STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GRETCHEN G. WEATHERS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0673
) DEPARTMENT OF ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 25, 1988, in Miami, Florida.
Petitioner Gretchen G. Weathers was represented by Patricia Ann Ash, Esquire, and Harold M. Braxton, Esquire, Miami, Florida; and Respondent Department of Administration was represented by Burton M. Michaels, Esquire, Tallahassee, Florida.
When Petitioner, a former teacher for the Dade County Public Schools and member of the Teachers' Retirement System, applied for reemployment, she elected to become a member of the Florida Retirement System. Respondent subsequently denied her request for membership in the Florida Retirement System, and she timely requested a formal hearing on that denial. Accordingly, the issue for determination herein is whether Petitioner is a member of the Florida Retirement System.
The Petitioner testified on her own behalf, and Petitioner's Exhibit numbered 1 was admitted in evidence. Respondent presented no witnesses; however, Respondent's Exhibits numbered 1-3 which consisted of depositions were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Petitioner began teaching in 1958. She was employed as a teacher by the School Board of Dade County, Florida, and became a member of the Teachers' Retirement System (hereinafter "TRS") in September, 1960. That employment and retirement system membership continued until August 17, 1987, at which time Petitioner tendered her resignation and terminated her employment.
During that entire time period, Petitioner was a "continuing contract" teacher. The continuing contract utilized by the School Board of Dade County, Florida, is a contract of employment for a 10-month period, from September through June. Under the Florida Retirement System (hereinafter "FRS"), a
teacher employed under such a 10-month contract of employment receives one year of retirement credit for working each of those 10 months.
During the above period of her employment with the School Board of Dade County, Florida, Petitioner also received supplemental compensation from the School Board for her additional services as a golf coach, as a part-time adult night school teacher, and as a summer school teacher. Although such additional compensation would be included under the FRS in computing the amount of retirement benefits payable to an employee-member of that system, no additional retirement credits could be earned by such additional employment. Specifically, a teacher teaching for the 10-month contract term of employment and also for the
2 months of summer school only receives retirement credit for the 10 months pursuant to the contract of employment (one year's retirement credit) but cannot receive additional retirement benefits for summer school teaching.
During the 1986-87 school year, Petitioner received one-year's credit toward retirement for working from September 1986 through June 1987, the contract period of employment in Dade County. She received no credit toward retirement for her teaching duties during the 1987 summer school session and, specifically, received no credit toward retirement for her employment during July 1987 or August 1987.
For the last several years prior to her resignation as a teacher with the School Board of Dade County, Florida, Petitioner corresponded with Respondent regarding her retirement account status. She purchased credit for prior service for employment as a teacher out-of-state. She requested information as to when and how she would be eligible for normal and early retirement. She also requested information as to whether and how she could transfer from the TRS to the FRS. Respondent advised her in writing that she could not transfer from the TRS to the FRS, but if she terminated her employment and subsequently became employed by an agency covered by the FRS, she could then elect to transfer into the FRS.
In September 1987, the Principal of American High School where Petitioner had been teaching prior to her resignation contacted Petitioner and asked her to return to the classroom. Petitioner agreed. Petitioner was required to undergo the complete interview and application process of a candidate for employment with the School Board of Dade County. Although she was reemployed as a teacher on September 28, 1987, and assigned to American High School, she was not given the additional positions as golf coach or as a part- time teacher in the adult night school program.
As part of the employment process in September 1987, Petitioner was given the forms to fill out to elect to either rejoin the TRS or transfer to the FRS. She elected to transfer from the TRS to the FRS upon her reemployment by the School Board.
Pursuant to her 10-month contract of employment, Petitioner taught at American High School from September 1987 through June 1988, thereby receiving one year's credit toward retirement for that 10-month contract. During that entire school year the School Board of Dade County reported Petitioner as a member of the FRS on its monthly reports filed with the Respondent commencing in October, 1987. Likewise, for that entire school year the School Board of Dade County transmitted to Respondent on a monthly basis the monies required for Petitioner's contribution to her FRS retirement account.
