STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. ORLANDO, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3652

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on March 23, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Roland Gomez, Esquire

Ress, Gomez, Rosenberg, Howland & Mintz, P.A.

1700 Sans Sonci Boulevard North Miami, Florida 33181

For Respondent: Stanley M. Danek, Esquire

Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303

PRELIMINARY STATEMENT

At issue in this case is whether Petitioner's employment with the University of Florida during the years 1961, 1962, and 1963, is creditable under the Florida Retirement System.

At final hearing the Petitioner testified on his own behalf and called James B. Chaplin as a witness. Petitioner's exhibits 1-3 were received into evidence. Respondent called Ruth Sansom as a witness, and its exhibits 1A and 1-5 were received into evidence.

The parties were granted leave until April 3, 1987, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Frank A. Orlando, was employed as a teacher in Dade County, and enrolled as a member of the Teachers' Retirement System (TRS), Chapter 238, Florida Statutes, in 1957. In September, 1960, Petitioner was granted a leave of absence from his employment to attend law school at the University of Florida.

   
   

2. To maintain his tenured status with the Dade County School Board, it was incumbent that Petitioner remain current in his profession by working in the field of education within one year from the grant of his leave of absence. Consequently, in February, 1961, while enrolled as a full-time law student at the university, Petitioner applied for, and was employed as, a resident assistant at Hume Hall, a university residence facility. Petitioner's employment apparently satisfied the requirements of the Dade County School Board, since he retained his tenured status until his resignation in late 1962 or early 1963. 1/ In June, 1963, Petitioner graduated from law school, and left his employment with the university.

   
   

   Petitioner's Retirement Account

   
   

3. In November, 1981, Petitioner requested that the Division of Retirement (Division) audit his retirement account and advise him whether he had been accorded credit for the period he had been employed at the university. By memorandum dated November 12, 1981, the Division advised Petitioner that for

   $179.82 he could purchase:

   
   

   . . . service not contributed on during the following periods of employment with the ... (univer- sity) ...; May 1961; March 1962 to June 1962; and September 1962 to June 1963. By claiming this service, you would be increasing your service credit by 1.33 years. This service has not been included in previous audits.

   
   

   By check dated March 9, 1982, Petitioner paid the designated monies, and the service was credited to his account.

   
   

4. In August 1983, Petitioner requested that the Division provide an updated audit of his retirement account. By memorandum of August 30, 1983, the Division advised Petitioner that, as of June 30, 1983, he had 25.59 years of service credited to his account.

   
   

5. In December, 1985, Petitioner telephoned the Division and requested that it calculate a retirement date for his at 30-years service, as well as provide an estimate of his retirement benefits. By memorandum of December 19, 1985, the Division provided Petitioner an estimate of his retirement benefits, and advised him that he could retire on December 1, 1987, with 30.01 years of service.

   
   

6. On March 31, 1986, Petitioner again called the Division regarding credit for the period he had been employed by the university. Petitioner apparently felt he was entitled to more credit than previously accorded, and requested that the Department review its records to be sure he had retirement

   credit for the periods from February 1961 to June 1961, September 1961 to June 1962, and September 1962 to June 1963. The Division's review of its records, with respect to Petitioner's specific request, resulted in its determination that the memorandum of December 19, 1985, which had established an estimate of benefits for an effective retirement date of December 1, 1987, was in error, and that Petitioner was not entitled to credit for the periods he was employed in 1962 and 1963 by the university. Succinctly, the Division wrote that:

   
   

   On March 31, 1986, you called our office and spoke with Mrs. Stanley Colvin. You asked that she check your file to make sure you had retirement credit for the periods from February 1961 to June 1961, September

   1961 to June 1962, and September 1962 to June 1963. To check this service for you, she looked at the Comptroller's Quarterly Social Security Records (referred to as Quarter Check Tapes). When these records were reviewed, she noted that the salaries listed for this service were paid from an Other Personal Services (OPS) account. Thus it is not creditable for retirement purposes under the FRS.

   * * *

   When your estimate of benefits dated December 19, 1985 (with an effective retirement date of December 1, 1987) was calculated, this OPS service was used in error. A record of the earnings had been furnished to this office by the University of Florida and the service was erroneously used since there was no mention that the payment was from an OPS account. Enclosed is a corrected estimate of retirement benefits effective March 1, 1989, at which time you will complete 30 years creditable service required for normal retirement under the FRS. By copy of this letter, I am advising Mr.

   Robert Buttons, Personnel Director, University of Florida, of our findings and requesting that he research the payroll records at the University and advise this office if his findings agree with ours. I am also enclosing state warrant #1982675 for

   $177.07 which represents the amount you paid to claim this service. 2/

   
   

   A subsequent review of the records available at the University revealed that its records agreed with the Division's findings.

   
   

   Petitioner's Employment Status With The University

   
   

7. Petitioner avers that he was employed by the university from February 1961 through June 1963, as a resident assistant for Hume Hall. The proof establishes that the resident assistants employed by the university were full- time graduate students or candidates for professional degrees and that they supervised 6-8 undergraduate resident assistants, assisted their superior in the

   administration of Hume Hall, and were available for student counseling on an as needed basis. 3/ While Petitioner avers that it was his understanding that he held a regular full-time position, he offered no proof that he received annual leave, sick leave, insurance or other employee benefits during the term of his employment, or that he had withheld from his salaries any social security deductions. In sum, petitioner offered no persuasive proof to establish that he was employed by the university as a regular employee filling an authorized position, as opposed to being an OPS employee, at any time subsequent to July 1961.

