STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCAR J. LITTLE, )
)
Petitioner, )
)
vs. ) Case No. 86-0916
) STATE OF FLORIDA, 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 June 23, 1986.
Petitioner Oscar J. Little appeared on his own behalf. Respondent was represented by counsel:
Stanley M. Danek, Esquire 2639 North Monroe Street Tallahassee, Florida 332301
After respondent notified petitioner that he was "not eligible to claim .. service as a CETA employee from January 13, 1975 to January 24, 1977," Respondent's Exhibit No. 1, for retirement benefits purposes, petitioner initiated the present formal administrative proceeding.
Both petitioner and Escambia County, his former employer, believe Mr.
Little "should be credited with ten (10) years service," Petitioner's Exhibit No. 4, including the period in dispute. Wayne Peacock, Escambia County's Assistant Administrator, stated at the hearing the County's willingness to make appropriate contributions to the retirement system, if it is determined that petitioner's employment from January 13, 1975 to January 24, 1977, is "creditable service."
ISSUES
Whether petitioner's employment from January 13, 1975 to January 24, 1977, was creditable service for purposes of calculating retirement benefits under applicable statutes and rules? Whether respondent is estopped to deny that this period of employment amounted to creditable service, where respondent's personnel twice advised petitioner it was, and petitioner continued working for Escambia County for some three years in reliance on this advice?
FINDINGS OF FACT
On January 13, 1975, petitioner went to work for the Escambia County Department of Community Development as a planning aide. He continued working as a planning aide until January 24, 1977.
A federal grant under Title VI of the CETA program furnished Escambia County the money it used to pay Mr. Little, while he held this position. His appointment as a planning aide was "limited term" or "provisional," i.e., contingent on continuation of the grant. But the position of planning aide was in the Escambia County budget for 1974-1975 and for 1975-1976, and the Escambia County Civil Service Board voted not to exempt CETA participants from the County personnel system. Petitioner's Exhibit No. 3.
The "position control and personnel action form," filled out when petitioner was hired, corroborated his testimony that he was paid from the county's general fund. Petitioner's Exhibits 1 and 2. Other evidence explicitly on the point was hearsay: Ruth Sansom testified that she had been told that CETA participants were paid from a special subaccount.
From the first four bi-weekly pay checks Mr. Little received from Escambia County, four percent of his salary was deducted. Payroll check stubs reflected these deductions. At the time of the hearing, the records of the Division of Retirement reflected no contributions or creditable service for or by petitioner until January 24, 1977.
The County stopped deducting retirement contributions from petitioner's (and others') salary payments, after Federal officials objected that money intended for salaries of Title VI employees, whose jobs might last for only a year or two, was going into a retirement program, the benefits from which would be available only to employees who worked for ten years or more.
A county official testified that deductions already taken were refunded. Petitioner testified he received no refund. Neither side offered documentation.
Changes in the retirement system ended contributions by all covered employees effective October 1, 1975. Thereafter, only the governmental employer made retirement contributions.
On January 25, 1977, Mr Little began as a "community development planner contractor" with Escambia County, the position he held at the time of his termination on February 20, 1986. The parties agree that his time in this position constitutes creditable service and that Escambia County has made retirement contributions on his behalf while he has held this job. This position, too, was funded with federal money, a grant from the Department of Housing and Urban Development.
In 1982, petitioner decided to retire because of his health, and inquired about disability retirement benefits. Virginia Livingston in respondent's Tallahassee offices told him he would be ineligible for such benefits unless he used up all of his sick leave and all of his annual leave before retiring, so he did take all the leave to which he was entitled; and had actually submitted his resignation, when respondent's personnel informed him that he was ineligible for retirement benefits because he had not worked the requisite ten years.
In letters dated April 5, 1982 and June 8, 1982, respondent's employees apprised Mr. Little that he had only approximately seven years of creditable service and suggested he might like to return to work until he had attained ten years' creditable service.
Petitioner did in fact return to work despite his ill health. He stayed on at his job until he had worked for Escambia County ten years (including the period from January 13, 1975 to January 24, 1977) because respondent had represented to him in writing that this additional time in service would entitle him to retirement benefits. Since his return to work he has suffered two heart attacks which he attributes to the stress of his job. The last year he worked, he only worked four hours a day because of his health.
