Judges: SHARYN L. SMITH
Agency: Department of Management Services
Latest Update: May 01, 1990
Summary: Petitioner, Commissioner of Canaveral Port Authority, should be allowed to purchase Florida Retiremnet System (FRS) credit for two years as a per diem employee.
83-2138STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES H. CLENDENIN, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2138
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in the above- styled case on November 22, 1983, in Cocoa Beach, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Robert T. Westman, Esquire
STROMIRE WESTMAN LINTZ BAUGH McKINLEY AND ANTOON, P.A.
1970 Michigan Avenue, Building C Post Office Box 1888
Cocoa, Florida 32923
For Respondent: Augustus D. Aikens, Esquire
Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C Box 81 Tallahassee, Florida 32303
The issue for determination at the final hearing was whether the Petitioner James H. Clendenin is entitled to retirement credit for service as a Port Commissioner of the Canaveral Port Authority prior to January 1, 1969.
At the final hearing, James H. Clendenin, Barbara Smith and Lorene Voss, testified for the Petitioner. Petitioner's Exhibits 1-7 and Respondent's Exhibits 1-3 were offered and admitted into evidence.
Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.
When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally,
proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
FINDINGS OF FACT
The Petitioner James H. Clendenin was elected to the office of Commissioner of the Canaveral Port Authority and served as a Port Commissioner from January 1, 1967 through December 31, 1982. The Petitioner was one of five Commissioners of the Authority.
The Petitioner was not enrolled in the Florida Retirement System, Chapter 121, Florida Statutes, or any prior system until January 1, 1969. Prior to that date he was enrolled from January 1, 1969 through November 30, 1970, in the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes.
The Port Authority, the authorized governing body of the Canaveral Port District, is an autonomous public entity created and established by Chapter 28922, Laws of Florida, 1953.
As a Commissioner, the Petitioner was paid monies for his service for calendar years 1967 and 1968 which were reported as income--to the Internal Revenue Service.
Prior to January 1, 1969, the Petitioner was required to submit a voucher for expenses and was paid on a fee basis. He received $25 per day in per diem and was reimbursed through an expense account. In order to receive the
$25 which was characterized as per diem pay under the special act, the approval of the other four Commissioners was required. The total per diem was paid to each Commissioner on a monthly basis.
After January 1, 1969, salaries were authorized for Commissioners and the per diem system was abandoned. Thereafter, the Petitioner received a salary check without request or required attendance at the Authority's meetings.
On January 1, 1969, Petitioner submitted an application for enrollment in the State Retirement System. His application was accepted and the Petitioner began to accrue retirement service credits.
Upon Petitioner's retirement, he attempted to claim and purchase prior service credits for 1967-1968. However, Petitioner was denied the opportunity to pay retirement contributions for retirement service credits for those years, and monies he had paid to purchase the prior service period were refunded. Consequently, Petitioner was credited with only 13.30 total years of service instead of 15.30 years. The difference in benefits amounts to 18.78 per month.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Florida Retirement System, Chapter 121, Florida Statutes, became effective December 1, 1970. Simultaneously the Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System. At the time of his transfer, the relevant statutory provisions governing membership in the system, which have not materially changed
since 1970, provide at Sections 121.021(11), (12) and (22), Florida Statutes, as follows:
"Officer or employee" means any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group.
"Member" means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter. On and after December 1, 1970, all new members and those members transferring from existing
systems shall be divided into two classes:
"special risk members" (special risk officers or employees) and "regular members" (other than special risk officers or employees).
"Compensation" means the monthly salary paid a member, including overtime payments and bonuses paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compensation shall be the total cash remuneration received from such fees. Under no circumstances shall compensation include fees paid professional persons for special or particular services.
The Canaveral Port Authority is' an autonomous public body created by or pursuant to a special act of the Florida Legislature and a "Special District" as defined by Section 121.021(9), Florida Statutes. It is an employer as defined in Section 121.021(10),Florida Statutes.
From the time the Petitioner was elected to the Port Authority to the time he retired, the titles of the special acts in existence which governed compensation of the Commissioners stated either that the special acts provided and regulated .... the salaries of port commissioners," or established .... .
a salary for each commissioners of the port district in place of the existing allowances for per diem and mileage." See subsection 7, Chapters 65-1287 and 69- 686, Laws of Florida.
Although the body of the 1965 special act uses the terms "per diem" rather than "salary", when the body of the act is read in conjunction with the title, it is clear that the "per diem" payment was intended as a compensation or salary for work performed, with a salary cap of $1,500 regardless of days spent on Authority business. Travel was a separate item and was reimbursed at the rate of 10 cents a mile exclusive of the $1,500 cap, as were other actual expenses.
Moreover, the office of Port Commissioner is and was a regularly established position created by special act which provides that the term of office for each Port Commissioner shall be four years.
