STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENE W. MANCINI, )

)

Petitioner, )

)

vs. ) CASE NO. 78-665

)

DIVISION OF RETIREMENT, ) DEPARTMENT OF ADMINISTRATION, ) STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on May 26, 1978, at Wauchula, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Anthony N. Deluccia, Jr., Esquire

Department of Health and Rehabilitative Services

Post Office Box 2258

Fort Myers, Florida 33902

For Respondent: Stephen S. Mathues, Esquire

Division of Retirement Cedars Executive Building 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

ISSUE PRESENTED

Whether Petitioner is eligible for retirement pursuant to Section 112.05, Florida Statutes.

FINDINGS OF FACT

1. Petitioner is a public health nurse supervisor who has been employed by the Hardee County Health Department since October 1, 1947. On October 22, 1971, while on annual leave in Texas, Petitioner telephoned her supervisor requesting that she be placed on leave of absence without pay until December 1, 1971. She requested this type of leave because she was experiencing difficulties with her back and did not desire to request sick leave since she was out of state. Her annual leave was almost exhausted at that time. Her supervisor authorized the requested leave and she was informed that she must keep up her health insurance premium payments while on leave of absence. She did so. The period of leave without pay extended from October 22 to December 3, 1971. (Testimony of Petitioner, Trussell, Petitioner's Exhibits 1-2)

2. At the time the leave without pay was authorized, the personnel records clerk of the Hardee County Health Department requested and received information from the personnel department of the then State Board of Health of Jacksonville, Florida, that a leave without pay would not jeopardize Petitioner's retirement status. Similar information had been provided Petitioner and the clerk during a visit to that agency in 1970. (Testimony of Petitioner, Trussell)

   
   

3. When Petitioner returned to duty from her leave without pay in December, 1971, the only personnel action taken by her employer was to prepare a personnel action form showing such return. At the time the leave without pay was taken by Petitioner, she had over 400 hours of accrued sick leave to her credit. (Testimony of Trussell, Petitioner's Composite Exhibit 2)

   
   

4. During her employment, Petitioner was a member of the State and County Officers and Employees Retirement System (Chapter 122, F.S.) and paid contributions toward retirement under that system. As of January, 1978, she had contributed $11,195.37 into the retirement fund. She also was under the noncontributory plan for state employees (Section 112.05, F.S.) and was provided an estimated computation of retirement benefits under both retirement systems by the Department of Health and Rehabilitative Services on May 14, 1971. (Petitioner's Composite Exhibit 2)

   
   

5. On March 22, 1977, Petitioner filed application for service retirement under the provisions of Chapter 122, Florida Statutes, with a designated retirement date of January 5, 1978. By letter of April 21, 1977, Respondent advised that applications were not accepted earlier than sixty to ninety days prior to the date of retirement. Petitioner resubmitted the application in September, 1977. By letter of October 7, 1977, Respondent advised the Petitioner that inasmuch as she had been granted a leave of absence without pay in November, 1971, a break in service occurred and therefore she was a compulsory member of the Florida Retirement System upon returning to employment in December of 1971, pursuant to Rule 22B-1.04(4), (sic) F.A.C. In this letter, she was also advised that Social Security contributions were payable on her account from December, 1971, but since her previous retirement contributions offset this indebtedness to some extent, she would owe for Social Security coverage retroactive to the calendar year, 1973. Thereafter, by an invoice dated January 30, 1978, the Division of Health, Department of Health and Rehabilitative Services, was billed a total of $6,523.74 for Petitioner's Social Security contributions, of which half or $3,261.87 was owed by the employee. (Petitioner's Composite Exhibit 2, Respondent's Composite Exhibit 1)

   
   

6. In a letter dated November 9, 1977, the State Retirement Director advised Petitioner that she became a mandatory member of the Florida Retirement System in December, 1971, because she was off the payroll for a month and thereby had a break in service. He further advised that this fact alone did not interfere with her eligibility to be considered for retirement under Section 112.05, but since she had been off the state payroll for more than a month, she was not eligible to retire under that provision. Another letter of the State Retirement Director, dated February 23, 1978, stated that he had reconsidered his position, but adhered to the decision that Petitioner was a compulsory member of the Florida Retirement System pursuant to Rule 22B-1.04(1)4 and did not qualify for retirement under Section 112.05. Petitioner was advised of her right to a hearing in the matter and she thereafter requested the same on March 3, 1978, wherein she requests a determination of her eligibility to retire under Section 112.05.