CONCLUSIONS OF LAW
Respondent concedes that petitioner is entitled to "purchase his ... service from January, 1975 to January, 1977 ... if permitted ... under either", Respondent's Proposed Recommended Order, p. 4, the rules in effect at the time or the rules now in effect. Accord, Linda S. Powell v. State of Florida, Department of Administration, Division of Retirement, No. 83-2997 (DOA; May 15, 1984)
Rules Now in Effect
The current rules make "[a]n employee who is filling a temporary position... [in] eligible for membership in the Florida Retirement System," Rule 22B-104(5), Florida Administrative Code, and specifically provide that "CETA participants employed after June 30, 1979 . . shall be considered to be filling a temporary position for retirement purposes." Rule 222B- 1.04(4)(c)(6)(a), Florida Administrative Code. But petitioner was not employed as a CETA participant at any time after June 30, 1979; during the time he was employed as a planning aide, moreover, temporary employment did not render an employee ineligible for membership in the retirement system. Rule 22B-6.01(29), Florida Administrative Code.
Petitioner's employment as a planning aide antedated July 1, 1979, and he is "already covered for retirement," in the sense that Escambia County has contributed to the Florida Retirement System on his behalf, ever since he assumed his present position. The current rules provide:
CETA participants employed prior to July 1, 1979, who are already covered for retirement may continue to have re- tirement coverage for the duration of their participation in the CETA pro-
gram. Rule 2213-1.04(4)(c)(6)(b), Florida Administrative Code.
But the rule contemplates retirement coverage in the position in which the CETA participant is employed while participating in the CETA program. The rule thus assumes the very question at issue in the present case.
Rules Then in Effect
At the time petitioner worked as a planning aide, Rule 22B-6.01, Florida Administrative Code, defined a retirement system member as
any person receiving salary payments for work performed in a regularly established position .." Rule 2213-6.01(27), Florida Administrative Code.
To the same effect, the same rule defined officer or employee for retirement purposes as
any person receiving salary payments for work performed in a regularly established position ... includ[ing]
... those receiving salary payments for temporary, part-time, full-time, prob- ationary, or seasonal employment.a
[but] not includ[ing]... 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 2213-6.01(29), Florida Administrative Code.
Finally, the term "regularly established position" was defined as any position authorized in an employer's
approved budget for which salary funds
are Specifical1y appropriated. . Rule 2213- 6.01(36), Florida Administrative Code.
The evidence established that the planning aide position petitioner held was "authorized in an employer's approved budget," and that petitioned received salary payments for work he performed in the position.
Respondent's position was "regularly established," under the rules in effect at the time, if salary funds were specifically appropriated for the position. Escambia County initially deducted retirement contributions from petitioner's salary. This tends to show that the county viewed the salary payments as coming from salary funds and not as being moneys "paid from a fund created to pay for Other Personal Services or...any fund other than a salary fund." Rule 225-6.01(29), Florida Administrative Code. The deductions eventually ceased, but not because Escambia County began paying petitioner from a different fund. The weight of the evidence establishes that petitioner's employment as a planning aide for Escambia County from January 13, 1975 to January 24, 1977 was creditable service for purposes of the Florida Retirement System under the rules then in force.
The Escambia County Civil Service Board voted not to exempt CETA participants from the county personnel system. This action by the Escambia County Civil Service Board distinguishes the present case from Linda S. Powell
v. Department of Administration, Division of Retirement, No. 83-2997 (DOA; May 15, 1984), where Orange County "determined that no fringe benefits including social security and retirement, would be paid." At p. 3 of the Recommended order. In the Powell case itself, respondent recognized that an employee whose salary was paid with CETA Title II funds was eligible to participate in the retirement system, if employed in a regularly established position. At p. 4 of the Recommended Order.
ESTOPPEL
Petitioner relied on the letters respondent sent him on April 15 and June 8, 1982. On account of these misrepresentations, he persevered in Escambia County's employ for some three years more, foregoing other employment and risking his health. Only after petitioner had completed ten years with the County did the Division of Retirement change its position with regard to his initial two years. The Division should be estopped to deny that the time petitioner worked as a planning aide constituted creditable service, after twice representing otherwise in writing.
