STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ESCAMBIA COUNTY UTILITIES AUTHORITY, )
W. F. HAMPTON, TERRY BUSBEE, GEORGE ) DAVIS and WILSON B. ROBERTSON, )
)
Petitioners, )
)
vs. ) Case No. 85-1718
)
DEPARTMENT OF ADMINISTRATION, )
DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on September 24, 1985, together with a consolidated rule challenge, No. 85-2518R. The Division of Administrative Hearings received the transcript of proceedings on October 17, 1985. Petitioners' unopposed motion for extension of time in which to file a proposed recommended order was granted, the motion reciting a stipulation by the parties waiving time for entry of the recommended order.
APPEARANCES
The parties are represented by counsel: For Petitioners: James W. Linn, Esquire
CARSON LINN, P.A.
Cambridge Centre
253 East Virginia Street Tallahassee, Florida 32301
and RAY & KIEVIT
15 West Main Street Pensacola, Florida 32501
For Respondent: Stanley M. Danek, Esquire
Cedars Executive Center 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32303
After respondent informed petitioners that they were ineligible "for membership in the Elected State Officers' Class," by letter dated April 17, 1985, petitioners filed their petition for formal administrative proceedings with the Division of Retirement, Department of Administration, on May 14, 1985. In keeping with Section 120.57(1)(b)3., Florida Statutes (1985), the Division of Retirement transmitted the petition to the Division of Administrative Hearings. By order entered August 14, 1985, the present case was consolidated with the challenge petitioners filed against Division of Retirement Rule 22B-1.055(2)(d). Case No. 85-2518R.
At hearing, ruling was reserved on objections to portions of certain depositions. Each of the three objections lodged to various portions of Ruth Sansom's deposition beginning on page 8, line 17, and continuing through page 13, line 15, is sustained.
The objections to the portions of Andrew J. McMullian III's deposition, beginning on page 5, line 25, continuing through page 8, line 6; and beginning on page 11, line 19 and continuing through line 25 on the same page; and beginning on page 16, line
12 and continuing through page 18, line 4, are sustained.
The parties submitted proposed recommended orders, including proposed findings of fact, which are dealt with specifically in the attached appendix.
ISSUE
Whether petitioners Hampton, Busbee, Davis and Robertson, as elected board members of the Escambia County Utilities Authority, are eligible for membership in the Elected State Officers' Class of the Florida Retirement System as "county elected officers" within the meaning of Section 121.052(1)(g), Florida Statutes (1985)?
FINDINGS OF FACT
By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State; Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . receive a higher retirement benefit for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19.
ECUA CREATED.
A few years back, "Escambia County and the City of Pensaco1a, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the
.,. customers but not the facilities ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to built] treatment facilities
. . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida, (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985).
The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985).
The original Special Act transferred city and county utility employees to the ECUA "without loss of benefits, Ch. 81- 376, Section 9(c), Laws of Florida (1981j, and specifically provided, with respect to retirement benefits:
(b) The authority may provide social security for its employees pursuant to the provisions of chapter 650, Florida Statutes, and may bring its employees under the Florida Retirement System, the State and County Officers and Employees Retirement System, or any other qualified retirement program.
(c) . . .
Employees who are transferred to the authority and who are members of the retirement systems available to employees of the City of Pensacola or Escambia County shall not lose those pension or retirement rights or any reserves accrued to their benefit during the period of their employment by the city or county. Such employees may
elect to retain the pension and retirement rights accrued during the period of their employment by the city or the county. Any employee so electing shall give written notice of his election, within thirty (30) days or such longer period of time determined by the authority after the effective date of the transfer, to the City Manager of the City of Pensacola or to the County Administrator of Escambia Coutny, as appropriate, who shall then process the notice. In the event any employees elect to retain their pension and retirement rights accrued during the period of their employment with the city or the county, or prior to such election, the authority shall pay into the appropriate retirement system during the period that such employees remain as authority employees, such sums of money as are paid by the city or the county for the benefit of such employees in order to guarantee their continuing participation in such retirement program.