When Respondent received the school Board's October 1987 payroll records and the monies for Petitioner's October contribution to her FRS retirement account, Respondent determined from its records that Petitioner was a member of the TRS and not the FRS and began posting Petitioner's contributions to her TRS retirement account and not to an FRS retirement account. Although the contributions sent monthly by the School Board to Respondent during the
1987-1988 school year exceeded the amount required for a TRS contribution by the amount of $17.85 per month, Respondent took no steps to notify either Petitioner or the School Board that it refused to recognize Petitioner as a member of the FRS or that it was crediting the monies on Petitioner's behalf to a TRS account and not to the FRS account that Petitioner had elected and that the School Board was reporting. Further, Respondent failed to advise the School Board of its monthly excess contribution on Petitioner's behalf until May, 1988. By the time of the final hearing in this cause, Respondent had not refunded the excess contributions. Petitioner's pay stubs for each month of the 1987-88 contract year reflected that the FRS was receiving her contributions and accepting them.
In December 1987, Petitioner contacted Respondent regarding transferring her previous TRS credit to her FRS account. By letter of January 19, 1988, Respondent notified Petitioner that she was not eligible for membership in the FRS because she had not terminated her previous employment with the School Board of Dade County, Florida. That letter further advised Petitioner that she was not eligible to retire under the FRS. The denial was based solely upon Section 120.051(1)(c), Florida Statutes. For purposes of that statute and related statutes regulating retirement, the TRS is referred to as "an existing system."
When Petitioner terminated her employment with the School Board in August 1987 she did not receive from the School Board any payment for her accumulated sick or annual leave because it is the School Board's policy to pay such monies only in June, and Petitioner did not terminate her employment until August 17, 1987. Similarly, she was not refunded any accumulated retirement contributions. Her reemployment in September 1987 obviated any need for payment of such monies to her.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Section 121.051(1)(c), Florida Statutes, provides as follows:
After June 30, 1983, a member of an existing system who is reemployed after terminating his employment shall have at the time of reemployment the option of selecting to remain in the existing retirement system or to transfer to the Florida Retirement System. Failure to submit such selection in writing to the Division of Retirement within 6 months of reemployment shall results ire compulsory membership in the Florida Retirement System.
Respondent contends that Petitioner did not terminate her previous employment, that she did not actually resign but only made a "paper termination." No factual evidence was offered to support that position.
Respondent further contends that Section 121.051(1)(c), Florida Statutes, requires a break in service of one calendar month or more prior to reemployment. The statute makes no mention of a time requirement before reemployment. In contrast, Section 238.181(2), Florida Statutes, which deals with retirement and reemployment, specifically sets forth the one calendar month requirement, but is inapplicable in this case since Petitioner did not retire.
Respondent further contends that members earn service credit by the month and earn a full month's credit by working and being paid for only a portion of a month (one or more days equals a full month for retirement purposes), and any period of time off the payroll of less than one calendar month is not considered a break in service. While Respondent's position might be applicable to other employees, teachers with a contract of employment with a school board are treated differently. According to Section 121.021(17)(a), Florida Statutes, "Service as applied to a teacher ... shall be based on contract years of employment or school term years of employment ... rather than 12-month periods of employment." See also Rule 22B-6.001(19), Florida Administrative Code. Similarly, Rule 22B-2.002(4)(a), Florida Administrative Code, provides in part that:
A member for whom a shorter work year has been approved pursuant to law shall receive a year of service credit if he earns a full month of service credit for each month of the approved work year. [Emphasis added]
Rule 22B-2.002(4)(b) further provides in part: The approved work year pursuant to Florida Statutes for the purpose of determining service credit in accordance with this
policy is as follows:
Academic or instructional employees (including substitute teachers eligible for membership) of a district school board, community college, or state university:
The work year shall be the number of months in the full contract year or nine months, whichever is greater, as specified by the contract between the employee and the school system in accordance with law (Chapters 228 and 230, Florida Statutes).
Even if teachers were not treated differently regarding the accumulation of service credit for retirement, Respondent's arguments regarding "break in continuous service," "continuous service" concepts, and requirements for accumulating credits are inapplicable to the issue of membership in the FRS. Petitioner's membership in the FRS in this case derives from her electing to transfer to that retirement system when she became reemployed with Dade County. The statute giving her that right contains no requirement that there be a break in continuous service in order for a person being reemployed to transfer into the FRS. The statute automatically permits Petitioner to transfer into the FRS, and Petitioner's accumulation of retirement credits subsequent to her transfer to the FRS in September 1987 would be regulated thereafter by the statutes and rules regulating accumulation of credit.
