STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLTON FUTCH, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2239

)

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

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing on January 23, 1984, in Cocoa, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Eric B. Tilton, Esquire

Post Office Box 5286 Tallahassee, Florida 32301

For Respondent: William A. Frieder, Esquire

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

This case arose on Respondent's denial of petitioner's request to purchase past service credit under the Florida Retirement System (FRS).

The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Petitioner is formerly the president of Brevard Ambulance Service, Inc., (BAS) a privately held corporation which contracted with Brevard County to provide the County with certain ambulance services within its territorial jurisdiction. The precise nature of the services and the business relation between BAS and the County is set out in a series of contracts covering the periods from October 1, 1969 to September 30, 1977.

   
   

2. While employed as President and sole shareholder of BAS, Petitioner provided services to the Brevard County Civil Defense Agency as the Emergency Medical Services (EMS) coordinator. In the event of a disaster preparedness exercise, a national emergency, a space launch, or upon several other

   extraordinary occurrences, he was required to coordinate BAS's activities with the authorities in the County Civil Defense Office as well as with other ambulance service providers throughout Brevard and adjoining counties. The purpose of this coordination effort was to help assure that ambulance service was available when and where it was needed without undue delay. Brevard County is an unusually long county covering a distance in excess of 50 miles and thus required these coordination efforts.

   
   

3. Petitioner rendered these coordination services to Brevard County Civil Defense Agency from 1961 until November 3, 1977, when he resigned his position with BAS and sold its assets. He became a full time employee of Brevard County on November 4, 1977, in the newly created position of Emergency Medical Services Director.

   
   

4. Petitioner did not automatically secure this position. He was required to make application, be interviewed, compete with other applicants and be formally selected. There was no carry-over in benefits such as health insurance or accumulated leave from his prior position with BAS. Further, ambulance operations were not taken over on November 4, 1977 by Brevard County, but continued to be provided exclusively on a contract basis until March 1, 1978, when the County initiated its own service.

   
   

5. In 1978, Petitioner made his first inquiry to FRS concerning his eligibility to purchase past service credit as EMS coordinator under Subsection 121.081(1)(g) Florida Statutes (F.S.) and Rule 22B-2.03(3), Florida Administrative Code (F.A.C.). Respondent initially declared Petitioner eligible to purchase past service credit based on the limited information furnished to it in 1978. At that time, Petitioner made no effort to go forward with the proposed purchase.

   
   

6. In 1981, Petitioner attempted to purchase the credit and Respondent sought verification as to how petitioner had become a County employee, whether he had actually received a salary for the EMS Coordinator duties and whether an assumption of services had occurred. Finally, on June 20, 1983, Respondent advised Petitioner that he was not eligible to purchase past service credit.

   
   

7. Petitioner received salary payments during the period from 1961 through 1977 from his employer BAS and estimates that approximately 5 percent of his time was spent in EMS coordination duties. He reasons that 5 percent of the salary which he earned between 1961 and 1977 was salary for EMS coordination functions, but he admits that the assignment of 5 percent of his salary was not made until 1978 when he first inquired into his eligibility to purchase past service credit. Petitioner had given no previous consideration to being paid for the EMS coordination duties and no specific payments for this function were provided by the County contracts.

   
   

   CONCLUSIONS OF LAW

   
   

8. Subsection 121.081(1)(g), F.S., provides in its pertinent parts:

   
   

   When any person...becomes entitled to and does participate in...(FRS)...through the consolidation or merger of governments or the transfer of functions between units of government...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,...such person shall be entitled to receive "past service" credit as defined in Section 121.021(18) for the time such person performed services for and was an employee of said...other employing entity prior to the transfer, merger, consol- idation or assumption of functions and activ- ities....

   
   

9. Subsection 121.021(13), F.S. provides a definition of "past service" which is:

   
   

   'Past service' of any member means the number of years and complete months and any fractional parts of a month, recog- nized and credited by an employer and approved by the administrator, during which he was in the active employ of an employer prior to his date of participa- tion.

   
   

   Rule 22B-2.03(3), F.A.C., provides that:

   
   

   Past service credit may be claimed by a person who becomes a member of the FRS by virtue of the transfer, consolidation, or merger of governmental units or functions at any level of government or through the assumption of functions or activities by

   an employer under the system from an employ- ing entity that was not an employer under the system....

   
   

10. Under the above provisions, Petitioner's eligibility to purchase past service retirement credit is based on the following criteria:

    
    

    1. There must have been an "assumption of functions or activities."

       
       

    2. Petitioner's entitlement to participate in FRS must have originated "through" such assumption of functions or activities.

       
       

    3. Petitioner's "past service" must have been "recognized and credited" by his previous employer.

       
       

11. There was an "assumption of functions" by the County when it created the EMS Director position in November, 1977. The EMS coordination functions were assigned by the County to its ambulance contractor prior to November, 1977, and were set forth in the contracts discussed herein.

    
    

12. Petitioner's entitlement to participate in FRS did not arise "through" the assumption of those functions. Rather, he became entitled to participate in November, 1977, exclusively as a result of his competitive selection for the newly created EMS Director position.

    
    

13. Petitioner's "past service" was not "recognized and credited" by his previous employer. There was no evidence that the EMS coordinator duties were compensated or intended to be compensated either by the County in its contracts

with BAS or by BAS as Petitioner's employer. Only in 1978 when Petitioner became aware of the past service purchase opportunity did he determine that he had been paid 5 percent of his salary in earlier years for handling these limited duties.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Respondent enter a Final Order denying Petitioner's request to purchase past service retirement credit.

DONE and ENTERED this 12th day of March, 1984 in Tallahassee, Florida.

R. T. CARPENTER 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 12th day of March, 1984.

COPIES FURNISHED:

Eric B. Tilton, Esquire Post Office Box 5286 Tallahassee, Florida 32301

William A. Frieder, Esquire Division of Retirement

2639 North Monroe Street Suite 207C, Box 01 Tallahassee, Florida 32303

Andrew J. McMullian, III, Director Division of Retirement

2639 North Monroe Street Building C

Tallahassee, Florida 32303

Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

Docket for Case No: 83-002239

Orders for Case No: 83-002239