STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOMMY JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2254

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on October 8-9, 1991.

APPEARANCES

For Petitioner: John D. Carlson, Esquire

Gatlin, Woods, Carlson & Cowder 1709-D Mahan Street Tallahassee, Florida 32308

For Respondent: Stanley M. Danek, Esquire

Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue at the hearing was whether Petitioner is

entitled to either high hazard or special risk classification for retirement benefit purposes for the years July 1, 1967 through September 27, 1979.

PRELIMINARY STATEMENT

By application made to the Department of Administration, Division of Retirement, Petitioner, Tommy L.

Jackson, sought recognition and credit for service as a "high hazard" employee as provided for under Section 122.34, Florida Statutes, and its various amendments, for the period July 1, 1967 through November 30, 1970, and as a "special risk" member of the Florida Retirement System for the period December 1, 1970 through September 27, 1979, as provided under Chapter 121, Florida Statutes, and its various amendments. By letter dated March 6, 1991, Respondent, Department of Administration, Division of

Retirement, denied Petitioner's application. The Department based its denial on its conclusion that Petitioner was not qualified for special or high risk classification for retirement purposes since the pursuit, apprehension and arrest of law violators was not an essential function of his job as a Game Management Specialist. The Department's denial prompted Petitioner to file a "Petition for Administrative Hearing and Affirmative Relief for Determination of Retirement Benefits and Attorney's Fees". The petition for administrative hearing was forwarded to the Division of Administrative Hearings for purposes of conducting a formal hearing.

At the hearing, Petitioner testified in his own behalf, presented five additional witnesses and offered the deposition testimony of James H. Carter and Gordon Spence.

Additionally, Petitioner offered into evidence sixteen exhibits. Respondent presented five witnesses and offered twenty-one exhibits into evidence of which ten were admitted into evidence. After the conclusion of the hearing, Petitioner offered the deposition testimony of Dean Beyer and Respondent offered the deposition testimony of Robert Murray.

Petitioner and Respondent filed Proposed Recommended

Orders on December 12, 1991 and December 13, 1991, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Tommy L. Jackson, is a member of the Florida Retirement System (FRS). Previous to becoming a member of FRS, Petitioner was a member of the State and County Officers' and Employees' Retirement System (SCORES).

   
   

2. Petitioner was raised in the Jackson County,

   Florida area. Petitioner's father was a Wildlife Officer for many years. In his youth, Petitioner aided his father in some of his Wildlife Officer's duties and discovered that he was interested in pursuing a similar avocation. Indeed, Petitioner's life-long dream was to follow in his father's footsteps and become a Wildlife Officer.

   
   

3. Petitioner realized his dream when he was employed

   as a Wildlife Officer by the Game and Freshwater Fish Commission on March 1, 1965. Upon his employment, Petitioner became a mandatory member of the State and County Officers' and Employees' Retirement System (SCORES). SCORES was a contributory retirement system and provided for high hazard membership for certain types of law enforcement personnel. High hazard membership permitted and employee to receive accelerated retirement benefits. Because of the accelerated benefits, high hazard employees were required to contribute an additional amount of money to SCORES to underwrite the accelerated retirement benefits.

4. As a Wildlife Officer, Petitioner was generally considered a law enforcement officer with duties and responsibilities involving the pursuit, apprehension and arrest of law violators or suspected law violators. Therefore, while serving as a Wildlife Officer, Petitioner attended and completed Police Officer Standards training and thereafter was certified as a law enforcement officer by virtue of that training and experience. Petitioner was assigned away from the Jackson County area and remained a Wildlife Officer until August 15, 1967.

   
   

5. However, from March 1, 1965, to July 1, 1967, Petitioner was not considered a high hazard employee because he initially was not the type of law enforcement officer covered by the high hazard category of membership. From July 1, 1967, to August 15, 1967, Petitioner was the type of law enforcement officer entitled to high hazard membership. However, Petitioner was not certified by his employer as meeting the high hazard requirements of Section 122.34, Florida Statutes (1967), did not apply for high hazard benefits and did not contribute the additional high hazard contribution to SCORES. Therefore, since Petitioner did not meet the conditions precedent for high hazard

   membership required by either the statute or rule, Petitioner has not established that he is entitled to recognition as a high hazard member for the period July 1, 1967, through August 15, 1967.

   
   

6. Sometime prior to August 15, 1967, the position of Game Management Specialist in the Apalachee Wildlife Management Area (AWMA) opened due to the retirement of the person who occupied the Game Manager's position. The AWMA occupies a large portion of Jackson County as well as small areas of other adjoining Counties. Because Petitioner wanted to return to Jackson County, Petitioner applied for the opening. On August 15, 1967, Petitioner was transferred to the position of Game Management Specialist and was assigned to the Apalachee Wildlife Management Area.

   
   

7. Mr. Jackson was chosen for the position in the

   AWMA because of his law enforcement experience and certification and his knowledge of the surrounding area. At the time Petitioner was hired, there was a feeling by Petitioner's superiors that the AWMA had a greater need for law enforcement than other management areas and that it was in the Commission's best interest to have the Game Management Specialist act as a law enforcement officer since the area is very large and there were not enough Wildlife Officers available to adequately patrol the surrounding counties as well as the AWMA. In the AWMA, the most useful and effective game management tool was law enforcement and the pursuit, apprehension and arrest of law violators or suspected law violators. The game manager's job was conducive to combining the agricultural aspects of the position with the law enforcement duties required in the AWMA. In fact, Mr. Jackson's main function as a Game Management Specialist was to function as a law enforcement/Wildlife Officer. To that end, the Wildlife Officer's who had responsibilities for Jackson County were told by their supervisors that the AWMA was Petitioner's law

   enforcement territory and not to worry with actively patrolling the area.

   
   

8. Essentially, Petitioner's main duties as a game management specialist included license checks for both fishing and hunting, posting of the AWMA, patrolling the AWMA, supervising prison labor when such labor was used in the AWMA, functioning as an aerial observer for air surveillance, surveillance and stakeouts on the ground, respond to calls and lookout for game violators both on and off the AWMA, make or assist in making arrests, and supervise controlled hunts and check stations. All of the above functions were related to Petitioner's law enforcement function and were involved in the pursuit, apprehension and arrest of suspected law violators. Petitioner was also required to live on the AWMA in order to provide continuous security for the management area and shorten response time to suspicious situations (such as shooting in the night by night hunters) or reports of violators. 1/ Indeed the record contains several examples of Mr. Jackson pursuing through the swamps, apprehending, being attacked by those he apprehended and arresting or assisting in the arrest of such law violators both armed and unarmed. 2/

   
   

9. In order that Mr. Jackson, could pursue his law enforcement duties more effectively, the Game and Freshwater Fish Commission issued Mr. Jackson a holster, gun, badge, handcuffs, blue lights, citation book and law enforcement uniform. Additionally, Mr. Jackson was required to annually pass a physical test and a shooting test. His Commission ID card contained the following statement:

   
   

   Pursuant to Section 372.07, Florida Statutes State of Florida at Large

   Be it known that Tommy Jackson

   
   

   A regularly constituted employee of the Florida Game and Fresh Water Fish Commission with full authority to enforce the laws of this State and the regulations of the Commission relating to protection of environmental and wildlife resources. This appointment is in effect until revoked.

