STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NORMA WILSON, EDWARD F. HODOWUD, ) and WESLEY E. STONE, )
)
Petitioner, )
)
vs. ) CASE NO. 81-3192
) STATE OF FLORIDA, DEPARTMENT OF ) ADMINISTRATION, DIVISION OF ) RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 16, 1983, in Coral Gables, Florida.
Petitioners Norma Wilson (surviving spouse of John D. Wilson) and Wesley E. Stone were represented by Edna E. Canino, Esquire, Miami, Florida; Petitioner Edward F. Hodowud appeared on his own behalf; and Respondent State of Florida, Department of Administration, Division of Retirement was represented by Stanley
M. Danek, Esquire, Tallahassee, Florida.
Petitioners sought to purchase their Past service with private bus companies in the Florida Retirement System pursuant to Section 121.081(1)(g), Florida Statutes; Respondent denied their requests; and Petitioners timely requested a formal hearing thereon. Accordingly, the issue for determination is whether Petitioners are eligible under that provision to purchase their private bus company employment service.
During the formal hearing, Petitioner Hodowud requested leave to late-file his Exhibit numbered 2, and that request was granted. On May 24, 1983, a packet of miscellaneous documents was filed with the Division of Administrative Hearings. Only one of those documents constitutes the exhibit for which leave was granted. Accordingly, only the May 4, 1983, memorandum from Wayne P. Rosenthal to J. A. Ojeda, Jr., is hereby admitted as Petitioner Hodowud's late- filed Exhibit numbered 2, and the remainder of the miscellaneous documents contained in that packet are hereby stricken from the record in this cause.
Petitioners Stone and Wilson presented the testimony of Richard Jay Weiss and, by way of deposition, Andrew J. McMullian, III. Additionally, Petitioners Stone and Wilson's Exhibits numbered 1 through 4 were admitted in evidence.
Petitioner Hodowud testified on his own behalf and presented the testimony of Petitioner Stone. Additionally, Petitioner Hodowud's Exhibits numbered 1 through 5 were admitted in evidence.
Respondent presented the testimony of Ruth Sansom, Petitioned Hodowud, Paul
McMahon and, by way of deposition, Leon Burnett and John Finney. Additionally, Respondent's Exhibits numbered 1 through 8 were admitted in evidence.
Petitioners Wilson and Stone and Respondent submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Petitioners Wesley E. Stone and John D. Wilson (deceased spouse of Norma Wilson) began working for the Miami Transit Company, a privately owned bus company, in February 1946 and in October 1951, respectively. Petitioner Edward
F. Hodowud began working for the Miami Beach Railway, which was also a privately owned bus company, in November 1952.
The two bus systems above were among the four systems which were owned by Mr. William Pawley (hereinafter Pawley) and which Dade County, Florida (hereinafter Dade County), eventually purchased pursuant to a long-standing program to establish a countywide bus transportation system.
The process required for Dade County's purchase of Miami Transit Company and the Miami Beach Railway extended over a lengthy period of time. The negotiation and contract approval and execution extended through 1961, and the bond issue attendant to that purchase was validated in 1962. On January 15, 1962, Dade County issued the following notice to Pawley employees:
All employees of the company who fail to report for work at their regularly estab- lished time and place during the 48 hours following the takeover shall be considered as having voluntarily left their employ- ment and thereby forfeited their claim to comparable positions in the county service along with their pay status, seniority, vacation and any other benefits which will be preserved under the rules and regula- tions of the Authority...Make no mistake, this notice tells you exactly the position you will face if you choose not to accept a-county employment. Remember, it is your choice as an individual and cannot be remedied by any group action. The Authority intends to give this community the best possible bus service. If it is forced to take the buses off the street for a period of time to train a completely new work force, it shall do exactly that, and the community will support such an action.
The Union which represented employees of the Pawley systems, Amalgamated Association of Street, Electric, Railway and Motor Coach Employees of America (hereinafter the Union), was involved in labor negotiations concerning the future status of the Union after the transfer, and eventually Dade County filed a declaratory judgment action in circuit court against the Union. The circuit court held in part in its final decree that:
Plaintiffs are not required by law to offer employment to the members
of the defendant union . . .
Plaintiffs are not authorized by law to enter into a collective bargain- ing agreement with defendants and
would not be authorized to do so upon consummation of the contractual transaction evidenced by the record in this cause.
