Judges: DIANE D. TREMOR
Agency: Department of Management Services
Latest Update: Jun. 17, 1980
Summary: Petitioner was entitled to prior service credit for work in regularly established position. Take average contribution to determine buy-in amount.
80-0243.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THOMAS B. WEBB, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 80-243
)
DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 21, 1980, at 10:00 A.M. in Room 510 of the Collins Building, Tallahassee, Florida. The issues for determination at the hearing were whether petitioner is entitled to purchase prior service credit from September 1948 to September 1950 for service performed at the University of Florida Hume Library and, if so, how much should he be allowed to purchase.
APPEARANCES
For Petitioner: John Radey, Esquire
Holland and Knight Post Office Drawer 810
Tallahassee, Florida 32302
For Respondent: Diane K. Keisling, Esquire
Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner Thomas B. Webb, Jr. has been employed by the State of Florida, Department of Transportation for twenty-four years and is currently a member of the Florida Retirement System.
While a student at the University of Florida, petitioner was employed at the Hume Library from September of 1948 through September of 1950. He worked continuously at the library during this period of time at the rate of approximately 20 to 25 hours per week. His nighttime working hours, from 7:00
p.m. to 10:00 p.m., were regular and his daytime hours varied depending upon his class schedule. Mr. Webb worked when school was not in session due to holidays or breaks between sessions. The Hume Library was open during these periods to
provide service to the agricultural experiment stations around the State. He also worked for a few weeks after his graduation from the University of Florida.
While working at the Hume Library, petitioner's duties included supervisory responsibilities; manning the circulation desk; checking out, receiving, shelving and indexing books and periodicals; assisting students with bibliographic research; servicing orders from the eight to ten agricultural experiment stations around the State; and closing up the library at night. During the time that he was employed at the library, approximately one-half of the employees were students and the other half were non-students. As of October 22, 1979, the duties which petitioner performed were being performed by both full time regular employees whose job classification title is Clerk III and by student assistants.
Petitioner could not recall whether he received annual leave, sick leave, insurance or other employee benefits while working at the Hume Library. He was paid on an hourly basis. He replaced a prior employee when he started to work at the library, and someone replaced him when he left.
The quarterly check tapes from the Office of the Comptroller, which the Division of Retirement uses on a daily basis in carrying out its functions, show that petitioner received salary payments for 19 months between the periods of October 1948 through September of 1950. The petitioner was unable to explain why payments for one month in 1948, four months in 1949 and one month in 1950 were not reflected on these documents. He is certain that he worked continuously during these years in order to support his family and that he gas paid for his work. He was not able to produce any documentary evidence to substantiate his employment or salary for these six months.
Petitioner is seeking retirement service credit under the Florida Retirement System for his employment at the Hume Library between September of 1948 and September of 1950. Be is willing to make all payments necessary for him to claim This prior service.
CONCLUSIONS OF LAW
The prime issue in this proceeding is whether petitioner is entitled to receive credit for retirement purposes for his employment at the Hume Library between 1948 and 1950. "Prior service," which may be claimed and credited to a member of the Florida Retirement System, is defined in Florida Statutes, Section 121.021(19)(b), in part, as service which "would have otherwise been creditable under the Florida Retirement System." In order to be otherwise creditable, the service must be performed in a "regularly established position" for which salary payments were received Florida Statutes, Section 121.021(11). Stated conversely, employees filling temporary positions are not eligible for membership in the Florida Retirement System. Florida Administrative Code, Rule 22B-1.04(6). Student employees are considered temporary positions for retirement purposes. A student employee is defined as
"persons who are bona fide students in an accredited educational or
vocational program who perform services for a public employer in a temporary position set aside strictly for students." Fla. Admin. Code, Rule 22B-1.04(6)(e)2.
Relating the statutory and regulatory criteria to the facts established in the instant proceeding, it is concluded that the petitioner was not employed at the Hume Library as a student employee in a temporary position set aside strictly for students. Mr. Webb worked along with nonstudents. He worked during periods when students were not in classes at the University. He worked for a few weeks after his graduation from the University. His work was regular and he had supervisory responsibilities. His duties presently are being performed by full time regular employees, as well as by student assistants. The fact that he did not work full time and that he had flexible daytime hours to coincide with his class schedule does not establish that he was a student employee in a temporary position set aside for students. In summary, it is found that the petitioner presented sufficient evidence to establish that he was engaged in a regularly established position during his tenure at the Hume Library and is entitled to claim such service as creditable under the Florida Retirement System.
