STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM L. STRINE, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1378
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before P. Michael Ruff, Hearing Officer with the Division of Administrative Bearings on the petition of William L. Strine for permission to purchase past service credits in the Florida Retirement System for the period October 1, 1964 to March 1, 1975.
The issue is whether the Petitioner's reemployment by Dade County on March 1, 1975 and the concurrent failure by the county to renew its management contract with the private former employer of the Petitioner for management and operation of its bus transit system, with the performance of those functions being taken over by the county thenceforward, was an "assumption of the functions and activities" of that private employing entity such that the Petitioner is entitled to purchase past service credits in the Florida Retirement System. (Section 121.081(1)(g), Florida Statutes (1979).
The Petitioner presented two witnesses and eight exhibits. The Respondent presented one witness and one exhibit.
FINDINGS OF FACT
The petitioner, William L. Strine, began employment with the Miami Transit Company, a private company, operating the Miami Transit bus system on or about November 26, 1948 in the position of stock clerk. The Petitioner was employed with that entity until February 9, 1962 when he became an employee of Dade County upon the purchase of the Miami Transit Company by the county. The Petitioner was then permitted to purchase his service time between November 26, 1948 and February 9, 1962 as creditable service under the Florida Retirement System.
The county, through the Metro Dade County Transit Authority, which had the authority to perform day-to-day management and operation of its bus service with its own employees, or to contract for such management service with private companies, chose the latter option and on or about October 1, 1964 contracted with National City Management to provide all the day-to-day management and operation services for, and instead of, the Metro Dade County Transit Authority. On or about that date Mr. Strine became an employee of National City Management.
National City Management is a private company and a subsidiary of National City Lines, which is primarily in the bus transportation business. Its home offices are in Chicago, Illinois and it is still in existence and in the bus transportation business at this time. National City, then, performed all tie day-to-day management and operations for the Dade County Transit Authority's bus service pursuant to that management service contract through March 1, 1975.
On October 15, 1974 however, the county adopted Ordinance No. 74-92, wherein it adopted a program to place the public transportation system under the directorship of the county manager by merging the bus system with the rapid transit development program. As a result of thin development, the management service contract with National City Management Company was not renewed. The purpose of this ordinance was to phase out the private management of the county's bus service and to revert to day-to-day management and operations by full-time county employees. The county at all times had the legal authority to conduct its own management and operation of the subject bus service; however, it contracted away the right to National City Management Company during the times the subject service contract was valid. In enacting Ordinance No. 74-92, contrary to the position of the Respondent, the county did not establish dual or parallel positions to those occupied and performed by the management and employees of National City Management because, by contract, only National City could perform those functions and fill those employment positions during the viable life of the contract. The transition period between full management and operations under National City Management and the inauguration of full control and management by the county and its employees was only a five month period and the only possibility of any duplication in employment positions would have been within that five month period, which is a temporary situation. Certainly the county never did, and never intended to establish dual or parallel employment and management positions for the transportation system when it was contractually obligated to let National City do all of that. Thus, the Petitioner in returning to county employment on March 1, 1975 was not moving laterally to a duplicate or parallel position in government from the identical position still existing with the private employment entity, but rather transferred from a position and functions which no longer existed with the private entity to an identical position and functions which had newly arisen with the public employer, Dade County, with the expiration of the contract.
Dade County has the authority to grant retroactive sick leave, vacation leave, and longevity benefits to the Petitioner, which it did, but it has no authority to grant retroactive retirement benefits in the Florida Retirement System. The Division of Retirement contends that in considering whether to grant such benefits, it considers whether a contract exists specifying the terms by which the employees of a private entity are to become public employees and considers whether employees must be employed with the government agency taking over the private functions in order to maintain their jobs. It bases its contention primarily on the belief that the employees of National City were not required to transfer to county employment and those who did, in this case the Petitioner, merely voluntarily transferred to a parallel or duplicative job in public employment. In this instance, however, the Petitioner had effectively no real choice but to transfer to employment with the county since his position and all transit management operations of National City were abolished by the enactment of the subject ordinance, coincident to the expiration of the contract and because the effect of the ordinance was to supplant entirely the bus service management and operations duties performed by National City personnel with county personnel. No job commensurate with his skills and expertise remained with any other employer in that locality.
Upon the passage of the subject ordinance and the expiration of tie contract with National City, the county was free to create a position of Chief Accountant, or financial officer, for it transit system and hire someone other than Strine to fill that position and perform those duties, which would have been a duplication of Strine's duties and functions; however, the county elected not to do so, but transferred Strine, with is duties and functions over to its employ. No other employees were affected by the transfer because all who had been performing similar management duties had died or retired on or before tie time of the pertinent change of management in March, 1975.
The Petitioner will have to pay thousands of dollars to the Division of Retirement in order to buy the eleven years creditable service time. There will be no financial or actuarial detriment imposed by that procedure on the Division of Retirement or the beneficiaries of its retirement system.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Section 121.081(1)(g), Florida Statutes (1979), provides in pertinent part:
When any person, either prior to this act or hereafter, becomes entitled to and does participate in one of the retirement systems con- solidated within or created by this chapter through the consolidation
or merger of governments or the transfer of functions between units of government, either at the state or local level or between state and local units, or through
the assumption of functions or activities by a state or local unit from an employing entity which was not an employer under
the system, and such person becomes a member of the Florida Retirement System, such person shall be entitled to receive "past service" credit as defined in s.
