STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL KASHA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4764

) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on December 18, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael Kasha, pro se

3260 Longleaf Road

Tallahassee, Florida 32310

For Respondent: Stanley M. Danek, Esquire

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

STATEMENT OF THE ISSUE

The issue is whether petitioner's average final compensation and retirement service credit were properly calculated.

PRELIMINARY STATEMENT

This matter began on August 30, 1996, when respondent, Division of Retirement, issued a letter reaffirming its calculation of average final compenation and service credit for petitioner, Dr. Michael Kasha, a former professor at Florida State University. Thereafter, petitioner requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the proposed action.

The matter was referred by respondent to the Division of Administrative Hearings on October 10, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated November 5, 1996, a final hearing was scheduled on December 18, 1996, in Tallahassee, Florida.

At final hearing, petitioner testified on his own behalf and offered petitioner's composite exhibit 1. The exhibit was received in evidence. Respondent presented the testimony of Douglas M. Cherry, a retirement administrator.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on January 9, 1997. In addition, on the same date, petitioner filed a letter containing argument in support of his position. Both documents have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Dr. Michael Kasha, is a former professor in the School of Arts and Sciences at Florida State University. His most recent stint of employment occurred during school year 1995-96 when he was employed in the Institute of Molecular Biophysics. He retired at the end of December 1995, and counting several years of out-of-state service, he had a total of 50.58 years of creditable service.

   
   

2. In November 1995, petitioner contacted respondent, Division of Retirement (DOR), for the purpose of determining his Average Final Compensation (AFC) for retirement purposes. That agency has the statutory responsibility of performing all retirement related calculations.

   
   

3. In making its calculations, DOR determined petitioner's service credit for his last fiscal year of service (1995-96) by using a nine-month work year divided by six months of actual service (July-December 1995), or a .67 service credit. When this factor was applied to his compensation received for the six months of service, it produced a much lower annualized salary for ranking purposes than petitioner expected. Contending that a twelve-month work year should have been used, rather than the nine months used by DOR, petitioner filed a request for a hearing to contest DOR's action.

   
   

4. During petitioner's last fiscal year of service, he was contracted to work from July 1 to July 28, 1995, by a Summer Supplemental Employment Contract. In addition, he was employed under a Nine Month Employment Contract from August 8, 1995, to May 6, 1996. On January 23, 1996, however, this contract was mutually revised by the parties to provide that petitioner's employment would terminate on December 29, 1995. Between July 1, 1995, and December 29, 1995, the parties agree that petitioner received $67,290.22 in total compensation from the university.

   
   

5. To determine a member's appropriate service credit, DOR rule 60S- 2.002(4)(a) provides that if a

   
   

   member earns service credit for fewer months than comprise his work year, he shall receive a fraction of a year of service credit, such fraction to be determined by dividing the number of months and fractions thereof of service earned by the number of months in

   the approved work year.

   
   

   Since petitioner worked only six months during his last work year, the rule requires that this period of time be divided by "the number of months in the approved work year" to calculate his appropriate service credit.

6. Members of the retirement system are employed for either nine, ten or twelve months each fiscal year, depending on the nature of their jobs. As to university instructional/academic members, such as petitioner, DOR rule 60S- 2.002(4)(b) defines the work year to be

   
   

   the number of months in the full contract year or nine months, whichever is greater, as specified by the contract between the employee and the school system.

   
   

7. Because university faculty members normally work under a nine-month contract, DOR used that time period to establish petitioner's work year. In doing so, DOR excluded petitioner's Supplemental Summer School Contract on the theory it was "supplemental to (his) regular 9 month contract." That is to say, petitioner earned a maximum full year of creditable service during the nine months, and the three months in the supplemental contract would not add any additional creditable service. This determination is in conformity with the rule.

   
   

8. Since petitioner's actual service credit for fiscal year 1995-96 was six months, that is, he worked full-time from July 1 through December 29, 1995, the computation under rule 60S-2.002(4)(a) produced a service credit of .67. Petitioner's compensation of $67,290.22 was then divided by the .67 factor and resulted in an annualized salary for ranking purposes of $100,433.16. Since the salary was not one of petitioner's highest fiscal years of salary, it was excluded from his AFC.

   
   

9. Petitioner contends, however, that his work year is actually twelve months, rather than nine, if his Supplemental Summer School Contract is included. He points out that the university has always required that he and other science professors be on campus twelve months a year, unlike most other faculty members. Despite this requirement, the university has never used a twelve-month contract for this group of professors. Instead, it has relied on a combination of regular and supplemental contracts.

   
   

10. If a twelve month work year had been used for petitioner's last fiscal year, this would have produced a service credit of .50, which if applied to his compensation, would have produced an annualized salary for ranking purposes of

    $134,580.44. This in turn would increase petitioner's retirement benefits by more than $1,200 per year.

    
    

11. There is no provision in the DOR's rules which permits the use of a twelve-month work year in calculating the service credit for any person who is employed under a nine-month contract. While this may be unfair to members who find themselves in petitioner's circumstances, until the rule is changed, it must be uniformly applied. Therefore, the request should be denied.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

    
    

13. As the party seeking relief, petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to the requested relief. See, e. g., Fla. Dep't of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

14. Section 121.021(1), Florida Statutes, provides that retirement benefits for members of the Florida Retirement System shall be calculated by determining the years of creditable service times the AFC times the percent of value for each year of service. In this case, the dispute centers around the calculation of the retirement service credit for petitioner's last fiscal year of employment.

    
    

15. Rule 60S-2.002(4), Florida Administrative Code, prescribes the method for determining retirement service credit. It reads in pertinent part as follows:

    
    

    1. A member's retirement service credit shall be measured in terms of years and fractions, thereof during each July 1 through June 30 fiscal year.

    2. The approved work year pursuant to Florida Statutes for the purpose of deter- mining service credit in accordance with this policy is as follows:

       1. Academic or instructional employees ... of a ... state university: The work year shall be the number of months in the full contract year or nine months, whichever is

       greater, as specified by the contract between the employee and the school system in accor- dance with the law (Chapters 228 and 230, Florida Statutes).

       
       

16. In calculating the AFC for the years in which the member works less than a full year, Rule 60S-4.004(1)(a)2., Florida Administrative Code, provides that such calculation shall be done in the following manner:

    
    

    2. Rank the fiscal years of salary in order from the highest annual salary to the lowest annual salary. In order to determine the annual salary for ranking purposes only, during a year in which the member receives less than a full year of creditable service, divide the actual salary received by the percentage of a year of creditable service earned for that year.

    
    

17. The evidence clearly shows that respondent calculated petitioner's retirement benefits in conformity with its rules. While petitioner has understandably urged that his benefits be calculated in a manner that would more equitably address his employment situation, the DOR's rules do not recognize a separate category for members who have consistently worked on a twelve-month basis using both a regular and supplemental contract. While this creates an unfair result for members such as petitioner, until the rule is changed, it must be uniformly applied. Unfortunately, then, petitioner's request to have his retirement benefits recalculated should be denied.

RECOMMENDATION

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

RECOMMENDED that the Division of Retirement enter a final order denying petitioner's request to have his retirement benefit calculated using a twelve- month work year for his last fiscal year of employment.

DONE AND ENTERED this 22nd day of January, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1997.

COPIES FURNISHED:

Dr. Michael Kasha 3260 Longleaf Road

Tallahassee, Florida 32310

Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street

Tallahassee, Florida 32399-1560

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

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order.

Docket for Case No: 96-004764

Orders for Case No: 96-004764