STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IDA L. SALZ, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2487
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for Administrative Hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on February 8, 1982.
APPEARANCES
For Petitioner: William Du Fresne, Esquire
Du Fresne and Du Fresne, P.A. Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
For Respondent: Stanley M. Danek, Esquire
Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81
Tallahassee, Florida 32303
The Petitioner initiated this proceeding seeking the right to claim credit for her retirement benefit computation for eight (8) years of classroom teaching experience performed in the state of Missouri as a classroom teacher at the Central Institute for the Deaf in St. Louis, Missouri. Based on past representations of an official of the Respondent division, she had believed that the eight (8) years service in Missouri would be included in her retirement benefit computation with that attributable to her service in Florida and, based on that belief, she retired from teaching in Dade County Public Schools in July, 1981. Only after she retired did she receive notification from the Division of Retirement that the eight (8) years of Missouri service had been previously included into her benefit computation in error and that the money she had paid in the purchase of those eight (8) years service credit would be returned to her. The Petitioner thereupon availed herself to the right to a formal proceeding on the issue of whether she is entitled to receive credit for her retirement benefit computation for the eight (8) years service as a classroom teacher in Missouri, prior to her coming to Florida and enrolling in the Florida Retirement System.
At the final hearing, Ida Salz and Jaime W. Salz testified on the behalf of the Petitioner. Ruth Sanson, of the Division of Retirement, testified on behalf of the Respondent. Petitioner's Exhibits one through three and Respondent's Exhibit A were offered and admitted into evidence. Subsequent to the hearing, the parties requested the benefit of a transcript of the proceedings and elected to file proposed findings of fact and conclusions of law.
FINDINGS OF FACT
The Petitioner, Ida L. Salz, began her employment as a classroom teacher in 1942 with the Central Institute for the Deaf in St. Louis, Missouri. The Central Institute for the Deaf is a private, non-profit agency and has been such ever since its beginning in 1914. Mrs. Salz worked for the institute as a classroom teacher for eight (8) years. She moved to Florida in 1954 and began employment with the public schools in January, 1955, at which time she also became a member of the Teachers' Retirement System.
When she started her employment with the Dade County School System, she completed an enrollment application form which is required of all teachers in the public school systems of Florida. The purpose of the enrollment form was to identify the member, to provide beneficiary designation, to establish the beginning date of employment and the beginning date of membership in the Teachers' Retirement System.
In 1966, she inquired of the (then) Teachers' Retirement System regarding her right to purchase credit for the eight (8) years of out-of-state teaching service from Missouri. She was informed shortly thereafter by the Teachers' Retirement System (Mr. B. M. Kelley) that she would be allowed to purchase eight (8) years of credit for hem Missouri teaching time. The Petitioner received a letter from Mr. B. M. Kelley employed by the Respondent, in September 2, 1966, stating that she could make periodic personal remittances to the Teachers' Retirement System in any amount she desired. She made periodic payments to the Teachers' Retirement System and on November 28, 1977, made the final payment of the amount due to the Teachers' Retirement System representing the eight (8) years prior service credit which she was purchasing.
The Petitioner retired on June 15, 1981. She thereupon made application to the Respondent for retirement benefits. The Petitioner is sixty- four (64) years of age and has been a classroom teacher since 1942. The Petitioner's husband had previously retired on April 1, 1979,and is now sixty- seven (67) years old. The Petitioner's and her husband's retirement plans were based upon their belief that her retirement benefits would be computed based upon credit for the eight (8) years out-of-state Missouri service. The Petitioner would not have retired in July of 1981 had she not been in the belief, since 1966, that she would receive credit for her eight (8) years of
out-of-state service. She relied on the Division of Retirement's representation in 1966 that she would have credit for those eight (8) years out-of-state service and had computed her expected retirement benefits and personal budget based on this information. Had the Petitioner known that after her retirement benefits resulting from the eight (8) years out-of-state service would be denied, she would not have retired, since the income so generated is insufficient to adequately support her and her husband.
