The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Governmental Oversight and Accountability
BILL: SB 1156
INTRODUCER: Senator Burton
SUBJECT: Florida Retirement System
DATE: March 21, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McVaney McVaney GO Pre-meeting
2. CA
3. RC
I. Summary:
SB 1156 allows a retiree to provide certain volunteer services to a Florida Retirement System
employer while maintaining his or her bona fide termination status, which is required for the
payment of retirement benefits to the retiree.
Under the bill, the Department of Management Services is granted rulemaking authority to
establish criteria for determining volunteer services.
The bill is not expected to impact state and local government revenues and expenditures. See V.
Fiscal Impact Statement below.
The bill takes effect on July 1, 2023.
II. Present Situation:
The Florida Retirement System (FRS)
The Florida Retirement System (FRS) was established in 1970 when the Legislature consolidated
the Teachers’ Retirement System, the State and County Officers and Employees’ Retirement
System, and the Highway Patrol Pension Fund. In 1972, the Judicial Retirement System was
consolidated into the FRS, and in 2007, the Institute of Food and Agricultural Sciences
Supplemental Retirement Program was consolidated under the Regular Class of the FRS as a
REVISED: BILL: SB 1156 Page 2
closed group.
1
The FRS is a contributory system, with active members contributing 3 percent of
their salaries.
2
The FRS is a multi-employer plan, governed by ch. 121, F.S., the “Florida Retirement System
Act.” As of June 30, 2022, the FRS had 629,073 active non-retired members, 448,846 annuitants,
14,858 disabled retirees, and 28,827 active participants of the Deferred Retirement Option
Program (DROP).
3
As of September 2022, the FRS consisted of 990 total employers; it is the
primary retirement plan for employees of state and county government agencies, district school
boards, Florida College institutions, and state universities, and includes the 180 cities and 153
special districts that have elected to join the system.
4
The membership of the FRS is divided into five membership classes:
The Regular Class
5
consists of 537,128 active members and 7,806 in renewed membership;
The Special Risk Class
6
includes 72,925 active members and 1,100 in renewed membership;
The Special Risk Administrative Support Class
7
has 104 active members and one in renewed
membership;
The Elected Officers’ Class
8
has 2,075 active members and 109 in renewed membership; and
The Senior Management Service Class
9
has 7,610 active members and 210 in renewed
membership.
10
Each class is funded separately based upon the costs attributable to the members of that class.
Members of the FRS have two primary plan options available for participation:
11
1
Florida Department of Management Services (DMS), Division of Retirement, Florida Retirement System Pension Plan and
Other State Administered Retirement Systems FY 2021-22 Annual Comprehensive Financial Report, 35, available at
https://employer.frs.fl.gov/forms/2020-21_ACFR.pdf. (last visited Mar. 7, 2023).
2
Prior to 1975, members of the FRS were required to make employee contributions of either 4 percent for Regular Class
employees or 6 percent for Special Risk Class members. Employees were again required to contribute to the system after
July 1, 2011. See, ch. 2011-68, s. 33, Laws of Fla. Members in the Deferred Retirement Option Program do not contribute to
the system.
3
DMS, Division of Retirement, Florida Retirement System Pension Plan and Other State Administered Retirement Systems
FY 2021-22 Annual Comprehensive Financial Report, at 260, available at https://employer.frs.fl.gov/forms/2020-
21_ACFR.pdf. (last visited Mar. 7, 2023).
4
DMS, Division of Retirement, Participating Employers for Fiscal Year 2022-2023 (Sept. 2022), available at
https://employer.frs.fl.gov/forms/part-emp.pdf (last visited Mar. 7, 2023).
5
The Regular Class is for all members who are not assigned to another class. Section 121.021(12), F.S.
6
The Special Risk Class is for members employed as law enforcement officers, firefighters, correctional officers, probation
officers, paramedics and emergency technicians, among others. Section 121.0515, F.S.
7
The Special Risk Administrative Support Class is for a special risk member who moved or was reassigned to a nonspecial
risk law enforcement, firefighting, correctional, or emergency medical care administrative support position with the same
agency, or who is subsequently employed in such a position under the Florida Retirement System. Section 121.0515(8), F.S.
