STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
FRANCES KAUFFMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5048
) STATE OF FLORIDA, DEPARTMENT OF ) ADMINISTRATION, DIVISION OF ) RETIREMENT, )
)
Respondent. )
) LINDA MEADOWS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5049
) STATE OF FLORIDA, DEPARTMENT OF ) ADMINISTRATION, DIVISION OF ) RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 6, 1989 in Sarasota, Florida. The following appearances were entered:
APPEARANCES
FOR PETITIONERS: Leslie Holland, Esq.
208 West Pensacola St. Tallahassee, FL 32301
FOR RESPONDENT: Stanley M. Danek, Esq.
Department of Administration
440 Carlton Building Tallahassee, FL 32399-1550
BACKGROUND
This matter began when Petitioners, school teachers in the Sarasota County School District, were informed by Respondent that their resignations and rehiring by the school district did not effectuate their transfer to the Florida Retirement System (FRS) from the State Teachers Retirement System (TRS). Each Petitioner requested a formal administrative hearing regarding Petitioner's
decision. Due to the similarity of issues and facts in each instance and with the consent of the parties, the cases were consolidated for purpose of a formal administrative hearing.
At hearing, Petitioners presented four evidentiary exhibits and testimony of five witnesses. Respondent presented testimony of four witnesses, two of whom testified by deposition, and eight evidentiary exhibits.
Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:
FINDINGS OF FACT
Linda Meadows is a physical education teacher for the Sarasota County School Board and has been employed by the board for 27 years. She has been on continuing contract for 23 of the 27 years of her tenure. A member of TRS, she began making inquiries in 1985 regarding procedures for transfer from TRS to FRS.
After speaking with the payroll supervisor for the school board and the board's assistant superintendent for human resources, Meadows was referred to the board's attorney, Daniel Kunkel. Kunkel, an expert on labor and employment matters, has been consulted by the school board on labor employment law since 1978.
Frances Kauffman, a teacher employed by the school board for 25 and one half years, teaches at the Brentwood Elementary School. She has held a continuing contract for almost 24 years. Kauffman also sought to transfer from TRS to FRS. During prior "legislative window periods" when such transfers were permitted, Kauffman was hospitalized for treatment for cancer and unable to take advantage of transfer opportunities at those times. She met with the assistant superintendent for human resources in June of 1987. The assistant superintendent sought and received advice from Daniel Kunkel regarding Kauffman's transfer.
In order to determine the procedures which would permit both Kauffman and Meadows to transfer to FRS, Kunkel reviewed controlling statutes and administrative rules. He concluded there were two ways the teachers' transfers could be effectuated. One way required utilization of the legislative window period, but such periods no longer existed. The second method required that the teachers terminate their employment with the school board and later seek reemployment by the board, or another FRS participating employer. As a result of such reemployment, each teacher would automatically become a member of FRS unless an election by the teacher was made to remain in TRS.
Kunkel met with the two teachers and advised them of the two means of accomplishing a transfer. Since the first option of a legislative window period did not exist, the process of resignation and subsequent reemployment was discussed with the teachers.
The scenario proposed by Kunkel to the teachers had been previously articulated by him in a December 22, 1985 letter to the administrator of Respondent's division of retirement enrollment section on behalf of Linda Meadows. In that letter, Kunkel had spelled out his understanding that a teacher could, in the absence of a legislatively authorized transfer period between the two retirement systems, unconditionally resign a teaching position and forfeit continuing contract status. The teacher could then seek
reemployment by the school board and, if successful, accept a professional services contract in lieu of the previous continuing contract and automatically be admitted to FRS in the absence of an election between the two systems.
Kunkel stressed in the letter that Meadows would have no guarantee of reemployment although a board decision to reemploy would be likely. He also disclosed that a recommendation for reemployment would be made by school administrative officials on behalf of Meadows.
The chief, at that time, of Respondent's Bureau of Enrollment and Contributions replied to Kunkel's letter on January 10, 1986. The reply stated "the determination is that Ms. Meadows enrollment in the FRS would not be approved unless there is an actual break in employment of one full pay period (one month) following the date of resignation, during which time she would forfeit her salary before reemployment and enrollment in the FRS. If these conditions are satisfied, enrollment in the FRS would be approved."