Upon receipt of the Petitioner's retirement application by the Division, the Bureau of Retirement Calculation reviewed the Petitioner's file for compliance with the statute and appropriate rules and regulations. It determined that the eight (8) years out-of-state service was not creditable
because it was in a private school. The Respondent took the position that the so-called approval given the Petitioner in 1966 to purchase the service time related to her private school teaching was a "clerical error or a oversight" by the division. In a letter of August 3, 1981, Mr. A. J. McMullian, III, Director of the division, advised the Petitioner that the out-of-state service had been erroneously allowed to her, that the contribution she had paid for it would be returned, and that she would not get retirement credit for those eight (8) years.
The personnel of the Teachers' Retirement System (later the Division of Retirement) are unilaterally responsible for the investigation in 1966, which led to their determination at that time that the Petitioner was entitled to the eight (8) years out- of-state service. The Petitioner had no influence in making this determination, but has relied on it in making her retirement plans during the years from 1966 through 1981.
Sometime after the Petitioner started employment in the Dade County School System, the Division of Retirements' sent a form. to the Central Institute for the Deaf in St. Louis and, either personnel of that institute or of `a state agency of Missouri, completed the form and returned it to the Division of Retirement. The form certifies that the Petitioner was employed in the school, Central Institute for the Deaf in St. Louis, Missouri, from September 1, 1940 to June, 1948. The word in the form, "public", which appears before "schools" on the form was crossed out by either the Central Institute personnel or an employee of the Missouri State Government who completed the form. Thus, the Respondent's official who read the form and made the decision that the Petitioner was entitled to eight (8) years of out-of-state service was on notice that the out-of-state service was performed at a private institution rather than a public school.
The parties stipulated that the Central Institute for the Deaf in St. Louis, Missouri, is a private, non-profit school and not a public school and that their interpretation of the statute quoted below is that out-of-state service in private schools is not creditable. The Petitioner contends, however, that inasmuch as the Petitioner relied, from 1966 through 1981, upon the representation made to her in 1966 that she would be allowed credit for the eight (8) years out-of-state service and planned her retirement and budgeted her retirement income accordingly, that the State Division of Retirement is now estopped to deny her benefits based upon those eight (8) years out-of-state service.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The statutory provision at issue in this proceeding, Section 238.06(4), Florida Statutes, states in part as follows:
The Board of trustees shall verify, as soon as practicable after the filing of the application, the statement of service therein claimed and shall issue to each person who becomes a member or any person with prior teaching service in the state who becomes
a member of the retirement system, a prior
service certificate certifying the length of service with which he is credited on basis on his statement of service. Such prior service credit shall include credit for service rendered prior to the date
of establishment as a teacher within the state or in a similar capacity outside the state but not more than ten years of credit for service outside the state shall be included . . . (Emphasis supplied)
The word "teacher is then defined in Section 238.01(4), Florida Statutes, as " `teacher' means any member of the teaching or professional staff and any certified employee of any free public school . . ."
At the outset of the hearing the parties stipulated that there was no dispute that the Petitioner had been employed in Missouri in a private school and they further stipulated that they interpret the law to preclude the Petitioner from claiming credit (toward computing retirement benefits) for service rendered outside the state which was not in a public school. The factual portion of that stipulation is accepted. The parties, in the second part of the stipulation, however, have, in effect, agreed upon an interpretation of the above statutory section to preclude the subject out-of-state service credit. Such a stipulation regarding an interpretation to be ascribed to a statute at issue is not binding upon the trier of fact and law. See Massachusetts Bonding and Insurance Co. v. Bryant, 175 So.2d 88 (Fla. 1st DCA 1965), aff'd 189 So.2d 614. In any event, the parties having stipulated thusly, maintain that the sole issue in dispute is whether an estoppel lies against the Division of Retirement for its assurance, furnished the Petitioner in 1966, that she could claim the disputed eight (8) years service in Missouri toward computation of her retirement benefits, which assurance she relied upon in planning her retirement and computing her family budget for herself and her husband for use during her retirement.
The Respondent asserts that the interpretation of the law (which in effect it was) embodied in the 1966 verbal and written assurances from the division which first allowed her to claim credit for the eight (8) years service in Missouri was a mistaken interpretation and that the interpretation of an employee or official of the agency cannot bind the agency and the state of Florida to that interpretation. In so arguing the Respondent maintains that the policy and interpretation of the above statutory section long adhered to by the Respondent is that no out-of-state service is creditable for a teacher who has since enrolled in the Florida State Retirement System, if it was not rendered in a public school or school system. As will be seen in the discussion below, it is determined that this interpretation of the above authority is erroneous.