The authority may make appropriate deductions
from the employees' salaries to preserve their retirement benefits. Chapter 81-376 Section 9(d), Laws of Florida (1981)
Escambia County joined the Florida Retirement System effective October 1, 1982. (T. 90) None of the individual petitioners were transferred to the ECUA by Chapter 81-376, Section 9(c), Laws of Florida (1981), although Terry D. Busbee, the Chairman, had worked for Escambia County for 18 years, as Supervisor of Taxes, (T. 58) and W. F. Hampton was employed with a governmental agency participating in the Florida Retirement System as early as 1977. Petitioners' Exhibit No. 3.
ELECTED BOARD
As required by Chapter 81-376, Section 4, Laws of Florida (1981), the Escambia County Commission selected three members of the ECUA Board, two of whom were county commissioners; and the Pensacola City Council selected three members of the ECUA Board, two of whom were city councilmen. These six then selected the seventh and final ECUA board member. Thereafter, a second Special Act, Chapter 83-403, Laws of Florida (1983) and then a third amended the original Special Act, to provide that the successor of the third County Commission appointee and the "successors of the members of the Board of County Commissioners] and [City] Council appointed to" Chapter 84-427, Section 1, Laws of Florida (1984), the ECUA Board, would be elected in 1984,
while the terms of the other two ECUA board members would, "expire upon the commencement of the terms of the members," Chapter 84-427, Section 1, Laws of Florida (1984), elected to succeed the county commission appointees and the city council members. These five were "eligible for reelection." Chapter 81-
376 Section 4(c), Laws of Florida (1984). The four individual petitioners in the present case seek membership in the Elected State Officers' Class effective January 8, 1985, the date the successor terms began.
By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5.
Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECU board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2.
The ECUA is on the same fiscal year as Escambia County, October 1 to September 30 (T. 63) and its territorial; jurisdiction is coextensive with Escambia County. The ECUA has all of the duties that Escambia County and the City of Pensacola had relative to water and sewer, before ECUA's creation. (T. 65) The ECUA's principal source of revenue is utility charges, at rates which it is empowered to establish, Chapter 81-376, Section 8, Laws of Florida (1981), although it receives state and federal grants (T. 93); and has authority to borrow money, and has in fact issued bonds. (T. 80) For the fiscal year ending September 30, 1984, Escambia County paid $2,230,040 to the Social Security system while ECUA paid $342,402.00 Petitioners' Exhibits 4 and 5.
POWERS AND DUTIES
The Special Act confers on the ECUA "all privileges, immunities and exemptions accorded political subdivisions of this state," Chapter 81-376, Section 5(j), Laws of Florida (1981) and makes ECUA's "property, facilities, services and activities .
non-taxable." Chapter 81-376, Section 6, Laws of Florida (1981).
For purposes of the Public Records Act, but not for the purposes of the Administrative Procedure Act, Chapter 81-376, Section 4(g), Laws of Florida (1981) provides that the ECUA "shall be deemed to be an 'agency'." The same provision specifies that the ECUA "shall be deemed an agency or authority of the county for purposes of S.286.011, Florida Statutes, the "'Government in the Sunshine Law'."
Although it once contracted for accounting services from the county, (T. 101), the ECUA budget is .separate and distinct from the county budget. The State Comptroller's Office has determined that ECUA "is an independent authority for purposes of Chapter 218," Deposition of Billy J. Givens, page 8, and the ECUA has not disputed this determination, possibly because it was never advised of the determination as such. The ECUA uses the same financial reporting form that counties and independent districts use in filings required by law to be made with the State Comptroller. The ECUA treats at least some "county buildings-as customers for water and sewer purposes." (T. 70)
In the spring of 1985, ECUA switched the tags on its vehicles from county tags to state tags. (T. 98) The ECUA must apply to Escambia County for permits in order to cross county rights of way (T. 101), just as the City of Pensacola did when it operated its water and sewer system. (T. 102) The ECUA also has to apply for a permit in order to cross city rights of way. (T.
101) Deposition of Charles W. Bates page 7.
COUNTY OFFICERS
The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts . . . ." Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40)
Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it was about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50)
In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus
Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)?" In the memorandum, Mr. Aikens declared himself
of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers' Class. Petitioner's Exhibit No. 1.
