STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. NUNN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8015

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

) WILLIAM L. BENFIELD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8016

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

) JOHN MANGUS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8017

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 22, 1991, in Cocoa, Florida.

APPEARANCES

For Petitioner: Peter L. Sampo, Esquire

HOGG, ALLEN, NORTON & BLUE

121 Majorca Avenue-3rd floor Coral Gables, Florida 33134

For Respondent: Larry D. Scott, Esquire

Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street

Tallahassee, Florida 32399-1560 STATEMENT OF THE ISSUES

The controversy in this proceeding arises from a demand by the Division of Retirement that each of the three petitioners repay retirement benefits received from the Florida Retirement System (FRS) within the first twelve months of their retirement from Brevard Community College (BCC).

The agency's position is that the petitioners were re-employed by BCC within one year of their respective retirements, in violation of Section 121.091(9), F.S., and Rule 22B-4.012(3)(6), F.A.C.

Petitioners contend that their services to BCC after retirement were performed in the capacity of independent contractors, and not as employees. They also contend that the agency relied on inappropriate criteria in determining their obligation for repayment.

PRELIMINARY STATEMENT

In response to the agency's letters requiring repayment, Petitioners requested formal administrative hearings and the cases were referred to the Division of Administrative Hearings, where they were consolidated without objection.

After several continuances for good cause and the reassignment of a Hearing Officer, the cases proceeded to hearing as stated above.

At the hearing, the petitioners testified in their own behalf and presented the testimony of Robert Lawton and Neal Hochberg. Their exhibits were received in evidence, without objection, as follows: Petitioners' Ex. #1-3, #5-20, and #24-31. Respondent presented the testimony of Carolyn McGlamery and the following depositions, without objection, marked Respondent's exhibits #1-8: Robert Lawton, William Benfield, John Mangus, William Nunn, Douglas Cherry, Larry Honeycutt, A.J. McMillian, and Deborah Roberts. In addition, and without objection, Respondent's exhibit #9 was received in evidence.

After the hearing, a transcript was filed and the parties filed proposed recommended orders on December 18, 1991. Their proposed findings of fact are addressed in the attached appendix.

FINDINGS OF FACT

1. Respondent, Division of Retirement, is the agency responsible for administering the Florida Retirement System (FRS), a statewide consolidated system encompassing over 500,000 active employees and over 100,000 retired employees, representing all levels of government: state agencies, counties, school boards, cities, special districts, the community colleges and the nine universities -- nearly 800 different public employers.

   
   

2. Brevard Community College (BCC) is the previous employer of the three petitioners and is a participating employer in the FRS. BCC is located in Cocoa, Florida, with satellite campuses throughout Brevard County.

   
   

   Petitioners William Nunn, PhD

   
   

3. Prior to his retirement on November 30, 1988, Dr. William Nunn worked for BCC for approximately 17 years in various capacities, including Director of Evening Studies, Chair of the Division of Social Sciences, Provost and Dean of the Titusville campus and Dean of Vocational/Instructional Planning in the central administrative offices. It was this latter position he held at the time of retirement.

   
   

4. As Dean of Vocational/Instructional Planning, Dr. Nunn was responsible for college-wide coordination of BCC's vocational programs, developing new programs, providing reports on vocational education, developing the master course plans and the college catalog, and serving as head of the college's collective bargaining unit.

   
   

5. Dr. Nunn received a salary of approximately $52,000.00 a year and all the fringe benefits of regular employment: vacation and sick leave, insurance benefits, worker's compensation coverage, and contributions to social security and the FRS. He reported directly to the Vice President and President of the college, and his performance evaluations were completed by the President.

   
   

6. With the advice of his accountant, Dr. Nunn informed his employer in July or August 1988, that he would retire in November. The advance notification was a requirement for an early retirement program which provided a major incentive for retirement in the form of a cash bonus of 25% of salary.

   
   

7. Upon his retirement, Dr. Nunn's duties were primarily split among existing staff persons and a new hire. Certain duties were not specifically assigned, and sometime in December, the BCC's President contacted Dr. Nunn and asked if he would be willing to provide work in those areas so that they would not fall through the crack while people were being trained to take them over.

   
   

8. The arrangement to which Dr. Nunn agreed was that he would be allowed to work on his own, without specific hours, for a 6-month period, for

   $10,000.00.

