STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIA BRAY FIORENTINO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2309

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 28, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: J. Clark Hamilton, Jr., Esquire

801 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

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

2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

BACKGROUND

This matter arose when petitioner, Julia B. Fiorentino, a public school teacher, made inquiry with respondent, Department of Administration, Division of Retirement, on May 19, 1983 regarding her retirement account under the Florida Retirement System. By proposed agency action in the form of a letter dated June 13, 1983, respondent advised petitioner, inter alia, that on June 30, 1964 she had withdrawn from membership in the Teachers Retirement System previously established in August, 1960, that such membership was not established until September, 1964 and by virtue of the break in membership she was eligible to claim out-of-state service only under the "total cost" provisions of Chapter 238, Florida Statutes. Those provisions generally provide that the total cost method must be used when the membership date is subsequent to October 1, 1963.

Petitioner disputed the proposed agency action and requested a formal hearing pursuant to Subsection 120.57(1) Florida Statutes. The matter was referred by respondent to the Division of Administrative Hearings on July 25, 1953 with a request that a Hearing Officer be assigned to conduct a hearing. By agreement of the parties, the final hearing was scheduled on November 20, 1983 in Jacksonville, Florida.

At the final hearing, petitioner testified on her own behalf and offered petitioner's exhibits 1-5; all were received in evidence. Respondent presented the testimony of Ruth Sansom, chief of the Division's Bureau of Retirement Calculations.

The transcript of hearing was filed on January 6, 1984. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on December 13, 1983 and January 6, 1984, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether petitioner's membership in the Teacher's Retirement System should be established as of August, 1960 or September, 1964, and which method should be used in claiming out-of-state service in calculating her retirement benefits.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Julia B. Fiorentino, is presently employed by the Duval County School Board (Board) as Assistant Principal for Curriculum at Fort Caroline Junior High School in Jacksonville, Florida.

   
   

2. From 1949 until 1959, petitioner was a teacher in the North Carolina public school system. In August, 1960, she began employment with what is now the Duval County School Board and established membership on that date in the Teacher's Retirement System (TRS). She worked continuously for the Board until June, 1964 and made all required contributions into the TRS during that period of time.

   
   

3. On June 4, 1964, while employed as a teacher at Terry Parker High School, petitioner was granted maternity leave by the Board for the period of July 1, 1964 through July 1, 1965 in order to adopt a child. On July 16, 1964, she made application for refund of all contributions previously paid into the TRS through June 30, 1964. This amount totaled $1,264.92. A warrant was subsequently issued by the State on August 25, 1964 and Fiorentino cashed the warrant at a later time. When the application for refund was submitted to the State, the Board certified that Fiorentino had terminated employment with the Board as of June 30, 1964.

   
   

4. When petitioner made application for maternity leave and withdrawal of her contributions, she did not inquire nor was she told by any Board employee of the consequences of withdrawing the contributions and terminating membership in the TRS for purchasing out-of-state service on her date of retirement. Instead, she was under the impression that she could repay the contributions, plus interest, before retirement and reestablished her prior membership date as of August, 1960.

   
   

5. Fiorentino later decided that she did not wish to take maternity leave and was rehired by the Board as a full-time employee effective September, 1964. She was re-enrolled in the TRS and has made the required contributions to the plan since that date.

6. At the same time she left her teaching position in June, 1964, Fiorentino was employed as a part-time instructor at Florida Junior College in Jacksonville. This employment continued at least until she again became a full- time employee with the Board in September, 1964. It is disputed as to whether Fiorentino made contributions to the TRS while employed on a part-time basis. However, this is immaterial to the resolution of the issue herein.

   
   

7. At some point in early 1983, Fiorentino made inquiry with respondent, Department of Administration, Division of Retirement, to determine her retirement benefits. She also repaid the $1,264.92 with interest previously withdrawn in 1964 which by then amounted to $3,147.05. When she sought to claim the ten years out-of-state service in computing her benefits, she was advised that in order to receive credit for that time, she must pay the "total cost" of her salary during those years, or approximately $79,000. This was because her TRS membership date was September 1, 1964, and any membership date after October 1, 1963 caused the claimant to be subject to the total cost method. Had her membership date been August, 1960, when she was first employed by the Board, the required payment would have been reduced to approximately $6,000, which represented the salary earned multiplied by 8 percent plus interest.

   
   

8. A Department bureau chief explained that under long-existing Department policy, as authorized by Subsection 238.05(4) Florida Statutes, only full-time employees are permitted to be members of the TRS. Therefore, her employment with a junior college did not qualify Fiorentino for membership in the TRS. Further, in order to receive a refund from the TRS, a teacher must terminate his or her employment. If reemployed again, the membership date becomes effective on the date of employment, and cannot be made retroactive even if the contributions are repaid. A member is not dropped from membership in the TRS by going on a leave of absence, as Fiorentino did, but if the contributions are withdrawn, membership is automatically terminated.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. Subsection 238.05(3), Florida Statutes, is controlling herein and it provides in part as follows:

    
    

    ...membership of any person in the retire ment system shall cease if the person shall be continuously unemployed as a teacher for a period of more than 5 consecutive years; or upon the withdrawal by a member of his accumulated contributions as provided in subsection 238.07(13), or upon retirement... (emphasis added)

    
    

    Subsection 238.05(4), Florida Statutes, provides that "[t]he division may in its discretion deny the right to become members to any class of teachers who are serving on a temporary or any other titan a per annum basis..."

    
    

11. Under the foregoing principles, then, once a member withdraws his or her accumulated contributions, membership in the TRS must cease. Moreover, "temporary employment cannot serve to bridge the gap between the time such membership ceases, and the time when full-time employment again commences.

12. Petitioner contends basically that (a) she was not told the consequences of her action in June, 1964 by her employer, arid (b) the part-time employment at a junior college in July and August, 1964 continued her membership in the TRS without interruption. As to the first contention, there has been no showing that the doctrine of estoppel lies, or that any other legal theory would entitle her to prevail under the facts presented herein. While the Board may have been somewhat negligent in failing to tell her the full ramifications of her actions, there was similarly no evidence that Fiorentino specifically requested such information from the Board. As to the second point, the law is clear that once the contributions are removed from the TRS, membership "shall cease." Under longtime policy of the Division, and with statutory authorization to do so, respondent has consistently held that temporary employment does not qualify one for membership in the TRS. Therefore, it is concluded that membership ceased effective June 30, 1964 and was not rejuvenated by the part- time job that summer. It is further concluded that such membership became effective again only when petitioner was given a full-time contract in September, 1964, and that the latter date must be used when determining the cost of purchasing out-of-state service pursuant to Subsection 238.06(4), Florida Statutes.

    
    

13. This result may seem unfair, particularly where an obviously uninformed decision made almost 20 years ago has cost the claimant over $70,000. Nonetheless, until the law is changed, the legislature has mandated such a result.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of Julia B. Fiorentino to have her membership

date in the Florida Retirement System established as of August, 1960 be DENIED. DONE and ENTERED this 12th day of January, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 12th day of January, 1984.

COPIES FURNISHED:

J. Clark Hamilton, Jr., Esquire 801 Blackstone Building

233 East Bay Street Jacksonville, Florida 32302

Augustus D. Aikens, Jr., Esquire 2639 North Monroe Street

Suite 207C-Box 81

Tallahassee, Florida 32303

Nevin G. Smith Secretary

Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301

Docket for Case No: 83-002309

Orders for Case No: 83-002309