On November 6, 1984, however, respondent promulgated Rule 22B- 1.05, Florida Administrative Code, which did not make participation in the Florida Retirement System mandatory for any county officer and provided:
Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of
the circuit court, county commissioner, district school board member, and elected district school board superintendent.
The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers' Class under this provision.
An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d)
In these proceedings, respondent takes the position that this rule provision, and the statutory language it implements preclude petitioners' participation in the Elected State Officers' Class of the Florida Retirement System.
CONCLUSIONS OF LAW
Since the Division of Retirement elected to forward the petition to the Division of Administrative Hearings, the Division of Administrative Hearings "has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1985). Respondent's Motion for Dismiss for Lack of Standing is denied.
STATUTE CONTROLS
This case turns on construction of the language "any county elected officer" in Section 121.052(1)(g), Florida Statutes (1985), which provides:
On or after July 1, 1981, participation in the Elected State officers' Class shall be optional within the time provided herein for nay county elected officer, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit
court, county commissioner, school board member, or elected school board superintendent. Any such officer may, upon application to the administrator of the Florida Retirement System within 1 year from the date the officer first becomes eligible for membership by virtue of the office he holds, transfer to and participate in the Elected State Officers' Class. Benefits shall accrue upon the same basis as provided for other nonjudicial members of the class. Any such officer who is already a member of the Florida Retirement system upon election or appointment to office shall carry with him such retirement credit as he has accumulated in the retirement system or class within the Florida Retirement System from which he transfers.
Since the individual petitioners are all elected officials, the question becomes whether they are county officers.
That they and their offices are not listed in Rule 22B- 1.055(2)(d), Florida Administrative Code, is not determinative. To the extent Rule 22B-1.055(2)(d), purports to exclude from eligibility officers or offices not listed, it has been declared invalid by final order entered this date in Escambia County Utilities Authority et al. v. Department of Administration, Division of Retirement, No. 85-2518R.
STATUTORY CLASS INCLUDES PETITIONERS
The language of the statute does not limit the class of county elected officers to those specifically enumerated. Nor, the evidence showed, has respondent's practice limited the class to those specifically named. Both agency practice and the ejusdem generis rule of statutory construction require inclusion of elected county officers, whether listed by name or not.
Petitioners' situation is closely analogous to that of the comptrollers of Orange and Escambia Counties. In petitioners' case, as in the case of the comptrollers, portions of the powers executed and duties performed by officers listed in the statute have been transferred by special act of the legislature to newly created entities. Some of the clerks' powers and duties devolved upon the comptroller, just as some of the county commissioners' powers and duties devolved upon the ECUA board members.
Respondent contends that there are important differences, among them that the comptrollers took over roughly half the clerks' powers and duties, while ECUA board members did not take over such a large fraction from the county commissioners. But, in all likelihood, the ECUA budget dwarfs the Escambia County Comptroller's budget, given the different functions performed by the Comptroller and the ECUA. To judge from the difference between social security contributions ECUA and Escambia County made in the fiscal year ending September 30, 1984, ECUA's personnel costs are some 15 percent of Escambia County's.
Another distinction between the comptrollers and the ECUA is that the ECUA has duties and powers which once belonged to city government. Cities and counties have great latitude in allocating responsibilities among themselves by interlocal agreement, however, and local government charters may also be drawn to effect a variety of arrangements. Easily enough county officers can find themselves exercising powers and performing duties that once belonged to cities.
Respondent contends that ECUA's authority to provide utility services outside Escambia County, Chapter 85-410, Section 5(q), Laws of Florida, proves that ECUA is not a county agency and that the individual petitioners are not elected county officers. This argument fails for the same reason that the City of Tallahassee does not cease to be a city when it sells electricity outside city limits. See Leon County vs. Public Service Commission, 460 So. 2d 370 (Fla. 1984). Section 153.03(1), Florida Statutes (1985) specifically authorizes counties to furnish utility services to adjoining counties.
