vs. ) CASE NO. 79-785
Respondent. )
Pursuant to notice, this case was heard by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, at 9:30 a.m. on July 27, 1979, in Room 103 Collins Building in Tallahassee, Florida.
The parties prepared and submitted a joint stipulation containing the applicable facts prior to the hearing. Based upon the stipulation, the question presented is whether the Petitioner, J. Wallace Smith, can purchase prior service credit as a teacher for teaching prior to the creation of the Teachers Retirement Plan.
For Petitioner: J. Wallace Smith, pro se
For Respondent: Diane K. Kiesling, Esquire
Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
Petitioner was employed as a teacher by the following employers during the specified periods of time.
Dixie County School System 1929-30 9 months
1930-31 9 months
1931-32 9 months
Hardee County School System 1932-33 6 months
1933-34 8 months
1934-35 10 months
1936-37 9 months
Petitioner was employed by the State Road Department from August 1, 1937, to October 31, 1939.
Petitioner began serving as a Highway Patrolman on November 1, 1939, and continued until January 31, 1972. This service included a military leave of absence from March 1, 1943, through December, 1945.
Petitioner retired from the Florida Highway Patrol on January 31, 1972. His service credit for retirement included the service with the State Road Department and the military service.
On February 1, 1972, Petitioner began employment with the Department of Highway Safety and Motor Vehicles. He became a member of the Florida Retirement System on this date pursuant to the requirements of Chapter 121, Florida Statutes.
Petitioner was a member of the Highway Patrol Pension System from November 1, 1939, through January 31, 1972. He has been a member of the Florida Retirement System from February 1, 1972, through the present. He has never been a member of the Teachers' Retirement System.
The Teachers' Retirement System was created effective July 1, 1939.
The terms of Chapter 321, Florida Statutes, governing the Highway Patrol Pension System, did not permit the Petitioner to receive service credit for his employement (sic) as a teacher from 1929 through 1937.
If Petitioner is to receive service credit for his employment as a teacher, it can only happen pursuant to Section 121.021(19)(b), Florida Statutes.
CONCLUSIONS OF LAW
Section 121.081, Florida Statutes, provides that a member may under certain circumstances purchase prior service credit. This credit is then added to past service credit and becomes creditable service. Prior service credit is defined by Section 121.021(19), Florida Statutes. Subparagraph (b) of Section 121.021(19), supra, is specifically applicable to the instant situation and provides as follows:
Service with an employer under an existing system prior to the employee's membership in Florida
Retirement, during which service the employee was not a member of an existing retirement system and did
not make any retirement contributions, provided such service would have otherwise been creditable under the Florida Retirement System.
(emphasis supplied)
Factually, the Petitioner taught between 1927, and 1937, for a total of seven (7) years. At that time Petitioner was not a member of an existing system, the Teachers' Retirement System not yet having been established.
Petitioner joined the Department of Transportation in 1937, and upon its creation in 1939, the Florida Highway Patrol. When the Florida Highway Patrol retirement System was created, Petitioner received credit for his two (2) years with the Department of Transportation as law enforcement related service; however, the Florida Highway Patrol would not permit members to purchase non-law enforcement "prior service."
Upon his retirement from the Florida Highway Patrol, the only system which permits continued State employment in excess of 500 hours, the Petitioner was re-employed by the Department of Highway Safety and Motor Vehicles and automatically became a member of the Florida Retirement System. He has been a member of FRS since that time. Petitioner seeks to purchase as prior service the time he taught in 1927 - 1937.
Petitioner argues that the Florida Highway Patrol system prohibited his purchasing that "prior service" time, but that the other retirement systems for teachers and State and county employees (the predecessor of FRS) permitted their members to credit their time prior to creation of the State retirement system. Petitioner further argues that he should now be permitted to purchase that prior service credit on the theory that had he been a member of the Teachers' Retirement System or the State and County Officers and Employees Retirement System he could have taken credit for the time, and that the first time he had an opportunity to take credit for that service was when he left the Florida Highway Patrol retirement system, when he automatically became a member of FRS. Therefore, Petitioner concluded he should be permitted to purchase the prior service credit because had he been a member of FRS or SCOERS he would have been permitted to do so.
The fallacy in Petitioner's argument is the fact that he was not a member of TRS or SCOERS. He was a member of the Florida Highway Patrol system and retired under that system. Had he been a member of TRS or SCOERS, he could have obtained credit for the service in question and, upon transfer to FRS, it would have been deemed creditable service. However, the controlling statute, Section 121.021(19)(b), supra, limits its applicability specifically to "service with an employer under another system...". Petitioner's service was not under another system, no system having been established then.
While on its face this seems to work an unfair hardship on Petitioner, retirement law is a statutory creature. Although Petitioner's contemporaries who eventually joined FRS or SCOERS could take credit for their service prior to the creation of these systems and Petitioner could not, Petitioner could continue to work full-time after retiring from the Florida Highway Patrol which members of FRS, TRS and SCOERS could not.
The individual responsible for legislative liaison for the Florida Retirement System testified that Section 121.021(19)(b) supra, was enacted to specifically permit certain employees who had been denied or deprived of prior service credit through State action or their own action to purchase this credit. This included individuals who had elected not to participate in voluntary systems, persons who had worked only part-time and who had not been permitted to participate, and persons agencies had negligently failed to enroll.
From an equitable standpoint, the purpose of Section 121.021(19)(b) was to extend the coverage of FRS to people, who had failed to obtain credit for State service through their own lack of foresight or through circumstances beyond their control which would have otherwise been creditable. This case identifies another class of employees who are similarly affected but who are not