   CONCLUSIONS OF LAW

   
   

7. Petitioner seeks to retire under the provisions of Section 112.05, Florida Statutes, which reads pertinently as follows:

   
   

   112.05 Retirement; cost of living adjustment.-- (1)(a). . .whenever any. . .employee, irrespective of age, has served the state as

   . . .an employee. . .for thirty consecutive years or more, such. . .employee may retire from his office as such. . .employee with the right to be paid, and shall be paid monthly on his own requisition during the remainder of his natural life one-half the amount of the average monthly salary received during the last 10 years of such service. . .This section shall apply only to persons. . .who are on a state payroll June 30, 1953 and remain continuously on a state payroll until eligible to retire. . .

   
   

8. There is no dispute that Petitioner has served as a state employee for a period of over thirty consecutive years. Since her employment commenced in 1947, she meets the requirements of being on a state payroll as of June 30, 1953. The sole question for consideration is whether after that date she remained "continuously on a state payroll until eligible to retire." Respondent contends that she had a "break in service" because she was not paid in November, 1971, while on an authorized leave without pay, and therefore was not continuously on a state payroll. In this connection, Rule 22B-1.04(1)(a)4, F.A.C., which Respondent cites in support of this contention and as authority for Petitioner's compulsory entrance into the Florida Retirement System as a result of the 1971 leave without pay, cannot be considered for that purpose because it was not promulgated until January 1, 1972, and therefore cannot retroactively operate to the prejudice of Petitioner. Although Respondent, in its posthearing brief, enclosed an affidavit of its Chief, Bureau of Retirement and Social Security Processing, to the effect that long-standing departmental policy was to consider an employee disqualified under Section 112.05 by virtue of a voluntary absence from the payroll of one month or more, such policy was not established by evidence adduced at the hearing and the posthearing affidavit cannot be considered.

   
   

9. The phrase "continuously on a state payroll" is not defined in Chapter

   112 nor does it appear in other state retirement statutes. Neither does there appear to be any judicial interpretation of the term. Petitioner points to two opinions of the Attorney General of Florida in 1957, to support the view that a leave of absence does not constitute a "break in service" such as to disqualify an employee from retirement under Section 112.05. In his opinion of June 21, 1957, (057-177), the Attorney General concluded that a liberal construction should be placed on the requirements for retirement and that a state employee who goes off the payroll for a period of time and on workmen's compensation retained "consecutive employment" and could qualify for retirement under Section 112.05, if otherwise qualified by length of service. In Opinion 057-337, dated October 29, 1957, the Attorney General, in construing the term "continuous unbroken service" as required under Section 122.09 for retirement, concluded that it is not a breach of such service when an employee takes an authorized leave of absence. He stated: "The time that the employee is on leave of absence shall not be computed in the total of the employee's length of service

   for any purpose and the leave shall serve only for the purpose of preserving all rights including the retirement privileges which had accrued to the employee at the time the leave was granted.

   
   

10. It is undisputed that Petitioner remained a state employee during the period that she was on leave of absence status. Although she may not technically have been on the state payroll during this period in the sense that she did not accrue her regular pay during that time, it is inconceivable that the legislature could have intended that a long and faithful employee could be denied retirement benefits authorized under the statute by availing herself of an authorized leave. This view is not only persuasively supported by the above cited Attorney General's opinions, but also by extant rules and regulations dealing with other existing retirement and leave systems. For example, the most recent retirement system, the Florida Retirement System, provides in Section 121.011(38), Florida Statutes, and Rule 225-2.02(5), F.A.C., that a member shall be considered to have continuous service after returning from an authorized leave of absence if he receives retirement credit for the period of the leave. Rule 22B-2.06 authorizes retirement credit for up to 24 months of leave of absence during the period of employment under the retirement system. In like manner, Rule 22B-6.01(11) defines the term "continuous service" as meaning creditable service that continues as long as the member remains in an employee- employer relationship and if any absence is creditable under the Florida Retirement System. In such cases there is no break in service. Similarly, Rule 22A-8.02(5), dealing with attendance and leave for employees in the Career Service, states that an employee who is granted an authorized leave of absence without pay shall be an employee of the state while on such leave, and Rule 22A- 8.07(5) provides that authorized leaves of absence without pay shall be considered continuous service. Further, Rule 22A-8.08 provides that creditable service for annual leave purposes is either service when an employee is on a payroll or when he is on authorized leave without pay.

    
    

11. The totality of the above references makes it abundantly clear that the word "continuously" as used in Section 112.05 should be liberally construed in a manner that will authorize receipt of retirement benefits thereunder when temporary interruptions are occasioned by authorized absences. It is therefore concluded that Petitioner herein is entitled to receive benefits under Section 112.05, Florida Statutes.

