STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED W. TURNER, )

)

Petitioner, )

)

vs. ) CASE NO. 78-974

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 17, 1978, in Tallahassee, Florida.*

APPEARANCES

For Petitioner: J. Robert McClure, Jr., Esquire

McClure, Wigginton, Owen & Maynard

502 East Jefferson Street Tallahassee, Florida 32302

For Respondent: L. Keith Pafford, Esquire

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 C - Box 81

Tallahassee, Florida 32303

The issue posed for the recommendation herein is whether or not the Division of Retirement, Respondent, properly denied Petitioner Fred W. Turner's request to purchase retirement credit during a period of approximately eight months during the years 1945 through 1946.

FINDINGS OF FACT

1. Fred W. Turner, Petitioner, was employed as an instructor and principal by the Holmes District School Board, Ponce de Leon High School, on September 23, 1940. By virtue of this employment, he became a member of the Teachers' Retirement System (TRS), Chapter 238, Florida Statutes. Petitioner was inducted into the Armed Services during 1942, leaving his duties as principal while on military leave from 1942 through October, 1945.

   
   

2. On September 28, 1942, Petitioner withdrew from teaching and certified to his employer:

   
   

   "I am not now teaching and do not intend to teach again in the public schools of Florida."

3. Additionally, Petitioner certified that:

   
   

   "I am not now employed and do not expect to teach again in the public schools of Florida."

   
   

4. Finally, Petitioner acknowledged that:

   
   

   "I do hereby waive for myself, my heirs, and my assigns all my right, title and interest in the said Annuity Savings Fund and in any and all funds under the care and control of the Board of Trustees of the Teachers' Retirement System of Florida."

   
   

   (See Attachment 4 to Petitioner's Brief which is contained in Petitioner's Exhibit No. 1.)

   
   

5. Petitioner received an Honorable Discharge on October 14, 1945, from the Separation Center at McPherson, Georgia.

   
   

6. After his discharge from military service in October, 1945, Petitioner reapplied for his position with the Holmes District School Board and was advised at that time by the Superintendent that he would not be rehired until the beginning of the following school year in 1946. This advice was given Petitioner based on the fact that the School Board had let a contract for the principalship by the Superintendent to another employee. Based thereon, the Petitioner enrolled as a graduate student at the University of Florida.

   
   

7. During the school year of 1946, Petitioner returned as principal of Ponce de Leon High School in Holmes County, Florida. Petitioner was subsequently allowed to purchase retirement credit for his military service, pursuant to Section 238.05(3)(b), Florida Statutes (1947 Supplement). He now claims the right to purchase "leave-of-absence" credit for the portion of 1946 when he was enrolled at the University of Florida.

   
   

8. The Petitioner, in support of his position, argues that when he was not reinstated following his separation from the military services in 1945, he accepted the Superintendent's offer of the position and advised him (Superintendent) that he was going on involuntary leave. He states that during the time when this "leave" was granted, it was then customary to accept Chairperson's word as his bond. He testified that during this period of time, it was uncommon for employees to question those in positions of authority. He also argues that he was discriminated against because other employees in similar situations had been granted after-the-fact "leave" and that this was not uncommon and accepted by Respondent under TRS.

   
   

9. During the hearing, Respondent acknowledged that after-the-fact leave- of-absence notices are occasionally accepted by Respondent but only in cases where: (1) the member obtained prior approval by his School Board for a leave of absence and this fact could be documented by reference to the official Board Minutes; and (2) the member did not withdraw from the Retirement System by obtaining a refund of his contributions. Inasmuch as the Petitioner satisfied neither of these criteria, his request to purchase retirement credits for .85 percent of a year, i.e., the period between his military discharge in October of 1945 until he was restored to his pre-military service position as school principal in September of 1946, was denied.

10. It was noted that the 1943 amendment to Section 238.05(3)(a), Florida Statutes, allowed for the purchase of the retirement credit for military service even though such persons, such as Petitioner, had not opted to participate in the Retirement System during such military service. There was no amendment or changes which authorized the purchase of leave-of-absence credit. In view thereof, and in the absence of any other competent and substantial evidence tending to show that the Respondent was authorized to or had permitted such purchase of retirement credit for regular leave of absences in the past, I shall recommend that the action of Respondent in denying the Petitioner an opportunity to purchase retirement credit for the period in question was supported by competent and substantial evidence.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. (Section 120.57(1), Florida Statutes.)

    
    

12. The parties were duly noticed pursuant to the provisions of notice of Chapter 120, Florida Statutes.

    
    

13. The authority of the Respondent is derived from Chapter 238, Florida Statutes.

    
    

14. Competent and substantial evidence was offered to sustain the action of the Respondent in denying Petitioner the opportunity to purchase retirement credit of .85 percent of a year between his military discharge in October of 1945 until he was restored to his pre-military service position as school principal approximately September of 1946, in Holmes County, Florida.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the agency action as outlined herein next above, be SUSTAINED.

RECOMMENDED this 5th day of December, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

J. Robert McClure, Jr., Esquire McClure, Wigginton, Owen & Maynard

502 East Jefferson Street Tallahassee, Florida 32302

Keith L. Pafford, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303

Robert L. Kennedy, Jr. Director

Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF RETIREMENT

FRED W. TURNER,

Petitioner,

vs. CASE NO. 78-974

DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 17, 1978, in Tallahassee, Florida.