The statutes, rules and evidence in this cause are clear that a continuing contract teacher earns retirement credits for work during the months of that contract term. The evidence is also clear that Petitioner has never been given retirement credits for teaching in summer school. Respondent's Exhibit numbered 1 is the deposition of Ruth Sansom, the Chief of Respondent's Bureau of Retirement Calculations. Although Sansom testified, utilizing Exhibit numbered 15 to that deposition, that Petitioner was given credit for retirement for teaching in summer school during July 1987 and August 1987, the Exhibit upon which she relied for that testimony does not stand for that proposition. Further, Sansom offered no explanation as to why the summer session of 1987 should be treated differently by Respondent than any previous summer session.
Exhibit numbered 15 to Sansom's deposition does not reflect the information it was purported to reflect when offered. Further, Respondent who sponsored the exhibit, sponsored it with the proviso that it contained a "scriveners error." The "scriveners error" is that it is a calculation of benefits for Petitioner under the Florida Retirement System. The deposition of Sansom was taken by telephone. The Respondent's attorney was present in Tallahassee with the deponent, and Petitioner's attorney, who was in Miami, was present only by telephone. Prior to the deposition Respondent forwarded to Petitioner the exhibits which Respondent intended to utilize at Sansom's telephonic deposition. Exhibit numbered 15 to the deposition was not provided to Petitioner prior to the deposition being taken. Accordingly, when Sansom testified as to what was contained in Exhibit 15, Petitioner's attorney had no way of knowing that the document did not support that testimony and could not cross-examine Sansom regarding Exhibit numbered 15 to the deposition. During the deposition Petitioner's attorney objected to any exhibit to the deposition that had not been previously provided to Petitioner, and at the final hearing Petitioner moved to strike the testimony of Sansom regarding the contents of that exhibit based upon Petitioner's review of the exhibit subsequent to the deposition. Petitioner's objection to Exhibit numbered 15 to that deposition on the basis that it does not represent all those matters it was purported to represent and on the basis of Respondent's admission that it is not an accurate document is sustained. Further, Sansom's testimony regarding the contents of that Exhibit is stricken.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED that a Final Order be entered finding that Petitioner became a member of the Florida Retirement System in September 1987 and allowing Petitioner to transfer her previously-earned Teachers' Retirement System credits to the Florida Retirement System.
DONE and RECOMMENDED this 1st day of November, 1988, at Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0673
Petitioner's proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the weight of the evidence in this cause.
Respondent's proposed findings of fact numbered 6 and 7 have been rejected as not being supported by the weight of the evidence in this cause.
COPIES FURNISHED:
Patricia Ann Ash, Esquire Harold N. Braxton, Esquire One Datran Center, Suite 406 9100 South Dadeland Boulevard Miami, Florida 33156
Burton M. Michaels, Esquire Department of Administration
440 Carlton Building Tallahassee, Florida 32399-1550
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Augustus D. Aikens, Jr., Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
GRETCHEN G. WEATHERS,
Petitioner,
Division of Retirement
Case No. DR88-01
(D0AH Case No. 88-0673)
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
On November 1, 1988, the duly appointed Hearing Officer of the Division of Administrative Hearings in the above-styled and numbered cause, completed and submitted to the Division of Retirement of the Department of Administration and to all parties in this cause, a Recommended Order. A copy of that Recommended Order is attached hereto, incorporated by reference herein, and made a part hereof as EXHIBIT "A".
Pursuant to Rule 28-5.404, Florida Administrative Code, and Section 120.57(1)(b)8, Florida Statutes, the parties were allowed twenty (20) days within which to submit written exceptions to that Recommended Order. Neither the petitioner nor the Respondent submitted any written exceptions. Pursuant to Section 120.57(1)(b), Florida Statutes, that Recommended Order came before the undersigned Director of the Division of Retirement, as agency head, for final agency action and for a final agency order in this cause.
The Record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits (referred to herein as "Exhibit ") and a written transcript (55 pages) of the August 25, 1988, hearing, certified by the court reporter on September 9, 1989.
FINDINGS OF FACT
After having considered the recommended Findings of Fact in the attached Recommended Order together with a review of the entire record in this cause, including said transcript of the hearing, the Division of Retirement hereby enters its Findings of Fact and hereby rules upon each of the Findings of Fact set forth in the attached Recommended Order.
