IRJA K. LISNAY, )
vs. ) Case No. 85-2878
Respondent. )
) ALBERT D. LISNAY, )
vs. ) Case No. 85-3821
Respondent. )
The final hearing in this case was held in Sarasota on June 25, 1986.
For Petitioners: Jonathan E. Hausburg, Esquire
For Respondent: William A. Frieder, Esquire
The issue in this case is whether Petitioners, Irja K. Lisnay and Albert D. Lisnay, are eligible for membership in the Florida Retirement System as persons "receiving salary payments for work performed in a regularly established position" or are ineligible for membership in the Florida Retirement System as persons "filling a temporary position" with the Sarasota County
School Board. The Lisnays teach part-time in the Adult Community Education Program of the Sarasota County Vocational Technical Center.
Petitioners, Irja K. Lisnay and Albert D. Lisnay, wife and husband, are proficient in and certified by the Florida Department of Education to teach sign language for the deaf. Mrs. Lisnay is capable of teaching basic and intermediate beginning courses in sign language. Mr. Lisnay is capable of
teaching the standardized American Sign Language (ASL), the third and most difficult of the levels they teach.
In November 1980, the Director of the Adult Community Adult Education Program of the Sarasota County Vocational- Technical Center, a program operated by the Sarasota County School Board, asked the Lisnays to instruct the program's sign language classes for the upcoming winter quarter. The sign language classes had been offered for a number of years, and interest in learning sign language seemed to be on the increase according to recent registrations. It was agreed that the Lisnays would teach two classes during the upcoming winter quarter on a trial basis, and they began teaching in January 1981. The Lisnays successfully completed their first quarter of instruction and have continued to teach in the program.
Under the Lisnays' employment relationships with the Sarasota County School Board, it is agreed that the Lisnays will teach sign language classes at reasonable times and places assuming adequate student registration. Each summer, the Adult Community Education Program and the Lisnays agree to the courses, places and times of the classes the Lisnays will teach. This information, along with information on other courses, is published in an advertisement of classes to be offered by the Adult Community Education Program during the next year, starting with the fall quarter. At the beginning of each quarter, the Lisnays appear at their first class as offered and register the students who appear for the class. If the number of students who register does not make the class financially feasible (at least ten students), the class is cancelled and the instructor is not paid. If enough students register and the class "makes," the instructor is paid on an hourly basis for the hours of class he or she teaches. None of the Lisnays' courses last more than one quarter, and students must re-register each quarter.
More students enroll for the first two levels of sign language classes which Mrs. Lisnay instructs than enroll in the American Sign Language class which Mr. Lisnay instructs. At the time Mrs. Lisnay began teaching, it was reasonable based upon
historical registration and a trend of increasing interest in sign language classes for her to expect to teach at least one class during each of the four academic quarters of the Adult Community Education Program school year. Indeed, in most of the fall, winter and spring quarters during which Mrs. Lisnay taught, she taught two or three classes. She has taught during every academic quarter, including summers, since she began teaching. No class of hers that has been published in the school's course catalog ever has been cancelled for failure to "make." It is reasonable to expect that student interest in the courses which Mrs. Lisnay teaches will remain at least at the same level and that her expectation of employment from one academic quarter to another will remain the same.
On the other hand, because Mr. Lisnay's American Sign Language Course is the most advanced of the three courses offered, student interest and registration has been lower. Due to lack of sufficient interest to make a summer class financially feasible, Mr. Lisnay generally does not teach during the summer (and therefore is not paid during the summer quarter). During one other academic quarter, one of Mr. Lisnay's two courses for that quarter was cancelled due to dwindling student participation at the Venice branch of the Sarasota County Vocational-Technical Center. However, it remains reasonable for Mr. Lisnay to expect to teach at least one American Sign Language Class during each fall, winter and spring academic quarter.
As previously mentioned, the Lisnays are paid only for time spent actually teaching classes. They do not earn paid sick or vacation leave. They do not receive health insurance, paid teacher planning days or any other fringe benefits.
The School Board regards the Lisnays as ineligible for membership in the Florida Retirement System due to the nature of their employment relationship just as it regards all other part- time instructors of the Adult Community Education Program, some of whom have instructed classes each and every academic quarter much longer than the Lisnays have.
on the other hand, the Sarasota County Vocational- Technical Center also employs full-time teachers on either annual or continuing contracts. The full-time teachers are paid on a salary basis and are paid regardless whether their scheduled classes "make." The full-time teachers earn paid sick and vacation leave. They also receive health insurance and have paid teacher planning days.
The Lisnays have never had Social Security or Florida Retirement System contributions taken out of their checks.