Plaintiffs are not authorized to recognize as lawful any strike direc- ted against them and would not be authorized to do so upon consummation of the contractual transaction evi- denced by the record in this cause.
Notwithstanding the above provisions, the Union went on strike on January 29, 1962. After issuing an order to show cause, the court A ordered that the Union was enjoined and restrained from striking or continuing any strike for the purpose of coercing Dade County or any other governmental agency to engage in collective bargaining.
The Union continued on strike, and on February 9, 1962, Dade County took over operations of the Pawley systems through the independent Metropolitan Transit Authority (hereinafter MTA). The Union continued on strike against Dade County and MTA, a public employer against whom no union could legally strike at that time according to state law.
The continuing strike made the deadline established by Dade County in the January 15, 1962, notice impractical, if-not impossible. Instead, the time from February 9, 1962, through and including March 26, 1962, was a "period of solicitation" for all former employees of the Pawley companies to commence work for MTA and to retain the same positions as they had with the Pawley companies. Those former employees who returned to work by March 26, 1962, were hired off an "eligibility list," which contained the names of all the former employees. They did not have to complete the normal application process for new employees, such as application forms, physicals, job testing and ranking, etc. As of 5:00 p.m. on March 26, 1962, there were no more vacant employment positions.
The previous employees of the Pawley bus companies merged with MTA, including both participants and nonparticipants of the strike, who commenced work prior to March 27, 1962, were granted permanent civil service status by MTA with all accrued employment benefits earned with the Pawley companies.
Petitioners Stone and Wilson commenced work with MTA on October 19, 1966, and October 15, 1962, respectively; while Petitioner Hodowud commenced work on March 20, 1963. Since Petitioners did not commence work prior to March 27, 1962, they were not granted permanent civil service status or accrued benefits earned with Pawley.
Upon commencement of their employment with MTA, Petitioners became members of the State and County Officers and Employees' Retirement System (SCOERS) , Chapter 122, Florida Statutes; and eventually all Petitioners transferred into the Florida Retirement System (hereinafter FRS), Chapter 121, Florida Statutes.
In 1976, FRS was amended by Section 121.081(1)(g), Florida Statutes, which in general allowed persons who had become members of one of the state retirement systems by a transfer, consolidation, merger or assumption of functions or activities by a governmental agency to purchase past service in FRS.
In 1977, John Finney, a former employee of one of the Pawley companies who commenced work with MTA on February 9, 1962, compiled a list of similarly situated employees as of May 1, 1975 (the date the 1976 legislative amendment was effective), who commenced work with MTA by March 27, 1962, and who had been granted longevity rights, accrued sick leave, annual leave, etc., by Dade County. He submitted that list to the Department of Administration, Division of Retirement for certification by the Division of eligibility by said employees to purchase their past service with the privately owned companies which merged with MTA.
The Division determined that the persons listed in Finney's letter were eligible to purchase past service with Pawley. Each person on the "eligibility list" could apply to purchase the past service if he/she wished to, since the purchase was optional and not mandatory. At the time of a request, the Division would request from Dade County a "certification of earnings" for the individual and the "advice of personnel action" form which showed the individual's original employment date and the date the individual applied to the Personnel Department of Dade County to return to work during the strike. Those employees who A were certified and applied to purchase their past service purchased it pursuant to Section 121.081(1)(g), Florida Statutes.
Some of those certified as eligible to Purchase their past service pursuant to Section 121.081(1)(g), Florida Statutes, purchased the entire past service; some purchased only Part of the past service; and others chose not to purchase any of their past service. Eventually, 33 persons inquired about or actually did purchase some or all of their past service. Purchase of past service involves out-of-pocket costs to the employee and is elective.
Since 1977, Petitioners have asserted that their names should have been included in the list forwarded by Finney to the Division, and they requested certification for eligibility to also purchase their past service as did others, pursuant to Section 121.081(1)(g), Florida Statutes.
The Division has consistently denied Petitioners the right to purchase their service with the Pawley companies. As a result of a final request by Petitioners, in December 1921 the Division issued a letter denying Petitioners the right to purchase the private bus companies service pursuant to Section 121.081(1)(g), Florida Statutes. Petitioners made timely application for this administrative hearing.