8
The Elected Officers’ Class includes elected state and county officers, and those elected municipal or special district
officers whose governing body has chosen Elected Officers’ Class participation for its elected officers. Section 121.052, F.S.
9
The Senior Management Service Class is for members who fill senior management level positions assigned by law to the
Senior Management Service Class or authorized by law as eligible for Senior Management Service designation. Section
121.055, F.S.
10
All figures are from Florida Retirement System Pension Plan and Other State Administered Retirement Systems FY 2021-
22 Annual Comprehensive Financial Report, at 263.
11
Florida State Board of Administration (SBA), Plan Comparison Chart (Jul. 2020), available at
https://www.myfrs.com/pdf/forms/plancomparison.pdf (last visited Mar. 7, 2023). BILL: SB 1156 Page 3
The defined contribution plan, also known as the Investment Plan; and
The defined benefit plan, also known as the Pension Plan.
Investment Plan
In 2000, the Public Employee Optional Retirement Program (investment plan) was created as a
defined contribution plan offered to eligible employees as an alternative to the FRS Pension
Plan.
12
Benefits under the investment plan accrue in individual member accounts funded by both
employee and employer contributions and earnings. Benefits are provided through employee-
directed investments offered by approved investment providers.
13
A member vests immediately in all employee contributions paid to the investment plan.
14
With
respect to the employer contributions, a member vests after completing one work year of
employment with an FRS employer.
15
Vested benefits are payable upon termination or death as a
lump-sum distribution, direct rollover distribution, or periodic distribution.
16
The investment
plan also provides disability coverage for both in-line-of-duty and regular disability retirement
benefits.
17
An FRS member who qualifies for disability while enrolled in the investment plan
may apply for benefits as if the employee were a member of the pension plan. If approved for
retirement disability benefits, the member is transferred to the pension plan.
18
The State Board of Administration (SBA) is primarily responsible for administering the
investment plan.
19
The Board of Trustees of the SBA is comprised of the Governor as chair, the
Chief Financial Officer, and the Attorney General.
20
12
See, ch. 2000-169, Laws of Fla.
13
Section 121.4501(1), F.S.
14
Section 121.4501(6)(a), F.S.
15
If a member terminates employment before vesting in the investment plan, the nonvested money is transferred from the
member’s account to the SBA for deposit and investment by the SBA in its suspense account for up to five years. If the
member is not reemployed as an eligible employee within five years, any nonvested accumulations transferred from a
member’s account to the SBA’s suspense account are forfeited. Section 121.4501(6)(b)-(d), F.S.
16
Section 121.591, F.S.
17
See s. 121.4501(16), F.S.
18
Pension plan disability retirement benefits, which apply for investment plan members who qualify for disability,
compensate a line-of-duty disabled member up to 65 percent of the average monthly compensation as of the disability
retirement date for special risk class members. Other members may receive up to 42 percent of the member’s average
monthly compensation for disability retirement benefits. If the disability occurs other than in the line-of-duty, the monthly
benefit may not be less than 25 percent of the average monthly compensation as of the disability retirement date.
Section 121.091(4)(f), F.S.
19
Section 121.4501(8), F.S.
20
FLA. CONST. art. IV, s. 4. BILL: SB 1156 Page 4
Pension Plan
The pension plan is administered by the Secretary of Management Services (DMS) through the
Division of Retirement.
21
The State Board of Administration manages the pension fund’s
assets.
22
Any member initially enrolled in the pension plan before July 1, 2011, vests in the pension plan
after completing six years of service with an FRS employer.
23
For members initially enrolled on
or after July 1, 2011, the member vests in the pension plan after eight years of creditable
service.
24
Benefits payable under the pension plan are calculated based on the member’s years of
creditable service multiplied by the service accrual rate multiplied by the member’s average final
compensation.
25
For most current members of the pension plan, normal retirement (when first
eligible for unreduced benefits) occurs at the earliest attainment of 30 years of service or age
62.
26
For public safety employees in the Special Risk and Special Risk Administrative Support
Classes, normal retirement is the earliest of 25 years of service or age 55.