The issue of estoppel is germane only if one gives credence to the interpretation of the Respondent regarding the meaning of the above statutory section. The basic elements of estoppel have long been established to be as follows: words, admissions, conduct or acts causing another person to believe in the existence of a certain state of things; that the actor uttered the the words or admissions or engaged in the conduct or acts willfully or negligently; that it caused the person claiming the estoppel to be induced to act so as to change his own position to his detriment; that the party claiming the estoppel must innocently rely on the conduct of the party so estopped. Estoppel, in short, precludes a person from asserting a fact inconsistent with his own previous conduct.
The Respondent rightly contends that Florida Courts have been quite conservative in applying the doctrine of estoppel against the state. See North American Company v. Green, 120 So.2d 603 (Fla. 1960); Bryant v. Peppe, 238 So.2d 836 (Fla. 1970). The Respondent then cites Greenhut Construction Company, Inc.
v. Henry Knott, Inc., et al, 247 So.2d 517 (Fla. 1st DCA 1971), in which case the court recognized the generally accepted proposition that the sovereign may under certain circumstance be estopped, but those circumstances must be exceptional and must include some positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did rely to its detriment. (Emphasis supplied) The Respondent then refers to cases from other jurisdictions including the Federal Court System for the proposition that the state cannot be bound by representations of its employees, especially in cases involving representations as to issues of law. Finally, the Respondent cites Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), and Department of Administration, Division of Retirement v. Flowers, 356 So.2d 14 (Fla. 1st DCA 1978), for the proposition that administrative officers of the state cannot estop the state through mistaken statements of the law. The Austin case involved an informational pamphlet issued by the Division of Retirement which stated generally that the surviving spouse of the decedent member of the retirement system would be awarded his benefits, when in fact he was required by the law to first execute a change-of-beneficiary document. The court in the Austin case however, accorded substantial weight to the fact that there was no evidence in the record that the decedent had changed his position in any way in reliance upon the statement in the division's pamphlet, nor was there any evidence as to who "marked the pamphlet". The court then reiterated the rule that administrative officers cannot estop the state through mistaken statements of the law. But this case, as well as the Flowers case, acknowledged that estoppel can be raised against the state when there are "exceptional circumstances and some positive act on the part of the state officer". In that connection, the Respondent, in referring to the Greenhut case, quotes from that court's opinion which turned on the "casual and off-hand manner" in which the bureau chief involved opined that he thought that the Knott Company was legally qualified to submit a bid and the court held that not to constitute an affirmative and positive representation so as to justify a reliance thereon by the one seeking to claim estoppel against the agency.
Thus, even the authority cited by the Respondent acknowledges that if exceptional circumstances are shown and some positive act or representation by a state official is relied upon by the party claiming the estoppel, then estoppel can lie against the state. Finally, the First District Court of Appeal repudiated its earlier ruling in Greenhut, wherein it held in the traditional vein that the state may not be estopped by the unauthorized act or representations of its officials in Killearn Properties, Inc. v. City of Tallahassee, 366 So.2d 172 (Fla. 1st DCA 19 79), cert. denied, 378 So.2d 343 (Fla. 1979). The City of Tallahassee in that case had entered an agreement to provide utility service to the Killearn Estates suburban development beyond the city limits. The city later sought to repudiate that agreement and raised as grounds there for that the agreement had been adopted by the city in violation of the open-meeting requirement of the "Sunshine Law". That law specifically provides that all actions taken in violation of it are voidable. The court in the Killearn Properties case nevertheless held the city estopped to repudiate its contract. The City of Tallahassee was relying on its officials' earlier "mistake of law" to claim that it could not now be estopped from abrogating its contract with Killearn Properties. The court held that the city was indeed estopped to repudiate its agreement even if it had made such a "mistake of law". The court referred to the city's position in the sense that " . . . a more
flagrant act of dishonor can hardly be imagined . . . " In other words the court held that since a positive representation and action by the city government or its officials had caused a reliance upon that action by the party claiming the estoppel, to its detriment, then the city government could not later attempt to repudiate that representation (the contract) on the claim that it had been entered into based upon an action predicated a legal mistake. The Killearn Properties case seems to point to a trend in estoppel jurisdiction which will allow estoppel to lie against a government agency if exceptional circumstances and some positive act on part of an official of the agency are proven and a detrimental reliance upon it by the estoppel claimant is shown.