Subsequent to receipt of the January 10, 1986 reply, Kunkel explained Respondent's position to Meadows. She was informed that there were risks involved if she elected to resign her employment. It was pointed out to her that she would forever relinquish her continuing contract in lieu of a professional service contract. A teacher holding a continuing contract may only be terminated upon certain specified statutory grounds set forth in Section 231.36, Florida Statutes, whereas the holder of a professional service contract is subject to more discretionary termination of employment. The distinctions between the two types of contracts, including less job security under a professional service contract, were discussed with Meadows.
Kauffman, who later became involved in the process, was subject to the same identical risks as Meadows; she was given the same advice accorded Meadows.
The relinquishment of the existing contractual status is the kind of "quid pro quo" that Respondent uses to determine whether there is an actual, bona fide termination.
Both Meadows and Kauffman were aware that there was no guarantee the school board would follow the hiring recommendation of school district administrative officials and that there was a risk that they might not be rehired. No commitment was made to either teacher that reemployment was a certainty. The authority to rehire rests solely with the school board and Meadows and Kauffman were made aware of this fact.
Meadows submitted her resignation near the end of September, 1987, or the beginning of October, 1987; Kauffman submitted her resignation on September 21, 1987. Meadows was aware that she might not be rehired. Kauffman was frighteningly aware of the same risk. The resignation of each teacher was to be effective on December 4, 1987; although the number 4 in the resignation effective date in Kauffman's letter was inexplicably crossed out and the number
3 handwritten beside the struck number.
In compliance with the procedure outlined in the January 10, 1986 letter of Respondent's representative, the process of resignation and, hopefully, later reemployment confronted both teachers with a definite loss of one month's wages with no guarantee that such loss was all they would suffer.
Both teachers received their last pay checks on November 30, 1987, prior to their resignations. Payment for the four days each worked beyond that date to December 4, 1987, was later included in their wage payments after
reemployment. However, no further wage payments were received by either teacher until January 15, 1988. Both teachers effectively forfeited two paychecks each which would have otherwise been received for the one month period of December 4, 1987 to January 4, 1988.
Both teachers sought reemployment with the county school board. The principal of each school where the teachers were employed prior to resignation submitted "personnel action request" forms in December of 1987; each recommended the employment of Kauffman and Meadows respectively.
Both teachers reported back to their respective schools on January 4, 1988, in accordance with the directions given them by school administrative officials. On January 5, 1988, the school board appointed both teachers to professional status contracts. Appointment letters were sent to both teachers on January 6, 1988, reflecting the board's action. It is not uncommon for the school board action appointing a teacher to take place after the initial employment date.
Respondent received copies of each teacher's resignation letter. Upon return to employment, neither teacher gave notice to Respondent that they desired to retain membership in TRS. Both teachers held the understanding that their failure to give notice to Respondent of their election to remain in TRS would automatically result in their transfer to FRS. Both teachers were informed by letter of Respondent's representative dated March 25, 1988, that they were ineligible for transfer.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Section 121.051(1)(c)1., Florida Statutes, provides:
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 result in compulsory membership in the Florida Retirement System.
That Petitioners terminated their employment is decidedly clear. Also clear is that they failed to make an election to be included in the system, TRS, in which they previously held membership.
Respondent contends that Petitioners failed to comply with certain requirements set forth in Rule 22B-1.006, Florida Administrative Code, which are a prerequisite to eligibility for retirement benefits under FRS. Petitioners are alleged to have failed to provide copies of an advertisement of vacancy of their positions and evidence of payments to them for unused annual and sick leave or loss of such leave due to termination of employment.
A close reading of Rule 22B-1.006, Florida Administrative Code, reveals that members who terminate their employment and wish to draw retirement
benefits must, indeed, provide the evidence which Respondent notes was not provided by Petitioners. This evidentiary requirement, which must be met by members desiring to retire and draw their benefits, is not applicable to Petitioners' situation of reemployment.
The only issue for determination is whether Petitioners effectuated a valid termination of their previous employment sufficient to provide them the statutory option in Section 121.051(1)(c)1., Florida Statutes, upon their reemployment. In this regard, Petitioners resigned their positions with no guarantees of reemployment. Both were unemployed for one month. Each of them was off the school board pay roll for one calendar month. Both Petitioners are in full compliance with the dictates of Respondent's representative as set forth in the January 10, 1986 correspondence.