   
   

   Dated this 3rd day of July, 1973. 3/

   
   

   Given the above facts and even though the testimony and exhibits conflicted on the extent of Petitioner's law enforcement duties, the better evidence demonstrated that from 1967 through

   1979, the Game and Freshwater Fish Commission clearly recognized Mr. Jackson as primarily a law enforcement officer.

   Additionally, as far as Mr. Jackson's game managers position was concerned, such law enforcement functions were essential to his job and were full-time.

   
   

10. During Petitioner's tenure as a Game Management Specialist, Petitioner was a member of SCORES until November 30, 1970. Effective December 1, 1970, FRS became the primary

    retirement system for public employees of State and local governments. As a member of SCORES, Petitioner had the option of transferring from SCORES to FRS. Petitioner exercised the option to transfer and, on December 1, 1970, became a member of FRS.

    
    

11. FRS, initially, was a contributory retirement system, but has since been converted to a noncontributory retirement system. It has a "special risk" category of

    membership which is similar to high hazard membership in SCORES. However, special risk and high hazard memberships differ in important respects and membership in one does not necessarily insure membership in the other. As a contributing special risk member, the employee paid a higher percentage of his salary to FRS than a non-special risk member. During both contributory and noncontributory phases of FRS the employer paid a higher percentage of the employee's salary to FRS than the employer would pay on behalf of a non-special risk employee.

    
    

12. The evidence was uncontroverted that from July 1, 1967 to November 30, 1970, the Game and Freshwater Fish

    Commission never submitted Petitioner's name for certification as a person who performed duties according to rule, order or established custom as a full-time, criminal law enforcement officer or as performing duties which were hazardous.

    Additionally, the evidence was clear that for the period December 1, 1970, to October 1, 1978, Petitioner's employer did not seek recognition of Petitioner's service as a "special risk" member of the FRS. The reason for the Commissions lack of such a certification on behalf of Mr. Jackson was not clear from the record. On the other hand, it simply never occurred to Mr.

    Jackson to request that he be classified as either a special risk or high hazard employee prior to his retirement. Finally, there has been no demonstration of any payment of additional funds into the State and County Officers' and Employees' Retirement System or FRS to defray the expense of membership in either the "high hazard" or "special risk" category.

    
    

13. Effective October 1, 1978, Chapter 121, Florida Statutes, was amended to provide that special risk membership was given to a state employee only if that employee was in a class or generic position that had been given special risk status. Provisions for applying for a position to be classified as special risk or for challenging the denial of such a classification were also provided in the 1978 amendments. Game Management Specialists were not designated as having a special risk status by the game commission and no application or challenge was filed by either the commission or Petitioner.

    
    

14. In fact, in 1979, in part due to the 1978 changes in special risk membership, a committee established by the Commission recommended to the Executive Director that law

    enforcement duties be removed from the responsibilities of game managers. On September 27, 1979, the Executive Director followed the committee's recommendation and removed law enforcement responsibilities from game managers and ordered that all wildlife management specialists turn in their guns, holsters, belts, citation books, blue lights and law enforcement uniforms. From

    September 27, 1979 until his retirement, Respondent did not function as a law enforcement officer. Respondent retired from service in January, 1990, with no application, certification, or contribution having been made by him or on his behalf.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The Petitioner, Tommy L. Jackson, has the burden of proof to establish entitlement to either high hazard or

    special risk classification for retirement benefit purposes for the years July 1, 1967 through September 27, 1979. In order to carry this burden of proof, Petitioner must navigate through two retirement systems and several statutes and rules which were variously in effect during a given time period. See Department of Administration v. Brown, 334 So. 2d 355 (Fla. 1st DCA 1976). Generally, however, Petitioner, for all time periods, must show that:

    
    

    1. He was a de facto law enforcement officer;

    2. His duties were certified as hazardous, high hazard or special risk by his employer; and

    3. Whether the agency acted in conformity with its statutes and rules.

       
       

17. When Petitioner became an employee of the Commission on March 1, 1965, he was employed as a Wildlife Officer and was a compulsory member of the State and County Officers' and Employees' Retirement System (SCORES) established under Chapter 122, Florida Statutes.

    
    

18. SCORES was a contributory retirement system in

    which the employee contributed a certain percentage of his or her salary. SCORES provided for a special class of membership known as "high hazard". High hazard membership provided for enhanced retirement benefits for certain types of law enforcement personnel. High hazard members were also required to make additional contributions to SCORES to cover the accelerated retirement benefits such high hazard members would receive. See Section 122.34, Florida Statutes (1965). Section 122.34(1), Florida Statutes, (1965) states in part as follows:

    
    

    1. The provisions of this section shall apply with respect to members who are sheriffs of the several counties of the state or who are full-time deputy sheriffs designated as "high hazard" full-time deputy sheriffs, as certified by the sheriff and approved by the comptroller, ...

    2. All "high hazard" members shall contribute two and one half per cent of each installment of salary, to the state and county officers and employees

    retirement trust fund, which percentage shall be in addition to the percentage required in Section 122.03, or in Section 122.27 whichever is applicable.

    
    

    Clearly, even though Petitioner was a Wildlife Officer, he did not qualify for high hazard membership in 1965 since he was not a sheriff or a full-time deputy sheriff.

    
    

19. Effective July 1, 1967, Section 122.34(1), Florida Statutes, was amended to enlarge the types of positions that would be eligible for high hazard membership. Section 122.34(1), Florida Statutes, (1967), as amended states in part as follows:

    
    

    (1)(a) In addition to sheriffs and full-time deputy sheriffs, the provision of this section shall apply with respect to members who are officers or full-time employees of the state or the several counties of the state whose duties are to enforce the criminal laws of the state, except . . .

