STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH M. LESKO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5717

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 8, 1990, at Boca Raton, Florida, before

Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Mr. Joseph M. Lesko, pro se

184 Meadows Drive

Boynton Beach, Florida 33462

For Respondent: Stanley M. Danek, Esquire

Division Attorney Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

The basic issue in this case is whether the Petitioner, Mr. Joseph M. Lesko, violated the provisions of Section

238.181(2)(a), Florida Statutes, by being reemployed within twelve (12) months of retirement by an agency participating in the Florida Retirement System, and, if so, whether his retirement benefits were overpaid and need to be refunded to the Florida Retirement System.

PRELIMINARY STATEMENT

At the final hearing the parties stipulated to a number

of facts. The Petitioner testified on his own behalf and also presented the testimony of two other witnesses. The Respondent

recalled one of the Petitioner's witnesses and the Respondent also offered several exhibits, which were received in evidence.

FINDINGS OF FACT

1. Mr. Joseph M. Lesko was employed as an instructor

   with the Palm Beach Community College (hereinafter "the College")

   and retired under the provisions of the Teachers' Retirement System (hereinafter "TRS"), Chapter 238, Florida Statutes, on July 1, 1986.

   
   

2. In October of 1986 a science instructor at the

   College suffered a stroke and was unable to continue working. Dr. Paul Dasher, then the Chairman of the College's Science Department, called Mr. Lesko and asked him to be a substitute instructor for some of the classes of the instructor who had suffered the stroke. Mr. Lesko, a former Senior instructor in Chemistry, was the only qualified candidate who was known to be available on short notice. Although Mr. Lesko had not intended to teach at that point in his retirement, he agreed to teach for the balance of the semester to help the College during the incapacity of the stricken instructor. When the stricken instructor was unable to return during the next semester, Mr. Lesko also agreed to substitute in Chemistry for the following semester. The incapacitated instructor died in March of 1987, and Mr. Lesko finished substitute teaching for the balance of the semester.

   
   

3. At the time Mr. Lesko was reemployed as described above, the College's Director of Human Resources, Mr. Schneider,

   was not aware that Mr. Lesko had retired under the TRS, because the vast majority of the College's instructors retire under the Florida Retirement System. Mr. Schneider believed that Mr. Lesko was covered by certain amendments to the Florida Retirement System that became effective in July of 1986. Those amendments allowed retired instructors who retired under the Florida Retirement System to be reemployed by community colleges on a noncontractual and part time basis after one month of retirement without loss of retirement benefits. Mr. Schneider was under the erroneous impression that those amendments applied to all retired instructors, because he did not recall receiving any information from the Division of Retirement indicating that retirees under TRS were to be treated differently from retirees under the Florida Retirement System for purposes of eligibility for reemployment. Three other instructors who retired at the same time as Mr. Lesko, and who were rehired during the same time period as Mr. Lesko, have not been required to repay any retirement benefits because they all retired under the Florida Retirement System.

   
   

4. Neither Mr. Schneider nor Mr. Lesko were aware that

   Mr. Lesko's retirement benefit would be jeopardized by his

   returning to work for the College in October of 1986. Both believe that the information regarding TRS retirees provided by the Division of Retirement is at least unclear, if not misleading. Mr. Lesko would not have returned to teach at the College during the first year of his retirement if he had been aware that doing so would require him to lose his retirement benefits during that period.

   
   

5. During the period from October 1986 through May 1987,

   Mr. Lesko earned $4,460.60 for the services he provided to the College. During that same period he received retirement benefits

   of $6,506.72.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. Mr. Lesko is a retiree under the TRS and his rights

   and responsibilities pertaining to his retirement are those contained in Chapter 238, Florida Statutes. Section 238.18(2)(a), Florida Statutes, provides as follows in pertinent part:

   
   

   Any person retired under this chapter, except under the disability retirement provisions of

   s. 238.07, may be reemployed by any private or public employer after retirement and receive retirement benefits and compensation from his employer without limitation, except that no person may receive both a salary from reemployment with any agency participating in the Florida Retirement System and retirement benefits under this chapter for a period of 12 months immediately subsequent to the date of retirement. However, a district school board may reemploy a retired member as a substitute or hourly teacher on a noncontractual basis after he has been retired for 1 calendar month. Any retired member who is reemployed within 1 calendar month after retirement shall forfeit his right to retirement benefits during that month. District school boards reemploying such teachers are subject to the retirement contribution required by paragraph (c). Reemployment of a retired member as a substitute or hourly teacher is limited to 780 hours during the first 12 months of his retirement.

