STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO A. PRICE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1029

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, an administrative hearing was held before William B. Thomas, Hearing Officer, on August 21, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: Leo A. Price, in pro per For Respondent: Diane K. Keisling, Esquire

By his petition for an administrative hearing, Leo A. Price seeks a determination that he is entitled to a service credit from the Division of Retirement for the period of time from September of 1950 through January of 1951, in addition to the retirement benefits which have been calculated from an effective date beginning in February, 1951. Further, the petitioner has not cashed any of his retirement benefit warrants pending the resolution of this controversy, and he seeks interest on all uncashed warrants.

FINDINGS OF FACT

1. The petitioner, Leo A. Price, was a member of the Florida Retirement System (FRS) at the time of his retirement in June, 1979. He became an FRS member on January 1, 1979, by transferring from the Teachers' Retirement System (TRS).

   
   

2. Mr. Price was appointed to a teaching position for the 1950-51 school year on June 8, 1950, by the Board of Public Instruction of Dade County, Florida. He performed some limited duties for the Board of Public Instruction at the beginning of the 1950-51 school year, but his service was cut short as a result of illness. He received no salary payments for this service.

   
   

3. Mr. Price recovered from his illness and began teaching in Dade County on January 31, 1951. He enrolled in the Teachers' Retirement System in February, 1951, and represented on his enrollment blank that he began service on January 31, 1951, and that he had not taught in Florida in prior years. Enrollment forms are required prior to membership in TRS.

4. Mr. Price taught continuously from January 31, 1951, through June 30, 1979. On June 20, 1979, the School Board of Dade County retroactively approved a leave of absence for Mr. Price for the period from September, 1950, through January 30, 1951. No leave of absence had been authorized by the School Board prior to this retroactive authorization.

   
   

5. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, no member has been allowed a service credit for a leave of absence that was retroactively granted.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 238.05(3)(a), Florida Statutes (1979), states in pertinent part:

   
   

   1. [M]embership of any person

      in the retirement system shall cease . . . upon the withdrawal by a member of his accumulated contributions . . . provided that the adjustments prescribed below

      are to be made . . . for persons who are granted leaves of absence. Any member of the retirement system . . . who has been or is granted leave of absence, shall be permitted to elect to continue

      his membership in the Teachers' Retirement System and membership service shall be allowed for the period covered . . . by leave of absence under the following conditions:

      1. A person who has been granted leave of absence shall file with the division before his next contribution is due an application to continue his membership during the period covered by his leave of absence, and if such application is filed, shall make his contribution to the retirement system

         on the basis of his last previous annual salary as a teacher . . .

         
         

7. The period of time in question is from September, 1950, through January 30, 1951. During this time Section 238.05(3)(a), Florida Statutes, was substantially the same as set forth above, except that the words "board of trustees" were used in place of the word "division".

   
   

8. Section 238.05(3)(a), Florida Statutes, refers to a member's election to continue membership during periods of authorized leave of absence. The use of the word "continue" presumes that a teacher was a member of TRS prior to the leave of absence. Membership and proper enrollment in TRS is contingent upon the filing of an enrollment blank. Section 238.06, Florida Statutes (1979), requires that a membership application be filed by each teacher upon becoming a member. In this case, Mr. Price did not apply and become a member of TRS until January 31, 1951.

9. Additionally, Section 238.05(3)(a), Florida Statutes, refers to the contribution rate during a leave of absence. This contribution rate is based on the member's last previous annual salary as a teacher. Mr. Price received no salary as a teacher until after January 31, 1951. [On the issue of whether Section 238.05(3)(a) Florida Statutes, allows a service credit for leaves of absence that are granted retroactively, see Attorney General's Opinion 052-319 issued November 28, 1952, holding that such retroactive grants are not authorized.]

   
   

10. Mr. Price has not cashed the retirement benefit warrants issued to him, and he claims interest from the respondent on these uncashed warrants. However, state agencies are without the power to pay interest absent statutory authority. Chapter 121, Florida Statutes, which governs the Florida Retirement System, contains no statutory authorization for payment of interest from the retirement system trust fund.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner, Leo A. Price, seeking a service

credit for the period of time from September, 1950, through January, 1951, be denied. It is further

RECOMMENDED that the claim of petitioner, Leo A. Price, for interest on all uncashed benefit warrants, be denied.

THIS RECOMMENDED ORDER entered this 19 day of September, 1980.

WILLIAM B. THOMAS

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980.

COPIES FURNISHED:

Leo A. Price

1000 N. E. 96th Street

Miami Shores, Florida 33138

Diane R. Keisling, Esquire Suite 207C, Box 81

Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303

Docket for Case No: 80-001029

Orders for Case No: 80-001029