    (1)(b) Only those members who are full- time criminal law enforcement officers

    or agents, as certified by the employing authority, who perform duties according to rule, order, or established custom as full-time criminal law enforcement officers or agents shall be certified to the division as high hazard members, and only such members will be approved by the division.

    * * *

    
    

20. Subsection (2) of Section 122.34, Florida Statutes remained the same and high hazard members continued to contribute a higher percentage of their salary to SCORES than non-high hazard members.

    
    

21. Rule 4M-1.01, Florida Administrative Code, (1967) entitled "High hazard employees of the state and county; procedure for qualification thereof." was the Rule governing awards of high hazard membership in SCORES. The Rule stated in part:

    
    

    1. Pursuant to Section 122.34(1)(b), Florida Statutes 1967, each employing state agency performing criminal law enforcement duties, according to Florida law, shall certify to the State Comptroller all employees of their respective departments, who perform as a full-time criminal law enforcement officer or agent, for purposes of qualifying said officer or agent as a participant in the "high hazard" member

       of the State and County Officers and Employees Retirement System.

    2. Certification pursuant to Subsection 4M-1.01(A) shall be made by the director or department head of the agency requesting classification of said officer or agent and on the forms prescribed by the State Comptroller. At the presentation of said certification, the Comptroller may require such additional information as may be deemed necessary by him.

    3. The following employees of the agencies hereafter set forth shall be construed to be members of the "high hazard" plan pursuant to Chapter 122.34, Florida Statutes:

    
    

    5. Game and Fresh Water Fish Department - The Director and those full-time conservation officers with

    police powers as set forth under Section 372.07, Florida Statutes.

    
    

22. Section 372.07, Florida Statutes, stated in part:

    
    

    Police powers of the commission and its agents. -- The game and fresh water fish commission and each and every of its duly authorized conservation agents, have power and authority, throughout the state, to enforce all laws relating to game, non-game birds, fresh water fish and fur-bearing animals, and in connection with said laws, in the enforcement thereof and in the performance of their duties thereunder, to go upon all premises, posted or otherwise; execute warrants and search warrants for the violation of said laws; serve subpoenas issued for the examination, investigation and trial of all offenses against said laws; carry firearms or other weapons, concealed or otherwise, in the performance of their duties; arrest upon probable cause without warrant any person found in the act of violating any of the provisions of said laws or, in pursuit immediately following such violations, examine any person, boat, conveyance, vehicle, game- bag, game-coat or any other receptacle

    ... or any camp, tent, cabin or roster in the presence of any person stopping or belonging to such camp, ...; secure and execute search warrants and in pursuance thereof, to enter any

    building, enclosure or car and to break open, when found necessary, any apartment, chest, locker, ... or container and examine the contents thereof; seize and take possession of all game, non-game birds, fresh water fish and fur-bearing animals ....

    
    

23. Under Section 372.07, Florida Statutes, and Rule 4M-1.01(C), Florida Administrative Code, Conservation Agents

    clearly had limited law enforcement powers and were recognized as performing jobs which were hazardous. Those powers were limited to the game laws in Florida. Conservation Agents were the predecessors to Wildlife Officers and eventually the title of Wildlife Officer was substituted for the title Conservation Agent. In any event, in 1973, the law enforcement authority of the director, assistants designated by the director and Wildlife Officers was broadened and made even more explicit when Section 372.07, Florida Statutes, was amended to read in pertinent part:

    
    

    (1) The game and fresh water fish commission, the director and his assistants designated by him, and each wildlife officer are constituted peace officers with the power to make arrests for violations of the laws of this state when committed in the presence of the officer or when committed on lands under the supervision and management of the commission. The general laws applicable to arrests by peace officers of this state shall also be applicable to said director, assistants, and wildlife officers.

    
    

24. In this case, Petitioner was a full-time employee of the commission and clearly, for the period July 1, 1967

    through November 30, 1970, whether as a Wildlife Officer or as a Game Management Specialist, met the requirement that he be, by rule, order or custom, a full-time law enforcement officer and at least for July 1, 1967 to August 15, 1967, when Petitioner was a Conservation Agent/Wildlife Officer, held a position which was recognized by the Comptroller in Rule 4M-1.01(C) as constituting an employment classification which the Comptroller considered hazardous. However, Rule 4M-1.01(A) and (B), as well as Section 122.34, Florida Statutes (1965-1967) required that the employer certify each individual employee who performed such hazardous, full-time, law enforcement duties. The reason for the employer's certification of the individual employee was so that the comptroller would know of the employee and be able to collect the higher contribution for high hazard membership required to be made under the SCORES contributory retirement system. In this case, the evidence was clear that the Florida Game and Freshwater Fish Commission did not certify Petitioner for high hazard membership to the Comptroller. Additionally, Petitioner never paid the contribution required of high hazard members.

    Therefore, from July 1, 1967, to August 15, 1967, while

    Petitioner, as a Conservation Agent/Wildlife Officer, may have been the type of law enforcement officer entitled to high hazard membership, Petitioner did not qualify for such membership since he was not certified as a full-time law enforcement officer, did not apply for such membership and did not make any contribution towards high hazard membership. From August 15, 1967, when Petitioner transferred to the Game Managers's position, he was no longer employed in an employment position which was recognized as hazardous by the Comptroller. As a game manager, Petitioner would have to have applied for high hazard membership and been specially certified by his employer as occupying a hazardous position as well as being the individual who filled such a hazardous position. However, as when Petitioner was a Conservation Agent/Wildlife Officer, the evidence was clear that the Florida Game and Freshwater Fish Commission did not certify Petitioner for high hazard membership to the Comptroller.

    Additionally, Petitioner never paid the contribution required of high hazard members. Without evidence that these two conditions precedent have been met, Petitioner has failed to establish that he is entitled to recognition as a high hazard member for retirement benefits purposes during the period July 1, 1967 through November 30, 1970. Judy Wyllie v. Department of Administration, Division of Retirement, DOAH Case # 85-3546 (DOA/DOR Final Order October 24, 1986).

    
    

25. Effective December 1, 1970, Petitioner was transferred to FRS and was no longer eligible for high hazard membership in SCORES. However, FRS contained a class of

    membership known as "special risk". Like high hazard membership, special risk membership provided that certain types of law enforcement officers qualified for accelerated retirement membership after certain condition precedents were met. See, Chapter 121, Florida Statutes. Section 121.021(15), Florida Statutes (1970), defined special risk as follows:

    
    

    `Special risk member' means any officer or employee receiving salary payments for work performed as a peace officer, law enforcement officer, policeman, highway patrolman, custodial employee at a correctional or detention facility, fireman, or any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer and approved by the administrator.

