STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE G. BERKOWITZ, )

)

Petitioner, )

)

vs. ) CASE NO. 80-221

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C, Strickland, Bearing Officer of the Division of Administrative Hearings, in Room

106 Collins Building, Tallahassee, Florida, on April 8, 1980, commencing at 9:30 a.m.

APPEARANCES

For Petitioner: Mark S. Levine, Esquire

1801 North Meridian Road, Suite C Tallahassee, Florida 32303

For Respondent: Diane K. Kiesling, Esquire

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

ISSUE

1. Whether Petitioner may purchase retirement service credit for two (2) school terms in Leon County, Florida, beginning January 24, 1955 and January 16, 1956.

   
   

2. Whether the Leon County School Board had authority to retroactively grant leave requests on July 2, 1957.

INTRODUCTION

Petitioner, Irene G. Berkowitz, is an employee of the Leon County School Board and has been so employed for almost twenty-nine (29) years. She was under the Teachers' Retirement System until January 1, 1979, when she transferred to the Florida Retirement System. In 1978, Petitioner requested the school board to determine her years of service and was informed that in June of 1981, she would have thirty (30) years of creditable service for retirement.

Subsequently, on January 29, 1979, the Director of the Division of Retirement, the Respondent, informed her that she would have only twenty-nine (29) years of creditable service in June of 1981, because two (2) leaves of absence were not

counted, inasmuch as they were not approved by her employer, the Leon County School Board, before the leaves were taken or before the next retirement contribution was due. Petitioner requested an administrative hearing praying for the entry of an order requiring the Respondent agency to allow her to purchase service credit for the leaves of absence in dispute.

Subsequent to the hearing the parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. On or about January 19, 1955, Petitioner submitted a letter of resignation to Amos Godby, Superintendent of Public Instruction, resigning from her position as teacher in the Leon County schools effective January 21, 1955 (Petitioner's Exhibit 1). Maurice Peterson, principal of her school, wrote Petitioner and stated he did not want her to resign but instead would request a leave of absence for her (Petitioner's Exhibit 2).

   
   

2. On or about January 20, 1955, Petitioner submitted an "Application of Member for Withdrawal of Accumulated Contributions" (Respondent's Exhibit 1) . In filing this form, Petitioner attested that she was withdrawing from service as a teacher as of January 21, 1955, and that she wished to have-her retirement contributions and accrued interest refunded to her. Amos Godby, superintendent of Public Instruction, also signed the form, certifying that Petitioner Berkowitz was no longer employed by the public school system, that her service as a teacher terminated on January 21, 1955, and that the last retirement deduction was made January 15, 1955. Petitioner received a refund of her retirement contributions in the amount of $200.41.

   
   

3. Petitioner Berkowitz returned to teaching in Leon County, Florida, at the beginning of the school term in the 1955-56 school year. Thereafter, in December of 1955, she underwent surgery and, as a result, was unable to return to teaching for the remainder of the 1955-56 school term. By letter dated January 16, 1956, Maurice Peterson, her principal, asked Amos Godby, Superintendent of Public Instruction, to place Petitioner on temporary leave of absence because of her health problems Petitioner's Exhibit 3). At the beginning of the 1956-57 school term, Petitioner Berkowitz returned to teaching in Leon County, Florida.

   
   

4. A letter dated June 11, 1957, from Maurice Peterson, principal of Petitioner's school, stated:

   
   

   Enclosed are two letters concerning Mrs. Irene Berkowitz which verify the fact that she was out of school in January, 1955 and January, 1956 on a leave of absence. (Petitioner's Exhibit 4)

   
   

5. The Leon County School Board was the employer of all Leon County teachers and had exclusive authority to approve or grant leaves of absence. Petitioner had not been granted a leave of absence for January 24 - school term, 1955 by her employer, the Leon County School Board, and she filed no application to continue her membership in the retirement system and paid no retirement contributions. Petitioner also stopped teaching in January, 1956 without having

   been granted a leave of absence by the Leon County School Board for January 16 - school term, 1956, aid there was no evidence to show she filed application to continue her membership in the retirement system or paid retirement contributions.