Simultaneous with the pendency of this proceeding, and as a result of statements made by A. J. McMullian in his deposition of July 14, 1982, Petitioners instituted proceedings before the Dade County Board of County Commissioners for a determination that they were qualified to purchase their past service under Section 121.081(1)(g), Florida Statutes. The Board referred the matter to its Independent Review Panel (hereinafter IRP), an advisory agency, for evaluation and recommendation. Such recommendation was eventually made, and on December 7, 1982, the Board approved a motion that Petitioners be permitted to purchase their past service at the reduced rate. The action of the Board was limited only to the Petitioners.
Petitioners assert that the report of the IRP places them in the same status as the strikers who returned to employment by March 27, 1962. That assertion is incorrect. First, the returning strikers were hired from an eligibility list and did not complete the normal application process for new employees such as application forms, physicals, job testing and ranking, etc. In short, reemployment was both immediate and automatic. By contrast,
Petitioners entered employment as new employees and were required to take a competitive examination and be placed on a county eligibility list. Second, the returning strikers were given permanent civil service status by Dade County, while Petitioners were not given such status until they were employed and completed their probationary terms. Third, the returning strikers were given credit for certain benefits they had earned with the Pawley companies, while Petitioners have never been granted similar benefits by Dade County. Fourth, the IRP determined that the "cut-off" date of March 27, 1962, was a "reasonable decision" to end the "period of solicitation." Fifth, the IRP determined that Petitioners Stone and Hodowud could not be considered to be in precisely the same position as those other employees who, despite a "break in service," were granted by Dade County the benefits denied Petitioners.
Petitioners claim that the action of the Dade County Board of County Commissioners on December 7, 1982, puts them in the same status as the returned strikers. While the transmittal letter of Mr. Talbert states that the ". . . Commission instructed the County Manager that the above subject employees shall be considered by Dade County to have an original employment date reflecting their employment . . ." with the Pawley companies, the actual motion by Commissioner Shack was "that At Hodowud, Stone and Wilson be permitted to repurchase their past services from the State of Florida at the reduced rate."
Further, the testimony of Richard Jay Weiss, Assistant Dade County Attorney, and his exhibit do not support Petitioners' position. The exhibit states in part as follows:
. . .the County Commission has gone on record by motion to urge the State Retire- ment System to allow the three present claimants to receive their back time at the reduced rate.
Whether Petitioners should be permitted to purchase their past services from the State of Florida at the reduced rate is a decision for Respondent and not for Dade County to make. The County's role is to provide certification of the employer/employee relationship. While Dade County could have made Petitioners county employees as of January 9, 1962, with full employment rights and benefits (including pay, annual leave, sick leave, longevity pay, and length of service recognition), it did not do so based on the clear wording of the approved resolution (as opposed to Mr. Talbert's
transmittal letter or Mr. Weiss's testimony). It is understandable that Dade County passed a resolution simply supporting Petitioners in their claim rather than placing Petitioners in the same situation as any other Pawley employee who came to work for Dade County before March 27, 1962, since the latter position would cost Dade County $104,695 for retroactive benefits.
Section 3. (g)11) of Revised Ordinance No. 60-23 of Metropolitan Dade County, Florida, states that:
Whenever the County acquires existing transit systems or facilities from a pub- licly or privately owned public utility, to the extent necessary or feasible for the economical operation of such facili- ties, all of the employees of such acquired transit system whose duties pertain to the facilities acquired shall be employed in comparable positions in the County service and the pay status, seniority, vacation and sick leave rights shall be preserved and maintained to the fullest possible extent. All employees of the Authority shall be deemed, consi- dered or construed as County employees and shall be entitled to all the rights,
privileges and benefits of County employees.
Since Dade County cannot force any person to work for it, the words "all of the employees" and "shall be employed" can logically only refer to those employees who decide to go to work for Dade County and, conversely, do not include those employees who voluntarily decide not to work for the County.
In addition to the obvious fact that Petitioners were participating in an illegal strike and were in violation of the restraining order of the circuit court, they voluntarily abandoned their right to employment by not commencing their jobs by March 27, 1962. When Petitioners firally did commence later employment with MTA, they were hired as new employees rather than previous employees being given immediate and automatic employment.
Petitioners claim that any returning striker employed more than one day after the takeover had a "break in service." They claim such persons were allowed to purchase their past service and that they should likewise be given that right. The basic question is whether or not the employee/employer relationship continued during the strike despite its illegal nature. Respondent maintains that the initial determination of the employee/employer relationship is the responsibility of the employing agency, in this case Dade County.