    
    

26. In 1972, the Division promulgated administrative rules concerning approval of special risk membership. Rule 22B- 1.05, Florida Administrative Code, required that special risk membership would be given to the classes of employees listed in the statute "provided his duties are certified as hazardous by his employer, and provided the Administrator approves the position as a special-risk position." The employing agency was required to make such a certification on special forms of the Division provided for in Rule 22B-1.05, Florida Administrative Code.

27. Rule 22B-1.05, Florida Administrative Code, also provided in part as follows:

    
    

    C. The criteria which shall be used by the employer and the Administrator in determining that a member shall be classified as a special-risk member are:

    
    

    1. It must first be determined that the member falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in correctional or detention facility, correctional agency employee whose duties and responsibilities involve direct contact with inmates (but excluding secretarial and clerical employees), fireman, or any other job in the field of law enforcement or fire protection.

    2. Once it is determined that the member falls into one of the categories enumerated in (1), the member's duties shall be considered hazardous and the member classified as special risk if, in the judgment of the Administrator, continued performance of the primary duties and responsibilities of the member beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member's fellow workers or will jeopardize the physical or mental well- being of the member, and at least one of the following statements applies to the member:

    1. The duties and responsibilities of the member require that he regularly bear a firearm or other weapon.

    2. The member in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.

    3. The primary duty and responsibility of the member is to maintain physical custody of prisoners within a prison or detention facility or while being transported.

    4. The duties and responsibilities of the member require the fighting and fires, other than controlled fires set for instructional purposes.

    
    

28. Subsection D. of Rule 22B-1.05, Florida Administrative Code, provided the procedure an employee should follow if his employer refused to certify him for special risk

    membership or the administrator of FRS failed to approve the employee's application for special risk membership.

    
    

29. Again the evidence was clear that the Commission

    did not certify either Petitioner or his position as a special risk position even though Mr. Jackson's primary and essential duties and responsibilities as a game manager involved the apprehension and arrest of law violators or suspected law violators. See, Hillman v. Division of Retirement 446 So.2d 158 (Fla. 1st DCA 1984). Additionally, Petitioner did not apply for special risk membership or challenge the fact that he was not designated as a special risk member. Absent proof of certification by the employer, application or challenge by the employee and monetary contribution from both the employee and employer, Petitioner has not established that he is entitled to classification in the special risk category. Judy Wyllie v.

    Department of Administration, Division of Retirement, DOAH Case # 85-3546 (DOA/DOR Final Order October 24, 1986).

    
    

30. The above rules in 22B-1.05, Florida Administrative Code, remained the same until the law was changed in 1978. In 1978, the Legislature enacted substantially new provisions for special risk membership. Section 121.021(15)(b), Florida Statutes, provides as follows:

    
    

    Effective October 1, 1978, `special risk member' means a member of the Florida Retirement System who is designated as a special risk member by the division (of Retirement) in accordance with Section 121.0515. Such member must be employed as a law enforcement officer, . . . and must meet certain other special criteria as set forth in Section 121.0515.

    
    

    Section 121.0515(2), Florida Statutes, provides in part as follows:

    
    

    A member, to be designated as a special risk member, must meet the following criteria:

    1. The member must be employed as a law enforcement officer and be certified in compliance with Section 943.14, or be on temporary waiver as provided by Section

       943.14 until certified; In

       addition, the member's duties and responsibilities must include the pursuit, apprehension, and arrest of law violators or suspected law violators,

       (3)(b)1. . . . the Department of Administration shall specify which current and newly created classes of positions . . . entitle the incumbents of positions in those classes to membership in the special risk class.

       2. When a class is not specified

       by the department . . ., the employing agency may petition the State Retirement Commission for approval in accordance with 121.23.

       
       

31. Rule 22B-1.051, Florida Administrative Code (1979), was the rule promulgated by the division to effectuate the 1978 amendments. Rule 22B-1.051 provided, as to law enforcement officers, that:

    
    

    Any member who seeks special risk membership must hold one of the following law enforcement positions:

    
    

    1. law enforcement officer whose duties include the pursuit, apprehension and arrest of law violators or suspected law violators;. . .

    
    

32. As when the other statutes were in effect,

Petitioner was not certified to the Division as a special risk member by his agency. Additionally, Petitioner's position as a game manager was not classified by the Department of Administration as the type of position which would entitle Petitioner to special risk status. Failing such certification or classification, Petitioner has not established his entitlement to a special risk classification. Judy Wyllie, supra.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered denying Petitioner's application for high hazard or special risk membership in either SCORES or FRS.

DONE and ENTERED this 31st day of March, 1992, at Tallahassee, Florida.

DIANE CLEAVINGER, 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 1st day of April 1992.

ENDNOTES

1/ Sometime in 1978, a dispute arose over whether Petitioner should pay more for renting the AWMA's house. Because of the dispute, the requirement that Petitioner reside on the property was lifted and Petitioner eventually moved off the AWMA.

2/ Not all Game Management Specialists functioned as law enforcement officers. Whether such specialist performed such a function depended on the location of the manager's area, the need for active law enforcement, and the managers preference or focus of his responsibilities toward the law enforcement aspects of the position or the agricultural/biological aspects of the position. Irrespective of how other game manager's performed their jobs, the evidence was clear that Mr. Jackson's main duty was crime related.

3/ In 1973, new employee identification cards were issued by the commission to differentiate between Wildlife Officers and other employees of the commission who may have had police powers.

However, this distinction between identification cards does not detract from the fact that Mr. Jackson's employment as a game manager constituted a special case in which the manager's position was primarily and essentially a law enforcement position which the commission took full advantage of.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-2254

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

2. The facts contained in the last sentence of paragraph

   8 and the first sentence of the first paragraph 11 of Respondent's Proposed Findings of Fact are rejected.

   
   

3. The facts contained in paragraphs 1, 2, 3 and 24 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

4. The facts contained in paragraphs 4, 5, 6, 7, 8, 9,

   10, 14, 19, 20, 22, 23 and 25 of Respondent's Proposed Findings of Fact are subordinate.

   
   

5. The facts contained in the fourth sentence of the first paragraph 11 of Respondent's Propsoed Findings of Fact were not shown by the evidence.

   
   

6. The facts contained in the second and third sentences

   of the first paragraph 11 of Respondent's Proposed Findings of Fact are subordinate.

   
   

7. The facts contained in the fourth sentence of the second paragraph 11 of Respondent's Proposed Findings of Fact are rejected. The remainder of the paragraph is subordinate.

