STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing in this proceeding for the Division of Administrative Hearings (DOAH) by video teleconference on January 25, 2010, in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: James M. Vardon, pro se

8204 Ridgebend Court

Tampa, Florida 33615

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner has enough creditable service in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida

Statutes (2009),1 to be "vested" and, therefore, eligible for a retirement benefit.

PRELIMINARY STATEMENT

Petitioner is a regular class member of the FRS. In 2009, Petitioner requested that the Division of Retirement (Division) grant him a service retirement benefit. The Division denied the request on the grounds that Petitioner does not have enough creditable service in the FRS, and Petitioner requested a final hearing before DOAH.

At the final hearing, Petitioner presented his own testimony and eight exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted two exhibits. The identity of Respondent's witness and the exhibits and the rulings regarding each are reported in the official record of the hearing. Neither party ordered a transcript of the hearing. At the request of the parties, the time for filing proposed recommended orders (PROs) was scheduled for more than 10 days after the conclusion of the hearing.

Petitioner and Respondent timely filed their respective PROs on March 8 and February 25, 2010.

FINDINGS OF FACT

1. Petitioner is not currently an employee of any FRS employer. Petitioner was an employee of several different FRS employers during the 1970's and 1980's.

2. Petitioner proved that he had creditable earnings from three FRS employers. The creditable earnings were from Hillsborough County from October 1977 through April 1978, Pasco County from August 1987 through December 1987, and Hernando County from March 1988 through August 1989.

3. Petitioner has 3.09 years of creditable service in the FRS. The creditable service is not sufficient to vest Petitioner and does not entitle Petitioner to retirement benefits.

4. Petitioner was employed with the City of Largo, Florida, for some time. However, that municipality was not an FRS participating employer during the period of employment.

5. Petitioner worked for the U.S. Postal Service for some time. That agency is not an FRS participating employer.

6. Petitioner was a student on work study at both the University of Florida and Florida State University. Paid student positions at state universities were not positions which were included in the FRS during that time.

7. Petitioner also seeks to purchase his military time of approximately 22 months. Members of the FRS are allowed to purchase certain military service after they vest in the FRS. A preponderance of the evidence does not support a finding that Petitioner has sufficient years of service to vest in the FRS and then purchase military service.

8. Petitioner was employed in some state positions prior to 1975. Until 1975, the FRS was a "contributory" system. Employers withheld contributions to the retirement system from the wages of participating members and forwarded the withheld amounts to the Division. It is undisputed from Petitioner's testimony that no retirement contributions were ever withheld from his wages during the period that FRS was a contributory system.

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant Section 120.569 and Subsection 120.57(1). DOAH provided the parties with adequate notice of the final hearing.

10. The FRS is codified in Chapter 121. Section 121.051 provides for compulsory participation in the FRS for all employees employed after December 1, 1970. Subsection 121.021(11) defines "employee" as any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group.

11. An “officer or employee” is defined in Subsection 121.021(11) as:

    1. ny person receiving salary payments for work performed in a regularly established position and, if employed by a municipality,

       a metropolitan planning organization, or a special district, employed in a covered group. The term does not apply to state employees covered by a leasing agreement under s. 110.191, other public employees covered by a leasing agreement, or a coemployer relationship.

       
       

12. The term "creditable service" is defined in Subsection 121.021(17)(a) to mean:

    [T]he sum of his or her past service, prior service, military service, out-of-state or non-FRS in-state service, workers' compensation credit, leave-of-absence credit and future service allowed within the provisions of this chapter if all required contributions have been paid and all other requirements of this chapter have been met. However, in no case shall a member receive credit for more than a year's service during any 12-month period. Service by a teacher, a nonacademic employee of a school board, or an employee of a participating employer other than a school board whose total employment is to provide services to a school board for the school year only shall be based on contract years of employment or school term years of employment, as provided in chapters 122 and 238, rather than 12- month periods of employment.

    
    

13. The terms "vested" and "vesting" are defined in Subsection 121.021(45) to mean:

    1. [T]he guarantee that a member is eligible to receive a future retirement benefit upon completion of the required years of creditable service for the employee's class of membership, even though the member may have terminated covered employment before reaching normal or early retirement date. Being vested does not entitle a member to a disability benefit. Provisions governing entitlement to

       disability benefits are set forth under s. 121.091(4).

       
       

    2. Effective July 1, 2001, a 6-year vesting requirement shall be implemented for the defined benefit program of the Florida Retirement System. Pursuant thereto:

    
    

    1. Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of

       6 years of creditable service shall be considered vested as described in paragraph (a).

       
       

    2. Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001. However, no member shall be required to complete more years of creditable service than would have been required for that member to vest under retirement laws in effect before July 1, 2001.

    
    

14. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to a retirement benefit. See §§ 120.57(1)(j) and (k); Young v. Dept.

of Community Affairs, 625 So. 2d 831 (Fla. 1993); Florida Dept. of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Dept. of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). For reasons stated in the Findings of Fact and not repeated here, Petitioner failed to meet his burden of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner's request for retirement benefits.

DONE AND ENTERED this 5th day of April, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2010.

ENDNOTE

1/ References to subsections, sections, and chapters are to Florida Statutes (2009), unless otherwise stated.

COPIES FURNISHED:

Thomas E. Wright, Esquire Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

James M. Vardon

8204 Ridgebend Court

Tampa, Florida 33615

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: 09-006250

Orders for Case No: 09-006250