STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY B. FISCHER,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 07-1961

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RECOMMENDED ORDER

On June 15, 2007, a formal administrative hearing in this case was held by video teleconference in Tallahassee and

Fort Myers, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary B. Fischer, pro se

4902 Southwest 20th Place Cape Coral, Florida 33914

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether Mary B. Fischer (Petitioner) is obligated to repay retirement and health insurance subsidy

benefits paid in October and November 2006 by the Department of Management Services, Division of Retirement (Respondent).

PRELIMINARY STATEMENT

By letter dated December 8, 2006, the Respondent notified the Petitioner that retirement and health insurance subsidy benefits had been improperly paid to the Petitioner by the Respondent in October and November 2006. The letter included an invoice for the amount of the overpayment. An exchange of correspondence occurred between the parties (and a representative of the Lee County School Board) that culminated with the Respondent's letter dated February 22, 2007, in which the Petitioner was notified that her request to have the repayment waived had been denied. The letter advised the Petitioner of her right to challenge the denial in an administrative hearing.

The Petitioner requested an administrative hearing. The Respondent forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the hearing.

At the hearing, the Petitioner testified on her own behalf, presented the testimony of one witness, and had Exhibits 1, 3, 3A, and 4 admitted into evidence. The Respondent presented the testimony of one witness and had Exhibits 1, 2, and 4 through 9 admitted into evidence.

No transcript of the hearing was filed. The Respondent filed a Proposed Recommended Order. The Petitioner submitted a letter, which has been considered as a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a retired member of the Florida Retirement System (FRS). Prior to her retirement, the Petitioner was employed as a guidance counselor with the Lee County School Board (LCSB).

2. The Respondent is the state agency charged under Chapter 121, Florida Statutes (2006),1 with administration of the FRS.

3. The Petitioner retired in May 2006 after completing her participation in the Deferred Retirement Option Program (DROP).

4. The Petitioner received monthly retirement benefits of

   
   

   $1,194.32 and monthly health insurance subsidy benefits of

   
   

   $93.35 per month.

   
   

5. The Petitioner was re-employed as a guidance counselor on October 16, 2006, by the LCSB. The LCSB participates in the FRS.

6. The contract under which the Petitioner was employed and re-employed indicated that the Petitioner was a "teacher" serving in an instructional position as defined in Subsection 1012.01(2), Florida Statutes.

7. Prior to her re-employment, the Petitioner had been advised by Betsy Garlock (a personnel manager with the LCSB) that the Petitioner could return to work after one month of retirement because her position as a guidance counselor was classified as "instructional personnel."

8. Ms. Garlock's erroneous advice was apparently based on her understanding of information provided to her by the "Retirement Calculations" office within the Division of Retirement. The information included a document identifying various exclusions and exemptions to the state law regarding re- employment of retired FRS members.

9. The document had a handwritten notation indicating that guidance counselors could be re-employed under the same rules as contract teachers, non-contract hourly and substitute teachers, non-contract paraprofessionals, non-contract transportation assistants and bus drivers, and non-contract food service workers. The evidence fails to establish the source of the handwritten notation.

10. Prior to retirement, the Petitioner received various materials related to retirement, which included information related to restrictions on post-retirement employment.

11. In late November 2006, the Respondent became aware that the Petitioner had been re-employed by the LCSB and informally notified the employer by telephone call that the

    Petitioner was in violation of the FRS re-employment rules and would have to repay benefits paid for October and November. The telephone call was an attempt to avoid payment of another month's benefits, which would have to be repaid by the Petitioner. The Petitioner's retirement benefits were inactivated in December 2006.

12. The total of the October and November benefits paid to the Petitioner is $2,575.34, which includes two months' retirement benefits of $1,194.32 and two months' health insurance subsidy benefits of $93.35 per month.

13. By letter dated December 6, 2006, Ms. Garlock acknowledged that she had provided incorrect information to the Petitioner and requested that the Petitioner be exempted from repaying the $2,575.34 sought by the Respondent.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

15. The Petitioner has the burden of establishing that she is exempt from the requirements that the improperly paid retirement and health insurance subsidies must be repaid. Florida Department of Transportation v. J.W.C. Co., Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). The burden has not been met. There is essentially no factual dispute at issue in this

    case, and, even were the burden placed on the Respondent, the ultimate result would be the same.