8. The facts contained in the last sentence of paragraph 13 of Respondent's Proposed Findings of Fact are rejected. The remainder of the paragraph is subordinate.

   
   

9. The facts contained in the third, fourth and fifth sentences of paragraph 15 of Respondent's Proposed Findings of Fact were not shown by the evidence. The sixth and tenth sentences are rejected. The remainder of the paragraph is subordinate.

   
   

10. The facts contained in the last sentence of paragraph 16 of Respondent's Proposed Findings of Fact are rejected. The remainder of the paragraph is subordinate.

    
    

11. The facts contained in the last sentence of paragraph 17 of Respondent's Proposed Findings of Fact are rejected. The remainder of the paragraph is subordinate.

    
    

12. The facts contained in the last sentence of paragraph 18 of Respondent's Proposed Findings of Fact are rejected. The remainder of the paragraph is subordinate.

    
    

13. The facts contained in the fifth, sixth and seventh sentences of paragraph 21 of Respondent's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.

COPIES FURNISHED:

John D. Carlson, Esquire Gatlin, Woods, Carlson & Cowdery 1709D-Mahan Drive

Tallahassee, Florida 32308

Stanley M. Danek, Esquire Cedars Executive Center

2639 North Monroe Street Bldg. C Tallahassee, Florida 32399-1560

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

Cedars Executive Center

2639 North Monroe Street Bldg. C Tallahassee, Florida 32399-1560

John Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 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. Youshould 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF RETIREMENT

TOMMY JACKSON,

Petitioner,

vs. DOR Case No. DR 91-06

DOAH Case No. 91-2254

DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

This matter came on for hearing in Tallahassee, Florida, before Diane Cleavinger, a Hearing Officer of the Division of Administrative Hearings, on October 8 & 9, 1991. The Parties timely filed proposed findings of fact and conclusions of law. The Parties were as follows:

For Petitioner: John D. Carlson

Attorney at Law 1709-D Mahan Drive

Tallahassee, Florida 32308

For Respondent: Stanley M. Danek

Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, Florida 32399

A Recommended Order was issued on April 1, 1992. A copy of the Recommended Order is attached hereto, incorporated by reference and made a part of this Final Order as an exhibit. Having considered the Findings of Fact in the Recommended Order, all matters of record and the transcript of the final hearing, the Division of Retirement hereby adopts in part and rejects in part the Findings of Fact of the Recommended Order.

The issue to be decided is whether or not the Petitioner is entitled to either high hazard or special risk membership under Chapter 122, and Chapter 121, respectively, for the period of March 1, 1965, to September 29, 1979, while a member of either the State and County Officers' and Employees' Retirement System (hereinafter, SCOERS) or the Florida Retirement System (hereinafter, the FRS).

FINDINGS OF FACT

1. Adopted;

   
   

2. Adopted;

   
   

3. Adopted;

   
   

4. Adopted;

   
   

5. Adopted;

   
   

6. Adopted;

   
   

7. Rejected as not being based on the competent, substantial evidence in the record. Mr. Jackson was transferred at his own request (Petitioner's Exhibit No. 5). While his supervisors were aware that he was law enforcement qualified, that was not the primary reason for the transfer. Mr. Jackson was transferred from the position of a wildlife officer to the position of game management specialist effective with his transfer to the Apalachee Wildlife Management Area (hereinafter, AWMA) on August 15, 1967. His main duties were not in law enforcement but were the

   duties of the game management specialist position that he occupied. The last sentence of Findings of Fact No. 7 is adopted as being the testimony of the witnesses; however, Col. Brantly testified that wildlife officers have responsibility for the entire area assigned to them and a policy of letting Mr. Jackson "patrol" AWMA would be in direct conflict with the policy of the Commission.

   
   

8. Rejected. Mr. Jackson's primary duties were as stated in his position descriptions as contained in his evaluation from 1971 to the date of his retirement (Petitioner's Exhibit No. 9) The position questionnaire or description show that Mr. Jackson's duties were not primarily or essentially in the area of law enforcement. The fact that the duties of a game management specialist were primary to Mr. Jackson was supported by annual work plans which stated the duties and areas of activity that Mr. Jackson was to accomplish during the fiscal year. (Respondent's Exhibit No. 7) While Mr. Jackson did live on the Management Area, he moved from there when he build his home. Therefore, living on the Management Area could not have been a requirement of the job or he would not have been permitted to move. All of the arrest records for which Mr. Jackson participated reveal that most of his arrests were in 1968, one assist in 1968, two in 1970 (same individual), two in 1972 (same incident) and 2 in 1973 (same incident). (Petitioner's Exhibit No. 16)

   
   

9. Adopted except that the competent, substantial evidence did not show that Mr. Jackson qualified with a weapon each year. Mr. Jackson's ID card was not changed or modified in any way after he was remover from law enforcement on September 27, 1979. Footnote 2 and 3 are rejected as not being supported by the competent, substantial evidence in the record.

10. Adopted;

    
    

11. Adopted;

    
    

12. Adopted in part. The reason that the Game and Freshwater Fish Commission never submitted Mr. Jackson's name for either High Hazard or Special Risk certification was that it did not believe that he was eligible under the applicable law.

    
    

13. Adopted;

    
    

14. Adopted, except that removal from law enforcement was effective on September 6, 1979 (Respondent's Exhibit No. 1, letter to Don Dowling).

    
    

    SUPPLEMENTARY FINDINGS OF FACT

    
    

15. From August 15, 1967, until his retirement on April 1, 1991, Jackson continued to serve as a game management specialist and a laboratory technician (Petitioner's Exhibit No. 9). As part of his duties, Mr. Jackson would perform controlled burns and post wildlife areas. However, Col. Robert Brantly, the Executive Director of the Commission since 1977 and an employee of the Commission since 1957, stated that those duties were not law enforcement duties and were commonly done by biologists and other non-law enforcement personnel.

    
    

16. James A. Carpenter testified that Mr. Jackson worked on controlled hunts and was responsible for the check stations. However, the Commission hired civilians to perform that job, and Col. Brantly stated that the operation of a check station was not a law enforcement function.