A more difficult question is the extent to which petitioner should be entitled to purchase his prior service. The testimony of the petitioner, as well as two other employees who worked at the Hume Library during the same period of time as the petitioner, is sufficient evidence that petitioner was continuously employed between September of 1948 and September of 1950. However, the records which the respondent relies upon to calculate the contribution due when claiming prior service illustrates that salary payments were only made for nineteen of the 25 months claimed. The undersigned concludes that the petitioner has adequately proven that he was continuously employed, and reason (as well as petitioner's own testimony) dictates that petitioner, who was supporting his family on his salary, would not have continued to work at the library if he were not being paid for his services. The testimony indicates that petitioner worked between 20 and 25 hours on a regular weekly basis. In order to calculate the amount of contribution due pursuant to Florida Statutes, Section 121.081, it would therefore appear equitable to average the total salaries for the nineteen reported months and to attribute the sum derived to the six months which were not reported.
The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the parties. Insofar as the proposed findings of fact are not included in this recommended order, they are rejected as being either unsupported by competent, substantial evidence or as being irrelevant and immaterial to the issues presented for determination.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that:
petitioner is entitled to prior service credit for purposes of retirement for his employment at the University of Florida Hume Library during the period of September 1948 through September 1950, inclusive; and
the amount of contribution owed by petitioner be calculated by attributing the average amount of his nineteen reported payments to the six unreported payments.
Respectfully submitted and entered this 16th day of May, 1980, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
COPIES FURNISHED:
John Radey, Esquire Holland and Knight Post Office Drawer 810
Tallahassee, Florida 32302
Diane K. Keisling, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
McMullian, III
State Retirement Director Cedars Executive Center 2639 North Monroe Street Tallahassee Florida 32303
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THOMAS B. WEBB, JR.,
Petitioner,
vs. CASE NO. 80-243
DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This case was presented on a petition by THOMAS B. WEBB, JR., for review of the denial of his request to purchase prior service retirement credit for the period September, 1948, to September, 1950, for service at the University of Florida Hume Library. A hearing was held pursuant to notice on April 21, 1980, before Diane D. Tremor, designated hearing officer of the Division of Administrative Hearings.
APPEARANCES
FOR PETITIONER FOR RESPONDENT
John Radey, Esquire Diane K. Keisling
Holland and Knight Division of Retirement Post Office Drawer 810 Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street
Suite 207C - Box 81 Tallahassee, Florida 32303
The recommended order was issued on May 16, 1980. After consideration of the evidence and record in this case, the Hearing Officer's recommended order is accepted in part and rejected in part.
FINDINGS OF FACT
Petitioner Thomas B. Webb, Jr. has been employed by the State of Florida, Department of Transportation for twenty-four years and is currently a member of the Florida Retirement System.
While a student at the University of Florida, petitioner was employed at the Hume Library from September of 1948 through September of 1950. He worked continuously at the library during this period of time at the rate of approximately 20 to 25 hours per week. His nighttime working hours, from 7:00
p.m. to 10:00 p.m., were regular and his daytime hours varied depending upon his class schedule. Mr. Webb worked when school was not in session due to holidays or breaks between sessions. The Hume Library was open during these periods to provide service to the agricultural experiment stations around the State. He also worked for a few weeks after his graduation from the University of Florida.
While working at the Hume Library, petitioner's duties included supervisory responsibilities; manning the circulation desk; checking out, receiving, shelving and indexing books and periodicals; assisting students with bibliographic research; servicing orders from the eight to ten agricultural experiment stations around the State; and closing up the library at night. During the time that he was employed at the library, approximately one-half of the employees were students and the other half were non-students. As of October 22, 1979, the duties which petitioner performed were being performed by both Bull time regular employees whose job classification title is Clerk III and by student assistants.
Petitioner could not recall whether he received annual leave, sick leave insurance or other employee benefits while working at the Hume Library.