ECUA's change from county to state license tags was unrelated to any change in law and is not dispositive of the question whether ECUA is a county agency for purposes of Chapter
121. Although the ECUA has no ad valorem taxing power and is financially independent of county government, moneys that would otherwise have gone to Escambia County are a principal source of ECUA's revenue.
The explicit inclusion in the statute of school board members and elected school board superintendents demonstrates that officers with county-wide responsibilities are not disqualified simply because they work for an agency independent of the county commission. Respondent contends vigorously in its motion to dismiss that the fact that ECUA is an independent agency should be dispositive, but school boards are also independent.
For the same reasons the comptrollers of Orange and Escambia counties have been permitted to participate in the Elected State Officers' Class, the individual petitioners in this case should be allowed to participate. It is, accordingly,
RECOMMENDED:
That respondent grant the individual petitioners' requests to be included in the Elected State Officers' Class of the Florida Retirement System effective January 8, 1985.
DONE and ENTERED this 27th day of February, 1986, in Tallahassee, Florida.
ROBERT T. BENTON, II
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 27th day of February, 1986.
COPIES FURNISHED:
CARSON LINN, P.A.
Cambridge Centre
253 East Virginia Street Tallahassee, Florida 32301
Ray Kievit
15 West Main Street Pensacola, Florida 32501
Andrew J. McMullian, III, Director Division of Retirement
Building C
Cedars Executive Center Tallahassee, Florida 32303
Stanley M. Danek, Esquire Cedars Executive Center 2539 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303
APPENDIX
Petitioners' proposed findings of fact one through five, seven through fourteen, sixteen, nineteen, twenty, twenty-three through twenty-seven, twenty nine, thirty-one, thirty-three, thirty-four and thirty-five have been adopted, in substance.
Petitioners' proposed finding of fact six is supported by the weight of the evidence, except for the final sentence which states that ECUA board members are required to take the same oath of office as that sworn to by county commissioners." Although they are similar, the oaths are not identical.
Petitioners' proposed finding of fact fifteen incorporates petitioners' exhibit 6 which is accurate except that it overlooks the initial two years (1985-1987) during which some of the ECUA board members have two-year terms.
Petitioners' proposed findings of fact seventeen and eighteen fail to mention that ECUA also exercises powers and duties pertaining to what were city utilities.
Petitioner's proposed finding of fact twenty-one is supported by the weight of the evidence except for the second sentence, which was not proven.
Petitioners' proposed finding of fact twenty-two is accurate insofar as the date of the adoption of Rule 22B-1.055, Florida Administrative Code, but there was no competent evidence of the intent of the Division of Retirement, which, on this record, must be inferred from the language of the rule.
Petitioners' proposed findings of feet twenty-eight, thirty and thirty-two pertain to the course of free-form proceedings, which became immaterial once formal proceedings began.
Respondents' proposed findings of fact one through five, seven, eight, and nine have been adopted, in substance.
Respondents' proposed finding of fact six is supported by the weight of the evidence, except that it was Ch. 83-403, Laws of Florida (l984) that made the ECOA board elective.
After the Division informed Petitioners by letter dated April 17, 85 that they were ineligible "for membership in the Elected State Officers' Class", Petitioners filed their petition for formal administrative proceedings with the Division of Retirement on Hay 14, 1985.
The petition was assigned to the Division of Administrative Hearings. The instant case was later consolidated with a rule challenge by Petitioners in DOAH Case No. 185-2518R. A Final Order in the rule challenge was entered by the Hearing Officer on February 27; 1986, holding that Rule 22B-1.055(2)(d), Florida Administrative Code, was an invalid exercise of delegated legislative authority. That Final Order was not appealed by the Division.
HEARING OFFICER'S FINDINGS OF FACT
Because the Division is accepting certain of the Hearing Officer's Findings of Fact and rejecting others in part, each finding of fact in the Recommended Order will be considered individually.
Paragraph 1: Accepted.
Paragraph 2: Accepted.
Paragraph 3: Accepted.
Paragraph 4: Accepted.
Paragraph 5: Accepted.
Paragraph 6: Accepted.
Paragraph 7. Accepted in part, rejected in part. The jurisdiction of the Authority is greater than the prior jurisdiction of Escambia County since it may provide utility service to areas outside Escambia County. See Paragraph 2 of Recommended Order. The only source of revenue possessed by the Authority is utility rates paid by customers of its systems.