   
   

   For cash-flow purposes, he asked for payment in monthly increments, with a maximum of 390 hours total, a limit he felt would assure that he would not violate the law allowing for a maximum of 780 hours of employment by retired adjunct instructors.

   A one-page form contract between the District Board of Trustees of Brevard Community College and William Nunn, dated January 3, 1989, provides that he perform the following services:

   
   

   1. Work to insure that the college is in compliance with the criteria of the Southern Association of Colleges and Schools.

   2. Classify for funding, reporting and data processing purposes all courses and programs of study. (Common Course Numbering and Community College Management Information System)

   3. Maintain master course plan files.

   4. Coordinate catalog additions, changes and deletions.

   (Pet. Exh. #2)

   
   

   For background information on the person performing the service, the contract provides:

   
   

   Dr. Nunn is a knowledgeable college administrator with over twenty years experience at the community college and university level. He has performed all of the functions for which he is being employed.

   (Pet. Exh. #2)

   
   

   A subsequent identical contract was entered between the parties for the period June 14, 1989 through December 21, 1989. Dr. Nunn continued to provide services through December 1990 under a series of contracts.

   
   

9. Dr. Nunn worked at the college, for a while in his prior office, then in a different office. He also did some work at home. He used independent judgement based on his past experience and education. Because of his skill and because of the uniformity of the course system, Dr. Nunn could have performed most of the same services for any community college.

   
   

   No one else at BCC had the ability to perform the duties and eventually he trained someone to assume them.

   
   

   He kept his own hours and received no fringe benefits. For a period of approximately four months he was given the services of a graduate assistant who had been assigned to his office prior to retirement. He shared her services with other staff until she left when the term ended in April. He used college office supplies and the college computer.

   
   

10. Dr. Nunn had been a member of the management team prior to retirement, and in that capacity attended various meetings and social functions. He no longer did this.

    
    

    As a volunteer, and not related to the services he performed under his contract, he travelled twice to statewide meetings on behalf of the college. He was reimbursed for his travel expenses.

    
    

11. Dr. Nunn reported his earnings under the contract to the IRS as self- employment income. He did not obtain a business license and neither advertised nor did consulting work for other entities.

12. The contract form utilized by the college for Dr. Nunn's services has no provision for termination. Both Dr. Nunn and the college administrators understood it could be terminated by mutual agreement.

    
    

    When he needed to consult with the college, Dr. Nunn reported directly to the President.

    
    

13. Dr. Nunn received $35,715.99 in retirement benefits from FRS from January through November 1989. The Division has demanded repayment of that sum.

    
    

    John Mangus

    
    

14. Prior to his employment with BCC in 1970, John Mangus had twenty-six years experience in machine work in private industry, including work for the Baltimore and Ohio Railroad, Hercules Power Company and the Chrysler Corporation.

    
    

    In 1970, he was hired by BCC to teach machine tool technology. After ten years he became Division Chairman of the Industrial Division, and in 1988, he was appointed Assistant Director of the Palm Bay Vocational Center, also part of BCC.

    
    

15. As Division Chair, Mr. Mangus was responsible for vocational shops at the various campuses in Brevard County. He administered the Division, performed faculty evaluations, recruited students, planned curriculum and met with counterparts from other colleges. He also coordinated a move of two vocational shops when the BCC facility at Patrick Air Force Base was closed.

    
    

    As Assistant Director for Palm Bay Vo Tech, he assisted the Director in purchasing equipment and meeting with industry representatives; he determined curriculum and continued to do some paperwork for the Vocational Division.

    
    

    He received a biweekly salary and received all fringe benefits of a regular BCC employee.

    
    

16. After a heart attack and a cancer operation, Mr. Mangus retired from BCC on January 31, 1989. By retiring just prior to his 63rd birthday he was able to take advantage of the early retirement incentive.

    
    

17. In late December or early January, around the time of Mr. Mangus' retirement, the Vocational Division was undergoing some changes. Teachers were retiring and programs were being reorganized. The administration decided to merge programs and move four different vocational shops.

    
    

    Since John Mangus had extensive experience in moving equipment, he was asked to return to BCC after retirement to handle the moves for the vocational shops.

    
    

    A contract, the same form utilized for Dr. Nunn, was executed effective March 1, 1989 between John Mangus and BCC, providing for his services from the period March 1, 1989 through December 31, 1989, at the rate of $536.00 a month, for a total of $5,360.00.