Pursuant to an agreement between the state and federal governments, all members of the Florida Retirement System are covered by Social Security and FICA deductions are taken from their pay. This deduction is indicated on the check stub given to the employee with each paycheck.
Full-time teachers are considered salaried employees holding regularly established positions by the Sarasota County School Board and receive both Social Security and Florida Retirement System benefits.
By Division of Retirement Memorandum No. 81-60, dated December 23, 1981, entitled, "Adult Education Instructors/Clarification of Florida Retirement System (FRS) Membership Rights,'' addressed to "District School Boards and Community Colleges," Respondent, Department of Administration Division of Retirement (Division), applied Rule 22B-1.04(5)(e) Florida Administrative Code (1984 Supp.), (then numbered Rule 22B-1.04(6)(e)4.), to make "adult education instructors essentially temporary in nature where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." See Lucas vs. Department of Administration, Division of Retirement, 466 So. 2d 386 (Fla. 1st DCA 1985); Final Order, Lucas vs. Department of Administration, Division of Retirement, DOAH Case No. 83-2189R, entered February 9, 1984.1 This application of Rule 22B- 1.04(5)(e)4., has been used in the past to deny eligibility for membership in the Florida Retirement System to adult education
part-time teachers having employment relationships similar to the
Lisnays. See Final Order, Lucas vs. Department of Administration, Division of Retirement, Case No. 83-2189R, entered December 10, 1985;2 Final Order, Sperling vs. Department of Administration, Division of Retirement, DOAH Case No. 82-452, entered November 18, 1982.
Based on the evidence in this case, the reason for Rule 22B-1.04(5)(e)4., Florida Administrative Code (1984 Supp.), was to close the loophole by which actually temporary positions as part-time teachers hired to teach one academic period became permanent employees by definition under the previous rules if the academic period they taught was longer than four consecutive months. The rationale would not seem to require the result reached in Memorandum 81-60, but the Division nonetheless has consistently followed the memorandum's interpretation of the rule.
CONCLUSIONS OF LAW
Generally, Section 121.051(1)(a), Florida Statutes (1985), requires participation in the Florida Retirement System by all officers or employees of employers defined by Chapter 121. "Officers or employees" include "any person receiving salary payments-for work performed in a regularly established position .
. . ." (Emphasis added.) Section 120.021(11), Florida Statutes (1985). Employer is defined to include district school boards. Section 121.021(10), Florida Statutes (1985).
The Legislature chose not to define "regularly established position," a vague phrase, susceptible to differing interpretations. It delegated this task to Respondent, Department of Administration, Division of Retirement (Division).
Section 121.021(19) defines "prior service," as used in Chapter 121, as prior employment which, at the time it is claimed, "satisfies the requirement for a regularly established position, as defined by rules of the Florida's Retirement System." (Emphasis added.) The Division, responding to this charge, adopted a complex set of rules which define what a "regularly established position" is and what it is not, stating general standards, then providing exceptions.
First, Rule 22B-6.01, Florida Administrative Code (1985 Supp.) provides, in pertinent part:
(43) REGULARLY ESTABLISHED POSITION.--
. . . 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, except as provided in 22B-1.04(6)(e). [now renumbered 22B- 1.04(5) (e) ].
Next, Rule 228-1.04(5), Florida Administrative Code (1984 Supp.), declares "temporary positions" (i.e., not regularly established positions), as ineligible for membership in the Florida Retirement System. Temporary positions are defined, in part, as
[A]n employment position . . . which is listed in 22B-1.04(6) (e) [now renumbered 22B-1.04(5)(e)] regardless of whether it will exist for 4 consecutive months or more. (Emphasis added.)
Section 22B-6.01(50), Florida Administrative Code (1985 Supp.). Further, a temporary position in a local agency, which includes school boards, is:
An employment position which will not exist beyond four (4) consecutive calendar months; or
An employment position which is listed below in (e) regardless of whether it will exist beyond four consecutive months.
Section 22B-1.04(5)(e), Florida Administrative Code (1984 Supp.), lists types of positions which are considered temporary for retirement purposes. The rule cautions that the list is incomplete and is to be used only as a guide in determining if an
individual is filling a temporary position:
(e) 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.
* * *
4. Temporary Instructional Personnel (persons appointed to positions which are established with no expectation of continuation beyond one quarter, one semester, or one trimester at a time to teach in a community college, public school, or vocational institution).
