Same-sex benefits for state workers unresolved

A gay Tallahassee couple who successfully sued the state of Florida over their benefits was told by the Department of Management Services they can't change their pension plan.

However, DMS officials said Tuesday afternoon the department is working on a plan to resolve the issue.

"The Department of Management Services is developing a plan to contact all (Florida Retirement System) recipients and provide them necessary information on how to receive spousal benefits in light of the court's recent decision," said Kendra Parson, communications director for the department.

Jim Brenner and Chuck Jones, both longtime state employees, filed their lawsuit last year in federal court seeking to have their 2009 Canadian marriage recognized by the state, which they hoped would allow them to get the same state benefits offered to straight couples. The lawsuit prompted a ruling in December by U.S. District Judge Robert Hinkle that the state's six-year ban on gay marriage was unconstitutional.

One of the reasons Brenner and Jones went to court was because the state had denied a request by Brenner to name Jones as his spouse when he entered the Deferred Retirement Option Program in 2011. Brenner wanted to choose an option open to spouses that would have given retirement benefits to Jones for the rest of his life if he preceded him in death. Instead, because the gay-marriage ban was in place, he was forced to choose an option that would give Jones benefits for no more than 10 years.

On Friday, Brenner was told by a DMS official that despite Hinkle's ruling, he would not be able to pick the option he wanted in the first place. He said he was told by DMS that under Florida law, he could only make changes to the plan within the first month of entering DROP, a time that has long since passed. Brenner said a personnel official at the Department of Agriculture and Consumer Services tried to intervene on his behalf but also was told no by DMS.

"I feel like I'm being made to beg for what I'm entitled to," said Brenner, fire-management administrator for the Florida Forest Service. "It was one of the original reasons for us filing the lawsuit. And now we're being told we're not entitled. It's our perception that the judge told us we are."

Betsy White, a Jacksonville attorney who was part of Brenner and Jones' legal team, said the state can't deny them the benefits of their choosing now because of a previous decision by DMS that grew out of a marriage ban that's been found unconstitutional.

"I think it would be dishonest for the state to take the position that these men are foreclosed from the benefits of their litigation because of a decision they were forced to make by the state because the state refused to recognize same-sex marriage," White said. "It's nonsensical in my opinion. The state is going to have to make some concessions for same-sex partners."

White added that "there will be litigation" if the state persists in its position.

After gay couples across Florida began marrying last month, DMS issued memos saying Florida Retirement System members with legally recognized marriages could begin using existing forms and processes to name their spouses as beneficiaries for their retirement benefits.

The U.S. Supreme Court is expected to rule on gay marriage sometime this spring, and White, among others, expects a ruling finding a constitutional right for same-sex couples to marry.

An appeal of Hinkle's decision by Attorney General Pam Bondi is still pending before the 11th U.S. Circuit Court of Appeals, which has signaled it won't rule until after the Supreme Court does. Once that happens, White said she expects the case to come back before Judge Hinkle as part of post-litigation matters.