18. The duties specified on the contract were:

    
    

    Assist the Provost in the operation of the Industrial Division, assist in the development of the curriculum for Building Maintenance program, supervise moving of equipment and tooling for several programs, and to include other duties assigned by the Cocoa Campus Provost.

    (Pet. Ex. #12)

    emphasis added Justification for the service was provided in the contract as follows:

    Will assist the Provost in the operation of the Industrial Division, will assist in orienting the new Chairman, and will be involved in planning, implementing and supervising program moves and curriculum changes, will work a total of 268 hours.

    (Pet. Ex. #12)

    
    

19. John Mangus' primary responsibility under the contract was the move, a function which required a special expertise. The mechanical lifting and transport of heavy equipment is complicated, and Mangus had acquired this skill at the railroad and at Chrysler Corporation when he moved a shop from Melbourne to Cape Canaveral in 1969. He planned the BCC moves in his own home and arranged the schedules. Basis for the 268 hour limit was his estimate of the time it would take at what he considered a fair hourly rate. He insisted on monthly increments so that his railroad retirement benefits would not be affected.

    
    

    He also insisted that he not be required to attend meetings and that he be allowed to work on his own. He was assisted in the move by several college instructors, but he had no supervisory responsibility for them. All equipment was provided by the college.

    
    

20. In addition to the moving, John Mangus prepared budgets and planned the curriculum. He worked at home mostly on the budgets, just as he had done when he was employed as Division Director.

    
    

21. John Mangus received only the $536.00 per month from BCC, no fringe benefits, and ended up working more than the maximum hours for no additional compensation. He paid his own insurance and reported his income to the IRS as self employment.

    
    

    During the same time that he was handling the BCC moves, he was also moving, revising the curriculum and setting up shops for Lake City Community college on a contract at $200.00 a day.

    
    

    He did not advertise his services and did not incorporate as

    a business. His engagement at Lake City was by virtue of his reputation in the field.

    
    

22. The Division of Retirement has demanded that John Mangus repay the

    $11,050.76 he received from the FRS from March through December 1989.

    William L. Benfield

    
    

23. William Benfield was hired by BCC in 1969 as a maintenance employee, became supervisor of maintenance, and remained in that position until approximately 1984, when he took over the college hardware and locksmith shop.

    
    

24. His primary responsibility during the last five years prior to retirement was as locksmith. He worked under a supervisor who gave him his duties each morning when he reported to work at the Cocoa maintenance department.

    
    

    He worked eight hour days, with an hour for lunch and two 15 minute breaks. He was required to turn in time sheets. He received $21,000.00 annual salary, plus benefits such as paid leave, insurance and retirement contributions.

    
    

25. As locksmith, Mr. Benfield worked at all the BCC campuses, as directed. He was required to utilize the tools furnished by the employer and used the employer's vehicle.

    
    

26. In June or July 1988, Mr. Benfield notified the college that he would take an early retirement. He planned on retiring at age sixty-two in February 1989, but was eligible for the financial incentive for early retirement. His retirement occurred effective November 30, 1988.

    
    

27. Around the latter part of December, William Benfield was contacted by Harold Creel, BCC's Vice President for Maintenance, with regard to performing short-term contract work.

    
    

    They met, and Mr. Creel explained that the college wanted Benfield to work on the new keying system for the college. This was a computerized code system that required re-pinning each lock in the campus buildings. The work also involved keeping records in a code that would allow a key to be made.

    
    

28. Mr. Benfield agreed to the work so long as it did not exceed 20 hours a week, as he did not want to jeopardize his social security income.

    
    

    A contract was executed on the same form as used for Petitioners Nunn and Mangus, for the period January 3, 1989 through June 30, 1989.

    
    

    The services are described as follows:

    Locksmith - repair door locks, make keys, repair doors, rekey building, etc. [sic]

    (Pet. Ex. #17)

    
    

    Consideration was set at $11.50 per hour for 20 hours a week.

    
    

    A second contract was entered for the period July 3, 1989 through December 31, 1989 for $11.50 per hour and 12 hours a week. (Pet. Exh. #18)

    
    

29. William Benfield was familiar with these short-term contracts since carpenters, plumbers or electricians had been retained in this manner in his maintenance department.

30. Benfield's work under the contracts was on his own time. He was not required to work a minimum number of hours or to check in at a given hour. He picked up work orders, as before, but used his discretion as to priorities. He used his own vehicle to travel to the various campuses and used his own tools, a substantial investment of several thousand dollars.