As found in the Findings Of Fact, the Division consistently has interpreted Rule 22B-1.04(5)(e)4., Florida Administrative Code (1984 Supp.), to include part-time adult education and instructor positions among the temporary positions not eligible for membership in the Florida Retirement System where there is "no promise, claim or right of employment beyond the quarter, semester or trimester to which [those filling the positions] are appointed to teach." See Division Memorandum 81- 60; Final Order, Lucas vs. Department of Administration, Division of Retirement, Case No. 83-2189R, entered December 10, 1985; Final Order, Sperling vs. Department of Administration, Division of Retirement, DOAH Case No. 82-452, entered November 18, 1982. It has interpreted Rule 22B-1.04(5)(e)4. to require an "expectation of continuation" in the sense of a "guarantee or right of continuation" of employment beyond one quarter, one semester, or one trimester at a time to teach in a community college, public school or vocational institution. On the basis of this interpretation, the Division consistently has ruled individuals with employment relationships similar to the Lisnays to be ineligible for membership in the Florida Retirement System. See Final Order, Lucas vs. Department of Administration, Division of Retirement, Case No. 83-2189R, entered December 10, 1985; Final Order, Sperling vs. Department of Administration, Division of Retirement, DOAH Case No. 82-452, entered November 18, 1982. Similarly, the evidence in this case is that the Lisnays do not have a reasonable "expectation" that their employment will continue beyond one quarter at a time in the sense of a "guarantee or right" of continued employment.
The decision in Lucas vs. Department of Administration, Division of Retirement, 466 So. 2d 386 (Fla. 1st DCA 1985) held in pertinent part that the Division's Memorandum 81-60 "is not a rule but an application of Rule 22B." The decision affirms the Final Order, Lucas vs. Department of Administration, Division of Retirement, DOAH Case No. 83-2189R, entered February 9, 1984, which rules in pertinent part:
[I]t is concluded that the challenged memorandum is not a rule within the meaning of Section 120.52(14), Fla. Stat. (1981) and thus need not be promulgated as such.
Petitioner has not shown that this memorandum has the effect of a rule, that it is virtually self-executing, intended by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. The announced purpose of the memorandum is to resolve confusion and clarify Rule 22B-1.04(6)(e)4, [now renumbered 22B-1.04(5)(e)4., Florida Administrative Code (1984 Supp.)] the challenged rule, which identifies "Temporary Instructional Personnel" in an admittedly incomplete listing of temporary positions.
The memorandum does little more than restate
the rule in different terms and, by reasonable inference, applies it to adult education instructors. It openly announces the Division's interpretation acted upon earlier by its removal of individual adult education instructors from the Florida Retirement System that adult education instructor positions are, typically, temporary in nature and thus not regularly established positions. This is because there is "no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." (Petitioner's Exhibit B) This interpretation is consistent with, and fairly implied by, the language of the rule; it does not, and is not, in and of itself, intended to change existing rights and obligations.
Id., pages 11-12. It also is the Division's conclusion in its final orders in the Lucas and Sperling cases that the memorandum does nothing more than explain, clarify or apply its Rule 22B- 1.04 (6) (e) 4., now renumbered 22B-1.04 (5) (e) 4.
An agency's interpretation of a statute over which is has responsibility of administration is entitled to great weight and will not be overturned unless clearly erroneous. See Department of Insurance vs. Southeast Volusia Hospital District,
438 So. 2d 815 (Fla. 1983), appeal dismissed, Southeast Volusia Hospital District vs. Florida Patient's Compensation Fund, 104 S.Ct. 1673 (1984). An agency's explanation, clarification, or application of its own rules should be entitled to greater weight.
Since the Lisnays have "no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach," they are temporary employees under Rule 22B-1.04(5)(e)4., Florida Administrative Code (1984 Supp.).
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Administration, Division of Retirement, enter a Final Order in this case denying the petitions of Petitioners Irja K. Lisnay and Albert E. Lisnay and declaring them ineligible for membership in the Florida Retirement System.
RECOMMENDED this 18th day of July, 1986, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Office;
Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1986.
1/ The second citation is to the Final Order of DOAH Hearing Officer Caleen in a rule challenge proceeding.
2/ Although bearing the same case number as the rule challenge proceeding referred to in footnote 1, this citation refers to a Final Order entered by Respondent in a 120.57 proceeding involving the same petitioner.
William A. Frieder, Esquire Division of Retirement
Jonathan E. Hausburg, Esquire Hausburg, Jaensch & Ellis 2014 Fourth Street
A.J. McMullian, III
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32303
Petitioners filed no timely proposed findings of fact. They are not entitled to specific rulings on proposed findings of fact that are interspersed in their late-filed closing argument.
However, all of their closing arguments, including all proposed findings of fact, were given careful consideration. The following are rulings on Respondent's proposed findings of fact as required by Section 120.59(2), Florida Statutes (1985):