Dade County determined that all strikers returning by the end of the solicitation Period were employees as of February 9, 1962, and thus there was no "break in service," a technical term encompassing a termination in the employment relationship. The determination by Dade County of a continuous employee/employer relationship was proper under the facts of this case, and therefore there was not a break in service.
In 1977, Dade County took over the operation of Gray Lines Sight- seeing Tours, Inc., and Respondent gave the Gray Lines employees the right to purchase their prior service. On At June 15, 1977, prior to the takeover, the Gray Lines employees bad begun a strike. Dade County took over on August 30, 1977, the strike ceased, and all the employees went on training status the same day. This information was furnished by Dade County to Respondent. Unlike the instant case, in Gray Lines there was no strike after the takeover. Therefore, the two cases are not similar. However, the Gray Lines case does support the position of Respondent, since it accepted Dade County's determination as to who was an employee on the date of takeover.
Petitioner Hodowud introduced what purports to be a 1977 contract between Dade County and a union representing some (or all?) Gray Lines employees. The contract's title states that it was entered into because of certain federal requirements under the Urban Mass Transportation Act of 1964, as amended. While certain provisions of the contract deal with sick and annual leave, longevity bonus awards, pensions, and group insurance, it is not clear what the relevance of a 1977 contract is to the takeover in the instant case which occurred in 1962, or what effect (if any) that a federal law subsequently enacted has on the rights and benefits of Petitioners. It is obvious that laws change and the laws in 1962 were different than those in 1977. It is also obvious that Dade County and a union can enter into any type of contract they believe appropriate concerning a takeover transportation activities. The existence of the 1977 contract bears no relation to the status of Petitioners as employees in 1962.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
Section 121.081(1)(g), Florida Statutes, provides in part, as follows:
When any person, either prior to this act or hereafter, becomes entitled to and does participate in one of the retirement systems consolidated within or created by this chapter through the consolidation or merger of governments or the transfer of functions between units of government, either at the state or local level or between state and local units, or through the assumption of functions or activities by a state or local unit from an employ- ing entity which was not an employer under the system, and such person becomes
a member of the Florida Retirement System, such person shall be entitled to receive past service" credit as defined in
s. 121. 021(18) for the time such person performed services for, and was an employee of, said state or local unit or other employing entity prior to the trans- fer, merger, consolidation, or assumption of functions and activities. Past ser- vice credit allowed by this paragraph
shall also be available to those persons who became members of an existing system, as defined ins. 121.021(2), prior to December 1, 1970, through the transfer, merger, consolidation, or assumption of functions and activities set forth in this paragraph and who subsequently become mem- bers of the Florida Retirement System.
Further, Section 121.021(18), Florida Statutes, defines "past service" to be: the number of years and complete
months and any fractional part of a month, recognized and credited by an employer
and approved by the administrator, during which he was in the active employ of an employer prior to his date of participation.
The purchase of the Pawley companies by Dade County in 1962 is a "transfer, merger, consolidation, or assumption of functions and activities," as provided in Section 121.081(1)(g), Florida Statutes, and a private company is an "employing entity" under that same provision. Therefore, the previous Pawley employees are eligible to purchase their service with Pawley if they meet these conditions: first, if their service qualifies as past service under Section 121.021(18), Florida Statutes; and second, if they become members of an existing system (SCOERS) "through the transfer, merger, consolidation, or assumption of functions and activities.
As to the first condition, the facts clearly show that Dade County has not recognized and credited Petitioners with their past service with Pawley in spite of more than 20 years having expired since the strike and six years (since 1977) since Dade County notified Respondent of those persons eligible to purchase their past service. Even the recent action of the Dade County Board of County Commissioners is insufficient to prove that the past service of Petitioners was "recognized and credited" by Dade County. On that basis, Petitioners have failed to meet the requirements of "past service" stated in the statute.
As to the second condition, it is also clear from the facts that Petitioners became members of SCOERS as new employees rather than as a result of the purchase of the Pawley companies by Dade County. Petitioners seem to argue that the statute permits persons to purchase prior service even though they may or may not have been employed by Dade County for a number of years. While such persons may be "reemployed" or "new employees," they clearly did not become employees as a result of the takeover. The words of the statute, the underlying intent, and logic compel an interpretation that a person must be an employee subject to an employee/employer relationship at the time of takeover and not at some later date when they are rehired or newly hired.
