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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM JAMES TAIT, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1772

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tallahassee, Florida, on October 14, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: William James Tait, Jr.

809 Devon Drive

Tallahassee, Florida 32301

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

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Petitioner's employment as Executive Director of the State Commission on Local Government during the period July 1972 - December 1973 should be credited to his retirement account, and whether he should be allowed to purchase such service under Chapter 121, Florida Statutes.

At the hearing, Petitioner testified in his own behalf and submitted three exhibits in evidence. Respondent did not call any witnesses or submit documentary evidence.

FINDINGS OF FACT

1. Petitioner William James Tait, Jr. was employed by the State Legislature in 1972 during its regular session. On March 9, 1972, Chapter 72- 44, Laws of Florida, was enacted which created a Commission on Local Government for a period of two years for the purpose of advising the Governor and Legislature on appropriate measures to improve local government in Florida. The Act directed the Commission to employ and set the compensation of an executive director who in turn could employ and set the compensation of the Commission

   staff. The Act further provided that employees of the Commission would be paid for travel and per diem as provided by law. The express legislative intent was that the Commission was a temporary study commission. Section 9 of the Act provided in part as follows:

   
   

   . . . The Commission is not an agency within the legislative intent of chapters 216, 282, and 287, Florida Statutes. The selection of

   employees, their qualifications and compensation, and the establishment of policies relating to their work, and the payment of expenses of the commission, shall be as determined by the com- mission.

   
   

2. In mid-June 1972, Petitioner was employed as the Commission's Executive Director and served full time in that capacity from July 1, 1972 through December 19, 1973. From January 1974 through June 1974, Petitioner served as Executive Director of the Commission on a half-time basis in addition to employment with the Department of Administration.

   
   

3. During the course of his employment as Executive Director, Petitioner was paid from "Other Personal Services" appropriations, as were the other Commission staff employees. Petitioner made no contributions to the Florida Retirement System because he was being paid as an "Other Personal Services" employee. Support services for the Commission were received from the Joint Legislative Management Committee. The Commission terminated by Section 3 of Chapter 72-44 on July 1, 1974. (Testimony of Petitioner, Petitioner's Exhibit 1)

   
   

4. By letter dated April 10, 1981, to the State Retirement Director, Petitioner requested a decision as to whether he could purchase.prior service credits in the Florida Retirement System for the period during which he had served as Executive Director of the Commission on Local Government. By letter of May 12, 1981, the State Retirement Director informed Petitioner that he was not considered eligible under the Florida Retirement System to purchase and receive credit for the period of service in question because his compensation was from Other Personal Services during his employment with the Commission. Petitioner thereafter requested a Section 120.57, F.S., administrative hearing on the denial of his request. (Testimony of Petitioner, Petitioner's Exhibits 2-3)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner claims that he should be permitted to purchase retirement credits for his service as Executive Director of the Commission on Local Government during the period July 1972 through December 1973 because he was a regular full-time employee holding a regularly established position created by law during that period. He contends that his service in that capacity was not temporary, pursuant to Rule 22B-1.04(6)(a), Florida Administrative Code, because he was not compensated from an OPS account as provided for in Section 216.011(1)(0), Florida Statutes, due to the unique exemption from Chapter 216, Florida Statutes, contained in Chapter 72-44, Laws of Florida. He asserts that a mistake was made in setting up the pay accounts by paying for his services from a non-salary account.

6. At the time of Petitioner's appointment by the Commission, Section 121.051, F.S. (1971), provided for compulsory participation in the Florida Retirement System of all "officers and employees" employed on or after December 1, 1970 by state employers, and optional participation in some situations that are not applicable here. Section 121.021(ll) defines the term "officer or employee" as follows:

(11) "Officer or employee" means any person receiving salary payments for work performed in a regularly established position . . . (Emphasis added)

Section 216.011(0) provided in pertinent part as follows:

(o) "Other personal services" means the com- pensation of services rendered by a person who is not a regular or full-time employee filling an established position . . .

1. In distinguishing between payments to be made from salaries appropriation and other personal services appropriation, those persons filling an established position shall be paid from salaries appropriations and those persons performing services for a state agency, but who are not filling an established positon, shall be paid from the other personal services appro- priations.

   
   

2. It is further intended that those persons paid from salaries appropriations shall be

state officers or employees and shall be eligible for membership in a state retirement system and those paid from other personal services appro- priations shall not be eligible for such member- ship. (Emphasis added)

7. It thus can be seen that Petitioner's employment as Executive Director was not in a "regularly established position," and therefore he cannot be considered an "employee" during that period eligible for membership in the Florida Retirement System. This view is fostered by the Division of Retirement's Rule 22B-1.04 (5)(a), Florida Administrative Code, which provides that a regularly established position in a State agency is a position which is authorized pursuant to Section 216.262(1)(a)(b), F.S., and is compensated from either a salaries appropriation as provided for in Section 216.011(1)(o) 1 and 2, F.S., or a salaries account as provided for in Section 3A-10.31, F.A.C. Inasmuch as Petitioner's position was expressly exempted from Chapter 216, Florida Statutes, by Chapter 72-44, Laws of Florida, time served therein does not qualify for retirement purposes, even though it was not a "temporary position" of less than four calendar months, as provided for in Rule 22B- 1.04(6)(a), F.A.C.

RECOMMENDATION

In view of the foregoing findings of fact and con- -clusions of law, it is RECOMMENDED that Petitioner's request be DENIED.

DONE and ENTERED this 30th day of November, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1981.

COPIES FURNISHED:

Augustus D. Aikens, Jr., Esquire Division of Retirement

Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32301

William James Tait, Jr. 809 Devon Drive

Tallahassee, Florida 32308

Andrew J. McMullian, III Director, Division of Retirement Department of Administration Cedars Executive Center

2639 North Monroe Street Suite 2O7C - Box 81 Tallahassee, Florida 32301

Docket for Case No: 81-001772

Orders for Case No: 81-001772