27
Members initially
enrolled in the pension plan on or after July 1, 2011, have longer service requirements. For
members initially enrolled after that date, the member must complete 33 years of service or attain
age 65, and members in the Special Risk classes must complete 30 years of service or attain age
60.
28
Optional Retirement Programs
Eligible employees may choose to participate in one of three retirement programs instead of
participating in the FRS:
Members of the Senior Management Service Class may elect to enroll in the Senior
Management Service Optional Annuity Program;
29
Members in specified positions in the State University System may elect to enroll in the State
University System Optional Retirement Program;
30
and
21
Section 121.025, F.S.
22
Florida SBA, Summary Overview of the State Board of Administration of Florida, 4, available at
https://www.sbafla.com/fsb/Portals/FSB/Content/Topics/SBAOverview_20211025.pdf?ver=2021-10-28-120954-217 (last
visited Mar. 7, 2023).
23
Section 121.021(45)(a), F.S.
24
Section 121.021(45)(b), F.S.
25
Section 121.091, F.S. See also, Florida Retirement System Pension Plan and Other State Administered Retirement Systems
FY 2021-22 Annual Comprehensive Financial Report, 35-37, supra at 1.
26
Section 121.021(29)(a)1., F.S.
27
Section 121.021(29)(b)1., F.S.
28
Sections 121.021(29)(a)2. and (b)2., F.S.
29
The Senior Management Service Optional Annuity Program (SMSOAP) was established in 1986 for members of the
Senior Management Service Class. Employees in eligible positions may irrevocably elect to participate in the SMSOAP
rather than the FRS. Effective July 1, 2017, the SMSOAP is closed to new members. Section 121.055(6), F.S. See also,
Florida DMS, Senior Management Service Optional Annuity Program,
https://www.dms.myflorida.com/workforce_operations/retirement/optional_retirement_programs/senior_management_servic
e_optional_annuity_program (last visited Mar. 7, 2023).
30
Eligible participants of the State University System Optional Retirement Program (SUSORP) are automatically enrolled in
the SUSORP. However, the member must execute a contract with a SUSORP provider within the first 90 days of
employment or the employee will default into the pension plan. If the employee decides to remain in the SUSORP, the
decision is irrevocable and the member must remain in the SUSORP as long as the member remains in a SUSORP-eligible
position. Section 121.35, F.S. BILL: SB 1156 Page 5
Members in specified positions at a Florida College institution may elect to enroll in the State
Community College System Optional Retirement Program.
31
Maintaining Status as a Qualified Plan
The FRS includes a governmental defined benefit plan under Internal Revenue Code section
414(d) and is qualified under Internal Revenue Code section 401(a). This means that the
contributions to the FRS qualify for tax deductions, and that investment earnings are tax-deferred
until they are distributed to retirees.
“In order for a pension plan to be a qualified plan under section 401(a), the plan must be
established and maintained by an employer primarily to provide systematically for the payment
of definitely determinable benefits to its employees over a period of years, usually for life, after
retirement (emphasis added) or attainment of normal retirement age . . ..”
32
A termination of employment must be bona fide (i.e., not a mere subterfuge in order to initiate an
otherwise impermissible distribution where no substantial change in employment has
occurred).
33
“Retirement does not include a mere reduction in the number of hours that an
employee works. Accordingly, benefits may not be distributed prior to normal retirement age
solely due to a reduction in the number of hours that an employee works.”
34
Current law relating to the FRS requires an employee to terminate his or her employment in
order to commence a retirement benefit, either before or after normal retirement age. The
determination of whether a bona fide termination from employment has occurred is critical for
both the tax qualification of the FRS and Florida statutory compliance purposes.
35
To address the requirement of bona fide termination, the FRS states “termination” occurs “when
a member ceases all employment relationships with participating employers.”
36
This includes a
relationship with an FRS-participating employer as an officer, employee, or volunteer. If the
retiree is reemployed by an FRS-participating employer within the first 6 calendar months after
the month of retirement, termination is deemed not to have occurred, and the retiree must return
all retirement distributions, including DROP accumulations.