The Petitioners' request for official recognition of the Recommended Order and the Final Order in William L. Strine v. Division of Retirement, DOAH Case No. 80-1379, was granted. Two time periods were alluded to or addressed in the Strine Recommended Order, the first being the same strike under consideration herein, and the second being a period from October 1, 1964, to March 1, 1975, when Strine was an employee of a private company which had a consulting contract with Dade County. As to the first time period, Strine was also a Pawley employee but signed up and went to work for Dade County on
February 9, 1962. Therefore, that time period is of no significance in the instant case. As to the second time period, the issue did not concern a strike but whether or not the functions of the private company had been taken over by Dade County so as to constitute an assumption of the functions and activities of that private employing agency such that Strine was entitled to purchase past service in the FRS. The Respondent has never disputed the fact that there was an assumption of functions and duties or takeover by Dade County in the instant case, only whether or not Petitioners were employees of Dade County on the date of takeover (or by the close of the solicitation period). Since the facts and the issues in the Strine case are different from those in the instant case, it lends Petitioners no support.
Petitioners have clearly failed to sustain their burden of proving entitlement to purchase from the Florida Retirement System their past service credits for their employment with one of the Pawley companies pursuant to Section 121.081(1)(g), Florida Statutes, at a reduced rate. Petitioners simply do not fall within the clear and plain meaning of that statute. Petitioners' other arguments, that they are being treated differently from other similar employees, similarly must fail since they have simply failed to put on any competent or substantial evidence in support of those allegations.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioners' requests to
purchase in the Florida Retirement System their prior service with the Pawley companies at a reduced rate pursuant to Section 121.081(1)(g), Florida Statutes.
DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, Hearing Officer 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 31st day of August, 1983.
COPIES FURNISHED:
Edna E Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125
Mr. Edward F. Hodowud 8874 Emerson Avenue
Surfside, Florida 33154
Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
Nevin G. Smith, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
NORMA WILSON, EDWARD F. HODOWUD, and, WESLEY E. STONE,
Petitioner,
vs. CASE NO. 81-3192
STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This case was presented on a petition by Norma Wilson (surviving spouse of John D. Wilson), Wesley E. Stone and Edward F. Hodowud for review of the denial by the Division 01 Retirement of their requests to purchase their past service with a private business company in the Florida Retirement System pursuant to Section 121.081(1)(g), Florida Statutes. Because of all three cases presented common issues of fact and questions of law, they were consolidated for purposes of the administrative hearing.
A hearing was held pursuant to notice of May 16, 1983 before Linda N. Rigot, designated hearing officer of the Divisions of Administrative Hearings.
APPEARANCES
For Petitioner Edna E. Canino, Esquire Wilson and Stone: 1609 Northwest 14th Avenue
Miami, Florida 33125
For Petitioner Mr. Edward F. Hodowud Hodowud: 8874 Emerson Avenue
Surfside, Florida 33154
For Respondent: Stanley M Danek, Esquire
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81
Tallahassee, Florida 32303
A Recommended Order was issued on August 31, 1983. Petitioners are permitted by statute to file exceptions to the Hearing Officers' Recommended Order. Petitioner Hodowud did not file any exceptions, and Petitioners Stone and Wilson filed exceptions through their counsel.
After due consideration and deliberations as to the record in this cause, the Recommended Order and Petitioners' exceptions thereto are before the Division for final agency action in this cause. In reviewing, considering and deliberating upon the Recommended Order and Petitioners' exceptions thereto, the Division considered all matters of record in this cause which have been reduced to writing and which are now before the Division. As of this time, the testimony of the :itnesses at the May 16, 1983 hearing conducted by the Hearing Officer had not been transcribed, and the Division does not have the transcript of that hearing before it while considering said Recommended Order and Petitioners' exceptions. The Petitioners have failed to furnish any written transcript, notwithstanding the fact that Petitioners Wilson and Stone have filed written exceptions to the Recommended Order on September 26, 1983.
The Division could have dismissed the Petitioners' exceptions to the bearing Officer's proposed findings of fact upon the authority of Booker Creek Preservation, Inc. v. State, Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DC 1982), because the Petitioners have failed to submit such complete written transcript of the May 16, 1983, hearing at their own expense.