Respondent's argument is that Petitioners engaged in an illegally contrived arrangement with the school board to reach the result of reemployment and membership in FRS; that Petitioners' resignations and reemployment were merely "paper transactions". The facts do show participation by Petitioners in a scenario having an ultimate goal of FRS membership. However, Respondent has offered no factual evidence of the school board's participation in that scenario to guarantee reemployment to Petitioners; nor has Respondent rebutted the showing made by each Petitioner of a loss of a month's wages and the loss of continuing contract status. Absent such a showing, Petitioners' scenario cannot be deemed an illegal contrivance.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered effectuating the transfer of
Petitioners from TRS to FRS commencing with their reemployment by the county school board.
DONE AND ENTERED this 21st day of February, 1989, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioners' Proposed Findings Of Fact 1.-19. Adopted in substance.
20.-22. Unnecessary.
23.-52. Adopted in substance. Respondent's Proposed Findings Of Fact
1.-2. Adopted in substance.
Not supported by direct evidence.
Addressed.
Unnecessary.
6.-7. With exception of proposed finding #7 following the first sentence, adopted in substance.
8.-14. Addressed.
COPIES FURNISHED:
Leslie Holland, Esq.
208 West Pensacola St. Tallahassee, FL 32301
Stanley M. Danek, Esq. Department of Administration
440 Carlton Building Tallahassee, FL 32399-1550
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, FL 32399-1550
Augustus D. Aikens, Jr., Esq. General Counsel
Department of Administration
435 Carlton Building Tallahassee, FL 32399-1550
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
FRANCES KAUFFMAN and LINDA MEADOWS,
Petitioners,
vs. DOAH CASE NOS. 88-5048 & 88-5049 DOR CASE NO. 88-12
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
These cases were presented on petitions by Frances Kauffman and Linda Meadows for review of the decision of the State Retirement Director that they were not eligible to transfer their retirement system membership from the Teachers' Retirement System (TRS), Chapter 238, Florida Statutes, to the Florida Retirement System (FRS), Chapter 121, Florida Statutes.
A hearing was held pursuant to notice on January 6, 1989, before Don W. Davis, designated hearing officer of the Division of Administrative Hearings. Because of the similarity of the factual matters, issues of law and relief requested, the cases were consolidated for hearing and determination purposes.
APPEARANCES
For Petitioners: Leslie Holland, Esquire
208 West Pensacola Street Tallahassee, Florida 32301
For Respondent: Stanley M. Danek
Senior Attorney
Department of Administration
Office of General Counsel-Retirement
440 Carlton Building Tallahassee, Florida 32399-1550
The Hearing Officer filed his Recommended Order on February 21, 1989, in which he sustained the Petitioners' application and recommended that a final order "be entered effectuating with their reemployment by the county school board" on January 4, 1988.
The Division has reviewed the entire transcript and rejects or modifies certain findings of fact as not being based on competent, substantial evidence. Section 120.57(1)(b)9, Fla. Stat.
RECOMMENDED ORDER - FINDINGS OF FACT
Because the Division is accepting certain of the Hearing Officer's Findings of Fact, and rejecting others in part or in total, each Finding of Fact in the Recommended Order will be considered separately.
Paragraph 1: Accepted.
Paragraph 2: Accepted.
Paragraph 3: Accepted in part. Mrs. Kauffman was hospitalized for surgery in 1981 and 1982. There is no evidence that she had been hospitalized during the prior five open enrollment periods. It was after the 1983-84 school year that she decided to make some changes in her retirement system (T. 110)
Paragraph 4: Accepted.
Paragraph 5: Accepted.
Paragraph 6: Accepted in part. Mr. Kunkel accepted the concept that the termination must be a "bona fide termination." He further stated that the acceptance of Ms. Meadows' resignation and her reemployment could be accomplished at the same school board meeting.
Paragraph 7: Accepted in part as being only partially correct. The Division rejects the portion as being an incomplete statement of the correspondence in this case between the school board and the Division.
Respondent's Exhibit #2, Item 9, states as follows (letter from Joseph E. Cahill to Marilyn Peters, dated December 11, 1985):
Your attention is invited to the means
of proving actual termination, i.e., a copy of the member's resignation, a copy of the advertised vacancy, evidence of payments for unused annual and sick leave or evidence of loss of unused annual and sick leave, etc.
The point to be made is that there must have been an actual termination, not merely a paper transaction purporting to reflect a "termination" and concurrent "reemployment"
-- for the purpose of circumventing the spirit and intent of the pertinent statute.
Paragraph 8: Accepted.
Paragraph 9: Accepted.