The first two sentences of recommended Finding of Fact No. 1 are hereby accepted and adopted in that they are supported by competent, substantial evidence. The last sentence is hereby rejected in that it calls for a
conclusion and for the following additional reasons. The Petitioner was employed by the School Board of Dade County on a continuing contract pursuant to Section 231.36, Florida Statutes which required that she teach for the ten-month period from September through June. For the fiscal year 1986-1987 the Petitioner earned a year of creditable service in that she was employed as a school teacher for at least the said ten month period. It hereby found that pursuant to the continuing contract requirements of the Dade County School Board that a teacher on continuing contract was not required to teach during the months of July and August in order to continue employment on that continuing contract. Therefore in making any determination as whether a school teacher in the Dade County school system had terminated his or her employment it is necessary to ascertain whether or not such teacher was employed for the next or ensuing school year by entering into the duties and responsibilities of a teacher in September of that year. It is found that on or about August 17, 1887, that the records in the Dade County school system reflect that the petitioner tendered her resignation but it is further found that her employment with the Dade County school Board continued by her assuming teaching duties in September of 1987.
Recommended Finding of Fact No. 2 is hereby accepted and adopted in that it is supported by competent substantial evidence with the following corrections as to the last sentence. That last sentence should be corrected to read as follows. "Under both the Teachers' Retirement system (See Chapter 238, Florida Statutes) and the Florida Retirement System (See Chapter 121, Florida Statutes) a teacher employed under such a ten-month contract of employment receives one year of creditable service for having bean employed as a teacher for that entire ten-month contract year, pursuant to the provisions of Section 121.021(17) and 238.06, Florida Statutes, and Rule 22B-6.001(18), Florida Administrative Code."
The first two sentences of recommended Finding of Fact No. 3 are hereby accepted and adopted in that they are supported by competent substantial evidence. The remainder of recommended Finding of Fact No. 3 is hereby rejected in that it does not accurately portray the facts. A clearer statement would be as follows. "Both under the Teachers' Retirement System and the Florida Retirement System, a teacher on a ten month contract of employment who is also employed during the two months not included in the school year, would receive one year of creditable service for teaching during the ten month contract period and contributions would be required to be paid on compensation received during that two month period. The compensation received during that two month period may also be included within "average final compensation" within the meaning of that term in Sections 121.021(24) or 238.01(14), Florida Statutes."
The first sentence of recommended Finding of Fact No. 4 is corrected to read that the "Petitioner received one year of creditable service" and with that correction it is hereby accepted and adopted in that it is supported by competent substantial evidence but, the remainder of recommended Finding of Fact No. 4 is hereby rejected in that it is not supported by the facts and is a misstatement. It is hereby found that the compensation received by the Petitioner for her employment during July and August 1987 required that contributions had to be made thereon pursuant to the Teachers' Retirement System, Chapter 238, Florida Statutes. And it is further found that the compensation received by the Petitioner during those two months would have formed a part of her "average final compensation" within the meaning of that term in Section 238.01(14), Florida Statutes.
Recommended Finding of Fact No. 5 is hereby accepted and adopted in that it is supported by competent, substantial evidence.
The recommended finding in recommended Finding of Fact No. 6 that the Petitioner "was re-employed as a teacher on September 28, 1987" is hereby rejected for the following hereinafter stated reasons, but the remainder of that recommended Finding of Fact No. 6 is hereby accepted and adopted in that it is supported by competent, substantial evidence. It is hereby found that the Petitioner was not re-employed as a teacher on September 28, 1987, within the meaning of that term in Section 121.051(1)(c), Florida Statutes, for the following reasons. Regardless as to what may have occurred in the relationship between the Petitioner and the School Board of Dade County, Florida in August and September, 1887, as to any employer-employee relationship, for the purposes of Chapters 121 and 238, Florida Statutes, the petitioner, Gretchen G. Weathers, had "continuous service" during the months of August and September, 1987, inasmuch as she had remained in an employer-employee relationship with the School Board of Dade County, Florida, at some time during each of those months of the calendar, as provided in Section 121.021(38), Florida Statutes, and Rule 22B-6.001(16), Florida Administrative Code. At no time during the months of August and September, 1987, did the Petitioner have any break in service because she was not absent from an "employer's" payroll for an entire month of the calendar during that two-month period in question, as provided in Section 121.021(38), Florida Statutes, and Rule 22B-6.001(12), Florida Administrative Code. For the purposes of Section 121.051(1)(c), Florida Statutes, the employment of the Petitioner with the School Board of Dade County, Florida, never terminated at any time during the months of August and September, 1987, because the Petitioner had received retirement service credit during each of those calendar months for the entire calendar month, and, therefore, no "termination" of employment for retirement purposes ever occurred, because the Petitioner had "continuous service" during those two calendar months as provided in Section 121.021(38), Florida Statutes, and Rule 22B-6.001(16), Florida Administrative Code. In order for a termination of employment to occur under both Chapters 121 and 238, Florida Statutes, there must be a break in continuous service, as provided in Section 121.021(38), Florida Statutes, and Rule 22B- 6.001(12), Florida Administrative Code.