This is the more modern view and the sounder rule and indeed the Austin and Flowers cases cited by the Respondent acknowledge this rule, even though in those cases all the elements of the rule were not proven. This trend also is supported by Gaye v. Inter-County Telephone and Telegraph Company, 60 So.2d 22 (Fla. 1952); Pasco County v. Tampa Dev. Corp., 364 So.2d 850 (Fla. 2d DCA 1978); Askew v. Hold The Bulkhead - Save Our Bays, Inc., 269 So.2d 696 (Fla. 2d DCA 1972). See, also, Volume 9,Number 1, Florida State University Law Review, pages 59-68.
In the instant case, the division, in 1966, itself initiated the investigation of the Petitioner's out-of-state teaching service by sending a form to the state of Missouri for the supplying of information regarding Mrs. Salz's teaching service in that state. The word "public" representing public school service was stricken. The state received that form with that notation and the decision was made that that service was creditable to the petitioner. The Petitioner was so informed by a letter from the Director of the Division of Retirement through his administrative assistant. This is clearly a positive action by state officials and the record reflects that the Petitioner, in turn, clearly relied upon it ever since in planning her retirement and in calculating her retirement date based upon when her retirement benefits would be sufficient to support her and her husband, taking into consideration the assurance of credit for those eight (8) years of out-of-state service. Thus, one "exceptional circumstance" justifying the imposition of estoppel in this instance is the reliance on the representation for a substantial period of time. In the matter of the Florida Board of Bar Examiners, 268So.2d 371 (Fla. 1972), the Supreme Court held that Board of Bar Examiner employees were state employees and, since they had been participating in the state's retirement system since approximately 1955, the state was estopped at that late date (1972) to deny them the right to participate in the retirement system and in effect had to treat them as state employees for retirement purposes relating back to 1955. In addition to the long period of time elapsed during which the Petitioner relied on the positive representation made in 1966, are other exceptional circumstances
- the Petitioner is now 64 years of age and cannot put herself back in the position regarding her career and retirement plans that she was in prior to relying to her detriment on the Respondent's assurance. At 64 years of age, it is no longer feasible for her to teach four more years and such a requirement of her would be clearly unconscionable. The point being that she, of necessity, planned her teaching career, its termination and her retirement and calculated her retirement benefits starting years ago and immediately after she received the representation of the division regarding her creditable service and it is impossible for her to recoup that teaching service time credit by becoming re- employed as a teacher, given the tardy point in time at which the division informed her of its present position. Thus, even if the division's interpretation of the above-quoted statutory section were correct, it is estopped to deny her the disputed service credit.
Wholly aside from the question of estoppel, it is concluded that the interpretation of the above statute on which the Respondent now relies is erroneous. The pertinent statutory language is " . . . such prior service credit shall include credit for service rendered prior to date of establishment as a teacher within the state or in a similar capacity outside the state . . . " That pivotal language contains no requirement that the prior service outside the state be in a public school and no authority in statutes, rules or cases has been demonstrated to convince the undersigned that such a requirement exists. "Similar capacity" does not mean identical capacity and service as a teacher in a private school is considered "similar" especially when, in either case, the out-of-state service time must be purchased. The record only contains a statement of the Respondent's witness to the effect that such has been the policy of the division and no evidence has been supplied in this record to indicate any logical reason for such a policy, if indeed that has been the consistent policy, which the record also does not reflect.
Chapter 238 and the Respondent's evidence in this case establishes that any prior service time earned out-of-state by a retiring teacher must be purchased by contributions from that teacher as the Petitioner did in the instant case, even if it is the prior out-of-state public school teaching service which the Respondent approves of. Thus, there is not a basis in logic or fairness for the Respondent to disallow private school service time earned out-of-state and allow public school service time earned out-of-state in computing retirement benefits since in either case the service credit would be supported by contributions by the claimant such that there simply can be no financial detriment imposed upon the Division of Retirement and the public funds over which it has fiduciary responsibility. In any event, the language of the statute emphasized above merely requires that the out-of-state service be in a similar capacity, not identical, and absolutely no authority has been shown that such out-of-state service, to be creditable, must be in a public school system, nor has any evidence been adduced supportive of the application of any such unproven "non-rule policy" in this case.
