STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENE L. BORUS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2961

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

)

Respondent. )

)

RECOMMENDED ORDER

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 December 7, 1984, at Bartow, Florida.

APPEARANCES

For Petitioner: Eugene L. Borus, pro se

260 Nest Van Fleet Drive, #61 Bartow, Florida 33830

For Respondent: Stanley M. Danek, Esquire

Division of Retirement Department of Administration 2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303

By letter dated July 31, 1984, Eugene L. Borus, Petitioner, requested a hearing to contest the Division of Retirement's, Respondent, refusal to remove him from the retirement rolls and restore him to active membership in the Florida Retirement System.

At the hearing Petitioner testified in his own behalf, Respondent called one witness and ten exhibits were admitted into evidence. There is no dispute regarding the facts of this case. Proposed findings submitted by the Respondent and not included herein were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Eugene L. Borus began employment with the Department of Transportation (DOT) in February, 1962, and was enrolled in the Florida Retirement System (FRS) as a mandatory member.

   
   

2. In April, 1976, he terminated employment and applied for retirement. He was retired effective May 1, 1976, with 12.33 years of credible service (Exhibit 2).

3. Mr. Borus was reemployed on May 23, 1977, by DOT. During 1977 and under the provisions of the "Reemployment After Retirement" provisions of Section 121.091(9), Florida Statutes, Petitioner received both his salary and his retirement benefit up to 500 hours of employment at which point his retirement benefits ceased.

   
   

4. Beginning January 1, 1978, and on each January 1 thereafter Petitioner was again paid his retirement benefit up to 500 hours of employment after which the retirement benefit was discontinued.

   
   

5. In early 1984, Mr. Borus applied to the Division to have his 1976 retirement cancelled and his employment service with DOT since 1976 included in his creditable service so that at such time as he would again retire, his total creditable service would include all his employment time. If this transpired, his future retirement benefits would be greater than those currently paid.

   
   

6. His request was denied by the Respondent by letter dated April 5, 1984 (Exhibit 1).

   
   

7. No member of FRS who has retired and drawn retired pay, except for those excepted in Section 120.091(4)(e) and 121.091(9)(d) have ever been "unretired" and allowed to rejoin the FRS.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. The burden is on Petitioner to prove, by a preponderance of the evidence, that he is entitled to rejoin the FRS and count for his future retirement all of the years he has worked for DOT including those after he was placed in a retired status in 1976. Absent a dispute regarding the factual issues in this case, Petitioner's ability to forego his current retirement and return to the FRS becomes a question of law.

   
   

   Membership in FRS is controlled by Section 121.051(1)(a) Florida Statutes, which pro vides in pertinent part: The provisions of this law shall be compulsory as to all officers and employees and each officer or employee, as a condition of employment, shall become a member of the system as

   of his date of employment, except that a person who is retired from any state retirement system and is reemployed on or after December 1, 1970, shall not be permitted to renew his membership

   in any state retirement system except as provided in s. 121.091(4)(e) , for a person who recovers from disability, and

   s. 121.091(9)(d), for a person who is elected to public office. Section 121.091 (9)(b)3, Florida Statutes, provides: The employment by an employer of any retiree

   of any state-administered retirement system shall have no effect on the average final

   compensation of years of creditable service of the retiree, nor shall any deductions or contributions for retirement be made from or for the compensation received by the retiree with respect to such employment.

   
   

10. Respondent has enacted rules in Chapter 22B, Florida Administrative Code, which essentially track the above-quoted provisions of the statute. The provisions of both the statutes and the rules make it clear that a person who retires from a state retirement system and is thereafter reemployed with an FRS agency cannot rejoin FRS and have his creditable service recalculated for retirement purpose.

    
    

11. From the foregoing it is concluded that Petitioner has failed to show that he is entitled to be removed from the retired rolls and restored to the Florida Retirement System. It is therefore

RECOMMENDED that the Division of Retirement enter a Final Order denying Eugene L. Borus the right to cancel his retirement and have his employment service in 1977 added to his creditable service and have his retired pay recalculated based upon his earnings since 1977.

ENTERED this 19th day of December, 1984, at Tallahassee, Florida.

COPIES FURNISHED:

Mr. Eugene L. Borus

260 West Van Fleet Drive, #61 Bartow, Florida 33830

Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement

2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303

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

K. N. AYERS 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 19th day of December, 1984.

Docket for Case No: 84-002961

Orders for Case No: 84-002961