SALLY T. SPERLING, )
vs. ) CASE NO. 82-452
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 17 August 1982 at Tallahassee, Florida.
For Petitioner: Mark S. Levine, Esquire
For Respondent: William A. Frieder, Esquire
Division of Retirement Department of Administration 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
By Petition for Administrative Hearing dated 9 February, 1982, Sally T. Sperling (Petitioner) seeks to require the State of Florida, Division of Retirement (Respondent), to allow her to participate in the Florida Retirement System. At the hearing three witnesses, including Petitioner, were called by Respondent; and 16 exhibits were admitted into evidence. The facts in this case are largely undisputed.
Proposed findings of fact submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.
Sally T. Sperling commenced teaching for the Leon County School Board in 1969 as an elementary teacher at Sabal Palm Elementary School. Following maternity leave and absences to continue her education, Mrs. Sperling returned to the Leon County School System in 1971 as a full-time teacher and subsequently gained continuing contract status before resigning in 1976.
In 1978 Petitioner submitted an application (Exhibit 5) for part-time employment with the Leon County School System in which she indicated a desire to work "perhaps, three days per week. She was employed in the Adult Education Program at Lively Vocational-Technical School in Tallahassee teaching remedial reading.
The form contract used by the Leon County School Board for Petitioner's employment is the same that is used for all instructional personnel. The contract purported to run for one year and Petitioner was paid on an hourly basis, with no minimum or maximum hours specified.
Full-time teachers are hired on an annual basis. Some of the teachers in the Adult Education Program are full-time teachers and are on annual or continuing contracts. Most of the teachers in the Adult Education Programs are part-time teachers and are paid only for the hours they teach.
Petitioner taught remedial reading classes and sufficient interest in this course has been maintained so the program has continued semester after semester for the four years Petitioner has taught adult education courses. Other Adult Education Programs in which sufficient interest has not developed have been dropped.
Funding for Adult Education Programs depends upon the number of students attending the classes. If this number drops below the number required to keep the course self-sufficient, the course will be dropped. In such a case the teacher of the course will not remain on the Leon County payroll, as no hours will be devoted to teaching this course. Unless an actual course is taught, the part-time teacher is not paid.
Teachers on annual contracts are paid for the full year regardless of the number of hours of classes taught.
At the time Petitioner was hired she was given a packet of information (Exhibit 7) but was not specifically told that part-time teachers are not eligible for the Florida Retirement System. During the four years Petitioner has been employed as a part-time teacher she has had no social security deductions taken from her pay and has earned no annual or sick leave.
Pursuant to an agreement between the state and federal governments all members of the Florida Retirement System are covered by social security and FICA deductions are taken from their pay. This deduction is indicated on the check stub given to the employee with each pay check. State employees not under the Florida Retirement System and not specifically made parts of the Social Security System are not covered by social security.
Full-time teachers are considered salaried employees holding a regularly established position. They are paid from funds provided in the "100" account. Part-time employees are designated as Other Personal Services (OPS) and are paid from funds in the "700" account. These accounting codes are established by the Department of Education to provide uniformity in accounting in the various school systems. The accounting code designation from which fund the employee is paid gives a quick reference to the status of the employee.
When the pay records show Petitioner is paid from "751" funds, there will be no state retirement or FICA contributions from the code that disburses those funds.
When the Florida Retirement System replaced older state retirement systems, some confusion developed regarding the status of personnel hired
temporarily and retained on the payroll for an extended period. This confusion carried over to part-time teachers in the Adult Education Programs throughout the state. Some of the counties placed these part-time teachers in the Florida Retirement System where they have been covered for nearly ten years. The Division of Retirement is in the process of removing those people from the retirement system.
At the time Petitioner wads hired she did not believe she was eligible for the Florida Retirement System and no FICA deductions were ever taken from her pay. After a visiting friend advised her she might be eligible for the Florida Retirement System Petitioner initiated the inquiries that led to these proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The Florida Retirement System Act is contained in Chapter 121, Florida Statutes. Section 121.051 provides that the provisions of this act shall be compulsory as to all officers and employees who are employed on and after December 1, 1971. Section 121.021(11) provides:
"Officer or employee" means any person receiving salary payments for work performed in a regularly established position and,
if employed by a city or special district, employed in a covered group.