    
    

17. Mr. Jackson's Commission ID card contained the statement as contained in the Recommended Order, Findings of Fact No. 9. The ID card shows that Mr. Jackson was an "employee" of the Commission and not a "law enforcement Officer". Col. Brantly, was and is a certified law enforcement officer, testified that he had two (2) identification cards (Respondent's Composite Exhibit 2). The first card stated as follows:

    
    

    This card identifies:

    Robert M. Brantly

    
    

    as a Certified Florida Law Enforcement Officer who has complied with Section 943.14(1) (2), Florida Statutes, and Section 11B-7, relating to Standards and Training

    
    

    Col. Brantly's second ID card contained the following statement:

    
    

    Certificate of Appointment

    Pursuant to Section 372.07 Florida Statutes State of Florida at Large

    Be it known that Colonel Robert M. Brantly

    
    

    is a regularly constituted officer of the Florida Game and Fresh Water Fish

    Commission with full arrest powers to bear arms and to execute and fulfill the duties of said office. This appointment is in full effect until revoked.

    Dated this 1st day of March, 1990

    
    

    Col. Brantly's ID card states he is an "officer" with full police powers while the ID cards of Jackson and Carlton Chappel, a biologist employed by

    the Commission, state that they are "employees" with full authority to enforce the laws relating to protection of the environment and wildlife resources. In fact, the ID cards of Mr. Jackson and Mr. Chappel are identical. (Compare Petitioner's Exhibit No. 7 with Respondent's Exhibit No. 6)

    
    

18. Col. Robert Brantly, Executive Director of the Commission, testified concerning Mr. Jackson's claim. Col. Brantly began his career with the Commission in 1957 as a wildlife officer, became the Deputy Director in 1974 and Director in 1977. He has been and is currently a law enforcement officer and has had special risk membership in FRS. He stated that Mr. Jackson and several others classified as game management specialists had been given law enforcement powers in the mid-1960's and had certain limited duties with respect to enforcement of the state fish and game laws. When the Police Standards Commission was established in 1972, Mr. Jackson and the others were "grandfathered" by Police Standards as law enforcement officers. He testified that the Commission had two (2) classes of law enforcement officers in the 1960's and 1970's. Wildlife officers were full time law enforcement officers whose primary duties were law enforcement. Game management specialists were not considered to be law enforcement officers and had no duties in law enforcement. As an exception to that rule were Mr. Jackson and some other game management specialists who had been "grandfathered" in as law enforcement officers by the Police Standards Commission in 1972. These individuals had law enforcement authority but were considered by the Commission to be part-time law enforcement officers. Col. Brantly stated that law enforcement was not a part of their primary or essential duties. The amount of law enforcement that each of the game management specialists performed was up to each individual, but law enforcement was not a duty required of any of them. For example, one of the above specialists could perform no law enforcement activities if he did not want to. Col. Brantly testified that controlled burning was a wildlife management practice and not a law enforcement activity. He stated that the operation of hunt check stations was not a law enforcement activity, and the check stations were manned by citizens of the area. Likewise, posting of the management areas was not a law enforcement activity.

    
    

19. Jackson introduced Exhibit No. 10 from the Commission clarifying the Police Standards Board ruling. Field personnel other than those in the Law Enforcement Bureau were "auxiliary officers" who were to call a wildlife officer to the scene of the violation for the arrest, if possible. Petitioner's Exhibit No. 11 makes it even clearer and also explains the policy and the attachment thereto. The attachment, Administrative Directive No. 25, clearly states that "(w)ildlife management duties will remain the first priority job for Division personnel", with clear guidelines for open and closed hunting seasons. The work week was 40 hours with no deviation permitted. Thus, the primary duty of Jackson was game management and not law enforcement.

    
    

20. In September, 1979, a number of problems concerning the law enforcement powers of the game management specialists forced Col. Brantly as the agency head to remove the certification (law enforcement powers) from the game management specialists with such power such as Mr. Jackson. The removal of the

    certification was effective September 6, 1979 (Respondent's Exhibit No. 1, letter to Don Dowling). In Petitioner's Exhibit No. 14, the memorandum from Col. Brantly of September 27, 1979, he made it abundantly clear that the wildlife (game) management specialists were part-time law enforcement personnel.

    
    

21. Toby Harris, the personnel officer for the Commission since December, 1979, also testified on both State and Commission personnel practices. He had previous service with the Pay and Classification Section of the Department of Administration and had worked in pay and classification for a state agency for

    25 years. He was admitted as an expert in the area of state pay and personnel classification. Mr. Harris stated that at the time Jackson's position questionnaires or descriptions were prepared, it was a requirement that the employee himself prepare the section on "duties and responsibilities" and assign the percentages of time on the form. These forms were not mass produced by the agency but were individually crafted for each job and for each employee. Mr. Harris stated quite emphatically that the position description is (and was for the period in question) the most important document in a state employee's personnel file. It is only on the basis of that position description that the employee knew what his duties were and knew the criteria upon which he would be evaluated. He identified the letter of October 10, 1975, from Brantley Goodson, Director, Division of Law Enforcement, concerning Jackson's status as a grandfathered law enforcement officer in a part-time position. Harris also stated that the evaluations for Jackson up to the early 1970's were above average and that after that date, they were average.

    
    

22. The Florida Department of Law Enforcement, Police Standards Commission, kept the files for the Police Standards Commission for all state agencies with law enforcement officers. The records showed whether or not a law enforcement officer was considered full-time, part-time or an auxiliary officer. According to the records of the Commission , Mr. Jackson was considered a full- time law enforcement officer from March 1, 1965, until August 15, 1967, and a part-time law enforcement officer from August 15, 1967, until September 27, 1979, when he was removed from any law enforcement activities by the Commission.

    
    

23. Carlton Chappel, an employee of the Commission, testified that in the late 1960's and during the 1970's, he and all field personnel of the Commission, including game management specialists, were issued the same uniforms, badges and identification cards as wildlife officers. On an "as needed basis", the field personnel would be assigned to field duty and had the power to make arrests and enforce the game and fish laws of the State; however, during this time, he did not consider himself to be a law enforcement officer and never had applied for such status. His identification card was identical to the ID card of Mr. Jackson.

    
    

24. He further stated that all game management specialists had to prepare work plans for each management area to explain the work that was to be done during the upcoming fiscal year. These work plans included both State and federal projects. (Respondent's Exhibit No. 7) The work plans for the fiscal years 1969-70 and 1970-71 for Mr. Jackson were introduced (Respondent's Exhibit No. 7) and show for FY 1969-70 that Mr. Jackson spent his time in the following projects:

    PROJECT NO. OF PAY PERIODS

    Wildlife Research Project 2

    No. W-48-4

    No. W-35 Mgt. Area Develop. 18

    Apalachee Mgt. Area 10

    Robert Brent Mgt. Area 4

    Point Washington Mgt. Area 2

    
    

    The work plans for the 1970-71 fiscal year show that Mr. Jackson spent his time on the following projects:

    
    

    PROJECT NO. OF PAY PERIODS

    
    

    Fed. Statistical Harvest & Inventory		1
    Fed. Statewide Mgt. Area Development		10
    State Hunts		8
    State-General Game Management		7
    TOTAL PAY	PERIODS	26
    SPECIFIC PROJECTS	NO. OF	PAY PERIODS
    Wildlife Inventory, Harvest & Economic Survey (Project No. W-33-21)		1

    Development and Operations

    (Project No. W-35-20) 10

    State-Apalachee Wildlife Mgt. Area 10

25. Carolyn McGlamery, an employee of the Division, testified that Jackson had transferred from SCOERS to the FRS during the initial transfer period effective December 1, 1970. She further testified about the statutes and the various changes over the years and the administrative rules that concerned high hazard membership under SCOERS and then special risk membership under FRS.