    
    

    He did not advertise as a business and did no work for anyone else, as he did not want to affect his social security benefits. He did not have a business license.

    
    

    He received no fringe benefits and reported his income under the contracts to the IRS as self-employment. He received no performance evaluations.

    
    

31. William Benfield earned approximately $8,000.00 under the two contracts with BCC; he also received $7,345.97 in retirement benefits from FRS during the same period in 1989. The Division of Retirement is demanding repayment of those benefits.

    
    

    General Findings and Summary

    
    

32. The law with regard to reemployment of FRS retirees has been in a state of flux for over 10 years. At one time, reemployment was prohibited altogether. Then the law was changed to permit reemployment when the agency certified that no one else was available to fill the job. Reemployment was limited to 500 hours in a calendar year; the limit was expanded to 600 hours, and later to 780 hours or $4,000.00.

    
    

    In 1985, the legislature created a 12-month waiting period, during which retirement benefits had to be suspended if the retiree returned to work under an FRS-covered employer. After 12 months, the retiree could return and draw both salary and retirement benefits.

    
    

    Immediately, school boards prevailed with an amendment to allow teachers to return for a maximum of 780 hours in the first calendar year after retirement. The community colleges and nine state universities also obtained similar amendments for rehiring instructional staff.

    
    

33. The Division of Retirement has conscientiously provided written guidance to its member employers in the form of rules, guidelines, handbooks, and memoranda. It also provides instructional leaflets to employees and retirees.

    
    

34. As Associate Vice-President of Human Resources at BCC, Robert Lawton oversees the entire personnel operation for the college. He is familiar with the requirements of the law and rules of the Division of Retirement and reviewed the contracts for the petitioners' services.

    
    

    These contract forms are different from those used for adjunct faculty who are paid through a regular payroll account. Short term contractors are paid from a separate account.

    
    

35. The contracts were drafted by the department heads seeking the petitioners' services. Robert Lawton recommended approval to the President after assuring himself that the contracts were appropriate. He had instructed a staffperson to call the Division of Retirement in his presence to get some guidance. There is no evidence that someone from the agency actually approved the circumstances. Rather, it is apparent that the guidance received through

    the phone call, in which the college may not have been identified, was of a general nature as to what the agency looks at in determining an independent contractor status.

    
    

36. The college commonly uses the short-term contract form for consultant and mechanical services. While it routinely advertises to fill employment vacancies, it ordinarily obtains contractual services from individuals it knows can provide those services.

    
    

37. The Division of Retirement became aware of Petitioners' contracts through a routine independent audit.

    
    

    The agency carefully scrutinizes these type of service provider relationships as it has the responsibility to maintain the actuarial soundness of the retirement fund for thousands of employees and retirees. That actuarial soundness relies on a proper balance of contributions to benefits. That balance is jeopardized if employers are able to avoid required contributions by obtaining services of employees through a contract.

    
    

    The opportunity to circumvent the law is particularly seductive where, as here, the employer needs the services of a recently retired employee. Scepticism by the agency in such instances is appropriate.

    
    

38. Dr. Nunn's many successful years as a valuable member of the college's management team were served, by his choice and the college's, in the status of an employee.

    
    

    He retired, and was immediately retained to perform some of the same functions as before -- sensitive and significant functions that were integral to the successful administration of the institution--functions related to its accreditation and funding.

    
    

    Language in his contract such as "work to insure", "maintain", and "coordinate" connote an ongoing relationship, rather than discrete definable contract products. Indeed, his relationship with the college was ongoing, for two years beyond his official retirement date.

    
    

    The term, "coordinate", implies that he was not to work alone, but was rather meant to direct the work of others. Some actual evidence of that is found in the fact that a student assistant was provided, albeit briefly.

    
    

    As a highly qualified professional, Dr. Nunn could have performed the same or similar tasks for other institutions. He did not, and if he had, the circumstances would have to dictate whether he was a consultant to, or employee of, those other institutions.

    
    

39. Dr. Nunn was not an adjunct professor nor member of the instructional staff, and was not entitled to the 780 hour exception to the 12 month reemployment prohibition. The 390 hour limit in his contract, however, reveals that his compensation, $10,000.00, was approximately the same rate of pay he received prior to retirement when he worked full time.

    
    

40. The facts addressed at hearing regarding the relationship of Dr. Nunn to BCC, when considered as a whole, weigh more heavily in favor of finding an employee/employer relationship than that of consultant/client.

