STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELCENE L. CARTER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-234

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, on April 19, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Mrs. Melcene L. Carter

401 Kersey Street Hazlehurst, Georgia 31539

For Respondent: Stanley M. Danek, Esquire

Assistant Division Attorney Department of Administration Division of Retirement Cedars Executive Center

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

This matter arose on Respondent's denial of Petitioner's application to purchase retirement credit from the Teachers' Retirement System (TRS) for the 1952-53 school year. Respondent submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence. Exhibits one through eight are received in evidence and are considered herein.

FINDINGS OF FACT

1. Petitioner was initially employed as a non-degree teacher in Putnam County, Florida, beginning with the 1951-52 school year. During the 1952-53 school year, Petitioner attended the University of Florida where she obtained her degree. She then returned to the Putnam County school system for the school year beginning in 1953.

   
   

2. Petitioner was a member of TRS from 1945 until her retirement in 1970, and seeks to purchase retirement credit for the 1952-53 school year in order to qualify for a 25-year pension. The issue to be determined is whether or not she was on an approved leave of absence in 1952-53, or whether she was merely

   reemployed in the Putnam County school system after completing her degree program.

   
   

3. Petitioner was encouraged to obtain her degree by W.M. Thomas, who was then Superintendent of Putnam County Schools, and was advised by him that her absence would be considered an approved professional leave. Mr. Thomas subsequently corroborated this by letter. Additionally, a former school board member, Mr. Clyde Middleton, stated that Mrs. Carter was granted professional leave for this period. See Exhibit One.

   
   

4. Mrs. Carter made no written request for the leave of absence nor do school board records reflect any consideration of this matter. However, the current superintendent has accepted Mrs. Carter's statement and those of Mr. Thomas and Mr. Middleton, and has certified approval of this leave to TRS. See Exhibit One. Respondent rejects this after-the-fact documentation and maintains that the only acceptable evidence of prior approval would be the school board minutes or other records reflecting official action by the board.

   
   

   CONCLUSIONS OF LAW

   
   

5. Subsection 238.05(3), Florida Statutes (1981), and predecessor provisions allow membership in TRS to continue during approved leaves of absence, but require advance approval. See also Exhibit Four which is a 1952 TRS policy statement on this subject, and which permits the purchase of retirement credit for persons granted leaves of absence.

   
   

6. Respondent regards the documentation submitted by Petitioner as a retroactive grant of approval which it would be required to reject, and cites ample authority for this position. However, the evidence adduced in this proceeding established that Petitioner did, in fact, have the required advance approval for her leave of absence. The after-the-fact documentation should be viewed as a correction of records rather than as a retroactive approval.

   
   

7. Respondent's contention that leaves of absence may be granted only by school boards and, further, that such approval be officially recorded, is not supported by statute or rule. Rather, its applicable rule required only that Petitioner supply "Confirmation of leave of absence granted by the school board or other approving authority." See former Rule 334-1.10, Florida Administrative Code, and Exhibit One.

   
   

8. Petitioner has established by her unrebutted testimony and the corroborative hearsay statements of the superintendent and a school board member that she was granted professional leave in advance of the 1952-53 school year. She should not be penalized for any deficiency in the school board minutes or other records. See Gainey v. School Board of Liberty County, 387 So.2d 1023, 1026 (Fla. 1st DCA 1980).

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Respondent enter a final order authorizing Petitioner to purchase credit in the Florida Teachers' Retirement System for the 1952-53 school year.

DONE and ENTERED this 2nd day of July, 1982, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982.