Funds obtained from bond issues, loans, or the federal government, are not considered as revenue.
Paragraph 8: Accepted.
Paragraph 9: Accepted in part. The phrase ".possibly because it was never advised of the determination as such" is rejected as having no support in the record.
Paragraph 10. Accepted.
Paragraph 11. Accepted.
Paragraph 12. Accepted.
Paragraph 13. Accepted.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
ESCAMBIA COUNTY UTILITIES AUTHORITY,
W. F. HAMPTON, TERRY BUSBEE, GEORGE DAVIS, and WILSON B. ROBERTSON,
Petitioners,
vs. DOR Case No. DR85-5
DOAH Case No. 85-1718
STATE OF FLORIDA,
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This case was presented on a petition by the Escambia County Utilities Authority, W. F. Hampton, Terry Busbee, George W. Davis, and Wilson B. Robertson, (hereinafter, the Authority), for review of the decision of the State Retirement Director, denying Messers. Hampton, Busbee, Davis, and Robertson membership in the Elected State Officers' Class (hereinafter, ESOC) of the Florida Retirement System (hereinafter, FRS). A hearing was held pursuant to notice on September 24, 1985, before Robert T. Benton II, designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: James W. Linn, Esquire
Carson & Linn, P.A. Cambridge Centre
253 East Virginia Street Tallahassee, Florida 32301
and Ray & Kievit
15 West Main Street Pensacola, Florida 32501
For Respondent: Stanley M. Danek, Esquire
Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C
Tallahassee, Florida 32303
CONCLUSIONS OF LAW
The Division adopts the section entitled "STATUTE CONTROLS" on page 12 of the Recommended Order, rejects the remaining conclusions of law beginning on page 13 of the Recommended Order and makes the following conclusions of law in the case.
The Authority by virtue of its creation by special act of the Legislature is a public agency. The Authority is not a constitutional county office nor a branch or arm thereof, and it is also not a statutory county office.
The Authority is more nearly like an independent special district. A special district is defined in Section 218.31(5), Fla. Stat., as follows:
"Special district" means a local unit of special government, except district school boards and community college districts, created pursuant to general or special law for the purpose of performing prescribed specialized functions, within limited boundaries.
Since the Authority establishes its budget independent of the County, it is further considered an "independent special district" as defined in Section 218.31(7), Fla. Stat., as follows:
"Independent special district" means a special district whose governing head is an independent body, either appointed or elected, and whose budget is established independently of the local governing authority, even though there may be appropriation of funds generally available to a local governing authority involved.
The Authority as an independent special district is a separate local government entity and is not a part of Escambia County. 1974 AGO, #074-387, 1971 AGO, #071154.
Special district is defined in Section 121.021(9), Fla. Stat., in part as follows:
". . . an autonomous district or public body created by or pursuant to an act of the Legislature."
An autonomous district is further interpreted in Rule 22B- 6.001(47), Fla. Admin. Code, to be:
". . . a district in which no. . . " county .
. . exercises any control whatsoever over the affairs or operation of the district". (emphasis added)
Since the Authority was created by Act of the Legislature and is independent of any governmental agency, the Authority is a special district under Chapter 121, Fla. Stat., and not a part of Escambia County or a branch or agency thereof.
The word "county" used in Section 121.052(1)(g), Fla. Stat., ("county elected officers"), is clear and unambiguous and is not reasonably susceptible to include offices (such as municipalities or special districts) that are not county offices, or officers. While in certain instances the use of general rules of statutory construction may be appropriate to construe the meaning of a law, in those situations in which the meaning of a word or phrases is clear and unambiguous, there is no reason or need to resort to the rules of statutory interpretation. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); Vooches v. City of Miami, et al, 199 So. 313 (Fla. 1940). The term "county" is clear and should be taken to mean its common and uniformly accepted definition, that is, a political subdivision of the State or a branch or arm thereof. There is no reason to believe or suppose it to have any other legal or factual meaning.