Recommended Finding of Fact No. 7 is hereby rejected in that it is totally irrelevant and immaterial as to what forms she may have been given by the School Board of Dade County, Florida in September, 1987, when she resumed her teaching duties, and it is wholly irrelevant and immaterial as to her desire as of that particular date with reference to the retirement system of her choice. The last sentence of that recommended Finding of Fact is further rejected in that it is hereby found that pursuant to the provisions of Section 121.051(1)(c), Florida Statutes, that the Petitioner was not re-employed within the meaning of that statute.
The first sentence of recommended Finding of Fact No. 8 is corrected to read as follows: "Pursuant to her 10-month contract of employment, Petitioner taught at American High School from September 1987 through June 1988, thereby receiving one year of creditable service under the Teachers' Retirement System for her performance of that 10-month contract." The second sentence of recommended Finding of Fact No. 8 is corrected by the insertion of the word "incorrectly" before the word "reported" and as so amended is hereby accepted and adopted in that it is supported by competent, substantial evidence. The last sentence of recommended Finding of Fact No. 8 is hereby corrected to read as follows: "Likewise, for that entire school year the School Board of Dade County transmitted to Respondent on a monthly basis reported contributions for
the Petitioner under the Florida Retirement System, but those contributions were not posted under the Florida Retirement System in the records of the Respondent, Division of Retirement, but were posted to the petitioner's account under the Teachers' Retirement System (deposition of Tom Wooten, Respondent's Exhibit No. 2, page 7). As corrected, that last sentence of Recommended Finding of Fact No.
8 is adopted and accepted as being supported by competent and substantial evidence.
The first sentence of recommended Finding of Fact No. 9 is hereby accepted and adopted in that it is supported by competent, substantial evidence. The remainder of recommended Finding of Fact No. 9 is rejected in that it is contrary to the evidence in this cause for the following reasons. A copy of the January 19, 1988, final agency action letter to the Petitioner that resulted in these proceedings was sent to Mrs. Louise Syrcle with the Dade County School Board (deposition of Tom Wooten, Respondent's Exhibit No. 2, page 11 and Respondent's Exhibit No, 1 to that deposition). Furthermore, on May 5, 1988, the Dade County School Board was formally notified in writing to correct their reporting as to the Petitioner's retirement account and to change their payroll records accordingly (deposition of Tom Wooten, Respondent's Exhibit No. 2, pages 11-15, Respondent's Exhibit No. 2 to that deposition). Contrary to the last sentence in recommended Finding of Fact No. 9, the Division of Retirement was not accepting the retirement contributions on behalf of the Petitioner for any Florida Retirement System account but was posting such contributions to her account under the Teachers' Retirement System, and as of the date of the taking of the deposition of Tom Wooten on August 18, 1988, the Division of Retirement was in the process of refunding those excess contributions to the Dade County School Board (deposition of Tom Wooten, Respondents Exhibit No. 2, pages 13-14).
Recommended Finding of Fact No. 10 is hereby accepted and adopted in that it is supported by competent, substantial evidence.
Recommended Finding of Fact No. 11 is hereby rejected in that it is based upon speculations and conclusions. Furthermore it is rejected in that it is hereby found that petitioner did not terminate her employment in August 1987, and she was not re-employed in September 1987, within the meaning of those terms in Section 121.051(1)(c), Florida Statutes, for the reasons stated above in paragraphs 1 through 10.
For the purposes of Section 121.051(1)(c) , Florida Statutes, the employment of the petitioner with the School Board of Dade County, Florida, never terminated at any time during the months of August and September, 1987, because she had received retirement service credit during each of those months for the entire calendar month, and, therefore, no "termination" of employment for retirement purposes ever occurred. The petitioner, therefore, never had the option to transfer to the Florida Retirement System pursuant to Section 121.051(1)(c), Florida Statutes, at any time during September, 1987, or thereafter, because of any alleged resignation in August, 1987.