    
    

    CONCLUSIONS OF LAW

    
    

26. For the period of time that Mr. Jackson is seeking either high hazard or special risk membership, three different statutory criteria were applicable. The first was from March 1, 1965, until December 1, 1970, the period of time he was under the SCOERS until he transferred to the FRS. From December 1, 1970, he was in FRS; therefore, the second was from December 1, 1970, to October 1, 1978; and the third was from October 1, 1978, until September 6, 1979, the date he was removed from any further law enforcement activities by his agency.

    
    

27. When Mr. Jackson became an employee of the Commission on March 1, 1965, he was employed as a wildlife officer and was also a compulsory member of the SCOERS, Chapter 122, Florida Statutes. The law as it existed on that date provided for a special class of membership known as "high hazard" which provided for enhanced retirement benefits for law enforcement personnel eligible for that class of membership. Section 122.34(1), Florida Statutes, (1965) (Respondent's Exhibit No. 13) states in part as follows:

    The provisions of this section shall apply with respect to members (of SCOERS) who are sheriffs of the several counties of the state or who are full-time deputy sheriffs designated as "high hazard" full-time deputy sheriffs, as certified by the sheriff and approved by the comptroller, . . . (further provisions are not applicable)

    
    

    Even though Mr. Jackson was a wildlife officer, he did not qualify for high hazard membership, because he was neither a sheriff nor a full-time deputy sheriff.

    
    

28. Effective July 1, 1967, the above provision was amended to enlarge the types of positions that would be eligible for high hazard membership. Section 122.34() (a), Florida Statutes, (1967) (Respondent's Exhibit No. 14) as amended states in part as follows:

    
    

    1. (a) In addition to sheriffs and full-time deputy sheriffs, the provision of this section shall apply with respect to members who are officers or full-time employees of the state or the several counties of the state whose duties are to enforce the criminal laws of the state, except ...

       
       

       (1) (b) Only those members who are full-time criminal law enforcement officers or agents, as certified by the employing authority, who perform duties according to rule, order, or established custom as full-time criminal law enforcement officers or agents shall be certified to the division as high hazard members, and only such members will be approved by the division."

       
       

29. Rule 4M-1.01, F.A.C., (1967) was promulgated by the Comptroller on September 13, 1967, and as it related to the Commission, awards high hazard membership to "(t)he Director and those full-time agents with police powers as set forth under Section 372.07, Florida Statutes." While Mr. Jackson was eligible to be certified for high hazard membership under the above statute rule, he cannot be given membership retroactively at this time (1991) because the Commission did not then and has never certified his eligibility for high hazard membership to the Comptroller.

    
    

30. On August 15, 1967, Mr. Jackson was transferred from the position of a wildlife officer to a game management position, and while he continued to work full-time, his law enforcement status changed from a full-time to part-time law enforcement position (Respondent's Exhibit No. 5).

    Therefore, he was not eligible for high hazard status effective August 15, 1967.

    
    

31. For the period of time from July 1, 1967, until August 15, 1967, Rule 4M-1.01(A) and (B), F.A.C., as well as Section 122.34, Florida Statutes, (1965-67) required that the employing agency certify each employee who performed hazardous, full-time law enforcement duties. The reason for

    the agency's certification of the individual employee was so that the Comptroller would know of the employee and be able to collect the higher retirement contribution for high hazard membership required to be made under the SCOERS. In the case at bar, the evidence is clear that the Commission did not certify Petitioner for high hazard membership top the Comptroller.

    Further, Petitioner never paid the higher contribution required of high hazard members. Therefore, from July 1, 1967, until August 15, 1967, while a wildlife officer, Mr. Jackson was eligible for high hazard membership, but, he did not qualify since he was not certified for such membership by the Commission and he did not make the required contributions for high hazard membership. From August 15, 1967, when he was transferred to a game management specialist, he was no employed in a position which was recognized as hazardous by the Comptroller. Without evidence that these two requisite conditions were complied with or have been met, Petitioner has failed to establish that he is entitled to recognition as a high hazard member for retirement purposes under the SCOERS during the period July 1, 1967, until August 15, 1967. Judy Wyllie v. Department of Administration, Division of Retirement, DOAH case No. 85-3546 (DOA/DOR Final Order issued October 24, 1986)

    
    

32. Effective December 1, 1970, with his transfer to FRS, Mr. Jackson was no longer eligible for high hazard membership. The FRS contained a class of membership known as special risk, which provided that certain types of law enforcement officers qualified for accelerated retirement benefits after certain condition precedents were met. Section 121.021(15), Florida Statutes, (Respondent's Exhibit No. 16) defined special risk as follows:

    
    

    `Special risk member' means any officer or employee receiving salary payments for work performed as a peace office, law enforcement officer, policeman, highway patrolman, custodial employee at a correctional or detention facility, fireman, or any other job in the field of law enforcement or fire protection if the duties or such person are certified as hazardous by his employer and approved by the administrator (of the FRS).

    
    

33. In Bross vs. State of Florida, Department of Administration, Division of Retirement, et al., Case No. 71-1565, the Circuit Court in and for Leon County, held that the Administrator of the FRS could exercise his discretion as to "whether or not the duties of the particular applicant are hazardous" and that such a determination depended "upon the facts of the particular case and" was "not a mere ministerial act." Affd. at 277 So2d 36 (Fla 1st DCA 1973).