The term "county officer and employee" is not defined in Chapter 121, Fla. Stat. In fact, Chapter 121 does not even state that county officers and employees are compulsory members of FRS. In order to understand why they are compulsory members of FRS, it is necessary to realize that FRS is the successor retirement system to the prior State and County Officers' and Employees' Retirement System, Chapter 122, Fla. Stat. (hereinafter, SCOERS), which ceased to accept new members on November 30, 1970. Beginning December 1, 1970, all new members were enrolled in FRS. (Section 121.051(1)(a), Fla. Stat.)
Thus, to fully understand FRS, one must be familiar with SCOERS. In the same manner, to be familiar with SCOERS, one has to be familiar with its predecessor system, the County Officers' and Employees' Retirement System, old Chapter 134, Fla. Stat. (hereinafter, COERS). In each case, when the prior system was closed to new members, the succeeding system was opened for membership, (Deposition of Ruth Sansom, Division Exhibit No. 2)
The term "county" and "county . . . officers" used in Section 121.052(1)(g), Fla. Stat., must be read in para materia with the same terms used in either SCOERS and COERS. Fla. Jai Alai, Inc. v. Lake Howell Water and R. Dist., 305 So. 2d 522 (Fla. 1973); Deel Motors, Inc. v. Carrington, 305 So. 2d 811 (Fla. 3rd DCA 1974); Dibbetts v. Olson, 91 Fla. 824, 108 So. 679 (1926); Sanders v. State ex rel Shamrock Properties, 46 So. 2d 491 (Fla. 1980).
Under COERS, membership was compulsory for officers and employees of counties of the State. Section 134.01, Fla. Stat. (1953). Section 134.02(1), Fla. Stat. (1953), defines "officers and employees" to:
. . . include all full-time officers or employees, who receive compensation for service rendered from county funds or from funds of drainage districts of a county or counties, or who receive compensation for employment or service from any agency, branch, department, institution or board of any county in the State of Florida for service rendered such county.
Tbe COER System was consolidated effective July 1, 1955, into SCOERS (Section 122.01(1) ant (2), Fla. Stat.) which defined "state and county officers and employees" to:
. . . include all full-time officers or employees, who receive compensation for services rendered from state or county funds,
or from funds of drainage districts or mosquito control districts or a county or counties, . . . or who receive compensation for employment or service from any agency, branch, department, institution, or board of the state, or any county of the state, for service rendered the state or county from funds from any source provided for their employment or service regardless of whether the same is paid by state or county warrant or not.
Effective December 1, 1970, SCOERS was consolidated into FRS (Section 121.045(1), and 121.011(2)(a), Fla. Stat.) resulting in all county officers and employees being compulsory members of FRS. Section 121.051(1)(a), Fla. Stat.
Thus, under both COERS and SCOERS, the definitions of county officers and employees included only those persons who were:
paid a salary from county funds, or
paid a salary from any agency, department, institution or board of any county.
Clearly, then the implication is that the term "county" is restricted to mean "county government". The terms "agency, department, institution or board" must be limited to those that are part of county government and would not include an independent agency, such as a special district, since independent agencies are not part of county government. The Authority, as a special district and, therefore, an independent agency, is not part of county government, and its officers are not "county officers"
While Section 121.051(1), Fla. Stat., provided for compulsory membership for all officers and employees of all county agencies and school boards, Section 120.051(2)(b), Fla. Stat., provides for optional membership to certain agencies, to wit, special districts and cities. Pursuant to Section 9(b), Chapter R1-376, Laws of Florida, giving the Authority the option of joining FRS, the Authority enacted the necessary resolution and executed the proper contract to become a member agency of FRS on October 1, 1982, retroactive to October 1, 1981 (Division Exhibits 5 and 6). The Authority as an optional member could not be a county agency or arm thereof or it would have been a compulsory member. At no time has the Authority stated that it should have been a compulsory member with membership retroactive to October 1, 1981. If it did so, it could owe penalty charges from October 1, 1981, to October 1, 1982, for failure to pay the
required contributions in a proper and timely manner. Thus, the implication is that its status as an optional member is correct and appropriate.