In the instant case, the term "per diem" as used in the 1965 special act was an unfortunate choice of terms which has resulted in the Respondent taking the position that the Petitioner was a non-salaried elected official who received no compensation during 1967-1968 but did receive per diem. See Rule 22B-1.04 (6)(e)(9), Florida Administrative Code.
The evidence presented at final hearing established that the Petitioner was a duly elected public officer in a regularly established non- temporary position created by special act, who received a yearly salary capped at $1,500 based on per diem payments exclusive of travel and other expenses. As such he is entitled to purchase additional prior service for the years 1967-1968 upon payment to the Retirement Fund of $496.68, and receive benefits retroactive to the date the Respondent received from the Petitioner the monies previously paid for the purchase of additional service.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That a Final Order be entered by the Respondent permitting the Petitioner to purchase additional service as a Port Commissioner for 1967 and 1968 upon payment to the Retirement Fund of $496.68 and increase the Petitioner's retirement benefit to the amount originally calculated to be due him by the Division of Retirement, retroactive to the date the Respondent received from the Petitioner monies paid for the purchase of the additional service.
DONE and ENTERED this 19th day of March, 1984, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301 904/488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984.
COPIES FURNISHED:
Robert T. Westman, Esquire STROMIRE WESTMAN LINTZ BAUGH McKINLEY AND ANTOON, P.A.
1970 Michigan Avenue, Bldg. C Post Office Hox 1888
Cocoa, Florida 32923
Augustus D. Aikens, 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
JAMES H. CLENDENIN,
Petitioner,
vs. DOAH Case No. 83-2138
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
The Recommended Order in this case having been entered on March 19, 1984, the agency hereby enters the following Findings of Fact and Conclusions of Law, after having considered the Recommended Order:
FINDINGS OF FACT
The Petitioner, James F. Clendenin, was elected to the office of Commissioner of the Canaveral Port Authority and served as Port Commissioner from January 1, 1967 through December 31, 1982. The Petitioner is one of five Commissioners of the Authority.
The Commissioner was not enrolled in the Florida Retirement System, Chapter 121, Florida Statutes, or any prior system until January 1, 1969. Prior to that date he was enrolled from January 1, 1969 through November 30, 1970 in the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes.
The Port Authority, the authorized governing body of the Canaveral Port District, is an autonomous public entity created and established by Chapter 28922, Laws of Florida, (1953).
As the Commissioner, the Petitioner was paid monies for his services for calendar years 1967 and 1968, which were reported as income to the Internal Revenue Service.
Prior to January 1, 1969, the Petitioner was required to submit a voucher for expenses and was paid on a fee-basis. He received $25 per day in per diem and was reimbursed through an expense account. In order to receive the
$25, which was characterized as per diem pay under the Special Act, the approval of the other four Commissioners was required. The total per diem was paid each Commissioner on a monthly basis.
After January 1, 1969, salaries were authorized for Commissioners and the per diem system was abandoned. Thereafter, the Petitioner received a salary check without request or required attendance at the Authority's meetings.
On January 1, 1969, Petitioner submitted an application for enrollment in the Florida Retirement System. This application was accepted and the Petitioner began to accrue retirement service credits.
Upon Petitioner's retirement, he attempted to claim and purchase prior service credits for 1967-68. However, the Petitioner was denied the opportunity too pay retirement contributions for retirement service credits for those years, and monies he had paid to purchase the prior service, were refunded. Consequently, the Petitioner was credited with only 13.30 total years of service instead of 15.30 years. The difference in benefits amounts to $18.78 per month.
CONCLUSIONS OF LAW
The agency rejects the Conclusions of Law contained in the Recommended Order, inasmuch as the hearing officer's construction of the law is not consistent with the statutes and rules of the Department which are germane, nor is the hearing officer's construction of the statutes in question consistent with the rules of statutory construction normally employed. Accordingly, the agency enters the following Conclusions of Law:
The Department of Administration has jurisdiction over the subject matter and parties to this action. Section 120.57(1), Florida Statutes.
The Florida Retirement System, Chapter 121, Florida Statutes, became effective December 1, 1970. Simultaneously, Petitioner transferred to FRS from SCOERS. At the time of his transfer the relevant statutory provisions governing membership in the system, which have not materially changed since 1970, provide at Sections 120.021(11), (12) and (22), Florida Statutes, as follows:
"Officer or employee" means any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group.
"Member" means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter.
(22) "Compensation" means the monthly salary
paid a member, including overtime payments and bonuses paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form -2) or any similar form. When a member's compensation is derived from fees set by statute, compensation shall be the total cash remuneration received from such fees. Under no circumstances shall. Compensation include fees paid professional persons for special or particular services.
The Canaveral Port Authority is an autonomous public body created by or pursuant to an act of the Legislature and a "Special District" as defined by Section 121.021(9), Florida Statutes. It is an employer as defined in Section 121.021(10), Florida Statutes.
