STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MALBA LANIER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-128

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public bearing in this case on March 17, 1980, in Tallahassee, Florida. Pursuant to leave, the parties were allowed through April 4, 1980, to submit memoranda of law and proposed findings and conclusions. Said memoranda were received and considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Edward S. Stafman, Esquire

Patterson and Traynham 1215 Thomasville Road

Tallahassee, Florida 32303

For Respondent: Diane K. Kiesling, Esquire

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

ISSUE

The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found.

1. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital

   (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970.

   
   

2. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits.

   
   

3. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied.

   
   

4. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time,

   
   

5. Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed,

   according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month.

   
   

6. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1).

   
   

7. Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 121, Florida Statutes, and Rule 22B, Florida Administrative Code.

    
    

11. Section 121.011(3), Florida Statutes, provides in pertinent part:

    
    

    (3) PRESERVATION OF RIGHTS.--

    
    

    1. The rights of members of the retire- ment systems established by chapters 122,

       238 and 31 shall not be impaired, nor shall their benefits be reduced by vir- tue of any part of this chapter

    2. the rights of members of any

    retirement system. . shall not be impaired, nor shall their benefits be reduced by vir- tue of any part of this chapter. . ., he shall be transferred to the Florida Retirement System on the date that his unit is accepted for membership therein and shall be subject

    to the provisions of the Florida Retirement System established by this chapter and at retirement have his benefits calculated in accordance with the provisions of section 121.091....

    (f) The rights under an existing system

    of any former member of such system who has become a member of the Florida Retirement System, either by affirmative choice during any transfer period or by operation of the compulsory participation provisions of section 121.051(1), are limited to those rights that existed and were exercised in such system at the time participation in

    the system ceased. The rights of such member after transfer shall be subject to the pro- visions of the Florida Retirement System established by this chapter, and at retire- ment the member shall have his benefits calculated in accordance with section

    121.091. The provisions of this paragraph are declaratory of the legislative intent upon the original enactment of this chapter and are hereby deemed to have been in effect from such date. (Emphasis added)

    
    

12. Section 121.021(11), Florida Statutes, provides in pertinent part:

    
    

    (11) 'Officer or employee' means any person receiving salary payments for work performed in a regularly established posi- tion and, if employed by a city or special district, employed in a covered group.

    Chapter 22B-1.04, Florida Administrative Code, provides:

    
    

    PARTICIPATION

    
    

    (1) Participation in the regular or special-risk classes of membership of the

    Florida Retirement System as may be appropri- ate shall be compulsory as a condition of employment for all of the officers and employees enumerated in the following para- graphs who are filling a regularly estab- lished position as described in subsection 22B-1.04(5)

    
    

    1. membership in the Florida Retire-

       ment System shall be compulsory if the employee is filling a full-time or part-time regularly established position. An employee filling

       a regularly established position shall be enrolled. . .A position meeting the defini- tion below shall be considered a regularly established position. .

       
       

       (a) A regularly established position in a state agency is a position which is authorized and established pursuant to

       law and is compensated from a salaries appropriation as provided for in section 216.011(1) (o) 1 and 2, F.S. or a position which is authorized pursuant to sect ion 216.262(1)(a) and (b) and is compensated from a salaries account in accordance with section.

       
       

    2. An-employee who is filling a tem- porary position shall not be eligible for

    membership in the Florida Retirement System. An employer employing a person in a temporary position shall advise the employee at the time of his employment that he is filling

    a temporary position and cannot participate in the Florida Retirement System or claim

    the temporary employment later for retirement purposes. . . A position meeting the definition below shall be a temporary position. (Emphasis added.)

    
    

    (e)2. Student employees (persons who are bona fide students in an accredited educa- tional or vocational program who perform ser- vices for a public employer in a temporary position set aside strictly for students).

    
    

13. G. W. Brock, Personnel Manager for the Florida State Hospital at Chattahoochee, Florida, is not an agent of Respondent.

    
    

14. Petitioner was a student employee within the meaning of Chapter 22B- 1.04(6)(e)(2), Florida Administrative Code, during the period August, 1941, through December, 1944.

    
    

15. Based on the foregoing, it appears clear that Petitioner is not entitled to claim service credit for the student time under the guidelines of FRS. To be entitled to this credit, it was necessary for Petitioner to have exercised her right to claim the student credit while she was a member of SCOERS. Provided that such right was exercised by Petitioner pre-enrollment into FRS, such credit would have been honored and would not have been impaired by her enrollment in FRS. Petitioner, like other SCOERS' members, was also allowed the period from the effective date of enrollment in FRS (December, 1970) through early 1972 to claim student credit. However, she failed to exercise the right to claim the student credit for more than two years subsequent to the effective date of her enrollment in FRS. Had she exercised this right during this period, she would still have been permitted to claim the credit. Having failed to do so, it can only be concluded that Respondent's denial of Petitioner's claim was proper. Section 121.011(3)(f), Florida Statutes. I shall so recommend.

RECOMMENDATION

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

RECOMMENDED:

That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED.

RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street

Suite 207C - Box .81 Tallahassee, Florida 32303

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MALBA LANIER,

Petitioner,

vs. CASE NO. 80-128

DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

This case was presented on a petition by MALBA LANIER for review of the denial of her request to purchase retirement service credit for the period from August, 19417 through December, 1944. A hearing was held pursuant to notice on

March 17, 1980, at Tallahassee, Florida, before James E. Bradwell, designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward S. Stafman, Esquire

Patterson and Traynham 1215 Thomasville Road

Tallahassee, Florida 32303

For Respondent: Diane K. Kiesling

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

The recommended order was issued on May 13, 1980. After consideration of the evidence and record in this case, the Hearing Officer's recommendations are essentially accepted by the Division of Retirement, with only minor changes as set forth herein.