Under Section 120.57(1)(b)9, Florida Statutes, the Division cannot reject or modify the Hearing Officer's proposed findings of fact, unless the Division reviewed "the complete record", including the transcript of the May, 16, 1983, hearing. Nevertheless, in an abundance of caution for the rights of Petitioners, the Division will consider and set out explicit rulings on each of petitioner Wilson's and Stone's exceptions.
EXCEPTIONS TO FINDINGS OF FACT
Exception No. 1 - That portion of Findings of Fact No. 15, which finds that "(t)he Division has consistently denied Petitioners the right to purchase their service with the Pawley companies", is clearly erroneous and not substantiated by the evidence of record.
Petitioners are correct in that the Division has advised them by letter (Petitioner's Exhibit No. 2, #17B) that they were able to buy their prior service with Pawley at full actuarial cost. However, that was not an issue nor the subject of this proceeding, and the finding of fact must be considered in
the context of the ultimate issue in this case, that being whether or not the Petitioners were entitled to purchase their prior service at the reduced rates provided in Section 121.081(1)(g), Florida Statutes. ,with respect to that issue, the Division has consistently denied Petitioners the right to purchase their prior service.
The Report of Proceedings of the Dade County Independent Review Panel (Petitioner's Exhibit No. 2, #10) contains a similar statement. That statement appears to be based on statements of Mr. Stone and Petitioner's Exhibit No. 2, #17B, above. The Report of Proceedings is hearsay and duplicates the facts and exhibits presented at the hearing.
In the context of the issue in this case, the Proposed Finding of Fact No.
15 is correct, and Petitioners' exception is rejected being without factual basis in the record.
Exception No. 2 - That portion of Findings of Fact No. 17, which finds that "the IRP de- termined what the "Cut-Off" date of March 27, 1962, was a "reasonable decision" to end the "period of solicitation", is irrelevant and immaterial, unless it is considered together with whether the Petitioners were given ade- cuate notice of that "reasonable decision".
Petitioners claim that the above finding is irrelevant and immaterial unless considered together with the "issue" of adequate notice. The only question the Division may consider is whether or not the finding of fact was based on competent substantial evidence in the record. Since there is no evidence in record to contradict the proposed finding of fact, it is the only finding that the Hearing Officer or the Division could have reached. It is based on competent, substantial evidence in the record.
The proposed finding of fact was made based on the finding of the Independent Review Panel in its Report of Proceedings. Petitioners accepted the report of the Panel and placed the Report into evidence at the hearing. They are not attempting a collateral attack on the report. Such an attack should not be a-lowed In the absence of good and sufficient reason. The question of relevancy and materiality raised by Petitioners is an appropriate objection at the time the evidence is introduced at the hearing but is inappropriate in attacking a finding of fact In a recommended order. Petitioners' objection is rejected.
Exception No. 3 - That portion of Findings of Faction 20 which finds that "(i)t is under- standable that Dade County gassed a resolution simply supporting Petitioners in their claims, rather than placing Petitioners in their claims situation as any other Pawley employee who came to work for Dade County before 3/27/62, since the latter position would cost Dade County
$104,696 for retroactive benefits. Petitioners claim the above finding 15 clearly erroneous and misleading, and not supported by substantial and competent evidence In the record.
Petitioners discuss certain amounts necessary to purchase employee benefits and other amounts needed to purchase creditable service in the Florida Retirement System. By discussing the two amounts as if they were one amount, Petitioners clearly show their understanding of the evidence and testimony presented at the hearing.
The Division advised Petitioners that it would cost Petitioner Stone
$18,997.12 and Petitioner Wilson $11,657.23 to purchase their prior service should they prevail in the case at bar. In the event Dade County had considered all three petitioners to be continuously employed from the date of the strike to the respective dates of their reemployment the cost to the County to pay retroactive benefits would have been 5104.E95. Since the County and not consider Petitioners to be employees during this period, it did not pay for the normal employees fringe benefits. The payment of those benefits (albeit, retroactively) is represented by the $104,695 amount. Thus, the two amounts discussed by Petitioners represent two different funds; one to be paid by Petitioners for prior service, and one to be paid by Dade County for fringe benefits, but not including Petitioners' prior service.
