retirement System, including increasing
   30  the time that the retirees may not be reemployed with a
   31  participating employer following retirement from 1 calendar
   32  month to 6 calendar months, and
   33         WHEREAS, the impact of this change has resulted in
   34  hardships for some retirees because they are sometimes unable to
   35  bridge the gap in maintaining an adequate income level between
   36  retiring from the Florida Retirement System and later becoming
   37  eligible for certain federal benefits, such as Medicare and
   38  Social Security, and often have to seek other employment during
   39  this interim period after retirement, and
   40         WHEREAS, this act will provide a narrow exception to the
   41  2009 law by allowing retirees to be reemployed as instructional
   42  personnel with a covered employer 1 calendar month following
   43  retirement, which will help to alleviate financial hardships
   44  that have resulted for some retirees under the present
   45  reemployment limitations, NOW, THEREFORE,
   46  
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Subsection (39) of section 121.021, Florida
   50  Statutes, is amended to read:
   51         121.021 Definitions.—The following words and phrases as
   52  used in this chapter have the respective meanings set forth
   53  unless a different meaning is plainly required by the context:
   54         (39)(a) “Termination” occurs, except as provided in
   55  paragraph (b), when a member ceases all employment relationships
   56  with participating employers, however:
   57         1. For retirements effective before July 1, 2010, if a
   58  member is employed by any such employer within the next calendar
   59  month, termination shall be deemed not to have occurred. A leave
   60  of absence constitutes a continuation of the employment
   61  relationship, except that a leave of absence without pay due to
   62  disability may constitute termination if such member makes
   63  application for and is approved for disability retirement in
   64  accordance with s. 121.091(4). The department or state board may
   65  require other evidence of termination as it deems necessary.
   66         2. For retirements effective on or after July 1, 2010, if a
   67  member is employed by any such employer within the next 6
   68  calendar months, termination shall be deemed not to have
   69  occurred except as provided under s. 121.091(9)(d)2. and (9)(g).
   70  A leave of absence constitutes a continuation of the employment
   71  relationship, except that a leave of absence without pay due to
   72  disability may constitute termination if such member makes
   73  application for and is approved for disability retirement in
   74  accordance with s. 121.091(4). The department or state board may
   75  require other evidence of termination as it deems necessary.
   76         (b) “Termination” for a member electing to participate in
   77  the Deferred Retirement Option Program occurs when the program
   78  participant ceases all employment relationships with
   79  participating employers in accordance with s. 121.091(13),
   80  however:
   81         1. For termination dates occurring before July 1, 2010, if
   82  the member is employed by any such employer within the next
   83  calendar month, termination will be deemed not to have occurred,
   84  except as provided in s. 121.091(13)(b)4.c. A leave of absence
   85  shall constitute a continuation of the employment relationship.
   86         2. For termination dates occurring on or after July 1,
   87  2010, if the member becomes employed by any such employer within
   88  the next 6 calendar months, termination will be deemed not to
   89  have occurred, except as provided in s. 121.091(9)(g) and
   90  (13)(b)4.c. s. 121.091(13)(b)4.c. A leave of absence constitutes
   91  a continuation of the employment relationship.
   92         (c) Effective July 1, 2011, “termination” for a member
   93  receiving a refund of employee contributions occurs when a
   94  member ceases all employment relationships with participating
   95  employers for 3 calendar months. A leave of absence constitutes
   96  a continuation of the employment relationship.
   97         Section 2. Paragraphs (c) and (d) of subsection (9) of
   98  section 121.091, Florida Statutes, are amended, and paragraph
   99  (g) is added to that subsection, to read:
  100         121.091 Benefits payable under the system.—Benefits may not
  101  be paid under this section unless the member has terminated
  102  employment as provided in s. 121.021(39)(a) or begun
  103  participation in the Deferred Retirement Option Program as
  104  provided in subsection (13), and a proper application has been
  105  filed in the manner prescribed by the department. The department
  106  may cancel an application for retirement benefits when the
  107  member or beneficiary fails to timely provide the information
  108  and documents required by this chapter and the department’s
  109  rules. The department shall adopt rules establishing procedures
  110  for application for retirement benefits and for the cancellation
  111  of such application when the required information or documents
  112  are not received.
  113         (9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.—
  114         (c) Any person whose retirement is effective on or after
  115  July 1, 2010, or whose participation in the Deferred Retirement
  116  Option Program terminates on or after July 1, 2010, who is
  117  retired under this chapter, except under the disability
  118  retirement provisions of subsection (4) or as provided in s.
  119  121.053, may be reemployed by an employer that participates in a
  120  state-administered retirement system and receive retirement
  121  benefits and compensation from that employer. However, a person
  122  may not be reemployed by an employer participating in the
  123  Florida Retirement System before meeting the definition of
  124  termination in s. 121.021 and may not receive both a salary from
  125  the employer and retirement benefits for 6 calendar months after
  126  meeting the definition of termination, except as provided in
  127  paragraph (f) or paragraph (g). However, a DROP participant
  128  shall continue employment and receive a salary during the period
  129  of participation in the Deferred Retirement Option Program, as
  130  provided in subsection (13).