Paragraph 10: Rejected. In reviewing the facts of a particular fact to determine if there has been a bona fide termination, the Division reviews several factors; a copy of the resignation, a coy of the advertised vacancy for the member's position and "evidence of payments for unused annual and sick leave, or of the loss of unused annual and sick leave due to termination." The
review is multi-factoral and not based on any one indicia (Wooten's Deposition Exh. 1 and Exh. 2).
Paragraph 11: Accepted in part. Both Meadows and Kauffman had consulted with Mr. Kunkel for legal advice and had had meetings with Dr. Pierce soliciting his cooperation in securing the transfers. Their principals had been contacted concerning whether or not the teachers would be accepted back into their prior positions. The Superintendent had also expressed his willingness to recommend the Petitioners for their former positions. While the school board does the actual hiring and the Superintendent does the recommendations for the hearing, Petitioners had done everything within their power to ensure that they would be hired into their prior positions.
Paragraph 12: Accepted.
Paragraph 13: Accepted in part. While the Petitioners proceeded with the game plan as agreed to in their meeting with Dr. Pierce in September, 1987, it is evident that the plan was proceeding in spite of statements from the Division that there must be a clear termination and not merely a paper transaction done solely for the purpose of circumventing the spirit and intent of the law (see Respondent's Exhibit 2, Item 9)
Paragraph 14: Accepted in part and rejected in part. While the statement of the Hearing Officer is correct that the Petitioners missed two pay periods from December 5, 1987 to January 3, 1988, it is also irrelevant to the issues of the case. While Petitioners apparently terminated employment for the two pay periods, the interest of the Division concerns itself with membership in the retirement systems, either TRS or FRS, and the requirements of the Division necessary to be considered a terminated member of either of those systems. The Division's Interest is not whether the Petitioners are or have terminated employment with the School Board. In this proceeding, the Division has not made a determination as to the validity of the "terminations" or "resignations."
Paragraph 15: Accepted. The personnel action forms were initiated by the principals of the two schools in which the Petitioners taught. Ms. Sandra Russell, the principal for Ms. Kauffman signed the personnel action form on December 1, 1987, before the effective date of the resignation. She stated that she would not have signed the form had she not heard from the personnel office that her signing the form was the appropriate thing to do (Tr. 154).
Paragraph 16: Accepted.
Paragraph 17: Accepted.
CONCLUSIONS OF LAW
Petitioners are attempting to transfer their retirement system membership from the TRS to the FRS since it is to their economic advantage to do So. For reasons known but to them, they did not choose to transfer during the six open enrollment periods between 1970 and 1982.
The issues in this case are much more involved than indicated in the Recommended Order and go to the hearing of administration of the two retirement systems. If, in fact, it is so relatively easy for a member to transfer from the TRS to the FRS, then the necessity of providing for "open enrollment periods" by the Legislature is a useless act. Any current member to TRS could transfer at will by terminating and then being reemployed by the agency after a
short period of time. Such is obviously not the intent of the Legislature as is clear from Section 121.051(1)(a)2., Florida Statutes (1988).
After June 30, 1988, the provisions of subparagraph 1. shall not apply to a member of an existing system who is reemployed within 12 months after terminating his employment. Such member shall continue to have membership in the existing system upon reemployment and shall not be permitted to become a member of the Florida Retirement System, except by transferring to that system as provided in ss. 121.052 and 121.055.
The above provision was enacted into law as Chapter 88-382, Laws of Florida, approved by the Governor and filed with the Secretary of State on July 6, 1988. Allegations were made at the hearing that his provision was aimed at Petitioners and described as the "Meadows and Kauffman rule" (Tr. 52, line 1). Since Chapter 88-382, Laws of Florida was signed July 6, 1988, and the agency action letter was sent to Petitioner's on August 18, 1988 (Respondent's Exhibit No. 2, Item 2 and Exhibit No. 1, Item 2), it is not reasonable to state that the law was aimed at Petitioners.
Open enrollment periods have been the only method of transfer between systems in addition to the method of effectuating a bona fide termination and subsequent employment.
Since the Petitioners are not seeking transfer as a result of an open enrollment period, their claims must succeed, if at all, under the then existing rules of the FRS relating to transfers between systems or a showing that their resignations and subsequent reemployment were bona fide.
Section 121.051(1)(c)1., Florida Statutes, provides:
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 result in compulsory membership in the Florida Retirement System.