   
   

6. On July 2, 1957, the Leon County School Board retroactively approved leaves of absence for Petitioner for the periods of January 24 - school term, 1955 and January 16 - school term, 1956 (Petitioner's Exhibit 6). The former school superintendent, a witness for Petitioner, could not remember why the leaves of absence were not granted Petitioner Berkowitz by the school board at the time the leaves were taken, although he suggested it might have been an administrative oversight.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto, pursuant to Section 120.57, Florida Statutes.

   
   

8. Section 283.05(5)(a), Florida Statutes, provides that membership in the retirement system shall cease upon withdrawal of accumulated contributions unless a member is granted a leave of absence, files an application to continue membership during the leave, and makes contributions to the retirement system, in which case the member shall be permitted to continue the membership in the Teachers' Retirement System and membership service credit shall be allowed for the period of leave.

   
   

9. No evidence or authority was cited to show the Leon County School Board had authority to grant leave retroactively. Petitioner Berkowitz was not granted a leave of absence by her employer before she left her employment, and she did not file an application to continue her membership in the retirement system or make contributions thereto during the two (2) terms she was not employed. The Petitioner has failed to show that she satisfied the requirements of the foregoing statute, which would permit her to continue membership in the retirement system for the two (2) periods of time she was not employed by the Leon County School Board. This being so, she may not purchase retirement service credit for said two (2) school terms.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Petitioner's request to purchase retirement service credit for the two (2) school terms beginning January, 1955 and January 1956 be denied.

DONE and ORDERED this 7th day of May, 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Diane K. Kiesling, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Mark S. Levine, Esquire

1801 North Meridian Road, Suite C Tallahassee, Florida 32303

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE G. BERKOWITZ,

Petitioner,

vs. CASE NO. 80-221

DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

This case was presented on a petition by IRENE G. BERKOWITZ for review of the denial by the Division of Retirement of her entitlement to purchase service credit or two leaves of absence. A hearing was held pursuant to notice on April 8, 1980, at Tallahassee, Florida, before Delphene C. Strickland, designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark S. Levine, Esquire Suite C

1801 North Meridian Road Tallahassee, Florida 32303

For Respondent: Diane K. Kiesling, Esquire

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

A recommended order was issued on Nay 7, 1980. After consideration of the evidence and record in this case, the Hearing Officer's recommended order is adopted by the Division of Retirement except for Paragraph 2 of the Conclusions of Law which is reworded as follows:

1. Section 238.05(3), Florida Statutes, provides that membership in the retirement system shall cease upon withdrawal of accumulated contributions; however, a member who has been or is granted a leave of absence, may elect to continue membership during the period covered by the leave if such election is made before the next contribution is due, in which case the member shall be permitted to continue the membership in the Teachers' Retirement System and membership service credit shall be allowed for the period of leave.

   
   

2. No evidence or authority was cited to show the Leon County School Board had authority to grant leave retroactively. Petitioner Berkowitz was not granted a leave of absence by her employer before she left her employment. The Petitioner has failed to show that she satisfied the requirements of the foregoing statute, which would permit her to continue membership in the retirement system for the two (2) periods of time she was not employed by the Leon County School Board. This being so, she may not purchase retirement service credit for said two (2) school terms.

   
   

   THEREFORE, Petitioner's request to claim service credit for the two (2) school terms beginning January, 1955, and January, 1956, is denied.

   
   

   Done and ORDERED this 13th day of May, 1980, in Tallahassee, Leon County, Florida.

   
   

   1. J. McMullian, III State Retirement Director

Copies furnished to:

Mark S. Levine, Esquire 1801 North Meridian Road Suite C

Tallahassee, Florida 32303

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

Tallahassee, Florida 32303

Docket for Case No: 80-000221

Orders for Case No: 80-000221