Petitioner became a public officer upon taking the oath of office and posting bond as a Port Commissioner.
Although most public officers are primarily engaged in the performance of independent duties not imposed on other officials jointly with them, in many cases persons become public officers by being made members of official boards on which are imposed public duties and responsibilities. Among various well-known instances of boards of public officers are Board of Education, Boards of Law Examiners, the Board of Control, and the A Board of Dental Examiners. On the other hand, the members of an advisory board of a county health unit are not public officers. 9 Fla. Jur. 2d Civil Servants, Section 18. The method of paying compensation of public officers is generally fixed by law and that method is controlling. Salary may be defined as a fixed periodical or annual payment for services to the officer depending on the time and not on the amount of services rendered. The outstanding feature of salary is fixed compensation by time. 68 Am Jur. 2d, Public Officers and Employees, Section 376. (Emphasis supplied.)
In Hanchey v. State, 52 So.2d 429 (Fla. 1951), the Court held the right to compensation is an incident to the office entitling the person holding the office to compensation. This right of compensation is not impaired by the public officer's occasional or protracted absence, temporary incapacity to perform his duties, or even neglect of the public officer's duties.
Petitioner consequently was not paid a monthly salary as the compensation of his off ice was dependent upon: (1) attendance of Port meeting and (2) submission and approval of his request for per diem payment, provided further Petitioner had not exceeded the maximum amount permissible during the year. Petitioner's compensation was not salary since it was not fixed compensation by time, i.e. $150 per month, until it was changed by Chapter 69- 868, Laws of Florida, effective January 1, 1969 through December 21, 1982. The Legislature's intent in enacting Chapter 69-868 was to establish a salary:
AN ACT relating to Brevard County; amending section 7 of article V, chapter 28922, Laws of Florida, 1953, as amended; establishing
a salary for each commissioner of the Canaveral port district in place of the existing allowances for per diem and mileage; providing an effective date. (Emphasis supplied.)
Although Petitioner has been an officer since January 1, 1967, by virtue of assuming the Port Commissioner'S office, he was not an officer as defined by Section 121.021(11), Florida Statutes, in that he did not receive salary payments for work performed in a regularly established position.
To obtain retirement service credit for the years 1967 and 1968, Petitioner must show he is eligible to purchase this time as prior service. Prior service is defined in Section 121.021(19)(b) as:
(b) Service prior to an employee's member- ship in the Florida Retirement System with an employer, either before or during the employer's participation in an existing system. The word "service as used in this paragraph and paragraph (c) means employment
service which, at the time is claimed as prior service, satisfies the requirements for a regularly established position, as defined by rules of the Florida Retirement System. (Emphasis supplied.)
At the time Petitioner claimed the 1967-68 service the FRS Rule 22B- 1.04(5)(b) provided:
A regularly established position in a local agency (district school board, county agency, community college, city and special district) is an employment position which will be in existence for a period of 4 or more consecutive months. A regularly established position shall be compensated from the employer's regular salaries and wages account as required by:
3A-65.06, F.A.C. for county and city agencies; 6A-1.01, F.A.C. for district school boards.
Whether the position extends beyond four consecutive months or not, temporary positions are not eligible for FRS coverage.
Chapter 22B-1.04(6)(e)(9), Florida Administrative Code, which states: "The following types of positions in a local
agency are considered temporary positions for retirement purposes. This is not a complete list of temporary positions and should be
used only as a guide, along with the definitions above, in determining if an individual is filling a temporary position.
(9) Non-salaried Elected Officials (persons elected or appointed to a position in which
they receive no compensation, but receive expenses,
e.g. per diem or an honorarium).
Since Petitioner received per diem and not "compensation" as compensation is defined in Section 121.021(22), Florida Statutes, he is ineligible to claim prior service.
Accordingly, it is ORDERED:
1. The Petitioner's request to purchase prior service retirement credit for his tenure as a Port Commissioner during calendar years 1967 and 1968 is denied.
So ordered this 7th day of June, 1984, in Tallahassee, Florida.
Nevin G. Smith
Secretary of Administration Department of Administration
435 Carlton Building Tallahassee, Florida 32301 (904)488-4116
Certificate of Clerk
Filed in the official records of the Department of Administration this 7th day of June, 1984.
Brenda Grant, Clerk
COPIES FURNISHED:
Robert T. Westman, Esquire Augustus D. Aikens, Esquire
Docket for Case No: 83-002138
Orders for Case No: 83-002138
| Issue Date |
Document |
Summary |
|
Jun. 07, 1984 |
Agency Final Order
|
|
|
Mar. 19, 1984 |
Recommended Order
|
Petitioner, Commissioner of Canaveral Port Authority, should be allowed to purchase Florida Retiremnet System (FRS) credit for two years as a per diem employee.
|