37
Generally, if the retiree is
employed by an FRS-participating employer during the 7th through 12th calendar months after
the month of retirement, the retiree’s benefit for those months is suspended and is forfeited.
38
There are no restrictions on receiving salary and retirement benefits from FRS-participating
employers after the 12
th
calendar month from retirement.
31
If the member is eligible for participation in a State Community College System Optional Retirement Program, the member
must elect to participate in the program within 90 days of employment. Unlike the other optional programs, an employee who
elects to participate in this optional retirement program has one opportunity to transfer to the FRS. Section 1012.875, F.S.
32
Treas. Reg. section 1.401(a)-1(b)(1)(i).
33
Private Letter Ruling 201147038 (Apr. 20, 2010).
34
Treas. Reg. section 1.401(a)-1(b)(3).
35
Memorandum to David DiSalvo, Director, Division of Retirement, Re: Bona Fide Terminations from Employment and
Bona Fide Volunteer Services (dated January 8, 2021).
36
Section 121.021(39), F.S.
37
Section 121.091(9), F.S.
38
Section 121.091(9)(c), F.S. BILL: SB 1156 Page 6
III. Effect of Proposed Changes:
Section 1 amends s. 121.021, F.S., to state that “termination” with an FRS employer occurs
when the member ceases all employment relationships with, and ceases providing services to, all
FRS employers. The term is further described so that “volunteer services” do not constitute
employment by, or provision of services to, an employer.
Section 1 defines “volunteer services” to mean services provided in accordance with any rules
adopted under s. 121.091(15), F.S. (a new subsection created in section 2 of this bill).
Section 2 amends s. 121.091, F.S., to grant the Division of Retirement rule-making authority to
establish criteria for volunteer services that retirees may provide to an employer while still being
deemed to have a bona fide termination. Employers are permitted to establish volunteer
programs in accordance with the division’s rules.
Section 3 provides that the bill takes effect on July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The mandate restrictions do not apply because the bill does not require
counties and municipalities to spend funds, reduce counties’ or municipalities’ ability to
raise revenue, or reduce the percentage of state tax shared with counties and
municipalities.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Lines 127 through 131 grant rulemaking authority to the DMS to establish criteria for
volunteer services that retirees may provide to an employer and still maintain a bona fide
termination. The statutory language gives no guidance to the DMS in establishing the
criteria. Thus, the grant of rulemaking authority may be an unlawful delegation of
legislative authority.
BILL: SB 1156 Page 7
The Legislature may not delegate its constitutional duties to another branch of
government.
39
While the Legislature must make fundamental policy decisions, it may
delegate the task of implementing that policy to executive agencies with “some minimal
standards and guidelines ascertainable by reference to the enactment establishing the
program.”
40
Moreover, the Legislature can permit “administration of legislative policy by
an agency with the expertise and flexibility to deal with complex and fluid conditions.”
41
Florida courts have found an unlawful delegation of legislative authority in the following
instances:
Where the Legislature allowed the Department of State to “in its discretion allow
such a candidate to withdraw…”;
42
and
Where the Legislature created a criminal penalty for escape from certain
classifications of juvenile detention facilities, but delegated the classification (or
determination whether to classify at all) to an agency.
43
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill is not expected to impact state and local government revenues and expenditures.
However, if the DMS adopts rules relating to volunteer services that are not consistent
with the FRS being a qualified plan under the Internal Revenue Code, employer and
employee contributions paid into the FRS Trust Fund will be taxable at the time of the
contribution, and investment earnings will no longer be tax-deferred.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
39
See FLA. CONST. art. II, s. 3.
40
Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla. 1978).
41
Microtel, Inc. v. Fla. Public Serv. Comm’n., 464 So.2d 1189, 1191 (Fla. 1991).
42
Fla. Dep’t. of State, Div. of Elections v. Martin, 916 So.2d 763 (Fla. 2005).
43
D.P. v. State, 597 So.2d 952 (Fla. 1
st
DCA, 1992)(disapproved on other grounds). BILL: SB 1156 Page 8
VIII. Statutes Affected:
This bill substantially amends sections 121.021 and 121.091 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.