APPEARANCES

For Petitioner: J. Robert McClure, Jr., Esquire

McClure, Wigginton, Owen & Maynard

502 East Jefferson Street Tallahassee, Florida 32302

For Respondent: L. Keith Pafford, Esquire

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 C - Box 81

Tallahassee, Florida 32303

The issue posed herein is whether or not the Division of Retirement, Respondent, properly denied Petitioner Fred W. Turner's request to purchase retirement credit during a period of approximately eight months during the years 1945 through 1946. Following the above mentioned hearing, the hearing officer issued a recommendation that the action of Respondent in denying Petitioner's request be sustained. The State Retirement Director has carefully studied the record in this case, the hearing officer's recommendation and Petitioner's written exceptions thereto.

FINDINGS OF FACT

Fred W. Turner, Petitioner, was employed as an instructor and principal by the Holmes District School Board, Ponce de Leon High School, on September 23, 1940. By virtue of this employment, he became a member of the Teachers' Retirement System (TRS) Chapter 238, Florida Statutes. Petitioner entered the armed services in 1942, leaving his duties as principal from 1942 through October, 1945.

On September 28, 1942, Petitioner withdrew from teaching and certified to his employer:

"I am not now teaching and do not intend to teach again in the public schools of Florida."

Additionally, Petitioner certified that:

"I am not now employed and do not expect to teach again in the public schools of Florida."

Finally, Petitioner acknowledged that:

"I do hereby waive for myself, my heirs, and my assigns all my right, title and interest in the said Annuity Savings and in any and all funds under the care and control of the Board of Trustees of the Teachers' Retirement System of Florida."

When Petitioner entered the military, Section 238.05(3), Florida Statutes (1941), made no distinction between the criteria for purchasing retirement credit for leave of absence or military service. Credit for either form of leave could be purchased:

" . . . only if said person elects to, and does continue to make contributions to the retirement system . . ."

As noted above, Petitioner withdrew from teaching and the retirement system in 1942. He made no effort to obtain School Board approval for military leave, nor did he continue making contributions to the retirement system.

After his discharge from military service in October, 1945, Petitioner reapplied for his position with the Holmes District School Board and was advised at that time by the Superintendent that he would not be rehired until the beginning of the following school year in 1946. This advice was given Petitioner based on the fact that the School Board had let a contract for the principalship to another employee. Based thereon, Petitioner enrolled as a graduate student at the University of Florida.

During the 1946 school year, Petitioner returned as principal of Ponce de Leon High School and rejoined the retirement system. By this time, the provisions relating to the purchase of military service credit had been changed. While there was no corresponding alteration of the requirements for purchasing credit for regular leave of absence, the provisions relating to the purchase of credit for military service were amended by Section 238.05(3)(b)(1947 Supplement) to read:

"A person who enters or who has entered the armed services of the nation may either continue his membership according to the plan outlined under (3)(a) above or, in lieu thereof, may file with the board of trustees following the close of the war an application that his membership be continued and that membership service be allowed for his period of service in the armed forces of the nation." (Emphasis supplied)

Because of this amendment, Petitioner was subsequently allowed to purchase credit for the period of time he served in the armed forces.

Petitioner now claims the right to purchase regular leave-of-absence credit for the portion of 1946 when he was enrolled at the University of Florida. He argues that when he was not reinstated following his separation from the military services in 1945, he accepted the Superintendent's offer of the position for the following school year and advised him (Superintendent) that he was going on involuntary leave. He states that during the time when this "leave" was "granted," it was customary to accept a person's word as his bond.

He testified that during this period of time, it was uncommon for employees to question those in positions of authority. He also argues that he was discriminated against because other employees in similar situations had been granted after-the-fact leave and that this was not uncommon and accepted by Respondent under TRS.

Before and during the hearing, Respondent acknowledged that after-the-fact leave of absence notices and contributions are occasionally accepted, but only in cases where: (1) the member obtained prior approval by his School Board for a leave of absence and this fact could be documented by reference to the official Board Minutes; and (2) the member did not withdraw from the Retirement System by obtaining a refund of his contributions. Inasmuch as the Petitioner satisfied neither of these criteria, his request to purchase retirement credit for .85 percent of a year, i.e., the period between his military discharge in October of 1945, until he was reemployed as school principal in September of 1946, was denied.

CONCLUSIONS OF LAW

1. Petitioner entered the military service, terminated his teaching services, and withdrew from the Teachers' Retirement System in 1942. At the time this was done, retirement credit could be purchased for military service or for leave of absence only if an individual obtained prior approval of his school board and continued making retirement contributions. Section 238.05(3) Florida Statutes (1941).

   
   

2. The law was subsequently amended to allow persons who entered the military to opt to purchase credit for their "period of service in the armed forces" by filing an application for such "following the close of the war." This amendment did not apply to the purchase of credit for regular leave of absence. Section 238.05(3)(b), Florida Statutes (1947 Supplement)

   
   

3. Respondent has allowed the purchase of retirement credit for regular leave of absence in cases where after-the-fact notice and contributions are submitted if, and only if: (1) the member obtained prior approval for the leave by the School Board and this fact can be documented by the official School Board Minutes; and (2) the member did not withdraw from the retirement system by obtaining a refund of his contributions. Petitioner satisfied neither condition.

ORDER

Based on the foregoing findings and conclusions, Petitioner is not eligible to purchase retirement credit for .85 of a year between his military discharge in October, 1945, and his reemployment by the Holmes County School Board in 1946.

DONE AND ORDERED at Tallahassee, Florida, this 5th day of February, 1979.

ROBERT L. KENNEDY, JR.

State Retirement Director

Copies furnished to:

J. Robert McClure, Jr., Esquire McClure, Wigginton, Owen & Maynard

502 East Jefferson Street Tallahassee, Florida 32302

L. Keith Pafford, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Docket for Case No: 78-000974

Orders for Case No: 78-000974