   
   

8. Section 238.181(2)(b), Florida Statutes, provides as follows, in pertinent part:

   
   

   Any retirement benefits received by such person while he is reemployed during this limitation period shall be repaid to the retirement trust fund, and his retirement benefits shall remain suspended until such repayment has been made.

   
   

9. With regard to retirees under the TRS, the only

   exception to the prohibition against reemployment with an employer that participates in the Florida Retirement System is employment with a "district school board." The College is not a district school board. Mr. Lesko's employment by the College from October 1986 through May 1987 was in clear violation of the prohibition against reemployment with a Florida Retirement System participant employer. None of the statutory exceptions apply. The statutory provisions quoted above require that retirement benefits paid to a retiree at a time when the retiree is reemployed in violation of the statute

   must be repaid to the Division of Retirement. There is no discretion in the statute for the Division of Retirement to waive, forgive, or forget the overpayment.

   
   

10. With regard to Mr. Lesko's argument that he could

    have volunteered his services to the College, the simple answer is: He didn't. Mr. Lesko made a financially disadvantageous decision to return to work for the College for compensation. The consequences of that decision cannot now be avoided by repaying the funds received from the College and attempting to create a situation which could have, but did not, take place.

    
    

11. With regard to Mr. Lesko's argument that the information provided to him by the Division of Retirement was unclear or misleading, the fact remains that the statute is clear

    and if Mr. Lesko had read the statute he would have discovered that reemployment rights of retirees under the TRS are different from those of retirees under the Florida Retirement System.

    
    

12. With regard to Mr. Lesko's argument that the statutory provisions discriminate against retirees under the TRS, such an argument is, essentially, an argument that the statute is invalid because it creates an unreasonable classification. The power to resolve arguments regarding the validity of statutory provisions is vested solely in the judicial branch of government;

    neither Hearing Officers nor the agencies they serve are authorized to pass upon the validity of statutes. And, in any event, it must be noted that Mr. Lesko was not forced into the TRS, but chose to participate in it in lieu of participation in the Florida Retirement System.

    
    

13. For all of the foregoing reasons, it must be concluded that Mr. Lesko is obligated to repay to the Division of

Retirement the retirement benefits paid to him for the period from October 1986 through May 1987. This appears to be a harsh result, especially when note is taken of the fact that Mr. Lesko was sought out by the College to help the College out of a bind, as well as the fact that there does not appear to be any obvious governmental purpose served by treating the TRS retirees differently from the Florida Retirement System retirees. But the provisions of the law are clear and mandatory. As the Romans said, "Dura lex sed lex." ("The law is hard, but it is the law.")

RECOMMENDATION

On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be issued in this case requiring Mr.

Lesko to repay retirement benefits to the Division of Retirement in the amount of $6,506.72.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2 day of April, 1990.

MICHAEL M. PARRISH

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 Administrative Hearings this 2 day of April, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5717

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

First page, First unnumbered paragraph: All covered in the Preliminary statement portion of this Recommended Order.

First Page, Second unnumbered paragraph: Accepted in substance.

Second Page, Paragraph No. 1: Accepted in substance. Second Page, Paragraph No. 2: Accepted in substance.

Second Page, Paragraph No. 3: Accepted in part and

rejected in part; rejected portion is portion following the comma. The rejected portion is contrary to the greater weight of the evidence.

Second Page, paragraph No. 4: Accepted in substance.

Third Page, Paragraph No. 5: Rejected as irrelevant to the disposition of this case.

Third Page, Paragraph No. 6: Rejected as constituting subordinate and unnecessary details.

Third Page, Paragraph No. 7: First sentence accepted in substance.

Second sentence rejected as constituting argument, rather than findings of fact.

Third Page, Last paragraph of Findings: Rejected as

constituting commentary about the proceedings, rather than proposed findings of fact.

Findings proposed by Respondent:

Paragraph 1: Accepted.

Paragraph 2: Accepted in substance, with certain unnecessary details omitted.

Paragraphs 3 and 4: Rejected as subordinate and unnecessary procedural details.

Paragraphs 5 and 6: Accepted in substance.

Paragraph 7: Rejected as subordinate and unnecessary details.

COPIES FURNISHED:

Mr. Joseph M. Lesko

184 Meadows Drive

Boynton Beach, Florida 33462

Stanley M. Danek, Esquire Division Attorney Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-005717

Orders for Case No: 89-005717