Rule 22B-1.006, Florida Administrative Code (F.A.C.), is related to terminated membership and states as follows:
Terminated Membership. A member of the Florida Retirement System shall become a terminated member on the date he is no longer receiving salary for work performed in a regularly established position and is not on a leave of absence creditable under the Florida Retirement System. For the purpose of receiving retirement benefits, the member
must be able to furnish evidence of termination to the Division of Retirement upon request. Such evidence may include, but is not limited to the following:
Letter of member's resignation.
Copy of the advertised vacancy of the member's position.
Evidence of payments to the member
for unused annual and sick leave or of loss of unused annual and sick leave due to termination.
The above section authorized the Division to require evidence to prove that there has been a termination of employment in fact. The reason for such a requirement is to prevent a person from claiming that a termination has taken place in order to prevent and to keep persons from manufacturing false terminations for the purpose of obtaining retirement benefits. The Hearing Officer correctly points out that the rule allows the Division to require evidence only in cases where members terminate and wish to receive retirement benefits. Such a narrow reading of the rule would permit abuses of the retirement systems by active members who are not eligible to retire and is unacceptable. The Division's construction of the rule throughout this entire proceeding has been that the requirement for evidence to substantiate termination was equally applicable to active members and not just retiring members. (See Respondent's Exhibit 1, Item 8 and Respondent's Exhibit 2, Items 8, 9, 10 and 11.)
This is only the third case (to be litigated) in the 18 years that the FRS has been in existence where active members have attempted to transfer from TRS to FRS by means other than an open enrollment period. Therefore, the Division has not had the need and indeed did not foresee the possibility the active members would attempt to transfer retirement system membership under these circumstances. The first case, Morack vs. Division of Retirement, is currently on appeal to the First District Court of Appeal, DCA Case No. 89-231, and involved a purported transfer of membership when the member changed employing agencies. With the enactment of Section 121.51(1)(a)2., Florida Statutes, transfers as attempted by Petitioners will not be possible. The second case, Weathers vs. Division of Retirement, currently on appeal to the Third District Court of Appeal, DCA Case No. 89-00307, involved an attempted transfer of membership from TRS to FRS when the member resigned her teaching position on August 17, 1987, and was reemployed by the same agency on September 28, 1987. For reasons given in this Order, the transfer was not allowed by the Division by Final Order dated January 26, 1989.
In this case, the evidence obtained by the Division showed that the Petitioners did submit letters of resignation, but that their positions were not advertised by the school board in an effort to replace Petitioners. There was no evidence that Petitioners were paid for their sick leave or for their annual leave. Evidence obtained at the hearing further showed that they returned to employment on January 4, 1988, to their prior schools, their prior classrooms, their prior students, that they did not forfeit any leave and retained their seniority rights as the result of an agreement with the administration of the school board and the teachers' union. All of these things were agreed to in a meeting that occurred in September, 1987, over two months before the effective dates of the resignations. Petitioners were even told at the September meeting to report to work on January 5, 1988 (Tr. 66, testimony of Dr. Pierce).
While the testimony of Mr. Kunkel and the Petitioners supports a conclusion that Petitions gave up certain legal rights in the process of resigning and giving up their continuing contracts in exchange for reemployment under a professional services contract, the overwhelming evidence shows that Petitioners gave up few rights of employment and in fact retained most rights as the result of agreements with various individuals of the administration. In view of this, the evidence does not support a conclusion that there was a termination of employment for retirement purposes.
It is important at this point to state that the Division is not making a determination that there was nor was not a valid termination of employment as it might effect the relationship between the Petitioners and the school board. The Division's sole responsibility is to evaluate the resignations in light of Chapter 121, Florida Statutes, and to determine if the purported terminations were sufficient to make Petitioners' "terminated members" as the term is used in FRS rules.
The Division has come to the conclusion that the terminations were part of a game plan and not legitimate for retirement purposes, based on evidence that Petitioners had investigated the possibility of transferring from TRS to FRS for several years. They held meetings with personnel of the administration of the school board and worked out a detailed plan for their transfer and reemployment by the school board. The term "resign" is defined as giving up deliberately; to renounce as a right or by a formal act, or to give up one's office or position. (Webster's New Collegiate Dictionary, 1975 Ed., page 985). In terms of the definition, Petitioners did not resign unqualifiedly, but instead their actions are more akin to going on a leave of absence (see Rule
22B-6.001(34), F.A.C.), where a member is eligible to receive retirement credit while on a leave of absence after his or her return to employment. This is because retirement credit is given by the month if a member receives salary for work performed for any pat of the month (see Rule 22B-2.002(4)(c)4., F.A.C.).
