STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT A. MOSS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2424

)

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

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on August 22, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Albert A. Moss, Pro Se

111 Inwood Terrace Jacksonville, Florida 32207

For Respondent: Stanley M. Danek, Esquire

Department of Administration Division of Retirement Cedars Executive Center Building C

2639 N. Monroe Street Tallahassee, FL 32399-1560

STATEMENT OF THE ISSUES

The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.

PRELIMINARY STATEMENT

Petitioner is a retired member of the Florida

Retirement System ("FRS"), Chapter 121, Florida Statutes, who was reemployed one month after his retirement by the Duval County School Board ("Board") as an hourly non-contract teacher. The Division of Retirement contends that the duties performed by the retiree were not those of an hourly non-contract teacher.

The petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The Appendix, attached hereto and incorporated by

reference herein, states in detail which proposed findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement.

   This position is a certificated teaching position under the rules of the State Department of Education.

   
   

2. The operation of school buses in Duval County was

   and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel.

   
   

3. Certificated driver's education teachers were

   asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code.

   
   

4. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's

   education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day.

   
   

5. There is a written job description for the

   position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation.

   
   

6. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610."

   
   

7. The payroll code for a driver's education teacher

   is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty

   performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board.

   
   

8. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties.

   
   

9. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs.

   
   

10. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other

    classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher.

    
    

11. Messrs. Richard and Boney were Petitioner's

    supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel.

    
    

12. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the

    rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid.

    
    

13. Petitioner retired under the FRS, effective July

    1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990.

    
    

14. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers.

    
    

15. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after

    retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done

    before his retirement and was subject to being assigned student teaching duties.

    
    

16. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.

    
    

    CONCLUSIONS OF LAW

    
    

    Section 121.091(9)(b)1., Florida Statutes (1988),

    provides that a person retired under FRS may not receive both a retirement benefit and salary for a 12-month period after retirement. Specifically, this section states as follows:

    
    

    Any person who is retired under this

    chapter, ... may not 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.

    
    

    As the Division of Retirement states in its proposed

    order, Chapter 121, Florida Statutes, does not define "teacher." The Division seeks to define teaching duties using the definitions of "school" and "teacher" from Chapter 228, Florida Statutes. The definitions of "teacher" for other statutory purposes is immaterial. In this case, the issue is not whether Petitioner was employed as an hourly teacher. Clearly, he was. The issue raised by the Division of Retirement is whether the duties he was assigned were appropriate for an hourly teacher.

    
    

    The Division argues that Petitioner was not a teacher because he did not instruct students and that instructing students is paramount in determining whether the Petitioner is actually an hourly teacher. Although the Division of Retirement has a legitimate concern that district school boards might avoid the restriction on FRS reemployment by reemploying a person as a teacher and assigning them other duties, in this case, the record reveals no change in procedure between what the Board did or the employee did before or after retirement.

    
    

    Over one month after his retirement, Petitioner was

    reemployed without a contract by the Board. He was placed on the payroll as an hourly teacher, classified as a driver's education instructor, paid from the hourly teacher payroll account, and assigned duties as a school bus driver evaluator. In Duval County, all of the school bus driver evaluators are driver's education teachers. There is not a category of "school bus driver evaluators" within the system. The Petitioner was performing part of the same duties he performed before he retired, he was paid from the same account, and

    had the same pay classification as he had had before he retired. There is no evidence that Petitioner was fraudulently classified as a teacher and assigned to other duties. His duties were similar to those he had performed before retirement and to other driver's education teachers similarly situated.

    Although the Division argues that he did not teach students, he was fully qualified to perform those duties and could have performed them if they had been assigned to him.

    
    

    The Division may not concur with the Board's choices,

    but the Board has done nothing to bend the rules to accommodate Petitioner. Clearly, he was classified as an hourly teacher, paid as an hourly teacher, and performed duties he regularly performed as a teacher before he retired. In summary, it is appropriate for the Division to look at funding sources, pay

    categories, etc. to determine if the retiree is being properly "classified" as a teacher and is being paid from academic funding

    sources. However, the Division is not well equipped to second- guess a school board about the duties which it assigns to its teachers. Unless a board's action appears to fraudulently avoid the provisions to Chapter 121, Florida Statutes, the Division should avoid looking behind the pay classification and accounting codes. In this case, there is clearly no attempt to fraudulently avoid the retirement law.

    
    

    RECOMMENDATION

    
    

    Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

    
    

    RECOMMENDED that Division of Retirement take no action

    to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989.

    
    

    DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida.

    
    

    
    

    STEPHEN F. DEAN

    Hearing Officer

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, FL 32399-1550

    (904) 488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990.

    APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424

    
    

    The Petitioner did not submit proposed findings of fact.

    Respondent's Proposed Findings of Fact 1-8. Adopted.

    1. First portion adopted; last two sentences rejected

       as irrelevant.

    2. Adopted.

    3. First portion adopted; last sentence rejected as irrelevant.

    4. Adopted.

    5. Adopted, except first sentence, which was rejected as irrelevant.

    6. Rejected as irrelevant.

    7. Adopted, except last two sentences, which were rejected as statement of issues.

    8. Adopted.

COPIES FURNISHED:

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Albert A. Moss, Pro Se

111 Inwood Terrace Jacksonville, FL 32207

Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C

2639 N. Monroe Street Tallahassee, FL 32399-1560

Docket for Case No: 90-002424

Orders for Case No: 90-002424