16. Subsection 121.091(9), Florida Statutes, provides in relevant part as follows:

    1. EMPLOYMENT AFTER RETIREMENT; LIMITATION.--

       
       

       1. Any person who is retired under this chapter, except under the disability retirement provisions of subsection (4), may be employed by an employer that does not participate in a state-administered retirement system and may receive compensation from that employment without limiting or restricting in any way the retirement benefits payable to that person.

          
          

       2. 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 or her 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. However, a DROP participant shall continue employment and receive a salary during the period of participation in the Deferred Retirement Option Program, as provided in subsection (13).

          
          

          1. 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 the employer and to the division and shall have his or her retirement benefits suspended for the balance of the 12-month limitation period. Any person employed in violation of this paragraph and any employing agency which knowingly employs or appoints such person without notifying the Division of Retirement to suspend retirement benefits shall be jointly and severally liable for reimbursement to the retirement trust fund of any benefits paid during the reemployment limitation period.

             To avoid liability, such employing agency shall have a written statement from the retiree that he or she is not retired from a state-administered retirement system. 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.

             
             

          2. A district school board may reemploy a retired member as a substitute or hourly teacher, education paraprofessional, transportation assistant, bus driver, or food service worker on a noncontractual basis after he or she has been retired for

          1 calendar month, in accordance with s. 121.021(39). A district school board may reemploy a retired member as instructional personnel, as defined in s. 1012.01(2)(a), on an annual contractual basis after he or she has been retired for 1 calendar month, in accordance with s. 121.021(39). Any other retired member who is reemployed within 1 calendar month after retirement shall void his or her application for retirement benefits. District school boards reemploying such teachers, education paraprofessionals, transportation assistants, bus drivers, or food service workers are subject to the retirement

          contribution required by subparagraph 7. (Emphasis supplied.)

          
          

17. The statute provides that a retired FRS member receiving retirement benefits may be re-employed without limitation by another FRS employer after a period of 12 months from the date of retirement; however, the statute further provides that a district school board may re-employ a retired FRS member as instructional personnel, "as defined in s. 1012.01(2)(a), on an annual contractual basis after he or she has been retired for 1 calendar month. . . ." (Emphasis supplied.)

18. Section 1012.01, Florida Statutes, provides the following relevant definitions.

    1012.01 Definitions.--Specific definitions shall be as follows, and wherever such defined words or terms are used in the Florida K-20 Education Code, they shall be used as follows:

    
    

    1. INSTRUCTIONAL PERSONNEL.-- "Instructional personnel" means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel:

       
       

       1. Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education,

          career education, and adult education, including substitute teachers.

          
          

       2. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are guidance counselors, social workers, career specialists, and school psychologists. (Emphasis supplied.)

    
    

19. For purposes of re-employment, the position of guidance counselor is not within the definition of instructional personnel as set forth at Subsection 1012.01(2)(a), Florida Statutes. The position of a guidance counselor is identified as instructional personnel pursuant to the definition at Subsection 1012.01(2)(b), Florida Statutes, and is not eligible for reemployment without loss of benefits prior to the expiration of the 12-month period.

20. As to the issue of responsibility for repayment of the improperly paid benefits, Subsection 121.091(9)(b)2., Florida Statutes, provides that, in the event a person is re-employed in violation of the time requirements by a employer participating in the FRS, both the employer and the employee are " jointly and severally liable for reimbursement to the retirement trust fund of any benefits paid during the reemployment limitation period." Accordingly, the following recommendation is made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order requiring that the Petitioner and the Lee County School Board must repay a total of $2,575.34 for retirement and health insurance subsidy benefits erroneously paid to the Petitioner.

DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.

COPIES FURNISHED:

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Mary B. Fischer

4902 Southwest 20th Place Cape Coral, Florida 33914

Sarabeth Snuggs, Director Division of Retirement

Department of Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 07-001961

Orders for Case No: 07-001961