Having considered the foregoing findings of fact and conclusions of law, the pleadings and arguments of the parties, the candor and demeanor of the witnesses and the evidence in the record, it is
RECOMMENDED:
That the Respondent, the Division of Retirement, issue a Final Order finding that the Petitioner be allowed credit for her out-of-state teaching service, and recompute her retirement benefits from the date of her retirement, allowing her such credit.
DONE and ENTERED this 11th day of June, 1982 at 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 11th day of June, 1982.
COPIES FURNISHED:
William DuFresne, Esquire Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81
Tallahassee, Florida 32303
Andrew J. McMullian, III, Director Division of Retirement
Building C
Cedars Executive Center Tallahassee, Florida 32303
Nevin G. Smith, Secretary Department of Administration The Carl ton Building Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
IDA L. SALZ,
Petitioner,
vs. CASE NO. 81-2487
DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This case was presented on a petition by Ida L. Salz, for review of the denial by the State Retirement Director of the request to purchase past service credit in the Teachers Retirement System for the period of 1942 to 1950. A hearing was held pursuant to notice on February 8, 1982 before P. Michael Ruff, designated hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: For Respondent:
William DuFresne, Esquire Stanley M. Danek
DuFresne & DuFresne Assistant Division Attorney 1782 One Biscayne Tower Division of Retirement
2 South Biscayne Boulevard Cedars Executive Center Miami, Florida 33131 2639 North Monroe Street
Suite 207C - Box 81 Tallahassee, Florida 32303
The Hearing Officer filed his recommended order on June 11, 1982 in which he sustained the Petitioner's assertion and concluded she was entitled to purchase the past service for the period of 1942 to 1950. This determination was based upon the Hearing Officers erroneous conclusions of law and their application to the facts of this case. Therefore, as will be more fully developed herein, the Division rejects the Conslusions of Law contained in the Recommended Order, substitutes its own Conclusions of Law and determines that the out-of-state teaching service in a private school is not creditable in the Teachers' Retirement System, Chapter 238, Florida Statutes.
FINDINGS OF FACT
The Findings of Fact developed in the Recommended Order are a synthesis of the findings of fact proposed to the hearing officer by both the Petitioner and the Division of Retirement. They are all supported by substantial, competent evidence and are the result of proceedings which comply with the essential requirements of law. The Findings of Fact contained in the recommended order are therefore adopted without modification and same constitute the complete set of Findings of Fact for purposes of this final order.
CONCLUSIONS OF LAW
At the hearing in this matter, the parties stipulated that the ultimate issue to be decided was whether the Petitioner is entitled to receive retirement service credit for the eight (8) years of teaching in a private school in Missouri.
The parties further agreed that under Section 238.06 (4), Florida Statutes, teaching service in private out-of-state school may not be claimed for retirement credit and thus the only issue to be determined was whether the facts of this case estopped the Division from denying the eight years credit for out- of-state, private school teaching service. (T-3, 4)
The above stipulation was agreed to by the parties and the presentation of their cases proceeded accordingly. However, the Hearing Officer, in his Recommended Order, concluded that the above stipulation was not binding upon him as the trier of fact and law and proceeded to conclude that the law permitted the purchase of out-of-state, private school service in the TRS.
The procedure used and the Recommended Order of the Hearing Officer had the effect of leaving both parties ignorant that certain portions of their joint stipulations had been rejected by the Hearing Officer. Their ignorance lasted until the issuance of the Recommended Order on June 11, 1982. Thus, the parties were denied the right to present evidence, testimony or argument as to their view of the law and of the policies and procedures which have been in effect in TRS since its inception in 1939. However, nothwithstanding this prodedural problem, there is a sufficient body of law to support the Divisions position that out-of-state teaching service in a private school is not creditable in TRS.