Contrary to Petitioners' assertion that their employment percentent and payroll status from the date of the strike to the respective dates of reemployment was not the issue in this case, the Division believes that that issue is at the very heart of this case. In order to purchase their prior service at the rates permitted by Section 121.081(1)(g) , Florida Statutes, Petitioners had to be employees of the County on March 2, 1962. If they were employees, then they are due the appropriate employee benefits for that period of time. However, since the County did not pay those benefits, then Petitioners were obviously not employees during the period at issue and, therefore, not eligible to purchase the creditable service under Section 121.06.1(1)(g), Florida Statutes. Petitioners' objection is rejected.
Exception No. 4 - That portion of Findings or Fact No. 22 which finds that "/i/n addition to the obvious fact that petitioners were par- ticipating in an illegal strike and were in violation of the restraining order of the cir- cuit court, they voluntarily abandoned their right to employment by not commencing their jobs by March 27, 1962", is not supported by substantial and competent evidence.
In reviewing this proceeding to determine the legality vel non of the strike, It seems obvious that the strike was illegal under one or both of two principles (see Finding of Fact No. 4). First, it was illegal under existing state law; and second, it was illegal for being in violation of the injunction issued by the circuit court. Respondent's Exhibit No. 4, pg. 271.
The union in which Petitioners ware members, Amalgamated Association of Street, Electric, Railway and Motor Coach Employee of America ("Union") was involved in labor negotiations concerning the future status of the Union after the transfer. The County filed a declaratory judgment action in circuit court (Respondent's Exhibits 4 against the Union. In its final decree, the circuit court stated in part that:
"2. plaintiffs are not require by law to offer employment to members of the defendant union, . . .
plaintiffs are not authorized by law to enter into a collective bargaining agreement with defendants and would not be authorized to do so upon consummation of the contractual transaction evidenced by the record in this cause.
plaintiffs are not authorized to recog- nized as lawful any strike directed
against them and would not be authorized to do so upon consummation of the con- tractual transaction evidenced by-the record in this cause."
(Respondent's Exhibit 4, numbered pages 199-200) Notwithstanding the above provisions the Union went on strike on January 29, 1962 (Respondent's Exhibit.4, numbered pg. 256); the Court, after issuing an order to show cause (id. numbered pg. 259), ordered that the Union was "enjoined and restrained from striking or continuing any strike for the purpose of covering the plaintiffs (county) or any other governmental agency to engage in collective bargaining". (Id, numbered pg. 271) However, the Union continued on strike.
The case was appealed to the Third District Court of Appeal. The illegality of the strike under state law was affirmed by that court in Dade County v. Amalgamated Assn. of S.E.R. of M.C. Employees, et al, 157 So.2d 176, 183 (Fla. 3rd DC. 1963). The second issue concerning the violation of the injunction was never appealed, and the Union and its members were in continued violation of the injunction by remaining on strike. Accordingly, petitioners' objection is rejected.
Exception No. 5 - That portion of Findings of Fact No. 23, which finds that "/p/etitioners claim that any returning strikers employed more than "one day" after the takeover, had a
in service", is not supported by substantial and competent evidence.
Petitioners claim that absence from employment of "one calendar month" constitutes a "break in continuous service". In reviewing the exhibits, we note that petitioners' Exhibit No. 2, 12, listed 33 individuals who were prior employees of the Pawley companies, went on strike and returned to work by March 27, 1962. These individuals were given retroactive benefits by Dade County and, therefore, the right to purchase the prior service under Section 121.081(1), Florida Statutes. Some of those individuals were hired by the County before the end of "one calendar month" (that is to say, before March 9, 1962) and others were hired after that date.
Petitioners originally argued that an absence of one day constituted a break in service. Apparently, they have changed their position since the hearing and now argue that "one calendar month" constitutes a "break in continuous service". However, based on the facts shown and the arguments bade at the hearing the Hearing Officer's finding of fact is correct and is based on competent substantial evidence. Even if Petitioners were correct, the change from "one day" to "one calendar month" would not change the fact that they did not become employees of the County as a result of the transfer or merger of the private bus company. Petitioners' objection is rejected.
EXCEPTIONS TO CONCLUSIONS OF LAW
Exception No. E - Conclusion of Law No. 4. Petitioners' claim that Dade County recognized and credited them with their past service with Pawley. The evidence and testimony given at the hearing does not substantiate their claim.