COPIES FURNISHED:

Mrs. Melcene L. Carter

401 Kersey Street Hazlehurst, Georgia 31539

Stanley M. Danek, Esquire Assistant Division Attorney Department of Administration Division of Retirement Cedars Executive Center

2639 North Monroe Street Suite 207C--Box 81

Tallahassee, Florida 32301

A. J. McMullian, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF RETIREMENT

MELCENE L. CARTER,

Petitioner,

vs. CASE NO. 82-234

DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

This case was presented on a petition by Melcene L. Carter, for review of the denial by the State Retirement Director of the request to purchase retirement credit in the Teachers' Retirement System (hereinafter, TRS) for the 1952-53 school year. A hearing was held pursuant to notice on April 19, 1982 before R. T. Carpenter, designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

Petitioner, pro se For Respondent:

Mrs. Melcene L. Carter Stanley M. Danek

401 Kersey Street Assistant Division Attorney

Hazlehurst, Georgia 31539 Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

The Hearing Officer filed his recommended order on July 2, 1982 in which he sustained the petitioner's assertion and concluded she was entitled to purchase retirement service for the 1952-53 school year. This determination was based upon the Hearing Officer's erroneous findings of fact and conclusions of law and their application to this case. Therefore, as will be more fully developed herein, the Division rejects in part the Findings of Fact and the Conclusions of Law contained in the Recommended Order, amends the Findings of Fact, substitutes its own Conclusions of Law and determines that Mrs. Carter was neither eligible for a leave of absence for the 1952-53 school year and did not make application for it. Therefore, that time is not creditable in the Teachers' Retirement System, Chapter 238, Florida Statutes.

FINDINGS OF FACT

Petitioner was initially employed as a non-degree teacher in Putnam County, Florida, beginning with the 1951-52 school year. At that time, she also had six years of out-of-state teaching service which she eventually purchased and received credit for in TRS. Petitioner has not been a member of TRS from 1945 and the Hearing Officer's finding that she was a member since 1945 is rejected (see Recommended Order, pg. 2)

During the 1952-53 school year, Petitioner attended the University of Florida where she obtained her teaching degree. She then returned to the Putnam County School system for the school year 1953-54.

The Hearing Officer found that Petitioner "seeks to purchase retirement credit for the 1952-53 school year in order to qualify for a 25-year pension." There is no evidence in the record to support such a finding, and it is rejected. Rather, the evidence shows that Petitioner was seeking creditable service for the year in question to increase her eligibility for a higher monthly benefit. (Ex. 1) Petitioner became 55 years of age in December, 1981,

and qualified for retirement under Teacher's Plan E which permits early retirement at age 55 and 10 years creditable service with a reduction in benefits of 5/12 percent for each month prior to her normal retirement age of 60.

Petitioner's case was based on her own testimony together with two documents, the first from Mr. M. W. Thomas, the Superintendent of the Putnam County schools during 1952-53, and the second an affidavit by Mr. Clyde Middleton, who proportedly was a member of the Putnam County School Board during the same time period.

Both documents are hearsay since each was an out-of-court (or hearing) statement offered to prove the truth of the matter asserted. Hearsay does not become any less hearsay merely because the statement is an affidavit. However, under certain conditions, hearsay may be used in administrative hearing.

Section 120.58(1)(a), Florida Statutes, provides in parts as follows:

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to

support a finding unless it would be admissible over objection in civil actions.

In CF Chemicals, Inc. vs. Florida Department of Labor & Employment Security, 400 So.2d 846 (Fla. 2nd DCA 1981), the Court stated the above statutory provision and then stated that "the question becomes whether petitioner's records fall within an exception to the hearsay rule." We have reviewed all the current exceptions to the hearsay rule and find that the two documents do not come within any of those exceptions. We conclude that they would not be admissible over objection in a civil action and should not have been used in the hearing in this matter to support any findings of fact.

Even though the documents could not support an independent binding of fact, they may be used to supplement or explain other evidence. However, in reviewing all of the testimony and evidence, we find that there was no other testimony or evidence concerning whether or not the leave of absence had been approved in advance. We find that there was no other and independent evidence to support the finding that Petitioner's leave of absence was approved in advance except for the two aforementioned documents. Those documents may not be used and are rejected as inadmissible hearsay.

Instead of the Hearing Officer's findings of fact, above, the Division finds that there was no competent, substantial evidence to show that Petitioner's leave of absence had been approved in advance of the 1952-53 school year by the then school board as is required by law.