The purchase of out-of-state teaching service is allowed by Section 238.06(4), Florida Statute (1969) which states in part as follows:
"... the Board of Trustees shall verify, as soon as practicable after the filing of the application, the statement of service therein claimed and shall issue to each person who becomes a member or any person with prior teaching service in the state who becomes a member of the retirement system, a prior service certificate certifying the length of service with which he is credited on the basis of his statement of service. Such prior service credit shall include credit for service rendered prior to date of establishment
as a teacher within the state or in a similar capacity outside the state but not more than 10 years of credit for service outside the state shall be included."" (emphasis added)
The present wording of the above section remains the same except the Board of Trustees" is now the "Division".
The term "similar capacity" is not defined in Chapter 238, Florida Statute, but "teacher" is defined in Section 238.01(4), Florida Statutes as follows:
"'Teacher' means any member of the teaching or professional staff and any certified employee of any free public school " (emphasis added)
The testimony at the hearing showed that the word ""teacher as defined above has been interpreted by the previous Board of Trustees of TRS to include teaching service in public schools and to exclude teaching service in private schools (Exh. 1, pg. 7; EXh. 3,T-23). Since 1939, the Attorney General has issued numerous opinions concerning membership in TRS. In 1945 AGO, #045-394 (page 398), he stated:
I might point out that under the teachers' retirement system as originally enacted in 1939 eligibility was confined to ""teachers, and by that act a teacher was defined to be a person employed as "a teacher or principal in the public free schools by the county board of public instruction." It even specifically excluded teachers in the schools of higher learning....
In 1945 teacher was once more expanded to include "any certificated employees of any public free school, of any county school system, and vocational school, as well as "any certificated employee of the State Department of Education and any certificated employee of the retirement system."
The teachers' retirement system was originally planned and set up and established to provide for a very special class of public employees, school teachers. It was recognized that school teachers occupy a very different position from other public employees and require quite differ- ent consideration from that given to other general public employees by reason of the work which they are performing, their more or less inadequate compensation, etc.
In 1947 AGO, #048-96 (page 328), the Attorney General held that the president and vice-president of the University of Florida were compulsory members of TRS because they were part of the professional staff of a tax supported institution of higher learning of the State of Florida. Without the express statutory provision which included them in the definition of teachers, they would not be members of TRS.
In 1949, the Attorney General considered the question of membership in TRS in privately operated, out-of-state institutions of higher learning. (1949 AGO, #049-530, page 317):
Limited out-of-state prior service credit is allowed by Section 238.06(4) for service "as a teacher... outside of the State..." It
in my opinion that the word "teacher is there used in the restricted meaning of the Teachers' Retirement Act, more particularly, in Section 238.01(4), where the definition of "teacher" includes, among others, any member of the teaching or professional staff... of any tax supported institution
of higher learning of the State of florida." It is my opinion also that for out-of-town prior service credit the teaching must have been in a tax supported school or educational
institution at any level. (emphasis in opinion)
Thus, the definition of "teacher" used in Section 238.01(4), Florida Statutes is limited to service in public schools, and the term "similar capacity" as used in Section 238.06(4), Florida Statutes is also limited to service in the public schools of other states. To argue that service in private out-of-state schools could be purchased under Section 238.06(4), Florida Statutes would place the TRS in the logical inconsistency of allowing private school teaching service performed out-of-state to be creditable under Section 238.06(4) but disallowing the same service done in the private schools in Florida under Section 238.01(4). If the retirement credit for teaching in private schools in Florida is not allowed, then the same type of out-of-state teaching service should also not be allowed. To do otherwise would constitute gross discrimination to the disadvantage of Florida teachers.
Thus, the term "similar capacity means the same type of service as defined under "teacher" in Section 238.01(4), Florida Statutes, to wit, service in public schools. The opinions of the Attorney General clearly support that policy.
In addition, it is well settled that construction of a statute by the agency charged with its enforcement is accorded considerable weight unless it is clearly contrary to the intent of the statute. Florida Dairy Farmers' Federation v. Borden Co., 155 So.2d 699 (Fla. 1st DCA 1963). Furthermore, the practical construction placed on a statute by an agency, when not in conflict with the Constitution or the plain intent of the act, is of great persuasive force; especially when established by long usage. State ex rel Fronton Exhibition Co. vs. Stein, 144 Fla. 387, 198 So.82 (1940). Where, as in this case, the construction and application of a statute is supported by the language of the act and by long usage, it will be upheld. The Conclusion of Law of the Hearing Officer is rejected.