While the transmittal letter of Mr. Talbert (Petitioners' Exhibit No.2,#14) states that the "County Commission instructed the County Manager that the above subject employees shall be considered by Dade County to have an original employment date reflecting their employment with the Pawley companies", the actual motion by Commissioner Shack was "that Hodowud, Stone and Wilson be permitted to purchase their past services from the Satate of Florida at the reduced rate."
Further, the testimony of Mr. Richard Jay Weiss, Assistant Dade County Attorney, and his exhibit (Petitioners' Exhibit 3) do not support Petitioners' position. The Exhibit states in part as follows:
". . .the County Commission has gone on record by motion to urge the State Retirement System to allow the three present claimants to receive their back time at the reduced rate".
Thus, the County merely urged the Division to allow Petitioners to purchase their prior service and did not itself credit them with their past service with retroactive fringe benefits. The bearing Officer's conclusion of law is supported by competent, substantial evidence. Petitioners' objection is rejected.
Exception No.7 - Conclusion of Law No. 5 Petitioners' claim that the Hearing Officers' conclusion that they did not enjoy an employee/employer relationship at the time of takeover is not supported by competent, substantial evidence.
Section 11 of Ordinance 60-23 of Dade County (petitioners' Exhibit 2, item
1) states that:
"whenever the County acquires existing transit systems or facilities from a publicly or pri- vately owned public utility, to the extent necessary or feasible for the economical opera- tion of such facilities, all of the employees of such acquired transit system whose duties pertain to the facilities acquired shall be employed In comparable positions in the County service and the pay status, seniority, vacation and sick leave rights shall be preserved and maintained to the fullest possible extent. All
employees of the Authority shall be deemed, con- sidered or construed as County employees and shall be entitled to all the rights, privileges and benefits of County employees."
Since the County cannot force any person to work or it the words "all of the employees" and "shall be employed" can logically only refer to those employees who decide to go to work for the County and conversely do not include
those employees who voluntarily decide not to work for the County. In addition to the fact that the Hearing Officer found that Petitioners were participating in an illegal strike and were in violation of the restraining order of the circuit court, Petitioners voluntarily abandoned their right to employment by not returning to their jobs by March 27, 1962. Later, when they finally did commence employment with MTA, they were hired as new employees rather than previous employees who were being given reemployment. The hearing officer's conclusion of law is supported by competent, substantial evidence, and Petitioners' objection is rejected.
Exception No. 8 - Conclusion of Law No. 7 Petitioners argue that the met their burden of proving that they were entitled to purchase their service under Section 121.081(1)(g), Florida Statutes; however, they offer no basis in law or fact would allow the Division to conclude the Hearing Officer was in error. In the absence of an adequate legal basis or contrary evidence in the record, the Division rejects Petitioners' objection.
By motion prior to the hearing, Petitioners Wilson and Stone moved to add Metropolitan Dade County as a art Respondent. The motion was denied by the bearing Officer, and the Division hereby adopts that ruling as part of this final order.
The Recommended Order is corrected at page 8, paragraph 20, line 6, wherein the month of "January" is changed to read "February".
WHEREFORE based upon the foregoing findings, holdings and rulings or the Division as to Petitioners' exceptions to the Hearing Officer's Recommended Order, it is,
ORDERED AND DIRECTED that each and every exception of the Petitioners' to the Recommended Order be and the same are OVERRULED and REJECTED. It is further,
ORDERED AND DIRECTED that copy of said Recommended Order is attached hereto and incorporated as part of this final order. It is further,
ORDERED AND DIRECTED that Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at the rates allowed in Section 121.081(1)(g), Florida Statutes, are denied.
DONE AND ORDERED this 20th day of October, 1983.
J. MULLIAN, III
State Retirement Director
Filed with the Clerk of the Division of Retirement this 21st day of October, 1983.
Edna E. Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125
Edward F. Hodowud 8874 Emerson Avenue
Surfside, Florida 33154
Linda M. Rigot, Hearing Officer Dan Brown, Esquire Division of Administrative Hearings John Finney, Esquire The Oakland Building Paul McMahon
2009 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Oct. 21, 1983 | Final Order filed. |
| Aug. 31, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 20, 1983 | Agency Final Order | |
| Aug. 31, 1983 | Recommended Order | Denial of Petitioners' request to purchase their past service with private bus companies in the Florida Retirement System (FRS) because not timely employed. |