Rules regulating membership in the Florida Retirement System are contained in Chapter 22B-1, Florida Administrative Code. Rule 22B-1.04(1) provides in pertinent part:
Participation in . . . the Florida Retirement System . . . shall be compulsory as a condition of employment for all of the officers and employees enumerated in the following paragraphs who were filling a regularly established position as described in
subsection 22B-1.04(5):
All officers and employees . . . within a . . . district school board who are . . . hired after December 1, 1970, except the following:
[exceptions not applicable]
Rule 22B-1.04(5) provides in pertinent part:
Membership in the Florida Retirement System shall be compulsory if the employee is filling a regularly established position. An employee filling a regularly established position shall be enrolled on the first day of employment, even if the employee is serving a probationary period, or working part time. A position meeting the definition below shall be considered a regularly established position.
(b) A regularly established position in a local agency (district school board, county agency, community college, city and special district) is an employment position which will be in existence beyond four consecutive months.
A local agency when creating or establishing an employment position, except for positions identified in 22B-1.04(5)(c)6.a. [CETA positions] or 22B-1.04(6)(e) should determine if the position will last beyond four consecutive calendar months. If it will, then it is for retirement purposes, a regularly established position. If it will not, then it
is a temporary position for retirement purposes.
Rule 22B-1.04(6) provides in part:
An employee who is filling a temporary position shall not be eligible for membership in the Florida Retirement System.
* * *
(e) The following types of positions are considered temporary positions for retirement purposes. This is not a complete list of temporary positions and should be used only
as a guide, along with the definitions above, in determining if an individual is filling
a temporary position.
* * *
4. Temporary Instructional Personnel (persons appointed to positions which are established with no expectation of continuation beyond one quarter, one semester, or one trimester at a time to teach in a community college, public school or vocational institution)
This provision of the rules was interpreted by the Division of Retirement in Memorandum No. 81-60 dated December 23, 1981 (Exhibit 11), in which it was stated:
Having studied the question of whether adult education instructors fill regularly
established positions or temporary positions, the Division has concluded that adult education instructors are essentially temporary in nature where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to
teach. Although some school districts give such instructors contracts using the familiar annual contract form, these particular contracts typically represent only an entitlement to work if appointed or called, and they usually specify an hourly rate of pay for any work performed. A contract of this kind is not sufficient to alter the temporary
nature of the position held by an adult education instructor.
From the facts that Leon County School System and Petitioner have contracted to pay and be paid on an hourly basis for the hours taught; that both parties understood that if an insufficient number of students enrolled for a particular class that class would be discontinued and the instructor's pay would stop; that both parties understood at the time the initial contract was signed that Petitioner would not have FICA deductions taken from her pay; that she would not earn leave; and that she would not be covered by the Florida Retirement System, leads to the conclusion that the parties contemplated only temporary employment of the Petitioner. The fact that the remedial reading courses taught by Petitioner have been popular and have been renewed semester after semester for the past four years does not change the nature of the contract between Petitioner and Leon County or make Petitioner other than a temporary employee.
The agency's interpretation of the statute it is given the responsibility to administer is entitled to great weight. Fidelity Construction Co. v. Arthur J. Collins & Son, Inc., 130 So.2d 612 (Fla. 1962). Construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong. E. I. DuPont de Nemours & Co. v. Collins, 432 U.S. 46, 53 L.Ed. 100, 97 S.Ct. 2229 (1977); Hart and Miller Islands Area Environmental Group v. Corps of Engineers, 621 F.2d 1281 (CA 4th 1980). The agency's interpretation of its own rules should be entitled to even greater weight.
Here, the Division of Retirement has enacted rules and rendered interpretations of the Florida Retirement System Act which make an employee in Petitioner's position ineligible for coverage under the Florida Retirement System. This interpretation is entitled to great weight.
The burden is on Petitioner to show by a preponderance of the evidence that she is eligible for membership in the Florida Retirement System. The prime factor on which Petitioner bases her claim for entitlement to coverage under the Florida Retirement System is the fact that she has taught the same type class for four years, ergo, the employment was not temporary. However, it is the nature of the employment that makes the employment temporary. Here, both parties fully understood that the permanence of the Adult Education program depends upon the enrollment of persons over whom neither the Petitioner nor the School Board has any control.
From the foregoing it is concluded that Petitioner is a temporary employee as that term is used in 22B-1.05(6)(e)4. Florida Administrative Code, and is not eligible for coverage under the Florida Retirement System. It is
RECOMMENDED that the Division of Retirement enter a Final Order denying Sally T. Sperling's petition to be covered under the Florida Retirement System while serving as an hourly employee of the Leon County School Board as an adult education instructor.
ENTERED this 17th day of September, 1982, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1982.
Mark S. Levine, Esquire LEVINE, GARCIA & THOMPSON
William A. Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