FINDINGS OF FACT

The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. Prior to 1970, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers' and Employees' Retirement System (SCOERS) . Petitioner participated in that retirement system. Effective December 1, 1970, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970.

During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits.

C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits. Mr. Brock recalled Petitioner visiting his office on

various occasions between the periods 1968 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brook advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision. Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by . Brock on Petitioner's behalf on December 20, 1972, and the request was denied.

Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time.

Ruth Sansom, Assistant Bureau Chief for the Division of Retirement, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sansom is familiar with the merger of SCOERS and FRS. Mrs. Sansom affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to airs. Sansom for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period-in question was dated December 20, 1972. Mrs. Sansom, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sansom denied Petitioner's claim since Petitioner was primarily a student during the period for which the prior service claim was submitted (Joint Exhibit No. 1).

Mr. Robert L. Kennedy, Jr., the former State Retirement Director, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.

CONCLUSIONS OF LAW

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

   
   

2. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

3. The authority of the Respondent is derived from Chapter 121, Florida Statutes, and Rule 22B, Florida Administrative Code.

   
   

4. Section 121.011(3) , Florida Statutes, provides in pertinent part:

   
   

   (3) PRESERVATION OF RIGHTS.--

   1. The rights of members of the retire- ment systems established by chapters 122, 238

      and 321 shall not be impaired, nor shall their benefits be reduced by virtue of any part of this chapter.

   2. The rights of members of any retirement system . . . shall not be impaired, nor shall their benefits be reduced by virtue of any part

   of this chapter . . . , he shall be transferred to the Florida Retirement System on the date

   that his unit is accepted for membership there- in and shall be subject to the provisions of the Florida Retirement System established by

   this chapter and at retirement have his benefits calculated in accordance with the provisions of section 121.091.

   (f) The rights under an existing system

   of any former member of such system who has become a member of the Florida Retirement System, either by affirmative choice during any transfer period or by operation of the compulsory participation provisions of section 121.051(1) , are limited to those rights that existed and were exercised in such system at the time participation in

   the system ceased. The rights of such member after transfer shall be subject to the pro- visions of the Florida Retirement System established by this chapter, and at retire- ment the member shall have his benefits calculated in accordance with section

   121.091. The provisions of this paragraph are declaratory of the legislative intent upon the original enactment of this chapter and are hereby deemed to have been in effect from such date. (Emphasis added)

   
   

5. Section 121.021(11), Florida Statutes, provides in pertinent part:

   
   

   (11) 'Officer or employee' means any person receiving salary payments for work performed in a regularly established posi- tion and, if employed by a city or special district, employed in a covered group.

   Chapter 22B1.04, Florida Administrative Code provides: PARTICIPATION

   (1) Participation in the regular or

   special-risk class of the membership of the Florida Retirement System as may be appropri-

   ate shall be compulsory as a condition of employment for all of the officers and employees enumerated in the following para- graphs who are filling a regularly estab- lished position as described in subsection 22B-1.04(5)

   1. Membership in the Florida Retirement System shall be compulsory if the employee

      is filling a full-time or part-time regularly established position. An employee filling

      a regularly established position shall be enrolled . . . A position meeting the defi- nition below shall be considered a regularly established position....

      (a) A regularly established position in a state agency is a position which is

      authorized and established pursuant to law and is compensated from a salaries appro- priation as provided for in section 216.011(1)(o) 1 and 2, F.S. or a position which is authorized pursuant to section 216.262(1)(a) and (b) and is compensated from a salaries account in accordance with section . . .

   2. An employee who is filling a temporary position shall not be eligible for membership in the Florida Retirement System. An employer employing a person in a temporary position shall advise the employee at the time of his employment that he is filling a temporary position and cannot participate in the Florida

   Retirement System or claim the temporary employ- ment later for retirement purposes A

   position meeting the definition below shall be a temporary position. (Emphasis added.)

   (e)2. Student employees (persons who are

   bona fide students in an accredited educational or vocational program who perform services for a public employer in a temporary position set aside strictly for students).

   
   

6. C. W. Brock, Personnel Manager for the Florida State Hospital at Chattahoochee, Florida, is not an agent of Respondent.

   
   

7. Petitioner was a student employee within the meaning of Chapter 22B- 1.04(6)(e)(2) , Florida Administrative Code, during the period August, 1941, through December, 1944.

   
   

8. Based on the foregoing, it appeals clear that Petitioner is not entitled to claim service credit for the student time under the guidelines of FRS. To be entitled to this credit, it was necessary for Petitioner to have purchased the student credit while she was a member of SCOERS. Provided that such credit was purchased by Petitioner pre-enrollment into FRS, such credit would have been honored and would not have been impaired by her enrollment in FRS. Petitioner, like other SCOERS' members, was also allowed the period from the effective date of enrollment in FRS (December, 1970) through early 1972 to claim student credit. However, she failed to claim the student credit for more

than two years subsequent to the effective date of her enrollment in FRS. Had she done so during this period, she would have been permitted to retain the credit. Having failed to do so, it can only be concluded that Respondent's denial of Petitioner's claim was proper. Section 121.011(3)(f) , Florida Statutes.

THEREFORE, Petitioner's request to purchase retirement service credit for the period from August, 1941, through December, 1944, is denied.

DONE AND ORDERED, this 12th May of June, 1980, in Tallahassee, Leon County, Florida.

A.J. McMullian III

State Retirement Director

Copies furnished to:

Edward S. Stafman, Esquire Diane K. Kiesling Patterson and Traynham Division of Retirement

1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street

Suite 207C - Box 81 Tallahassee, Florida 32303

Docket for Case No: 80-000128

Orders for Case No: 80-000128