STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSSELL J. KEIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1171

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 3, 1980, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Dr. Russell J. Keirs

Route 2, Box 267

Highlands, North Carolina 28741

For Respondent: Augustus D. Aikens, Jr., Esquire

Division Attorney Division of Retirement Cedar Executive Center 2639 North Monroe Street Suite 207C, Box 81

Tallahassee, Florida 32303

Petitioner, Russell J. Keirs ("Petitioner") submitted an Application for Service Retirement dated May 6, 1980 to Respondent, Department of Administration, Division of Retirement ("Respondent") indicating an employment termination date of May 30, 1980. When Respondent disallowed the requested May 30, 1980, employment termination date, Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, by notice dated June 26, 1980, Respondent, pursuant to the provisions of Section 120.57(1)(b)(3), Florida Statutes, requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the final hearing in this cause. Final hearing was scheduled for September 3, 1980, by Notice of Hearing dated August 7, 1980.

At the final hearing Petitioner testified in his own behalf, and offered Petitioner's Exhibit 1, which was received into evidence. Respondent called Daisy Flory as its only witness, and offered Respondent's Exhibits 1, 2 and 3, which were received into evidence. Also received into evidence were Hearing Officer's Exhibits 1 and 2.

FINDINGS OF FACT

1. Petitioner was employed by Florida State University during the 1979- 1980 academic year as a tenured professor of chemistry at an annual salary of

   $22,819.00.

   
   

2. Petitioner submitted an Application for Service Retirement Benefits dated May 2, 1980, to Respondent, which application reflected Petitioner's intention to terminate his employment at Florida State University effective May 30, 1980. Previously, Petitioner had advised the Chairman of the Chemistry Department of Petitioner's intention to retire effective June 5, 1980. However, in submitting the aforesaid application dated May 2, 1980, Petitioner determined to relinquish four days of employment salary in June in order to become eligible for retirement benefits begin to accrue on the first day of the first month following termination of employment. Petitioner's request to terminate his employment effective May 30, 1980, was approved by both his department chairman and by the Retirement Coordinator at Florida State University.

   
   

3. As a result of his notification of intent to terminate his employment effective May 30, 1980, Petitioner was removed from the payroll of Florida State University effective May 30, 1980. However, Petitioner continued to perform his duties as a professor of chemistry at Florida State University until the end of the academic school year on June 16, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980, and, following the end of classes, he conducted final exams, graded examinations, issued grades and, on June 16, 1980, briefly attended a faculty meeting.

   
   

4. Although Petitioner's contract of employment provides for a faculty appointment from September 7, 1979 through June 5, 1980, these dates relate only to pay periods, since a faculty member's contractual duties and responsibilities, unless specifically altered by mutual agreement between the contracting parties, extend through the end of the academic school year in this case, June 16, 1980.

   
   

5. The academic school year at Florida State University is nine months long and is comprised of three academic quarters, during which approximately one-third of a faculty member's annual salary is paid in each of the three academic quarters. Petitioner was paid through May 30, 1980, by Florida State University, and received no payment for services rendered during the month of June, 1980. However, when Florida State University officials were advised by respondent's personnel that Petitioner's request to establish May 30, 1980 as his termination date for retirement purposes would not be honored, Petitioner was advised that the University stood ready to pay him the $468.08 which he would have received for his work in June, 1980, had he not chosen the May 30, 1980 employment termination date.

   
   

6. The record reflects that Petitioner made the decision to choose May 30, 1980, as his employment termination date, rather than the later date of June 5, 1980, during counseling sessions with representatives of Respondent, when it became apparent to them that he could receive $1,554.64 in retirement benefits for the month of June, as opposed to the $468.08 he would receive in June in salary had he chosen to continue to receive his salary for services performed at Florida State University. Petitioner was correctly advised by Respondent's personnel that by working through June 5, 1980, and earning salary for that time

   period, he would be ineligible to begin accruing retirement benefits until the end of June, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 121.091(1), Florida Statutes, provides that a person eligible for retirement shall, upon application to the administrator of the Florida Retirement System ". . . receive a monthly benefit which shall commence on the last day of the month of retirement and be payable on the last day of each month thereafter during his lifetime."

   
   

9. Section 121.091(5)(e), Florida Statutes, provides that "[a] member shall be deemed a terminated member only at such time as he is no longer employed by an employer.

   
   

10. Rule 22B-4.02, Florida Administrative Code, provides, in part, that:

    
    

    1. All benefits . . . provided for under this chapter shall be payable only upon termination of employment and proper application to the Administrator.

    2. It shall be the responsibility of the member to notify the Administrator of the date on which he wishes to retire and to make proper application for retirement benefits.

       (3)(a) A member may make application for retirement benefits within 6 months prior to his day of termination of employment. If the retirement application is received by the Division of Retirement prior to termination of employment, or within 30 calendar days thereafter, the effective date of retirement will be the first day of the month following termination. Benefits will begin to accrue on the effective date of retirement and will be payable on the last day of the month . . . [Emphases added].

       
       

11. It is apparent from the record herein that neither Petitioner nor Florida State University ever intended that Petitioner's employment with the University terminate on May 30, 1980. This conclusion is based upon the facts that Petitioner continued to meet classes, administer exams and issue final grades for a period of over two weeks after his purported "termination", and that the University acquiesced in Petitioner's continued performances of his contractual responsibilities, and, in fact, acknowledged the University's obligation to pay Petitioner for his services. Accordingly, it is concluded as a matter of law that Petitioner's employment with Florida State University did not "terminate" on May 30, 1980, within the meaning and intent of Section 121.091(1) and (5), Florida Statutes, and Rule 22B-4.02, Florida Administrative Code. Since Petitioner performed services for which he would otherwise have been entitled to compensation through June 5, 1980, his request for an employment termination date of May 30, 1980, should be rejected, and an employment termination date of June 16, 1980--the date through which he was

obligated to perform teaching services for the University--should be established for Petitioner.

RECOMMENDED ORDER

Based upon the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Administration, Division of Retirement, denying Petitioner's request for an employment termination date of May 30, 1980, and establishing Petitioner's employment termination date as June 16, 1980.

DONE and ENTERED this 8th day of October, 1980, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of October, 1980.

COPIES FURNISHED:

Dr. Russell J. Keirs Route 2, Box 267

Highlands, North Carolina 28741

Augustus D. Atkins, Jr., Esquire Division Attorney

Division of Retirement Cedars Executive Center 2639 Monroe Street Suite 207C, Box 81

Tallahassee, Florida 32303

Docket for Case No: 80-001171

Orders for Case No: 80-001171