While the above discussion would clearly show that the law prohibits Peitioner's out-of-state service in a private school from being purchased in TRS, it is also necessary to address the legal argument of estoppel made against the Division based on the facts of the case.
The legal principle of estoppel is well-established in Florida and is sometimes defined as a bar which precludes a person from denying or asserting anything to the contrary of that which has been established as true by his own deed or representation, or which precludes a person from asserting a fact inconsistent with his own previous conduct. 22 Fla. Jur 2d, Estoppel and Waiver, s.2.
Florida courts have held that only in rare instances will the doctrine of estoppel be effectively applied against state action. North American Co. v.
Green, 120 So.2d 603 (Fla. 1960); Bryant v. Peppe, 238 So.2d 836 (Fla. 1970).
One of the leading cases concerning estoppel against the state is Greenhut Construction Co., Inc. v. Knott, Inc., et al, 247 So.2d 517 (Fla. 1st DCA 1971). In this case, the Court stated:
"The law of this state generally recognizes the proposition that although the sovereign may under certain circumstances be estopped, such circumstances must be exceptional and must include some positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did
rely to its detriment. Under no circumstances may the state be estopped by the unauthorized acts or representations of its officers. In addition, the essential elements of estoppel are as declared by this court in Quality Shell Homes & Supply v. Roley to be as follows:
"* * * '(1) a representation by the party estopped to the party claiming the estoppel
as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.''" (emphasis added)
Thus, the Court continued the requirement that the circumstances must be exceptional to invoke estoppel and goes on to quote the essential elements needed to invoke estoppel. It stated in effect that the estoppel must relate to some material fact. The Court clearly differentiated between matters of fact and matters of law.
This distinction was made abundantly clear when the Court went on to state: "It is obvious that the circumstances of this
case do not bring it within the rule relating to estoppel. In the first place the question about which Knotts representative made inquiry to the bureau chief of General Services did not
involve a question of fact but, on the contrary, Involved a pure question of law. Whether Knott was qualified under the statute to submit a bid for the construction of the legislative buildings in this case involved a complex question of
law." (emphasis added)
One of the leading cases on estoppel involving the distinction between questions of fact and questions of law is Hughes v. Illinois Public Aid Commission, 118 N.E. 2d 14 (Ill. Supreme Ct., 1954) wherein the Court reasoned:
"The appellee contends that the State is in some manner bound or estopped by the representations made to her by the admin- istrative personnel of the department or by the opinion of the Attorney General upon which she relied when she moved from Illinois. That contention cannot be considered regardless of how unfortunate it is if appellee was misled by those representations. The State cannot be bound by the representations of its employees if the law is to prevail over
the opinions and judgments of such employees. At page 17. (emphasis added)
This same principle is ingrained in the federal court decisions. In Brown
v. Richardson, 395 F. Supp. 185 (D.C.W. Pa., 1975):
"Reliance upon incorrect information received from a Government agent or employee cannot alter the terms of the statute regardless of the economic hardships that may result.
* * *
Since administrative agencies are bound by the statute under which they operate, even an affirmative representation could not estop the agency." (emphasis added)
There are, furthermore, two Florida cases which directly involve the issue of estoppel against the Division of Retirement.
In Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), the deceased member of the Florida Retirement System had designated his then wife as his beneficiary shortly after commencing his state employment in 1947. He again designated his then wife as his beneficiary in 1955. In 1963, the decedent divorced his then wife, and in 1964, he married his current wife. He died in 1974 but had not executed "another designation of beneficiary form nor did he cancel or terminate the designation form executed in 1955.
A informational pamphlet (issued by the Division of Retirement) explaining the features of the new Florida Retirement System was found in the decedent's personal effects after his death, and contained an erroneous statement of law. The Court stated:
"Although this was an erroneous statement of the law, appellant contends that the Division is bound by the statement; that the trial court erred in not requiring the Division to pay retirement benefits to appellant in accordance with the statement; that the Division is estopped to deny retirement benefits to appellant. There is no evidence, however, that decedent changed his position in any way
in reliance upon the statement nor is there any evidence as to who marked the pamphlet. Administrative officers of the state cannot estop the state through mistaken statements of the law."