RECOMMENDATION

That Petitioner's request for retirement under the provisions of Section 112.05, Florida Statutes, be approved.

DONE and ENTERED this 17th day of August, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Anthony N. Deluccia, Jr., Esquire Department of Health and

Rehabilitative Services Post Office Box 2258

Fort Myers, Florida 33902

Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Building 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENE W. MANCINI,

Petitioner,

vs. CASE NO. 78-665

DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA,

Respondent.

/

FINAL ORDER

Introductory statement

After the hearing in this cause was held, the Hearing Officer was requested to postpone issuance of his Recommended Order as the parties were attempting to settle their differences through compromise.

As is noted in paragraph 5 of the Findings of Fact in the Recommended Order, Petitioner had been notified that she had become a compulsory member of the Florida Retirement system (FRS) as of December, 1971, and owed social security contributions from that date. However, during the course of settlement negotiations, the legislature passed a law reversing its position on compulsory FRS membership. Chapter 78-308, Laws of Florida. Even though this change was clearly prospective, it was determined due to the fact that petitioner was actively involved in an administrative determination of her retirement status that se would be offered the benefits of this new law.

Pursuant to the change, petitioner was offered the following options:

1. She could remain a member of the state and County Officers' and Employees' Retirement System (SCOERS) (Chapter 122, Florida Statutes) and have no Social Security coverage.

   
   

2. She could be considered an FRS member as of December, 1971 and receive social security coverage from that time forward, provided she paid the contributions due for that coverage ($1,041.00)

   
   

3. She could transfer to FRS effective January 1, 1979, (pursuant to other provisions contained in Chapter 78-308) and receive Social Security from that date forward.

Apparently Petitioner's only desire is to retire under the provisions of Section 112.05, Florida Statutes (1977) with thirty years of continuous service. As was explained to her during negotiations, retirement under this Section would pay a single lump sum of $11,195.31 and a monthly benefit for Petitioner's life only of $483.91 with no benefits payable to her spouse or other defendants and no Social Security. Retirement under FRS would pay Petitioner for her life alone $658.19 monthly, with Social Security if enough quarters coverage were earned. FRS would also provide the option of retirement benefits of at least

$602.68 payable to Petitioner's spouse after her death, subject to option selection. (FRS figures are estimates. Actual amounts will he higher because Petitioner has continued to work and earn retirement credit.) Because November 30, 1978, is the last day to transfer to FRS, the options numbered 1, 2, and 3 above will remain open until that date.

FINDINGS OF FACT

The Findings of Fact contained in the Recommended Order are hereby adopted, subject to the corrections and modifications set forth below. The facts contained in the Introductory Statement are also adopted.

Paragraphs 1-4 are adopted with the additional fact that no agency other than the Division of Retirement is authorized to make estimates of retirement benefits or determine retirement status.

Paragraph 4 is modified to reflect that Petitioner was continuously on a state payroll and working toward eligibility under Section 112.05 until she took her leave without pay from October 22 to December 3, 1971. The effect of this leave is the issue at hand.

Paragraph 5 is corrected to reflect that Petitioner applied for retirement under Section 112.05, not Chapter 122, Florida Statutes.

CONCLUSIONS OF LAW

The Conclusions of Law contained in the Recommended Order are rejected, with the exception of paragraph 1, for the reasons set forth below.

Citations to rules in Florida Administrative Code, Chapter 22B, are improper as they relate to the Florida Retirement System, Chapter 121, Florida Statutes (1977). The sole issue for determination here is petitioner's

eligibility to retire under Section 112.05, Florida Statutes (1977). Citations to rules in Florida Administrative Code, Chapter 22A, are improper as they are personnel rules and Rule 22A-8.07(1) provides that the personnel definition of the term "continuous service" shall have no effect "on the provisions of the Florida Retirement Systems [sic]."

Petitioner asserts that she is entitled to retire at half-salary with a refund of contributions under the provisions of Section 112.05, Florida Statutes (1977), because he has more than thirty years of continuous employment with the State. Section 112.05(1)(a) Florida Statutes (1977) provides:

This section shall apply only to persons retired or persons who are on a state payroll June 30, 1953, and remain continuously on a state payroll until eligible to retire. (Emphasis supplied)

Petitioner has admitted that she was off the state payroll for at least one month during the course of her service to the state.

