STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKIE L. MILLS, )

)

Petitioner, )

)

v. ) Case No. 86-2252

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in this case on October 28, 1986 in Tallahassee, Florida. This hearing was reported, but no transcript was ordered. The parties were allowed 10 days to submit proposed findings of fact and conclusions of law. These were received and have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Robert Scott Cox, Esquire

Post Office Box 1876

. Tallahassee, Florida 32302-1876

For Respondent: Burton M. Michaels, Esquire

2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303

When the Petitioner applied for retirement benefits based upon 25 years of continuous service as a special risk category employee in the State of Florida, the Respondent denied benefits because it contended that there was a break in continuous service in the year 1981. The issue to be resolved is whether under the facts and law, the Petitioner's period of continuous service in the special risk category of the Florida Retirement System was broken during his absence from the system from January to August, 1981. There is no controversy relative to the factual situation.

FINDINGS OF FACT

1. In November of 1960 the Petitioner, Frankie L. Mills, became employed by the Florida Highway Patrol, and he was a member of the Florida Highway Patrol Pension System (Chapter 321, Florida Statutes).

   
   

2. On approximately December 1, 1970, the Petitioner transferred from the Florida Highway Patrol Pension System, and he became a member of the Florida Retirement System (Chapter 121, Florida Statutes).

   
   

3. In June of 1976, the Petitioner resigned from the Florida Highway Patrol to run for Sheriff of Okaloosa County. He was elected, and began his position as Sheriff in January of 1977.

   
   

4. In the election of 1980 the Petitioner was not re- elected as Sheriff of Okaloosa County. As a result, his term of office as Sheriff ended on January 6, 1981, and the Petitioner vacated the office of Sheriff of Okaloosa County.

   
   

5. The Petitioner did not resign from his position as Sheriff of Okaloosa County. His termination from the office of Sheriff was occasioned by the expiration of his elected term of office as of January 6, 1981..

   
   

6. During the time the Petitioner served as Sheriff of Okaloosa County, until January 6, 1981, he was a special risk member of the Florida Retirement System (Chapter 121, Florida Statutes).

   
   

7. In August of 1981, the Petitioner became employed as a deputy sheriff of Gulf County. This employment qualified him as a special risk member of the Florida Retirement System (Chapter 121, Florida Statutes). The Petitioner has been employed as a deputy sheriff in Gulf County since August, 1981, and he is so employed at present.

   
   

8. Between January 6, 1981, and at least August 11 981, the Petitioner was not employed by an "employer" as this term is defined in Section 121.021(10), Florida Statutes, and during this time he was absent from the payroll of any such "employer."

   
   

9. Between January 6, 1981, and August of 1981, the Petitioner was not a "state law enforcement officer" as this term is used in Section 121.021(38), Florida Statutes, and Rules 22B- 2.002(5)(e) and (g), Florida Administrative Code.

10. Between January 6, 1981, and August of 1981, the Petitioner had a break in his continuous service under the provisions of Chapter 121, Florida Statutes, including Section 121.021.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Section 121.021(38), Florida Statutes, defines the term "continuous service" to mean:

    
    

    (38) 'Continuous service' means creditable service as a member, beginning with the first day of employment with an employer covered under a state-administered retirement system consolidated herein and continuing for as long as the member remains in an employer- employee relationship with an employer covered under this chapter. An absence of 1 calendar month or more from an employer's payroll shall be considered a break in continuous service, except for periods of absence during which an employer-employee relationship continues to exist and such period of absence is creditable under this chapter or under one of the existing systems consolidated herein. However, a law enforcement officer . . .who was a member of a state-administered retirement system under chapter 122 or chapter 321 and who resigned and was subsequently reemployed in a law enforcement position within 12 calendar months of such resignation by an employer under such state-administered retirement system shall be deemed to have not experienced a break in service. . .

13. Rules 22B-2.002(5)(e)(f) and (g), Florida Administrative Code, provide:

    
    

    (5) A break in service shall occur when there is an interruption in the continuous and consecutive service of member, except that:

    
    

    1. A state law enforcement officer ...who is laid off from his position . . . shall be

       deemed to have continuous service provided the member is reemployed as a state law enforcement officer within 12 calendar months of the date of the layoff. The period of layoff shall not be counted as creditable service.

       
       

    2. A law enforcement officer . . . who was a member of . . .the Florida Highway Patrol Pension System and resigned his employment shall be deemed to have continuous service provided the member was reemployed as a law enforcement officer with an FRS employer within 12 calendar months of the date of his resignation.

       
       

    3. A state law enforcement officer who resigns his employment to run for an elected office shall be deemed to have continuous service provided the member is reemployed as a state law enforcement officer or is elected to office within 12 calendar months of the date of his resignation.

    
    

14. The Petitioner was not on the payroll of any employer in the State pension system between January and August of 1981. He was not a State law enforcement officer during this period of time, and he did not resign his position as Sheriff of Okaloosa County. Therefore, neither Rules 22B-2.002(5) (e) (f) or (g) above apply to the Petitioner's absence from an employer's payroll between January and August of 1981, and the Petitioner cannot meet the criteria required by the rules to preclude his absence from an employer's payroll from being deemed a break in service.

15. The Petitioner contends that, since the period

    between January and August, 1981, would not have been a break in continuous service if he had resigned as Sheriff of Okaloosa County before his term expired, his period of service should nevertheless be deemed to have been continuous because the purpose of the statutes and rules is to reward law enforcement professionals with retirement at an early age. The applicable law is not ambiguous, however, and the clear meaning of the statutes and rules precludes the Petitioner's break in service between January and August, 1981, from being construed as continuous service.

    
    

16. The Petitioner also contends that Section 121.021(38), Florida Statutes, which defines "continuous service", should be construed to mean that a law enforcement officer who was ever a

member of a state-administered retirement system under Chapter

321 and who resigned and was reemployed within 12 calendar months, should be deemed not to have a break in continuous service. However, this contention is rejected because it still requires a resignation by the law enforcement officer. Moreover, the language of the statute requires membership in the Chapter

321 retirement system at the time of the resignation. The Petitioner had not been a member of the Chapter 321 retirement system for 11 years when he left office as Sheriff of Okaloosa County by expiration of his term and not by resignation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Respondent enter its Final Order finding that the Petitioner, Frankie L. Mills, had a break in his continuous service in the special risk category of the Florida Retirement System during the period of time he was not employed as a law enforcement officer between January and August, 1981.

THIS Recommended Order entered on this 26th day of November, 1986, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26th day of November, 1986.

COPIES FURNISHED:

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32301

Robert Scott Cox, Eq.

P. O. Box 1876 Tallahassee, FL 32302-1876

Burton M. Michaels, Esq. 2639 North Monroe street Suite 207, Building C Tallahassee, FL 32303

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

The Petitioner's proposed findings are not in consecutively numbered paragraphs, but the unnumbered paragraphs will be considered to be consecutively numbered.

1.-3. Accepted.

4. Rejected, as not a proposed factual finding, but an argument of law.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1.-9. Accepted.

Docket for Case No: 86-002252

Orders for Case No: 86-002252