The present case closely resembles Kuge v. State, Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984), except that, in the Kuge case, there was a single misrepresentation Here there were two. Here as there "the state, by its actions in this case, is estopped to deny that ... [petitioner] has ten years of eligible state retirement service as represented by," 449 So 2d at 391, petitioner. See generally State Department of Revenue v. Anderson, 403 So.2d 397 (Fla 1981); State v. Hadden,
370 So 2d 849( Fla 3d DCA 1979); George W. Davis & Sons, Inc., v. Askew, 343 So 2d 1329 (Fla 1st DCA 1977); Jefferson National Bank v. Metropolitan Dade County, 271 So.2d 207 (Fla. 3d DCA 1972) Cert. den. 277 So.2d 536 (Fla 1973)
It is, accordingly RECOMMENDED
That respondent pay petitioner regular retirement benefits retroactive to the month his employment with Escambia County ended, as soon as he and the county make their respective retirement contributions for the period January 13, 1975, to January 24, 1977.
DONE AND ENTERED This 24th day of July, 1986, at Tallahassee, Florida.
ROBERT T. BENTON
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 24th day of July, 1986.
APPENDIX
Paragraphs one, three, five, seven, thirteen, fourteen and fifteen of respondent's proposed findings of fact have been adopted, in substance.
Paragraph two of respondent's proposed findings of fact accurately recites respondent's position.
The first two sentences of paragraph four of respondent's proposed findings of fact have been adopted, in substance, but the last sentence is not supported by the weight of the evidence. See finding of fact no. 4.
The first paragraph of respondent's proposed finding of fact No. 6 and the first two sentences of the second paragraph are adopted in substance. The County began deducting employee retirement contributions not only for Title 11 participants but also for Title VI participants, including petitioner, but only if they worked for the County. As to whether these contributions were refunded, the evidence was in equipoise as to petitioner himself, but Mr. Peacock's testimony that refunds went to other CETA participants who worked for Escambia County was uncontradicted.
The first sentence of paragraph eight of respondent's proposed findings of fact is treated in proposed finding of fact No. 3. Mr. Peacock's title and experience are accurately recited. Mr. Peacock testified that petitioner first became a County employee on January 24, 1977, but the hearing officer's notes do not reflect the testimony recited in proposed finding of fact No. 8. See findings of fact Nos. 2 and 3.
Paragraph nine of respondent's proposed findings of fact is accurate except that the hearing officer's notes do not reflect Mr. Peacock's contradicting petitioner about the retirement contribution deductions. The position control and personnel action forms, Petitioner's Exhibits 1 and 2, reflect the four percent deduction.
Paragraph ten of respondent's proposed findings of fact accurately recites Ruth Sansom's testimony that she found no record at the Division of Retirement of contributions by or on behalf of petitioner. It is not clear from this record whether the money deducted from Petitioner's first four paychecks reached Tallahassee.
Paragraph eleven of respondent's proposed findings of fact has been adopted, in substance, except for the last sentence, which is the very question at issue here.
Paragraph twelve of respondent's proposed findings of fact has been rejected as unsupported by the weight of the evidence.
COPIES FURNISHED:
Oscar J. Little, Pro Se 4424 Ella Way
Pensacola, Florida 32505
Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street Suite 207 Building C Tallahassee, Florida 32303
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
OSCAR J. LITTLE,
Petitioner,
vs. DOAH Case No. 86-0916
DOR Case No. DR86-8
STATE OF FLORIDA,
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This case was presented on a petition by OSCAR J. LITTLE for review of the decision of the State Retirement Director that Mr. Little was not eligible to claim service as a CETA employee from January 13, 1975, to January 24, 1977. A hearing was held pursuant to notice of June 23, 1986, before Robert T. Benton II, designated hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner:
Oscar J. Little, Pro Se 4424 Ella Way
Pensacola, FL 32505 For Respondent:
Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C Tallahassee, FL 32303
The Hearing Officer filed his Recommended Order on July 24, 1986, in which he sustained the Petitioners assertion and concluded that he was eligible to purchase his CETA employment as creditable service in the Florida Retirement System.
The Division has reviewed the record and exhibits and accepts, rejects, or modifies the findings of fact in the Recommended Order based on competent, substantial evidence in the record. Section 12O.57(1)(b)9, Fla. Stat.