He was paid on an hourly basis. He replaced a prior employee when he started to work at the library, and someone replaced him when he left.
The quarterly check tapes from the Office of the Comptroller, which the Division of Retirement uses on a daily basis in carrying out its functions, show that petitioner received salary payments for 19 months between the periods of
October 1948 through September of 1950. The petitioner was unable to explain why payments for one month in 1948, four months in 1949 and one month in 1950 were not reflected on these documents. He is certain that he worked continuously during these years in order to support his family and that he was paid for his work. He was not able to produce any documentary evidence to substantiate his employment or salary for these six months.
Petitioner is seeking retirement service credit under the Florida Retirement System for his employment at the Hume Library between September of 1948 and September of 1950. He is willing to make all payments necessary for him to claim his prior service.
CONCLUSIONS OF LAW
The prime issue in this proceeding is whether petitioner is entitled to receive credit for retirement purposes for his employment at the Hume Library between 1948 and 1950. "Prior service," which may be claimed and credited to a member of the Florida Retirement System, is defined in Florida Statutes, Section 121.021(19)(b), in part, as service which "would have otherwise been creditable under the Florida Retirement System." In order to be otherwise creditable, the service must be performed in a "regularly established position" for which salary payments were received. Florida Statutes, Section 121.021(11). Stated conversely, employees filling temporary positions are not eligible for membership in the Florida Retirement System. Florida Administrative Code, Rule 22B-1.04(6). Student employees are considered temporary positions for retirement purposes. A student employee is defined as
persons who are bona fide students in an accredited educational or vocational program who perform services for a public employer in a temporary position set aside strictly for students. Fla.
Admin. Code, Rule 22B-1.04(6)(e)2.
Relating the statutory and regulatory criteria to the facts established in the instant proceeding, it is concluded that the petitioner was not employed at the Hume Library as a student employee in a temporary position set aside strictly for students. Mr. Webb worked along with nonstudents. He worked during periods when students were not in classes at the University. He worked for a few weeks after his graduation from the University. His work was regular and he had supervisory responsibilities. His duties presently are being performed by full time regular employees, as well as by student assistants. In summary, it is found that the petitioner presented sufficient evidence to establish that he was engaged in a regularly established type position during his tenure at the Hume Library and is entitled to claim such service as creditable under the Florida Retirement System.
Section 121.081(2)(d), Florida Statutes, specifies how contributions are to be calculated on prior service credit. Essentially, it states that the member shall contribute 9 percent of all salary received during such period. Rule 22B-3.05, Florida Administrative Code, reiterates this statutory language. As found earlier, petitioner was unable to produce any documentary evidence to substantiate his salary for six months out of the overall period in question. Further, the quarterly check tapes from the Office of the Comptroller, which are used by the Division of Retirement as an official record of salary payments made
to employees, reflected no salary payments made to petitioner during the six missing months.
Absent evidence of the amount of salary petitioner received, contributions cannot be calculated and service credit cannot be purchased. Section 121.021(17), Florida Statutes, states that creditable service includes all service allowed under the provisions of that chapter if all required contributions have been paid. Section 121.081(2)(d) provides for contributions to be calculated based on the salary paid in each month. Where no evidence is presented as to the salary received by a member in a particular month, no prior service credit can be allowed.
THEREFORE, Petitioner's request to purchase prior service credit for his service at the University of Florida Hume Library is granted and he will be permitted to purchase prior service credit for all months in which evidence of the total salary received is presented. Where no evidence is presented, Petitioner will not be allowed to purchase prior service credit.
DONE AND ORDERED this 12th day of June, 1980.
J. McMULLIAN III
State Retirement Director
COPIES FURNISHED:
John Radey, Esquire Diane K. Keisling
Holland and Knight Division of Retirement
Post Office Drawer 810 Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street
Suite 207C - Box 81 Tallahassee, Florida 32303
Docket for Case No: 80-000243
Orders for Case No: 80-000243
| Issue Date |
Document |
Summary |
|
Jun. 12, 1980 |
Agency Final Order
|
|
|
May 16, 1980 |
Recommended Order
|
Petitioner was entitled to prior service credit for work in regularly established position. Take average contribution to determine buy-in amount.
|