RULINGS ON PROPOSED FINDINGS OF FACT
Respectively on September 20 and September 9, 1988, the Petitioner and the Respondent submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix To Recommended Order the Hearing Officer submitted recommending rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact.
The petitioner's proposed Findings of Fact numbers 1 and 5 are hereby accepted and adopted in that they are supported by competent substantial, evidence.
The petitioner's proposed Finding of Fact No. 2 is hereby rejected in that the petitioner did not terminate her position on August 17, 1987, and she was not reemployed on September 29, 1987, for the reasons stated above in paragraphs numbers 1 through 12.
The Petitioner's proposed Finding of Fact No. 3 is hereby rejected upon the grounds and for the reasons stated in paragraphs No. 7 and 8 above.
The Petitioner's proposed Finding of Fact No. 4 is rejected as phrased, for the reasons and upon the grounds set forth in paragraph No. 4 above.
The Respondent's Proposed Findings of Fact numbers (1) through (7) are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding.
At all times material and relevant in this proceeding, under Section 121.051(1)(c), Florida Statutes, a member of the Teachers' Retirement System under Chapter 238, Florida Statutes, who was reemployed after terminating his employment had at the time of reemployment the option of selecting to remain in the Teachers' Retirement System or to transfer to the Florida Retirement System.
At all times material and relevant in this cause, during each fiscal year from July 1 through June 30 in which the Petitioner, Gretchen G. Weathers, was credited with ten months of creditable service as a teacher with the School Board of Dade County, Florida, under her continuing contract, she earned a year's service credit under the Teachers' Retirement System under Chapter 238, Florida Statutes, pursuant to the provisions of Section 121.021(17)(a), Florida Statutes, and Sections 22B-2.002(3), (4), and 22B-6.001(19), Florida Administrative Code.
For the purposes of Chapters 121 and 238, Florida Statutes, the petitioner, Gretchen G. Weathers, had "continuous service" during the months of August and September, 1987, inasmuch as she had remained in an employer-employee relationship with the School Board of Dade County, Florida, at some time during each of those months of the calendar, as provided in Section 121.021(38), Florida Statutes, and Section 22B-6.001(16), Florida Administrative Code.
At no time during the months of August and September, 1987, did the petitioner have any break in service because she was not absent from an "employer's" payroll for an entire month of the calendar during the two-month period in questions, as provided in Section 121.21(38), Florida Statutes, and Section 22B-6.001(12), Florida Administrative Code.
For the purposes of Section 121.051(1)(c), Florida Statutes, the employment of the petitioner with the School Board of Dade County, Florida, never terminated at any time during the months of August and September, 1987, because the petitioner had received retirement service credit during each of
those calendar months for the entire calendar month, and, therefore, no "termination" of employment for retirement purposes ever occurred, because the petitioner had "continuous service" during those two calendar months as provided in Section 121.021(38), Florida Statutes, and Section 22B-6.001(16), Florida Administrative Code. In order for a termination of employment to occur under both Chapters 121 and 238, Florida Statutes, there must be a break in continuous service, as provided in Section 121.021(38), Florida Statutes, and Section 22B- 6.001(12), Florida Administrative Code. It is, therefore, held that in order for an employment to have terminated for the purposes of Section 121.051(1)(c), Florida Statutes, that a "break in continuous service" pursuant to Section 121.021(38), Florida Statutes, and Section 22B-6.001(12), Florida Administrative Code, must have occurred.
The Petitioner never had the option to transfer to the Florida Retirement System pursuant to Section 121.051(1)(c), Florida Statutes, at any time during September, 1987, or thereafter, because of her alleged resignation in August, 1987, and continuation of employment in September, 1987, for the reason that there never had been a break in her continuous service subsequent to the alleged resignation in August, 1987.