FINDINGS OF FACT
Because the Division is accepting some of the Hearing Officer's finding of fact, rejecting others in part or in total, and supplementing the findings, each fending of fact in the Recommended Order will be considered individually.
Paragraph 1: Accepted, except that Mr. Little was employed under the federally funded program known as the Comprehensive Employment and Training Act (CETA) and happened coincidently to perform work for the county, whereas other persons employed under CETA performed work for non-profit private agencies.
Paragraph 2: Accepted.
Paragraph 3: Rejected in part. There is no evidence that Mr. Little knew what payroll fund he was paid from nor that he even knew that there was a difference in funds. Petitioners Exhibit 2 clearly shows that it was a "manpower" form used for "clients". No evidence was introduced to show that he was an "employee" of the county.
Paragraph 4: Accepted, except that no payroll check stubs were introduced into evidence.
Paragraph 5: Accepted.
Paragraph 6: Accepted.
Paragraph 7: Accepted.
Paragraph 8: Accepted.
Paragraph 9: Accepted.
Paragraph 10: Accepted.
Paragraph 11: Accepted.
SUPPLEMENTAL FINDINGS OF FACT
12 In late 1974, Escambia County operated under the CETA program which was operated by the county under three separate programs known as Title I and Title II, and then later under Title VI.
Title I was an on-the-job training program which provided training to individuals in jobs that were in addition to the regular employment positions already maintained by the County. Title II was an employment program for targeted groups of persons. At the beginning of the Title II program, the County paid retirement contributions on behalf of some of those participants. However, when it was advised that this was improper, it stopped such payments and refunded those contributions to some of the participants.
Title VI was a program to employ as many people as possible. The positions were funded with Federal grant money and were considered public service employment positions for a limited tern. The County administered the program which eventually included about 300 participants.
Payment of all CETA participants was made from a special sub-account (set up for this purpose) of the salary account. Mr. Wayne Peacock, currently Assistant County Administrator who was directly involved in the CETA program during its entire existence, testified that none of the participants who worked for the County occupied regularly established positions, or were in budgeted positions and none were paid from county budgeted salary funds.
Mr. Little's employment file stated that he was hired in January, 1975, as a Title VI CETA participant and that no record showed payment of any retirement contributions on his behalf. Mr. Little testified that retirement contributions were deducted from his first four (4) paychecks, but thereafter stopped.
Ruth Sansom, the Division representative, testified that the Division records as provided by the County reflected that the County began payment of retirement contributions on Mr. Little in January, 1977, and that there was no evidence or record that contributions had been paid from January, 1975, to January, 1977.
Mr, Little submitted the Minutes of Escambia County for (inter alia) February 11, 1975, which showed numerous individuals hired as "manpower: laborers and four (4) men hired as "manpower planning aides". Included in that latter group was Mr. Little. Ms. Sansom testified that she checked the retirement records of several persons in the first group and all four (4) persons in the latter group. None of the persons had received creditable service for the employment, and the Division had no record of contributions having been paid.
The evidence shows that Mr. Little was employed as a CETA participant and was not a county employee.
CONCLUSIONS OF LAW
Under present FRS rules concerning CETA employment, Rule 22B- 1.04,(4)(c)(a) - (c), F.A.C., states as follows:
CETA participants employed from July 1, 1979 through September 30, 1983, under the Federal Comprehensive Employment and Train- ing Act and JTPA participants employed on or after October 1, 1983, under the Job Training Partnership 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.
CETA administrative staff members and
instructors are considered to be filling regularly established positions and may participate in the Florida Retirement System from July 1, 1979 through September 30, 1983.
Rule 22B-1.04(5)(c), F.A.C., states that:
"(a)n employee who is filling a temporary position shall not be eligible for membership in the Florida Retirement System." See also Rule 228-1.04(5)(e)8, F.A.C., which defines CETA participants to be temporary positions.
Since the above provisions specifically address CETA employment after July 1, 1979, they do not cover Mr. Little's employment between 1975 and 1979. The current rules provide that Mr. Little may not purchase his CETA employment. It should also be noted that if Mr. Little was hired today under CETA, he would not be eligible for membership in FRS.