As noted in the Recommended Order, the Authority changed its vehicle license tags from "county" tags to "state" tags. While no explanation was made as to the reason for such a change, the logical implication is that the Authority considered itself to be more of a state agency than a county agency. The Authority should not be allowed to argue on one hand to the Division that it is a county agency and yet on the other hand, tell another state agency that is a state agency. Such an action shows an intent and a state of mind. The actions are contradictory absent a proper explanation which was not provided.
In order for the Authority officers to be eligible for ESOC, Chapter 81-376, Laws of Florida, must modify the concept of county officers and employees in Section 121.052(1)(g), Fla. Stat., to include the Authority's officers. However, Section 121.191, Fla. Stat., states:
"After July 1, 1972, there shall not be enacted any special act or general law of local application which proposes to amend, alter, or contravene the provisions of any state-administered retirement system or any state-supported retirement system established by general law."
While normally a specific statute will prevail over a general statute, this will not occur if there is clear legislative intent to the contrary. The legislative intent of the above section is that special acts would not be allowed to amend, alter or contravene Chapter 121, Fla. Stat.
Since the date of the hearing in this case and subsequent to issuance of the Recommended Order, the 1986 Legislature enacted a law that would have a direct bearing on the eligibility of the Authority board members for ESOC membership.
Section 15 of Chapter 86-180, Laws of Florida, amends Section 121.052(1)(b), Fla. Stat., to read as follows:
"On or after July 1, 1981, participation in the Elected State Officers' Class shall be optional within the time provided herein for any constitutional county elected officer, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county
commissioner, school board member, or elected school board superintendent. In addition, any elected officer of any entity with county wide jurisdiction who, pursuant to general or special law exercises power and duties that but for said general or special law would be exercised by any of the aforementioned constitutional county elected officers, shall also be eligible for membership in the Elected State Officers' Class. (Changes made by Chapter 86-180, LOF, to the prior law are underscored)
The above provision permits elected officers with countywide jurisdiction who receive and exercise power and duty from constitutional officers to enroll in ESOC. The Authority has countywide jurisdiction pursuant to special act to exercise powers and duties that had previously been performed by the Escambia County Board of County Commissioners. Under the above provision, the Authority members are eligible for membership in ESOC.
Since Chapter 86-180, Laws of Florida, was effective on July 1, 1986, ESOC membership for Authority members is clearly effective at least on the date. We must now address the issue of membership effective retroactivity to January, 1985, the date the members took office as a result of election rather than appointment.
Section 121.052(1)(g), Fla. Stat., by its own provisions is effective "on or after July 1, 1981". By making the above provisions of Chapter 86-180, Laws of Florida, a part of and an addition to Section 121.052(1)(g), Fla. Stat., the Legislature intended that the effective date for ESOC membership should be July 1, 1981, rather than July 1, 1986, which is the effective date for the other provisions of Chapter 86-180, Laws of Florida.
The result is that Section 15 the newly enacted law (cited above) is effective retroactive to July 1, 1981. As it pertains to the Authority and its members, their eligibility for ESOC membership began in January, 1985. Upon proper application, requests by those members for ESOC will be approved and processed by the Division.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the petition for membership in the Elected State Officers' Class made by members of the Escambia County
Utilities Authority be approved retroactively to January, 1985, be GRANTED upon the authority of Section 15, Chapter 86-180, Laws of Florida. The Authority is hereby directed (upon the submission of proper application) to submit the proper contributions for membership to the Division.
DONE and ORDERED this 29th day of July, 1986, in Tallahassee, Florida.
J. MCMULLIAN III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT
THIS 30th DAY OF July, 1986.
COPIES TO:
James W. Linn, Esquire Carson & Linn, P.A. Cambridge Centre
253 West Virginia Street Tallahassee, Florida 32301
Ray & Kievit
15 West Main Street Pensacola, Florida 32501
Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C
Tallahassee, Florida 32303
| Issue Date | Proceedings |
|---|---|
| Feb. 27, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 30, 1986 | Agency Final Order | |
| Feb. 27, 1986 | Recommended Order | Board members of Escambia County Utility Authority are eligible "county elected officers" for retirement purposes. |
