STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARL L. BARNWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1566

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held be fore Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, beginning at 10:00 o'clock a.m. October 15, 1979, in Room 122, Fletcher Building in Tallahassee, Florida.

APPEARANCES

For Petitioner: Earl L. Barnwell, pro se

575 Seventh Street, South Safety Harbor, Florida 33572

For Respondent: Stephen S. Mathues, Esquire

Division of Retirement 2639 North Monroe Street Suite 207C, Box 81

Tallahassee, Florida 32303 ISSUE

Whether the Petitioner should be permitted to retire under the "continuous service" provisions of Section 121.021(29)(b)2, Florida Statutes.

FINDINGS OF FACT

1. The Petitioner, Earl L. Barnwell, is employed as a uniformed officer of the Florida Highway Patrol. He was sworn into the Highway Patrol in October of 1953, and remained in this employment until November 30, 1956.

   
   

2. In November of 1956, because of the death of his father and resulting family hardships, the Petitioner requested emergency leave from his employer, which was refused by his supervisors. Petitioner Barnwell then tendered his resignation in November of 1956, but became re-employed March 1, 1957, after having exhausted his accumulated leave and having been off the state payroll for the months of January and February of 1957.

   
   

3. After Petitioner's re-employment and the customary one year's probationary period, he again achieved permanent status and repaid the retirement contributions which had been refunded to him upon his resignation.

   His retirement credit was reinstated for the period he had worked prior to his resignation. In December of 1970, Petitioner Barnwell transferred from the Highway Patrol Retirement System under Chapter 321, Florida Statutes, to the Florida Retirement System under Chapter 121, Florida Statutes.

   
   

4. On March 1, 1973, Petitioner was notified by the State Retirement Director that "no [retirement] credit was given for the two (2) months, January and February, 1957, when you were not on the payroll. There is no statute which would allow credit for these two (2) months. Therefore, since you were not on the payroll for these two (2) months, this would constitute a break in service, and your continuous service would begin March 1, 1957."

   
   

5. On January 5, 1979, Petitioner Barnwell wrote to the Respondent Division requesting a hearing regarding the break in service in the retirement matter, stating "I am in total disagreement with the past information I have received and strongly feel an administrative resolution of my problem may well favorably be reached in its conclusion."

   
   

6. The Respondent Division requested the assignment of a hearing officer to consider the case.

   
   

7. The Respondent Division submitted a proposed recommended order, and Petitioner Barnwell submitted documentation relative to his statements made at the hearing. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

9. Section 121.021 Definitions.-- provides:

   
   

   The following words and phrases as used in this chapter have the respective meanings set forth unless a differ- ent meaning is plainly required by the context:...

   (29) "Normal retirement date" means the first day of any month following the date a member attains one of the following statuses:...

   (c) If a special risk member:...

   1. Completes 25 continuous years of creditable service, regardless of age; or

   2. Completes 25 years of creditable service, which may include a maximum of

      4 years of military service credit, and attains age 52.

      
      

10. Section 121.021, Florida Statutes, further provides:

    
    

    (38) "Continuous service" means creditable service as a member, beginning with the first day of employ- ment with an employer covered under a state- administered retirement system consolidated herein and continuing for as long as the member remains in an employer-employee relationship with an employer

    covered under this chapter. An absence of 1 calen- dar month or more from an employer's payroll shall be considered a break in continuous service, except for periods of absence during which an employer- employee relationship continues to exist and such period of absence is creditable under this chapter or under one of the existing systems consolidated herein. A withdrawal of contributions will consti- tute a break in service. Continuous service shall also include past service purchased under this chap- ter, provided such service is continuous within this definition and the rules established by the adminis-

    trator. The administrator may establish administrative rules and procedures for applying this definition to creditable service authorized under this chapter.

    
    

11. Rule 22B-6.01 Definitions. provides:

    
    

    Whenever used in these rules and regulations, unless otherwise expressly stated, or unless the context or subject matter requires a different meaning, the following words and terms shall have the respective meanings indicated:...

    3) CONTINUOUS SERVICE -- Means creditable service as a member beginning with the first day of em- ployment with an employer covered under a state administered retirement system consolidated herein and continuing for as long as the member remains

    in an employer-employee relationship with an em- ployer covered under the system. An absence of one calendar month or more from an employer's payroll shall be considered a break in continuous service for members of the Florida Retirement System, except for periods of absence where an employer-employee relationship continues to exist and such absence is creditable under the Florida Retirement System or one of the existing systems. Continuous service

    shall also include past service provided such service is continuous within this definition.

    The following types of creditable service shall be considered continuous if the specific criteria listed for each is met:

    1. Military Service Subsequent to Membership in A Retirement System: Military service which interrupts employment and for which retirement credit has been granted under an existing sys- tem or the Florida Retirement System, shall constitute continuous service if:

       1. The member entered the active military service within one calendar month after terminating his employment; and

       2. The member returned to employment with a covered employer within one calendar

          month from his release from active military service; and

       3. The member receives retirement credit

       for all military service during the leave

       that he is eligible to claim under his retirement system.

    2. Leave of Absence Credit: A leave of ab- sence for which credit has been granted under the Florida Retirement System pursuant to Section 22B-2.06 or an existing retirement system shall not constitute a break in continu- ous service.

    3. Past Service: Past service as defined by Section 22B-6.01(34), may be claimed as continu- ous creditable service, if such service was, in fact, continuous within this definition.

    
    

12. Under the foregoing statute ad the provisions of the foregoing rule, Petitioner Barnwell is not eligible to claim continuous service since 1953, because:

1. His resignation was a break in the employer-employee relationship;

   
   

2. He was off the payroll for two (2) months; and

   
   

3. He received a refund of his contributions.

Petitioner Barnwell's employer, the Highway Patrol, could have granted military leave under Section 321.14(4), Florida Statutes, but no other type of leave is delineated. At the time of Petitioner's unemployment he was not qualified for leave of absence credit under the Florida Retirement System or an existing system. Under current law, leave can now be granted under Section 121.121, Florida Statutes, and could have been granted under Section 238.05(3)(a), Florida Statutes, but leave could not be granted under Chapter 321, Florida Statutes, the retirement section from which Petitioner Barnwell transferred in 1970.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petition of Earl L. Barnwell to be eligible to retire after completion of twenty-five (25) continuous years of creditable service regardless of age be denied.

DONE and ORDERED this 15th day of November, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Stephen S. Mathues, Esquire Division of Retirement

2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Earl L. Barnwell

575 Seventh Street, South Safety Harbor, Florida 33572

Docket for Case No: 79-001566

Orders for Case No: 79-001566