41. The same conclusion is reached as to Petitioner, John Mangus. If his only contractual service had been the shop moves, his consultant or independent contractor status would have been more evident. As he eloquently described at the hearing, the transportation of heavy machinery is a unique skill, the exercise of which demands noninterference by others.

    
    

    However, the terms of his contract, and the actual services he performed also related to budget and curriculum, functions he performed as an employee and functions integral to the mission of his employer.

    
    

    The terms of his contract thoroughly belie his claims of independence. He was to "assist", to "supervise", to "be involved in planning, implementing, and supervising...". Perhaps most fatal is the language, "...and to include other duties assigned by Cocoa Campus Provost". Except for the move, the contractual duties were entirely open-ended and subject to the interpretation or direction of others.

    
    

    That he was also retained at the same time by another community college might imply that he was properly a consultant/specialist in moving industrial workshops, but this fact alone does not outweigh the more substantial evidence that at BCC he was still performing as an employee, much the same as he had performed prior to his official retirement.

    
    

42. The evidence weighs differently as to William Benfield. His services as a locksmith were a specialized mechanical skill of a type commonly provided through a contract. His services were not integral to the nature of the institution and did not necessitate his working with, for, or over other staff. The substance of his contractual tasks is found on the face of the contract form, and his prior performance of the same or similar tasks as an employee does not indicate those tasks must always be provided by an employee. The terms and conditions of his relationship with the college were radically altered after his retirement. The college chose, in the words of Robert Lawton, to "privatize" certain mechanical functions previously provided in-house, and the locksmith function was one of them. William Benfield became an independent contractor to BCC after his retirement.

    
    

    CONCLUSIONS OF LAW

    
    

43. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

44. Section 121.091(9)(b)1., F.S. (1989) provides:

(9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.-- (b)1. Any person who is retired under this chapter, except under the disability retirement provisions of subsection (4), may be reemployed by any private or

public employer after retirement and receive retirement benefits and compensation from his employer without any limitations, except that a person 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.

Section 121.091(9)(b)2., F.S. (1989), provides:

2. Any person to whom the limitation in

subparagraph 1. applies who violates such reemployment limitation and who is reemployed with any agency participating in the Florida Retirement System before completion of the 12-month limitation period shall give timely notice of this fact in writing to his employer and to the division and shall have his retirement benefits suspended for the balance of the 12-month limitation period. Any retirement benefits received while reemployed during this reemployment limitation period shall be repaid to the retirement trust fund, and retirement benefits shall remain suspended until such repayment has been made. Benefits suspended beyond the reemployment limitation shall apply toward repayment of benefits received in violation of the reemployment limitation.

1. Section 121.091(9)(b)4., F.S. (1989) provides an exception to the above for adjunct instructors reemployed by a community college board of trustees for a maximum of 780 hours during their first twelve months of retirement. None of the petitioners is covered by that exception.

   
   

2. Instead, Petitioners claim they were not reemployed, but rather were engaged as independent contractors during the first twelve months after retirement.

   
   

3. Rule 22B-4.012, F.A.C., Employment after Retirement, provides the same prohibition and exception as found in Section 121.091, F.S., above.

   
   

4. Rule 22B-6.001, F.A.C., in effect during the relevant period, provides this definition of independent contractor:

   
   

   (17) CONSULTANT OR INDEPENDENT CONTRACTOR -- Means an individual who: agrees to provide certain services; works according to his own methods; is not subject to the control of his employer, except as to the results of his work; and does not receive the fringe benefits offered by the employer. A consultant or independent contractor usually: is compensated from another salaries and wages account; does not earn annual sick leave; and may frequently do a majority of his work in his own office rather than on the employer's premises. (See 22B-1.004(5)(c)(6).)

   [The reference relates to CETA or JTPA participants, and is irrelevant here.]

   
   

5. In interpreting its rule, the division relies on common law tests of independent contractor status, and specifically the tests formulated by 1 Restatement of the Law, Agency (2nd ed.) Section 220, described in Cantor v. Cochran, 184 So.2d 173 (Fla. 1966). Those same tests are routinely applied by the courts in Florida and are succinctly stated as follows:

   
   

   In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

   1. the extent of control which, by the agreement, the master may exercise over the details of the work;

   2. whether or not the one employed is engaged in a distinct occupation or business;

   3. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

   4. the skill required in the particular occupation;

   5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

   6. the length of time for which the person is employed;

   7. the method of payment, whether by the time or by the job;

   8. whether or not the work is a part of the regular business of the employer;

   9. whether or not the parties believe they are creating the relationship of master and servant; and

   10. whether the principal is or is not in business.