    
    

34. In 1972, the Division promulgated administrative rules concerning approval of special risk membership. Rule 22B-1.05, F.A.C., required that special risk membership would be given to the classes of employees as stated "provided his duties are certified as hazardous by his employer, and provided the Administrator approves the position as a special-risk position." The Division required that the employing agency certify that the position met the following criteria:

    The primary duties and responsibilities which, in my opinion, makes this position hazardous and therefore makes the employee eligible for special risk membership in the Florida Retirement System are:

    
    

    (the employing agency then stated its basis for requesting special risk membership) (Respondent's Exhibit No. 10)

    
    

    The employing agency certification form was revised in April, 1975, to contain the following statement:

    
    

    The statements checked below describe my primary duties:

    
    

    (as to law enforcement officers, the appropriate blank was:)

    My primary duties and responsibilities in this position are to apprehend and arrest law violators or suspected law violators.

    
    

    The Commission did not and has never certified Jackson or his position as a special risk position. From the evidence in this case, it is clear that Jackson's primary duties and responsibilities were not the apprehension and arrest of law violators or suspected law violators.

    
    

35. In the case of the Department of Administration, et al vs. Brown, et al., 334 So2d 355 (Fla 1st DCA 1976), the First District Court of Appeal held that the Administrator of the FRS had the authority to restrict special risk to those correction officers with certain duties that were stated in the above rule and as described in the appropriate application forms.

    
    

36. The above rules in 22B-1.05, A., F.A.C., remained the same until the law was changed in 1978.

    
    

37. In 1978, the Legislature enacted substantial new provisions for special risk membership. Section 121.021(15) (b), Florida Statutes, provides as follows that:

    
    

    Effective October 1, 1978, `special risk member' means a member of the Florida Retirement System who is designated as a special risk member by the division (of Retirement) in accordance with s. 121.0515. Such member must be employed as a law enforcement officer, . . . and must meet certain other special criteria as set forth in s. 121.0515.

    
    

    Section 121.0515(2), Florida Statutes, provides in part as follows:

    
    

    A member, to be designated as a special risk member, must meet the following criteria:

    1. The member must be employed as a law enforcement officer and be certified in compliance with s. 943.14, or be on temporary waiver as provided by s. 943.14 until certified; . . . . In addition, the member's duties and responsibilities must include the pursuit, apprehension, and arrest or law violators or suspected law violators, . . . (thereafter follows other provision not applicable herein)

       
       

38. Rule 22B-1.051(2), F.A.C., (1979) provided, as to law enforcement officers, that:

    
    

    Any member who seeks special risk membership must hold one of the following law enforcement positions:

    
    

    1. law Enforcement Officer whose duties include the pursuit, apprehension and arrest of law violators or suspected law violators; . .

    
    

    Mr. Jackson was not certified to the Division as a special risk member by his agency nor did he occupy a position that qualified under the law.

    
    

39. In the case of Hillman, et al. vs. Division of Retirement, 446 So2d 158 (Fla. 1st DCA 1984), the First District Court of Appeal stated in part as follows:

    
    

    If the basis of the Division's denial of special risk status is its finding that the appellants who claim special risk status under this category do not satisfy the requirements of the statute because the pursuit, apprehension, and arrest of law violators is not one of the essential functions of their positions, but only an incidental duty that is imposed upon all sworn law enforcement officers, we find that this interpretation is reasonably within the spirit and intent of the statute.

    
    

    Therefore, effective October 1, 1978, the statutory criteria for special risk membership changed for the requirement that the primary duties be the apprehension and arrest of law violators or suspected law violators to the requirement that the essential duties be the pursuit, apprehension and arrest of law violators or suspected law violators.

    
    

40. From the evidence presented at the hearing, it is clear that the pursuit, apprehension and arrest of law violators or suspected law violators was not an essential part of Mr. Jackson's job. Therefore, he did not qualify for special risk membership under the law as amended effective October 1, 1978.

    
    

41. In addition to the substantive amendments in 1978 to the special risk provisions of the FRS law, Section 121.0515, Florida Statutes, that

    same law was changed further as it affected state employees seeking special risk membership. Section 121.0515(3)(b)1., Florida Statutes, provided in part that:

    
    

    the Department of Administration shall specify which current and newly created classes of positions . . . entitle the incumbents of positions in those classes to membership in the special risk class. Only employees employed in the classes so specified shall be special risk members.

    
    

    To implement the above provision, Rule 22K-12, F.A.C., was promulgated (Respondent's Exhibit No. 21).

    
    

42. Mr. Jackson testified at the hearing that one basis for his claim for either high hazard or special risk status was the ID card that had been issued by the Commission. At the hearing, Mr. Jackson's ID card and the ID cards of Col. Brantly and Carlton Chappel were introduced into evidence. Mr. Chappel has never been either high hazard or special risk, and his ID card was identical in wording to Mr. Jackson's card. Col. Brantly, who has been a legitimate member of both high hazard and special risk since his employment with the Commission in 1957, had two ID cards. The first stated he was a "certified Florida law enforcement officer". and the second stated he was "a regularly constituted officer" Mr. Jackson's card said he was an "employee". Clearly then, Mr. Jackson was not in the same status as Col. Brantly and was not "a law enforcement officer" but was an "employee" of the Commission just as Mr. Chappel was.

    
    

43. The arrest records show that Mr. Jackson made arrests of six (6) persons, all occurring during 1968 while still a member of the SCOERS. He assisted on the arrests of six (6) other persons, one (1) occurring in 1968, one (1) in 1970, two (2) in 1972 and two (2) in 1973. There were no arrests made by Mr. Jackson after May 1, 1973. None of the testimony from any of the witnesses supported claims by Mr. Jackson that he performed arrests as either a part of his primary duties or as an essential part of his job after he became a member of the FRS in 1970. The arrests that he did perform were too few to meet the eligibility criteria for Special Risk Membership during any of the time periods involved. The conclusion is that the pursuit, apprehension and arrest of law violators or suspected law violators was only an incidental part of Mr. Jackson's job, not a primary nor an essential part of his job assignments..

It is, accordingly, RECOMMENDED:

That a final order be issued by the Division of Retirement determining that the Petitioner, Tommy Jackson, is not entitled to either high hazard or special risk membership for the period of March 1, 1965, to September 27, 1979, and is not entitled to have his retirement benefit increased based on either high hazard or special risk membership for that period of time.

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 THE FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. TEE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

DONE and ORDERED this 29th day of June , 1992, at Tallahassee, Leon County, Florida.

1. J. McMullian III

State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, Florida 32399

(904)488-5540

FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THE

30th DAY OF June , 1992.

Copies furnished to:

John D. Carlson Attorney at Law 1709-D Mahan Drive

Tallahassee, Florida 32308

Diane Cleavinger Hearing Officer

Division of Administrative Hearings 1230 DeSoto Building

Tallahassee, Florida 32399

Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, Florida 32399

Docket for Case No: 91-002254

Orders for Case No: 91-002254