LINDA S. POWELL, )
vs. )
DEPARTMENT OF ADMINISTRATION, ) CASE NO. 83-2997 DIVISION OF RETIREMENT, )
Respondent. )
A public hearing was held in this case on April 12, 1984, in Orlando, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
For Petitioner: Terry C. Young, Esquire
For Respondent: Stanley M. Danek, Esquire
Division of Retirement 2639 North Monroe Street Suite 207-C, Box 81 Tallahassee, Florida 32303
The issue is whether the Petitioner, Linda S. Powell, had completed five years of creditable service as of July 1, 1980, in order to meet the service credit requirement for disability retirement benefits.
The Petitioner presented three witnesses, Robert O. Williams, Robert J. Baker, and Linda Sharon Powell. Petitioner also presented one exhibit.
Respondent presented the testimony of Fred Stellrecht and Ruth Sansom, together with four exhibits. The parties filed proposed findings of fact and conclusions of law as permitted by the statutes. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions, and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
Additionally, at hearing, the parties entered certain facts into the record by stipulation.
The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months.
In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980.
The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee.
If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement.
Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program.
At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II.
Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program.
In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security.
In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program.
The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1).
CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County.
Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3).
The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent.
Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).
In order to determine whether or not Ms. Powell may purchase her CETA service from February to September 1975 as creditable service under the Florida Retirement System, the rules in effect in 1975 and current rules must both be examined. If Ms. Powell is able to purchase that questioned service under either set of rules, she would be permitted to do so.
Looking first to the rules of the Florida Retirement System (FRS) as they existed in 1975, it is clear that membership in the FRS was open to all officers and employees filling regularly established positions who are employed on or after December 1, 1970. Rule 22B-1.04, Florida Administrative Code. Under the 1975 rules of the Division of Retirement, Rule 22B-6.01(27), Florida Administrative Code, defined a member as:
. . . any person receiving salary
payment for work performed in a regularly established position . . .
Further, in Rule 22B-6.01(29), Florida Administrative Code, an officer or employee was defined as:
. . . any person receiving salary payments for work performed in a regularly established position . . . Persons included in this
definition are those receiving salary payments for temporary, part-time, full-time, probationary, or seasonal employment.
Persons not included in this term are those paid from a fund created to pay for other personal services or who are paid from any fund other than a salary fund.
Rule 22B-6.01(36), Florida Administrative Code, defined regularly established positions as:
. . . any position authorized in an employer's approved budget or amendments thereto for which salary funds are specifically appropriated to pay for the salary of that position.
Under the applicable rule provisions, it was necessary for an individual to be employed in a regularly established position and be paid compensation from a salary fund in order to be considered an officer or employee and a member of the FRS. Since Ms. Powell occupied a temporary position, did not hold a regularly established position with the County, was paid from federal funds, and was not paid from a budgeted salary account, she was not an "employee" of the County and, therefore, was not eligible for membership in the FRS.
In regard to the present rules of the FRS, an individual may obtain credit for previous service only where such credit is defined as "past service" or "prior service" in those rules. Rule 22B-6.01(35) and (37), Florida Administrative Code. A member of the FRS may receive credit for past service only by purchasing that service under Rule 22B-2.03, Florida Administrative Code. In the present case, Ms. Powell is not eligible to purchase past service credit, since her service was not with a city or special district; was not due to the transfer, consolidation, or merger of governmental units; or was not with the Cuban Refugee Assistance Program
As to prior service, the definition in Rule 22B-6.01 (37), supra, requires in pertinent part that it shall be:
(d) Service with an employer who participates in an existing system prior to an employee's membership in the Florida Retirement System during which service the employee was not a member of an existing retirement system and did not make any retirement contributions, provided such service would have been
creditable under the Florida Retirement System.
Additionally, Rule 22B-2.04, Florida Administrative Code, provides six situations in which prior service can become creditable under the Florida Retirement System. An analysis of those six situations shows that Ms. Powell's service between February and September 1975 does not come under any of the six listed situations. Furthermore, under the present rule, it must be determined whether Ms. Powell's prior service would have been otherwise creditable under the Florida Retirement System. In order to make this determination, the status of CETA employment under the present rules must be reviewed
Rule 225-1.04(5)(c)6.a. and b., Florida Administrative Code, states as follows:
CETA participants employed after June 30, 1979, under the federal Comprehensive Employment and Training Act
shall be considered to be filling a temporary position for retirement purposes.
CETA participants employed prior to July 1, 1979, who are already covered for retirement may continue to have retirement coverage for the duration of their participation in the CETA program.
Therefore, beginning July 1, 1979, CETA positions were temporary positions, not regularly established positions. CETA positions are therefore not otherwise creditable under the Florida Retirement System as required in Rule 22B- 2.04(1)(b)4., Florida Administrative Code. Additionally, under the above rules, a CETA employee employed prior to July 1, 1979, may continue coverage, but that does not entitle that CETA participant to purchase prior service for non- membership CETA service.
It is therefore concluded that Ms. Powell is not eligible under the present rules to purchase credit for prior service in the FRS for the period between February and September 1975. It is also concluded that she is not eligible to purchase that service under the rules in existence in 1975.
Ms. Powell argues that present Rule 22B-1.04(6), Florida Administrative Code, requires:
Any employer employing a person in a temporary position shall advise the employee at the time of his participation that he is filling a temporary position and cannot participate in the Florida Retirement
System or claim this temporary employment later for retirement purposes.
Petitioner argues that Orange County failed to advise her that she was filling a temporary position in exactly the language of the rule. It is concluded that Ms. Powell was advised that she was filling a temporary position and was not entitled to fringe benefits. That notice sufficiently complies with the language of the rule and places an employee on notice that he cannot participate in the Florida Retirement System or claim that service later for retirement purposes. Furthermore, even if Ms. Powell was not adequately advised of her temporary status, present Rule 22B-1.04 (6) only became effective July 1, 1979. It was not in effect at the time Ms. Powell began her CETA employment with Orange County.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her
employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System.
DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984.
Terry C. Young, Esquire
Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303
Nevin G. Smith, Secretary Department of Administration