Since Mr. Little is not qualified under the present rules to buy his prior service in FRS, we must now address the issue of whether he was eligible to purchase the service under the rules as they existed in 1975.
Membership in the FRS since 1970 (and today) is compulsory as to all officers and employees filling regularly established positions who are or were employed on or after December 1, 1970. A condition of employment shall be membership in FRS as of the date of employment.
Under the 1975 rules of the Division, Rule 22B-6.01(27), F.A.C., defined member as:
"...any person receiving salary payments for work performed in a regularly established position...Persons included in this defi- nition 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), F,A.C., defined regularly established position as: "...any position authorized in an employer's
approved budget or amendments thereto for which salary funds are specifically appro- priated to pay for the salary of that position."
Under the above rules, it was necessary for an individual to be employed in a regularly established position and be paid compensation for a salary fund in order to be considered an officer or employee and a member of the FRS. Since Mr. Little 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, he was not an "employee" of the County and, therefore, was not eligible for membership in FRS from 197 to 1977. See Linda
S. Powell v. State of Florida Department of Admin., Division of Retirement, DOAH Case No. 83-2997, in which the Division adopted the Recommended Order of the Hearing Officer and held that the Petitioner's employment under CETA from February 19, 1975, through September 7, 1975, was not creditable under the Florida Retirement System.
Petitioner claims that the Division should be estopped to deny him the creditable service based on its representations in two letters dated April 5, 1982, and June 8, 1982, in which the Division stated that Mr. Little had approximately seven years of creditable service. This argument concerns the legal principle of equitable estoppel. Generally, estoppel is a bar which prevents a person from denying or asserting anything to the contrary to that which has been established or accepted as true by the person or agency. 22 Fla. Jur. 2d, Estoppel and Waiver, s. 2.
While estoppel does not generally apply to actions or cases that are forbidden by statute or that are contrary to public policy, a state agency will be equitably estopped in exceptional circumstances. The elements needed to establish equitable estoppel against an agency are:
A representation as to a material fact that is contrary to a later-asserted position;
Reliance on that representation; and
A change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Department of Revenue v. Anderson,
403 So.2d 397, 400 (Fla. 1981).
In other cases similar to Petitioners, appelate courts have held that equitable estoppel will be applied to the Division where the above elements exist. Salz v. Department of Administration, Division of Retirement, 432 So.2d 1376 (Fla. 3rd DCA 1983); Kuge v. State, Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984).
While estoppel is an exceptional remedy and must be considered only in certain cases based on the facts of each case, I have reviewed the facts in Petitioner's case and believe estoppel to be applicable. First, the representation of material fact were contained in the 1982 letters which stated that Mr. Little had approximately seven years of creditable service. Second, Mr. Little relied on those representations by working the additional time (he thought) he needed to have ten years of creditable service. Third, Mr. Little is now unable to get his previous job back. Under these unusual facts, I believe estoppel applies against the Division.
In view of the foregoing, it is hereby,
ORDERED that the prior decision to deny Oscar Little creditable service for the CETA employment with Escambia County from January, 1975, to January, 1977, be and the same is hereby reversed, and Mr. Little will be given creditable service for the same; it is further,
ORDERED that upon receipt of the proper amount of contributions from Escambia County for the period of time from January 13, 1975, to January 24,
1977, together with interest, the Division will give Oscar Little creditable service for that period of time.
DONE AND ORDERED at Tallahassee, Leon County, Florida, this 17th day of November, 1986.
A. J. MCMULLAN III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT THIS 17th DAY OF NOVEMBER, 1986.
COPIES FURNISHED:
Mr. Oscar Little 4424 Ella Way
Pensacola, FL 32305
Robert T. Benton II Hearing Officer
Division of Administrative Hearings The Oakland Building,
2009 Apalachee Parkway
Tallahassee, FL 32301
Ms. Ruth Sansom Division of Retirement
2639 North Monroe Street Tallahassee, FL 32303
Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street Tallahassee, FL 32303
Joe A. Flowers
Escambia Co. Comptroller Post Box 1111
Pensacola, FL 32595
| Issue Date | Proceedings |
|---|---|
| Jul. 24, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1986 | Agency Final Order | |
| Jul. 24, 1986 | Recommended Order | Written advice estops retirement from withholding credit for county service in program funded by CETA. Position was ""regularly established."" |