       
       

       Messer v. Department of Labor and Employment, 500 So.2d 1372 (Fla. 5th DCA 1987);

       Global Home Care, Inc. v. Department of Labor, 521 So.2d 220, (Fla. 2nd DCA 1988) 221

       
       

6. As to Petitioners, Nunn and Mangus, the majority of those factors indicate an employer/employee relationship; for William Benfield the opposite result attains.

   
   

7. If any one factor is foremost, it is the right of control as to the mode of doing the work. Messer, supra. Although both Petitioners, Nunn and Mangus, are skilled professionals who draw on their personal experience and education to exercise the discretion inherent in their work, the fact that their work was so preeminently the work of the college distinguishes them from tax consultants or legal or labor consultants or other professionals who provide ongoing advice to a client and who are still considered independent contractors. The right of control is inherent in Nunn's and Mangus' relationship with the college; it is not for the other types of consultants. Compare, for example, the circumstances in School Board Attorney, Frank Howard's case, In Re Howard, 4 FALR 542A (Final Order 12/11/81), with that of hospital counsel, Bryan Henry, Henry v. State of Florida, Department of Administration, Division of Retirement,

   4 FALR 1295A (Final Order 4/27/82), affirmed on appeal, 431 So.2d 677 (Fla. 1st DCA 1983).

   
   

8. The Restatement factors were recently applied in a case involving the agency's determination of forfeiture of retirement benefits in Tildon Davis v. Department of Administration, Division of Retirement, 585 So.2d 421 (1st DCA 1991). There the agency's rejection of the hearing officer's findings were reversed on appeal. While the result of the findings is different here, nonetheless the case supports an analysis of all the circumstances surrounding a relationship, with the Cantor factors as an appropriate tool.

RECOMMENDATION

Based on the foregoing, it is hereby, recommended that a Final Order be entered requiring repayment of retirement benefits received by Petitioners, Nunn and Mangus, during the time they were employed by Brevard Community College in the first 12 months of their retirement.

RECOMMENDED this 15th day of January, 1992, in Tallahassee, Leon County, Florida.

MARY CLARK

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 15th day of January, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-8015, 90-8016, and 90-8017

The following constitute specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings

1. Adopted in paragraphs #3. and #5.

   
   

2. Adopted in substance in paragraph #5.

   
   

3. Adopted in paragraph #7.

   
   

4. Adopted in substance in paragraph #8.

   
   

5. Rejected as contrary to the weight of evidence or immaterial.

   
   

6. Adopted in substance in paragraph #9.

   
   

7. Adopted in substance in paragraphs #8. and #9.

   
   

8. Adopted in part in paragraph #9, otherwise rejected as unnecessary.

   
   

9. Adopted in substance in paragraph #9.

   
   

10. Adopted in substance in paragraph #10.

    
    

11. Adopted in substance in paragraph #11.

12. Adopted in substance in paragraph #10.

    
    

13. Adopted in substance in paragraph #9.

    
    

14. Adopted in substance in paragraph #12.

    
    

15. Adopted in substance in paragraph #13.

    
    

16. Adopted in substance in paragraph #16.

    
    

17. Adopted in substance in paragraphs #14. and #15.

    
    

18. Rejected as unnecessary.

    
    

19. Adopted in paragraph #17.

    
    

20. Adopted in paragraphs #17. and #19.

    
    

21. Adopted in paragraph #21.

    
    

22. Adopted in paragraph #20.

    
    

23. Adopted in paragraph #21.

    
    

24. Adopted in paragraph #19.

    
    

25. Adopted in substance in paragraph #19.

    
    

26. Rejected as unnecessary.

    
    

27. Adopted in paragraph #21.

    
    

28. Adopted in paragraph #22.

    
    

29. Rejected as immaterial in light of other evidence that the relationship was not independent.

    
    

30. Adopted in substance in paragraph #21.

    
    

31. Adopted in paragraph #19.

32.-33. Adopted in paragraph #24.

1. Rejected as unnecessary.

   
   

2. Adopted in paragraph #27.

   
   

3. Adopted in paragraphs #28. and #29.

   
   

4. Rejected as unnecessary.

   
   

5. Adopted in paragraph #28.

   
   

6. Adopted in paragraph #30.

   
   

7. Rejected as unnecessary.

41.-43. Adopted in paragraph #30.