Mrs. Carter made no written request for the leave of absence nor do the school board records reflect any consideration of her request as given to Mr. Thomas. The Hearing Officer found that "the current superintendent has accepted Mrs. Carter's statement and those of Mr. Thomas and Mr. Middleton, and has certified approval of this leave to TRS." There was no basis for finding that Mrs. Carter was granted a valid leave of absence by the proper authority and the Hearing Officer's finding that it was an approved professional leave is rejected as not supported by competent substantial evidence.

CONCLUSIONS OF LAW

The Hearing Officer stated:

"Subsection 238.05(3), Florida Statutes (1981), and predecessor provisions allow membership in TRS to continue during approved leave of absence, but require advance appro- val. See also Exhibit Four which is a 1952 TRS policy statement on this subject, and which permits the purchase of retirement credit for persons granted leaves of absence.

Respondent regards the documentation sub- mitted by Petitioner as a retroactive grant of approval which it would be required to reject, and cites ample authority for this position. However, the evidence adduced in this proceeding established that Petitioner did, in fact, have the required advance approval for her leave of absence. The

after-the-fact documentation should be viewed as a correction of records rather than as a retroactive approval.

Respondent's contention that leaves of ab- sence may be granted only by school boards and, further, that such approvals be offi- cially recorded, is not supported by statute or rule. Rather, its applicable rule re- quired only that Petitioner supply "Confir- mation of leave of absence granted by the school board or other approving authority.' See former Rule 334-1.10, Florida Administra- tive Code, and Exhibit One."

The above conclusions that leaves of absence must be approved in advance and that retroactive leaves are not permitted is supported by Chapter 238, Florida Statutes, rules of the TRS Board of Trustees (Ex. 4), and an opinion of the Attorney General (1953 AGO, #052-319, dated November 28, 1952). However, the conclusion that a leave of absence such as Petitioner's may be approved by an "approving authority" other than the school board is incorrect under Chapter 238, Florida Statutes.

Section 231.42, Florida Statutes (1951) provided in part as follows: "Professional leave.-Any member of the

instructional or professional administrative staff who finds it necessary to be absent from his duties for professional reasons. . . may apply for professional leave during

such absence. Such leave may be granted under regulations of the county board. . . provided, that any leave granted under this section for members of the instructional

or professional administrative staff must be approved by the county superintendent.

Thus, it is suggested that the professional leave of absence may be approved by the county school superintendent. However, Section 231.39, Florida Statutes (1951) provides further statutory basis for leaves of absence and states in part:

"Any member of the instructional staff may secure leave of absence during the year when it is necessary to be absent from duty

as prescribed by law. . . County boards shall also have authority to prescribe regulations for the granting, and with the approval of the trustees of the district in which the person is serving, to grant more extended leaves of absence, as follows:

1. EXTENDED PROFESSIONAL LEAVE.-Extended leave for professional improvement may be granted for a period of not to exceed one year to any member of the instructional staff who has served satisfactorily and successfully in the schools of the county for a period of three or more years. (emphasis added)

The statute makes it clear that an extended professional leave was different than a normal leave of absence and was restricted to teachers (members of the instructional staff) who had taught at least three years. Since the Petitioner had taught only one year, she was not eligible by law for an extended professional leave of absence. It would seem clear that because she did not have the required three years of teaching service, her request would and could not have been submitted to the school board for review and approval; neither could the superintendent approve a leave that was not permitted by law.

In view of the provisions of Section 238.39(1), Florida Statutes, above, it is unnecessary to determine as a matter of law whether the school board or the superintendent was the proper approving authority since by statute, neither could grant the leave in question. Since Petitioner did not have the necessary three years of teaching service in the school system, she was not eligible for a professional leave of absence and therefore may not receive retirement credit for the school year.

WHEREFORE, Petitioner's request to purchase retirement credit in the Teachers' Retirement System for the 1952-53 school year is denied.

DONE and ORDERED this 28th 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 29TH DAY OF SEPTEMBER, 1982.

COPIES FURNISHED:

Mrs. Melcene L. Carter

401 Kersey Street Hazlehurst, Georgia 31539

Stanley M. Danek

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

Docket for Case No: 82-000234

Orders for Case No: 82-000234