Case law is sparse at best in relation to the phrase "continuously on a state payroll" while the phrases "continuous unbroken service" and "continuous service" have been interpreted on numerous occasions. In 1957, Opinion of the Attorney General of Florida 057-337 (October 29, 1957) the phrase "continuous unbroken service" as it was used in Section 122.09, Florida Statutes (1957) was discussed at length. The Attorney General opined:

. . .it is my opinion that it is not a breach of "continuous unbroken service" required by 122.09, Florida Statutes, when a state or county employee applies for, is granted and accepts a leave of absence.

He further felt that the leave of absence:

. . .shall serve only for the purpose of preserving all rights including the retirement privileges which had accrued to the employee at the time the leave was granted. (Emphasis supplied)

In full compliance with this opinion, Petitioner's accrued retirement privileges under Chapter 122 were not divested at the time she took her leave of absence and to this date she retains credit for the twenty-four years she worked prior to the leave. She also retains full credit for the service she has performed since the leave, but in compliance with that portion of AGO 057-337 which states:

The time that the employee is on leave of absence shall not be computed in the total of the employee's length of service for any purpose. . .(emphasis supplied)

she has earned no retirement credit for the time she was off the payroll. The only leave creditable for retirement purposes under SCOERS is approved military leave. Section 122.02(4)(a), Florida Statutes (1977).

However, Petitioner is not making a claim for benefits under Chapter 122. Her request is for retirement at one-half salary under Section 112.05, but even under ACO 057-337, she had only twenty-four years of continuous service at the time she took her leave. Therefore, she had no accrued right to thirty-year retirement under that section when she went off the state payroll.

Section 112.05 provides a generous benefit, a gratuity so to speak, because a qualifying employee pays absolutely nothing for it. All contributions paid by the employee to purchase a benefit under another system are refunded and this particular benefit is paid from general revenue. As such, it should be considered as a reward for long and faithful service. However, the Legislature has determined that in order to qualify for this gift from the state, the employee must meet a higher standard than "continuous service."

While the employee must first satisfy the threshold of "serv[ing] the state as either an official employee, or both, for 30 consecutive years or more" (Section 112.05[1][a]) she must also "remain continuously on a state payroll until eligible to retire." Id., emphasis supplied. Admittedly this is a stiffer test than that applied under Chapter 122, but under Chapter 122 the employee pays for the benefit she receives.

The restrictive provision of remaining continuously on state payroll was added in 1953. Chapter 28148, Laws of Florida (1953) amended the Section (then designated as Section 121.001, Florida Statutes [1951]) to include the requirement and stated in the title that this change was to limit the Section's application. Even though retirement statutes are generally liberally construed, the intent of statutory limitations must be observed as well.

Certainly "continuous service" has been determined to be unbroken when an employee misses work because of holidays, vacation, layoffs, sickness or other involuntary absence. This is as it should be because an employee should not be penalized for things beyond her control or for taking advantage of earned benefits such as vacation. However, an entirely different standard is applied when the employee voluntarily absents herself from work. Please see 1946 Opinion of the Attorney General of Florida 046-290 (July 3, 1946) wherein it was held that a voluntary resignation, even due to sickness, disqualified an employee from retirement under Section 112.05. Petitioner's leave in 1971 was purely voluntary. (Tr. 13, 25-26)

An additional factor to be considered is the continuous interpretation given to the Section by those charged with its administration. Historically in the administration of Section 112.05, an absence from the payroll of one month or more has disqualified an employee from thirty-year retirement for at least the last twenty years. It is very well established that the long-standing interpretation given a statute by those charged with its administration is to be given great weight. This principle was applied to the Division of Retirement in Austin v. Austin, 350 so.2d 102, 104 (Fla. 1st DCA 1977) cert. den. 357 So.2d

184 (Fla. 1978).

Conclusion

Petitioner was not "continuously on a state payroll" as required for retirement under Section 112.05, Florida Statutes (1977) with thirty years of service. Therefore, she is ineligible at this time to retire under the provisions of that Section.

DONE and ORDERED this 15th day of November, 1978, at Tallahassee, Florida.

ROBERT L. KENNEDY, JR.

State Retirement Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER was served by U.S. Mail on Anthony N. Deluccia, Jr., Esquire, District Eight Counsel, Department of HRS, Post Office Box 2258, Fort Myers, Florida 33902 and Ms. Helene W. Mancini, Hardee County Health Department, Post Office Box 788, Wauchula, Florida 33873 this 15th day of November, 1978.

STEPHEN S. MATHUES

Docket for Case No: 78-000665

Orders for Case No: 78-000665