This Conclusion Of Law constitutes rulings on the recommended Conclusions of Law contained on pages 6 through 10 of the Recommended Order of the Hearing Officer submitted on November 1, 1988. The form of submission of the recommended Conclusions Of Law is hereby rejected in that they should have been submitted in consecutively numbered paragraphs so that each could be properly addressed in this Final Order. Inasmuch as the above Conclusions Of Law in this Final Order numbers 1 and 2 are wholly consistent with the first two recommended Conclusions Of Law on page 6 such first two paragraphs are hereby accepted as a correct statement of the law. The remainder of the recommended Conclusions Of Law beginning with the last paragraph on page 6 and continuing over through pages 7, 8, 9, and ending in the middle of page 10, are hereby rejected for the following reasons. As reflected in Rule 22B-1.004(2)(a), Florida Administrative Code, the Florida Legislature permitted members of the Teachers' Retirement System to transfer into the Florida Retirement System on six separate occasions during 1970, 1971, 1972, 1974, 1978, and 1982. Such transfer would have reduced the annual creditable service rate from 2 percent to
percent and would have required the member to make Social Security contributions under the Florida Retirement System. For whatever reasons they may have had, a number of members of the Teachers' Retirement System did not voluntarily transfer into the Florida Retirement System and in fact elected to remain in the Teachers' Retirement System. It has been observed as retirement approaches, persons become exceedingly sophisticated as to what would be best for them at that particular time. The Division of Retirement has lately experienced a rash of attempts by members of the Teachers' Retirement System to transfer into the Florida Retirement System because of its better retirement benefits and/or Social Security coverage. In response to true legislative attempt, the Division of Retirement has administered the law in accordance with the above Conclusions of Law in this Final Order. Over recent years it has ferreted out mock and sham attempts at termination of employment so as to qualify for transfer under Section 121.051(1)(c), Florida Statutes. The administering of the true intent of the Florida Legislature came to fruition in Chapter 88-382, Laws of Florida, wherein the Legislature defined the term "termination" not to have occurred "in the event a member should be employed by any such employer within the next calendar month", and by the Florida Legislature amending Section 121.051(1)(c), Florida Statutes, to provide that a member of an existing system who is reemployed within 12 months after terminating his employment may not transfer into the Florida Retirement System.
The Florida Legislature has provided six "window" periods from 1970 through 1982 during which members of the Teachers' Retirement System were permitted to transfer into the Florida Retirement System. By its 1988 legislation, the true legislative intent that it would not tolerate sham and mock terminations became self-evident. For all of the above reasons the recommended Conclusions Of Law contained on pages 7, 8, 9, and 10, and the last paragraph on page 6 of the Recommended Order are hereby rejected as being incorrect statements of the law and of legislative intent. It is further pointed out that Exhibit No. 15 to the deposition of Ruth Sansom referred to on page 9 has been confused by the Hearing Officer with Petitioner's Exhibit No. 1 received in evidence at the hearing before the Hearing Officer. It is further held that the RECOMMENDATION appearing at the bottom of page 10 of the Recommended Order is hereby rejected based upon the above Findings of Fact in this Final Order and the other rulings contained herein.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is, ORDERED AND DIRECTED that it is hereby determined that the petitioner,
Gretchen G. Weathers, is a member of the Teachers' Retirement System under Chapter 238, Florida Statutes, and has been continuously since prior to August, 1987. And it is,
FURTHER ORDERED AND DIRECTED that the Petitioner's request to transfer to the Florida Retirement System be and the same is hereby denied nunc pro tunc as of September, 1987, and it is determined that the Petitioner is not and has never been a member of the Florida Retirement System.
DONE AND ORDERED this 25th day of January, 1989, at Tallahassee, Leon County, Florida.
J. MCMULLIAN III
State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street
Tallahassee, Florida 32399-1560
(904) 487-1230
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CLERK'S CERTIFICATE
I HEREBY CERTIFY that this Final Order was filed with the Clerk of the Division of Retirement on this 26th day of January, 1989. And on this same date, copies were furnished to the following as noted respectively: Patricia Ann Ash and Harold M. Braxton, Esquires, One Datran Center, Suite 406, 9100 South Dadeland Boulevard, Miami, Florida 33156 (by certified mail with return receipt requested); Burton M. Michaels, Esquire, Department of Administration,
440 Carlton Building, Tallahassee, Florida 32399-1550 (by hand delivery) Linda
M. Rigot, Hearing Officer, and the Clerk of the Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32399-1550 (by hand delivery to each).
Deputy Clerk
Division of Retirement
440 Carlton Building Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 25, 1989 | Agency Final Order | |
| Nov. 01, 1988 | Recommended Order | When teacher belonging to teachers retirement system resigned and then was re- employed, she became upon her election member of Florida Retirement System |