  131         1. The reemployed retiree may not renew membership in the
  132  Florida Retirement System, except as provided in s. 121.122.
  133         2. The employer shall pay retirement contributions in an
  134  amount equal to the unfunded actuarial liability portion of the
  135  employer contribution that would be required for active members
  136  of the Florida Retirement System in addition to the
  137  contributions required by s. 121.76.
  138         3. A retiree initially reemployed in violation of this
  139  paragraph and an employer that employs or appoints such person
  140  are jointly and severally liable for reimbursement of any
  141  retirement benefits paid to the retirement trust fund from which
  142  the benefits were paid, including the Florida Retirement System
  143  Trust Fund and the Florida Retirement System Investment Plan
  144  Trust Fund, as appropriate. The employer must have a written
  145  statement from the employee that he or she is not retired from a
  146  state-administered retirement system. Retirement benefits shall
  147  remain suspended until repayment is made. Benefits suspended
  148  beyond the end of the retiree’s 6-month reemployment limitation
  149  period shall apply toward the repayment of benefits received in
  150  violation of this paragraph.
  151         (d) This subsection applies to retirees, as defined in s.
  152  121.4501(2), of the Florida Retirement System Investment Plan,
  153  subject to the following conditions:
  154         1. Except as provided in subparagraph 2., a retiree may not
  155  be reemployed with an employer participating in the Florida
  156  Retirement System until such person has been retired for 6
  157  calendar months.
  158         2. A retiree may initially be reemployed as instructional
  159  personnel with an employer participating in the Florida
  160  Retirement System, as authorized pursuant to paragraph (g), on a
  161  probationary contractual basis in accordance with ss. 1012.33(8)
  162  and 1012.335(2) after he or she has been retired for 1 calendar
  163  month.
  164         3. A retiree employed in violation of this subsection and
  165  an employer that employs or appoints such person are jointly and
  166  severally liable for reimbursement of any benefits paid to the
  167  retirement trust fund from which the benefits were paid. The
  168  employer must have a written statement from the retiree that he
  169  or she is not retired from a state-administered retirement
  170  system.
  171         (g) A former member of the Florida Retirement System may
  172  initially be reemployed as instructional personnel, as defined
  173  in s. 1012.01(2), on a probationary contractual basis in
  174  accordance with ss. 1012.33(8) and 1012.335(2) by an employer
  175  that participates in the Florida Retirement System after he or
  176  she has been retired, or terminated from Deferred Retirement
  177  Option Program participation, for 1 calendar month. Any former
  178  member who is reemployed within 1 calendar month after
  179  retirement or termination from the Deferred Retirement Option
  180  Program voids his or her application for retirement benefits.
  181  Retirement benefits for a former member who is reemployed
  182  pursuant to this paragraph shall be suspended for the second
  183  calendar month through the 12th calendar month immediately
  184  subsequent to the date of retirement or termination from the
  185  Deferred Retirement Option Program. The former member may not
  186  renew membership in the Florida Retirement System, except as
  187  provided in s. 121.122.
  188         Section 3. Paragraph (a) of subsection (1) of section
  189  121.591, Florida Statutes, is amended to read:
  190         121.591 Payment of benefits.—Benefits may not be paid under
  191  the Florida Retirement System Investment Plan unless the member
  192  has terminated employment as provided in s. 121.021(39)(a) or is
  193  deceased and a proper application has been filed as prescribed
  194  by the state board or the department. Benefits, including
  195  employee contributions, are not payable under the investment
  196  plan for employee hardships, unforeseeable emergencies, loans,
  197  medical expenses, educational expenses, purchase of a principal
  198  residence, payments necessary to prevent eviction or foreclosure
  199  on an employee’s principal residence, or any other reason except
  200  a requested distribution for retirement, a mandatory de minimis
  201  distribution authorized by the administrator, or a required
  202  minimum distribution provided pursuant to the Internal Revenue
  203  Code. The state board or department, as appropriate, may cancel
  204  an application for retirement benefits if the member or
  205  beneficiary fails to timely provide the information and
  206  documents required by this chapter and the rules of the state
  207  board and department. In accordance with their respective
  208  responsibilities, the state board and the department shall adopt
  209  rules establishing procedures for application for retirement
  210  benefits and for the cancellation of such application if the
  211  required information or documents are not received. The state
  212  board and the department, as appropriate, are authorized to cash
  213  out a de minimis account of a member who has been terminated
  214  from Florida Retirement System covered employment for a minimum
  215  of 6 calendar months. A de minimis account is an account
  216  containing employer and employee contributions and accumulated
  217  earnings of not more than $5,000 made under the provisions of
  218  this chapter. Such cash-out must be a complete lump-sum
  219  liquidation of the account balance, subject to the provisions of
  220  the Internal Revenue Code, or a lump-sum direct rollover
  221  distribution paid directly to the custodian of an eligible
  222  retirement plan, as defined by the Internal Revenue Code, on
  223  behalf of the member. Any nonvested accumulations and associated
  224  service credit, including amounts transferred to the suspense
  225  account of the Florida Retirement System Investment Plan Trust
  226  Fund authorized under s. 121.4501(6), shall be forfeited upon
  227  payment of any vested benefit to a member or beneficiary, except
  228  for de minimis distributions or minimum required distributions
  229  as provided under this section. If any financial instrument
  230  issued for the payment of retirement benefits under this section
  231  is not presented for payment within 180 days after the last day
  232  of the month in which it was originally issued, the third-party
  233  administrator or other duly authorized agent of the state board
  234  shall cancel the instrument and credit the amount of the
  235  instrument to the suspense account of the Florida Retirement
  236  System Investment Plan Trust Fund authorized under s.
  237  121.4501(6). Any amounts transferred to the suspense account are
  238  payable upon a proper application, not to include earnings
  239  thereon, as provided in this section, within 10 years after the
  240  last day of the month in which the instrument was originally
  241  issued, after which time such amounts and any earnings
  242  attributable to employer contributions shall be forfeited. Any
  243  forfeited amounts are assets of the trust fund and are not
  244  subject to chapter 717.
  245         (1) NORMAL BENEFITS.—Under the investment plan:
  246         (a) Benefits in the form of vested accumulations as
  247  described in s. 121.4501(6) are payable under this subsection in
  248  accordance with the following terms and conditions:
  249         1. Benefits are payable only to a member, an alternate
  250  payee of a qualified domestic relations order, or a beneficiary.
  251         2. Benefits shall be paid by the third-party administrator
  252  or designated approved providers in accordance with the law, the
  253  contracts, and any applicable board rule or policy.
  254         3. The member must be terminated from all employment with
  255  all Florida Retirement System employers, as provided in s.
  256  121.021(39).
  257         4. Benefit payments may not be made until the member has
  258  been terminated for 3 calendar months, except that the state
  259  board may authorize by rule for the distribution of up to 10
  260  percent of the member’s account after being terminated for 1
  261  calendar month if the member has reached the normal retirement
  262  date as defined in s. 121.021.
  263         5. If a member or former member of the Florida Retirement
  264  System receives an invalid distribution, such person must either
  265  repay the full amount within 90 days after receipt of final
  266  notification by the state board or the third-party administrator
  267  that the distribution was invalid, or, in lieu of repayment, the
  268  member must terminate employment from all participating
  269  employers. If such person fails to repay the full invalid
  270  distribution within 90 days after receipt of final notification,
  271  the person may be deemed retired from the investment plan by the
  272  state board and is subject to s. 121.122. If such person is
  273  deemed retired, any joint and several liability set out in s.
  274  121.091(9)(d)3. s. 121.091(9)(d)2. is void, and the state board,
  275  the department, or the employing agency is not liable for gains
  276  on payroll contributions that have not been deposited to the
  277  person’s account in the investment plan, pending resolution of
  278  the invalid distribution. The member or former member who has
  279  been deemed retired or who has been determined by the state
  280  board to have taken an invalid distribution may appeal the
  281  agency decision through the complaint process as provided under
  282  s. 121.4501(9)(g)3. As used in this subparagraph, the term
  283  “invalid distribution” means any distribution from an account in
  284  the investment plan which is taken in violation of this section,
  285  s. 121.091(9), or s. 121.4501.
  286         Section 4. (1) Effective upon this act becoming a law, the
  287  State Board of Administration and the Department of Management
  288  Services shall request, as soon as practicable, a determination
  289  letter and private letter ruling from the United States Internal
  290  Revenue Service. If the United States Internal Revenue Service
  291  refuses to act upon a request for a private letter ruling, then
  292  a legal opinion from a qualified tax attorney or firm may be
  293  substituted for the private letter ruling.
  294         (2) If the state board or the department receives
  295  notification from the United States Internal Revenue Service
  296  that this act or any portion of this act will cause the Florida
  297  Retirement System, or a portion thereof, to be disqualified for
  298  tax purposes under the Internal Revenue Code, then the portion
  299  that will cause the disqualification does not apply. Upon
  300  receipt of such notice, the state board and the department shall
  301  notify the presiding officers of the Legislature.
  302         Section 5. The Legislature finds that a proper and
  303  legitimate state purpose is served when employees and retirees
  304  of the state and its political subdivisions, as well as the
  305  dependents, survivors, and beneficiaries of such employees and
  306  retirees, are extended the basic protections afforded by
  307  governmental retirement systems that provide fair and adequate
  308  benefits and that are managed, administered, and funded in an
  309  actuarially sound manner as required by s. 14, Article X of the
  310  State Constitution and part VII of chapter 112, Florida
  311  Statutes. Therefore, the Legislature determines and declares
  312  that this act fulfills an important state interest.
  313         Section 6. Except as otherwise expressly provided in this
  314  act and except for this section, which shall take effect upon
  315  this act becoming a law, this act shall take effect January 1,
  316  2021.