The meaning of Greenhut and Austin is that estoppel may be obtained against the state when error involves material facts and information; however, when the error relates to the law or a misinterpretation of the law, then estoppel cannot be invoked against the state.
This is clearly evident in Department of Administration, Division of Retirement v. Flowers, 356 So.2d 14 (Fla. 1st DCA 1978) in which the Court stated (in a rather short opinion) that:
The lower court, applying estoppel, ordered the Department to pay retirement benefits to Appellee in accordance with an incorrect
estimate that the Division of Retirement's Benefit Calculation Section had mistakenly furnished Appellee in response to his inquiries about his prospective retirement benefits. The Department contends here that the court erred in applying estoppel against the State. We reluctantly agree and reverse. The authorities are clear that estoppel cannot be raised against the State unless there are exceptional circum- stances and some positive act on the part of a state officer. (citations omitted)"
The case at bar is similar to Flowers supra, in that a clerical or administrative mistake was made by the Division. In Flowers, the mistake was based on an incorrect estimate of retirement benefits while the instant case involved a failure to observe and act on the document submitted in 1966. In either case, payment of the benefit would be in direct violation of the appropriate statute.
Even forgetting for a moment that the mistake in the instant case was clerical or administrative, Petitioner admits and the law is clear that she is not legally entitled to retirement credit for the out-of-state service.
The employee of the Division who processed the document in 1966 was a state functionary rather than a state official. The Court in Greenhut noted that:
Knott in effect sought an administrative declaratory judgment from a state function- ary who, while eminently qualified in the fields or architecture and engineering, is not shown to posses any of the qualifications necessary to render an authoritative judgment on the legal question posed by Knott,
and who certainly is not one on whose opinion Knott had any right to rely.
The casual and offhand manner in which
the bureau chief indicated that he thought it would be satisfactory for Knott to submit a bid cannot be said to constitute
such an affirmative and positive representa- tion of fact as to justify reliance thereon by Knott in determining whether it should
submit a bid for construction of the project."
The Hearing Officer cites the case of Killearn Properties, Inc. v. City of Tallahassee, 366 So.2d 172 (Fla. 1st DCA 1979) as an example of the new trend in estoppel jurisdiction. However, the issue of the Killearn Properties case make it inapplicable in this case. That issue was:
"... whether the City may now, although it continues to receive the benefits of its agreement, viz.; it continues to receive the substantial income from electricity distributed in the Killearn subdivision, nevertheless discontinue furnishing the street lights which it
clearly agreed to furnish, or alternatively extract from Killearn payment of additional revenues contrary to its agreement. (emphasis added)
The facts of the case show that the City had received a substantial benefit under the contract and wished to continue receiving that benefit. In the case at bar, the Division has not and does not receive any benefit when Petitioner purchased her out-of-state service. The Division is the administrator of the retirement system and has no interest in it other than to administer and apply the law. Thus, while the City of Tallahassee had a property interest and a substantial benefit at stake, the Division has neither.
The First District Court did not even mention the Greenhut decision in its opinion. Thus, Killearn Properties, rather than representing a new trend in estoppel jurisdiction, is a continuation of the prior cases of its type which can be determined solely on the facts there being no question as to the proper interpretation of the law.
Since the state cannot be estopped from applying the correct law in this case, and since the correct law clearly provides that only prior out-of-state teaching service in a public school qualifies for retirement credit under TRS, the Hearing Officer was in error when he found to the contrary.
WHEREFORE, Petitioner's request to purchase out-of-state teaching service in a private school for the period 1942 to 1950, is denied.
DONE and ORDERED this 9th day of September, 1982, in Tallahassee, Leon County, Florida.
ANDREW J. MCMULLIAN, III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT THIS 9TH DAY OF SEPTEMBER, 1982.
Copies furnished to:
William DuFresne, Esquire DuFresne & DuFresne
1782 One Biscasyne Tower
2 South Biscayne Boulevard Miami, Florida 33131
Stanley M. Danek
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
| Issue Date | Proceedings |
|---|---|
| Jun. 01, 1990 | Final Order filed. |
| Jun. 11, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 09, 1982 | Agency Final Order | |
| Jun. 11, 1982 | Recommended Order | Estoppel proven against Agency. Allow credit for eight years of out of state teaching when Petitioner came to Florida and recompute her retirement benefit based on that number of years. |
