STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD CONRAD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1752

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Respondent having rejected petitioner's contention that he is now a member of the Florida Retirement System, petitioner requested an administrative hearing. The respondent elected to request the assignment of a Division of Administrative Hearings' hearing officer, pursuant to F.S. Section 120.57(1)(b)(3), and the undersigned Hearing Officer was duly designated to conduct the proceedings.

APPEARANCES

For Petitioner: William A. Cooper, Jr.

Davenport, Johnston, Harris, Gerde and Harrison

406 Magnolia Avenue

Panama City, Florida 32401

For Respondent: Stephen S. Mathues

Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

INTRODUCTION

The issue in this proceeding is whether the provisions of F.S. Section 121.051(1) mandate petitioner's entry into the Florida Retirement System as of January 4, 1977, the date upon which petitioner took office as property appraiser of Hay County, Florida. The parties stipulated that there were no material factual disputes, entered into a joint stipulation of facts and agreed to submit the case to the Hearing Officer by way of memoranda on the legal issues in dispute.

FINDINGS OF FACT

Upon consideration of the joint stipulation of facts submitted by the parties, the following relevant facts are found:

1. The petitioner was elected to the office of tax assessor, Bay County, for successive regular terms in 1952, 1956, 1960, 1964, 1968, and 1972. He was commissioned for that office on January 6, 1953, January 8, 1957, January 3, 1961, January 5, 1965, January 7, 1969, and January 2, 1973.

   
   

2. As tax assessor, petitioner was a member of the retirement system now known as the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes.

   
   

3. By two written ballots, petitioner rejected membership in the Florida Retirement System, Chapter 121, Florida Statutes, to be effective December 1, 1970, and January 1, 1975.

   
   

4. The constitutional office of tax assessor was abolished and the constitutional office of property appraiser was created in its stead by amendment to Article 8, Section (1)(d) in 1974.

   
   

5. The petitioner was elected to the office of property appraiser in 1976, and commissioned on January 4, 1977.

   
   

6. The petitioner's duties as property appraiser were and are the same as they were when he was the tax assessor.

   
   

7. Petitioner has been in office continually since January 6, 1953, either as tax assessor or property appraiser. He has not terminated his employment and received a refund of contributions; has not had a non-creditable leave of absence; nor was he off the payroll for at least one calendar month.

   
   

   CONCLUSIONS OF LAW

   
   

8. As noted above, the issue in this cause is whether petitioner Conrad's membership in the Florida Retirement System (FRS) was made compulsory as of the time that he became Bay County's property appraiser on January 4, 1977. Urging that he became a mandatory member of the FRS on that date, petitioner relies upon the provisions of F.S. Section 121.051(1) and Rule 22B-1.04(1)(a) of the Florida Administrative Code. Respondent opposes this position and cites F.S. Sections 121.051(2)(a) and 112.0515 as grounds therefore.

   
   

9. Section 121.051(1) provides, in pertinent part, that all state officers and employees employed on or after December 1, 1970, shall become compulsory members of the FRS. Rule 22B- 1.04(1)(a), F.A.C., reiterates this requirement and elaborates that membership in the FRS is compulsory for all state officers who are elected, appointed, reemployed, or hired on or after A December 1, 1970, with certain exceptions not applicable to the facts of this case. Petitioner contends that since he terminated his employment with the state as tax assessor on January 3, 1977, and commenced new employment with the state as property appraiser a separate and distinct office on January 4, 1977, he was reemployed and therefore his membership in the FRS became mandatory.

   
   

10. Petitioner's position in this regard would have merit were other statutory provisions and regulations not read in connection with the provisions relied upon by petitioner. When interpreting the statutory provisions relating to participation in the FRS, one must also look to F.S. Section 121.051(2)(a)1 and 4. These sections pertain to the optional participation in the FRS by state officers or employees who were members of an existing retirement system by making an election to become a member of the FRS between the dates of April 15, 1971, and June 1, 1971, and again between September 1, 1974, and November 30,

    1974. Both optional participation provisions clearly state that those officers and employees who do not elect to become members of the FRS shall continue to be covered under the existing system. The rules and regulations adopted for the administration of Chapter 121 further delineate this intent regarding optional participation in the FRS for members of existing retirement systems. F.A.C. Rules 22B-1.03, 22B-1.04(1)(c) and 22B-1.04(3)(a). Also see F.S. Section 112.0515 which declares it to be state policy to protect the retirement and pension rights of all state employees in the event of consolidation, merger or transfer of functions or services.

    
    

11. A reading in pari materia of the statutory and regulatory provisions pertaining to state retirement systems makes it abundantly clear that only those employees who are employed after December 1, 1970, are compulsory members of the FRS. All employees employed prior to that date and members of existing retirement systems become members of the FRS only by exercising the options provided by law.

    
    

12. As the stipulated facts illustrate, prior to December 12, 1970, petitioner was a member of the State and County Officers and Employees Retirement System, an "existing system" recognized by F.S. Chapter 121. By written ballots, petitioner twice rejected membership in the FRS, thus declining the optional participation in that system afforded by F.S. Section 121.051(2)(a) and (2)(a)4. As provided by Section 121.051(2)(a)4, the decision to transfer or not to transfer to the FRS became irrevocable on November 30, 1974.

    
    

13. Petitioner has been elected to six successive regular terms as tax assessor from 1952 through 1972. In 1974, the constitutional office of tax assessor was abolished and the office of property appraiser was created in its stead. Florida Constitution, Art. VIII, Section (1)(d). In 1976, petitioner was elected to the office of property appraiser, and he was commissioned on January 4, 1977. The parties have stipulated that petitioner's duties as property appraiser were and are the same as they were when he was tax assessor. As such, it cannot be said that petitioner was newly employed, elected or reemployed on or after December 1, 1970, when he was elected to the office of property appraiser in 1976, while there may be some fundamental differences between the offices of the prior tax assessor and the present property appraiser, the same would appear to be protected by F.S. Section 112.0515, which provides that a transfer of functions or services shall not diminish or impair an employee's rights in existing retirement systems.

    
    

14. In conclusion, it is found that petitioner did not become a compulsory member of the FRS by his election to the office of property appraiser effective January 4, 1977.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's demand for admittance into the Florida Retirement System as of January 4, 1977, be denied.

DONE and ENTERED this 20th of December, 1977, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William A. Cooper, Jr., Esquire Davenport, Johnston, Harris, Gerde and Harrison

406 Magnolia Avenue

Robert L. Kennedy, Jr. Panama City, Florida 32401 State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303

Stephen S. Mathues, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207-C, Box 81 Tallahassee, Florida 32303

Docket for Case No: 77-001752

Orders for Case No: 77-001752