Thus, if a person works even one day in a month, he or she would receive creditable service for that month. In determining whether or not a member has terminated employment for purposes of transferring from one retirement system to another, the Division considers whether or not the member received continuous creditable service for the successive months (the last month in the old system and the first month in the new system), the Division considers that evidence as proof that there was no break in service for retirement purposes and does not allow the transfer.
In the instant case, Petitioners, worked up to and including December
4 (December 3 for Ms. Kauffman) and were legally entitled to payment for those services. That pay day would have been December 15 (see Respondent's Exhibit 1, Item 12). Petitioners would have gotten paid but for the agreement with the administration to withhold such payment. All parties agree that Petitioners eventually received payment for the November 18 to December 4, period. The Division looked at the actual pay arrangement rather than being bound by the agreement of Petitioners and the Administration to withhold pay.
Since Petitioners received salary for the month of December, albeit spread over the remaining life of their contacts, they will receive creditable service for December. Since they also were on the payroll beginning January 4, they received salary for the month of January and hence will receive creditable service for January. Thus, for retirement purposes, Petitioners had no break in service. Under the FRS rules, the absence of a break in service (a prerequisite for the termination to be considered valid) requires that the member remain in his or her prior system. (Rule 22B-6.001(12), F.A.C.)
Petitioners contend that merely being off the payroll of the school board for one month is sufficient to comply with the Division rules. The rules, however, require that the person be off the payroll for one calendar month, not just one month. Petitioners, having worked during the month of December, 1987, being legally entitled to and eventually receiving salary for such work, and received retirement credit for January, 1988, did not have a break in service and had no interruption in retirement credit.
As a second reason for denying Petitioners' claim that they be allowed to transfer from TRS to FRS, the Division has reviewed their resignations and terminations and concludes that they were not bona fide terminations under the retirement laws. Bona fide is defined as being in or with good faith, honestly, openly, and sincerely; without deceit of fraud; truly, actually; without simulation or pretense (other definitions omitted). (Black's Law Dictionary, Revised Fourth Edition, 1968, pg. 223.)
In this case, there is no question that Petitioners worked closely with the school board administration to bring their terminations within the literal language of the rules of the FRS. There is no allegation that the terminations were truly for the purposes of ending the employee-employer relationship with the school board. Instead, the alleged terminations were done exclusively for the purpose of seeking a transfer from one retirement system to another.
Petitioners lost no rights except those given them under the continuina contracts; however, they picked up rights under the professional services contract. Under these circumstances, the Division does not believe that the terminations were bona fide for retirement purposes.
Based on the foregoing findings of fact and conclusions of law, it is ORDERED the applications of Linda Meadows and Frances Kauffman for transfer
from the Teachers' Retirement System to the Florida Retirement System effective January 4, 1988, be and the same is hereby DENIED.
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, 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.
DONE AND ORDERED this 30th day of May, 1989, at Tallahassee, Leon County, Florida.
J. MCMULLIAN, III State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THIS 30th DAY OF MAY, 1989.
COPIES FURNISHED:
Leslie Holland Attorney at Law
208 West Pensacola St. Tallahassee, FL 32301
Stanley M. Danek Senior Attorney
Department of Administration Office of General Counsel-
Retirement
440 Carlton Building Tallahassee, FL 32399-1550
Don W. Davis Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399
| Issue Date | Proceedings |
|---|---|
| Feb. 21, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 30, 1989 | Agency Final Order | |
| Feb. 21, 1989 | Recommended Order | A month break in service following their resignation permitted teachers to change retirement plans upon their re-employment. |
DORIS FAYE RAYBURN vs. LEON COUNTY SCHOOL BOARD, 88-005048 (1988)
SCHOOL BOARD OF DUVAL COUNTY AND HERB A. SANG, SUPERINTENDENT vs. QUEEN BRUTON, 88-005048 (1988)
MONROE COUNTY SCHOOL BOARD vs DONNA DEFORREST, 88-005048 (1988)
PINELLAS COUNTY SCHOOL BOARD vs WILSON MCKENZIE, 88-005048 (1988)
THOMAS L. BERKNER vs. ORANGE COUNTY SCHOOL BOARD, 88-005048 (1988)