1. Adopted in paragraph #31.

   
   

2. Adopted in paragraph #34.

   
   

3. Rejected as immaterial.

   
   

4. Adopted in substance in paragraph #34.

   
   

5. Adopted in substance in paragraph #35.

   
   

6. Rejected as unnecessary.

   
   

7. Adopted in part in paragraph #35; otherwise rejected as contrary to the evidence.

   
   

8. Adopted in part in paragraph #34; otherwise immaterial in light of the evidence that as to Nunn and Mangus, the relationship was not independent.

52.-53. Rejected as immaterial.

54.-56. Rejected as repetitive and unnecessary.

1. Rejected as contrary to the weight of evidence.

   
   

2. Adopted in paragraph #36.

   
   

3. Rejected as repetitive or immaterial.

60.-77. Rejected as immaterial, unnecessary or unsupported by the weight of evidence.

Respondent's Proposed Findings of Fact

1. Adopted in substance in paragraph #13.

   
   

2. Rejected as unnecessary.

   
   

3. Adopted in substance in paragraph #8.

   
   

4. Adopted in substance in paragraph #22.

   
   

5. Rejected as unnecessary.

   
   

6. Adopted in substance in paragraph #18.

   
   

7. Adopted in substance in paragraph #31.

   
   

8. Rejected as unnecessary.

   
   

9. Adopted in substance in paragraph #28.

   
   

10. Adopted in paragraph #1.

11. Rejected as unnecessary.

    
    

12. Adopted in paragraph #1.

13.-14. Adopted in paragraph #32.

15. Adopted in substance in paragraph #37.

16.-19. Adopted in substance in paragraph #33.

1. Rejected as unnecessary.

   
   

2. Adopted in paragraph #37.

22.-23. Rejected as unnecessary.

1. Adopted in paragraph #3.

   
   

2. Adopted in paragraph #4.

   
   

3. Adopted in paragraph #9.

   
   

4. Adopted in paragraph #6.

   
   

5. Adopted in paragraph #7.

   
   

6. Adopted in paragraph #8.

   
   

7. Adopted in paragraph #8.

   
   

8. Rejected as contrary to the weight of evidence (as to attendance at meetings).

   
   

9. Adopted in paragraph #5.

   
   

10. Adopted in paragraph #12.

    
    

11. Adopted in paragraph #8.

    
    

12. Adopted in paragraph #11.

    
    

13. Rejected as unnecessary.

    
    

14. Adopted in paragraph #11.

    
    

15. Rejected as unsupported by the evidence.

    
    

16. Rejected as unnecessary.

    
    

17. Adopted in paragraph #10.

    
    

18. Adopted in substance in paragraph #8.

    
    

19. Adopted in paragraph #8.

43.-44. Adopted in paragraph #9.

45.-46. Adopted in paragraph #14.

47.-48. Adopted in paragraph #15.

1. Adopted in paragraph #16.

   
   

2. Adopted in paragraph #17.

   
   

3. Adopted in paragraph #18.

   
   

4. Adopted in paragraph #15.

   
   

5. Adopted in paragraph #20.

   
   

6. Adopted in paragraph #19.

   
   

7. Adopted in paragraph #20.

   
   

8. Adopted by implication in paragraph #35.

   
   

9. Adopted in paragraph #17.

   
   

10. Adopted in substance in paragraph #21.

    
    

11. Rejected as unnecessary.

    
    

12. Adopted in paragraphs #23. and #26.

    
    

13. Adopted in paragraphs #23. and #24.

    
    

14. Adopted in paragraph #26.

    
    

15. Adopted in paragraph #28.

    
    

16. Adopted in part in paragraph #28; otherwise rejected as unnecessary.

65.-67. Adopted in paragraph #30. 68.-69. Rejected as immaterial.

COPIES FURNISHED:

Larry D. Scott, Esquire Asst. Division Attorney Dept. of Administration

Div. of Retirement-Legal Ofc. Cedars Executive Ctr., Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560

Peter L. Sampo, Esquire

HOGG, ALLEN, NORTON & BLUE, P.A.

121 Majorca Ave., 3rd floor Coral Gables, FL 33134

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Bldg. C 2639 N. Monroe Street Tallahassee, FL 32399-1560

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-008015

Orders for Case No: 90-008015