121.021(18) for the time such person per- formed services for, and was an employee of, said state or local unit or other employing entity prior to the transfer, merger, consolidation, or assumption of functions and activities.
Section 121.021(10), Florida Statutes, defines "employer" as follows: Employer means any agency, branch,
department, institution, university, institution of higher education or board of the state, or any county agency, branch, department, board, district school board, or special district of the state, or any city of the state which participates in the
system for the benefit of certain of its employees.
There is no question but that, for purposes of the above authority, when the Petitioner was working for National City Management he was employed by an "employing entity," therefore when he became an employee of an employer covered by the Florida Retirement System, then that "covered agency (Dade County) must assume functions or activities of the former non-covered" employing entity for the petitioner to be entitled to past service credit. There is no question, and the parties agree, that National City's status was that of a private "employing entity" for purposes of this case. The Respondent contends that the county retained at all times an inherent right to perform those same functions and activities itself and the hiring of the Petitioner was merely the filling of a duplicative or parallel position, rather than the assumption of a function or activity previously held and provided by the private employing entity, thus precluding the petitioner's right to purchase credit for the past service. The Division also argues that that section of the statute requires that for a valid "assumption of functions or activities" to occur, the employees of the private employing entity must be required to transfer to the covered government employment in order to keep their jobs; which the Respondent maintains was not the situation in this action.
The argument that the county merely established parallel or duplicative positions and filled the pertinent one with the hiring of the Petitioner after he voluntarily left the employ of National City Management is not convincing. Competent, substantial evidence was not presented to show that these were duplicate or parallel positions, especially in view of the clear and uncontradicted showing in the record that the county had exclusively contracted with National City Management to perform these transportation management services, giving that private company exclusive right to manage and operate the bus transportation stem. The county was thus contractually bound during that period of time until the ordinance was passed in which the county elected to again perform those transportation regulatory functions and not renew the contract with National City. The positions were not created until that time because, until the contract expired, the county had no legal right to create, staff and operate them. They arose only with the passage of the ordinance and after the contractual obligation between the county and National City had expired, therefore it cannot be said, based on this record, that those positions set up again by Dade County were merely duplicative or parallel to existing positions and functions operated and filled by the private entity.
With regard to the Respondent's argument that the employees of the private employer must be required to transfer to the covered governmental entity in order to keep their jobs for them to be entitled to purchase past retirement credit, it is clear from the record that Mr. Strine effectively had no choice but to accept the job created by the county. Since National City would no longer even be doing business in Dade County had Mr. Strine elected to remain with National City he had only a problematical opportunity to obtain some sort of employment of an undetermined nature with National City in another locality. In no wise was National City going to continue to remain in the transportation business in Dade County such that this Petitioner could remain in the same or a similar type employment position with them in spite of the county government reentering the transit business. Thus it is patently obvious that Mr. Strine's transfer to county employment as the only place he could continue to perform even similar duties in his career in the bus transportation industry could not be considered to be purely voluntary.
In summary, it is obvious from this record that Dade County did indeed "assume the functions or activities" of the private employing entity. The position it established, which the Petitioner assumed was not duplicative of his prior job since it was legally impossible for the county to have performed such services while it was still contractually obligated to allow National City to perform them, nor did it attempt to. National City did not, after the expiration of the contract, remain in the transportation business in Dade County, and Mr. Strine would effectively have been unemployed had he not transferred over to become the Deputy Director of the Metropolitan Dade County Transit Agency with identical duties to those he had performed privately. Thus, the county assumed all the functions and activities of National City Management, rendering Strine's renewed employment with Dade County to be employment covered by the Florida Retirement System. He should be allowed to purchase past service credit from October 1, 1964 to March 1, 1975 under the authority of Section 121.081(g), Florida Statutes.
Having considered the competent, substantial evidence in the record, the foregoing Findings of Fact and Conclusions of Law, as well as pleadings and arguments of counsel, it is RECOMMENDED that the Petitioner, William L. Strine, be permitted to purchase and receive past service credits from the Florida Retirement System for the period October 1, 1964 to March 1, 1975 pursuant to Section 121.081(g) Florida Statutes.
DONE and ENTERED this 17th day of December, 1980 in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980.
COPIES FURNISHED:
Denis Dean, Sr., Esquire Dean and Hartman, P.A.
New World Tower, Penthouse Suite
100 North Biscayne Boulevard Miami, Florida 33132
Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C- Box 81 Tallahassee, Florida 32303
| Issue Date | Proceedings |
|---|---|
| Jan. 27, 1981 | Final Order filed. |
| Dec. 17, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 23, 1981 | Agency Final Order | |
| Dec. 17, 1980 | Recommended Order | Petitioner should be allowed to purchase retirement credits from Florida Retirement System (FRS) for the eleven years he was forced to work for private company running Miami's transit. |