   
   

8. The quarterly check tapes from the Office of the Comptroller, which the Division uses in carrying out its functions, show that Petitioner received two salary checks in May 1961, one on May 10, 1961 for $18.90 and one on May 24, 1961 for $12.60 for having worked 2 days and one day, respectively. 4/ No other payments to Petitioner for the year 1961 are reflected by the quarterly check tapes.

   
   

9. The records of the university, to the extent they exist, corroborate the payments reflected by the Comptroller's records but reveal that the May 10, 1961, payment was for services rendered in April, 1961. Consequently, the Division agreed at hearing to give Petitioner retirement credit for April, as well as May, 1961. The university was unable to locate its remaining records for 1961, and Petitioner did not produce any documentary evidence to substantiate his employment for the remaining months of 1961 or any evidence to establish his salary for any other month in 1961.

   
   

10. For the years 1962 and 1963, the Comptrollers' quarterly check tapes reflect that Petitioner was paid as a "other personal services (OPS) employee for 15 months. According to those records, Petitioner was paid $83.33 a month for February 1962 through May 1962; $41.66 in June 1962 for one-half months salary; and $80.00 a month for September 1962 through June 1962. 5/ The records of the university corroborate the payments reflected by the Comptroller's records, and Petitioner did not produce any documentary evidence to demonstrate that he was employed in any capacity other than as an OPS employee or any evidence to demonstrate be received any salaries other than as reflected by the Comptroller's tapes. 6/

    
    

11. Based on the proof, I conclude that Petitioner was employed by the university in an OPS position for all months which he received compensation, except for April and May, 1961. Petitioner's employment in April and May, 1961, which predated the establishment of the "other personal services" category of employment by the legislature, is, however, creditable under the Florida Retirement System.

    
    

    Petitioner's Claim Of Estoppel

    
    

12. Petitioner is currently a circuit court judge in Broward County, Florida. He was re-elected in 1985, and his term of office expires in 1992. Petitioner desires, however, to retire from the bench, and enter the private practice of mediation, but to date he has not resigned or taken any action which would jeopardize his current employment.

    
    

13. In response to the Division's memorandum of December 19, 1985, which established a retirement date of December 1, 1987, Petitioner began to attend workshops and seminars to train himself as a mediator to conciliate cases involving divorce and complex civil litigation. This training, which encompasses 200-300 hours, was undertaken in reliance upon the retirement date

    projected by the Division. Additionally, Petitioner has a moral commitment, although not contractual, to teach a course in mediation at the university of Minnesota during the summer of 1988.

    
    

14. Mediation is a relatively new field within the practice of law, which is designed to reduce the courts' case load by resolving disputes without the necessity of trial. Petitioner is highly regarded by his peers, and possesses those attributes which would accord him a recognized expertise in the field.

    
    

15. Petitioner offered proof that if he is to be successful as a mediator, it is essential that he enter the practice immediately after December 1, 1987. According to Petitioner, persons who enter this new field early will effectively preempt later entrants by earning a reputation as recognized leaders in the field. Petitioner's offer of proof is rejected as speculative and unpersuasive. While Petitioner's entry into the field may be 15 months later than expected, or desired, there is no reason to believe that the regard with which he is held by his peers will not enable him to succeed at his new profession.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. Prior to July 1, 1961, all employees of the State of Florida, whether full-time, part-time, temporary or hourly, were paid from the same account, and entitled to retirement credit based on the salary they were paid each month.

    The Division has routinely permitted these persons to claim such service, and make any required contributions, even though the request may be made years after the actual services were rendered. However, the burden is on the applicant to demonstrate entitlement to such credit. Webb v. Division of Retirement, F.A.L.R., July 28, 1980, at page 980-A.

    
    

18. Section 121.081(2)(d), Florida Statutes, specifies how contributions are to be calculated on prior service credit in this case. Essentially, it states that the member shall contribute 9 per cent of all salary received during such period. Consequently, absent evidence of the amount of salary Petitioner received, contributions cannot be calculated and service credit cannot be purchased. Webb v. Division of Retirement, supra.

    
    

19. In this case, the only salary payments that Petitioner was shown to have received prior to July 1, 1961, were for the months of April and May, 1961. Petitioner's claim of service credit for February, March, and June 1961 must, therefore, be denied.

    
    

20. Effective July 1, 1961, Chapter 41-401, Laws of Florida, substantially modified the fiscal and budgeting policies of the state, and established a class of employees known as "other personal services" (OPS). The act was codified as Section 282.021(15), Florida Statutes (1961), and defined OPS as follows:

    
    

    The compensation for services rendered by a person who is not a regular or full-time employee filling an authorized position.

    This shall include, but not be limited to temporary employees, student or graduate assistants, common or casual labor, consultant

    fees and other services Specifically budgeted by each agency in this category.

    1. In distinguishing between payments to be made from salaries appropriation and other personal services appropriation, it is intended to provide that those persons filling an authorized Position on either a full-time or a part-time basis shall be classified and paid from salaries appropria- tions and those persons performing services for a state agency, but who are not filling an authorized position, be classified and paid from other personal services appropriations.

    2. It is further intended that those persons paid from

       salaries shall be state officers or employees and shall be eligible for membership in a state retirement system and those paid from other personal services shall not be eligible for such membership.

       
       

       (Repealed by Chapter 69-106, Laws of Florida, and recodified as Section 216.011(1)(o), Florida Statutes. Currently numbered Section 216.011(1)(x), Florida Statutes.)

       
       

21. The proof established that Petitioner was not a regular or full-time employee filling an authorized position. The proof further established that Petitioner was paid from OPS. Consequently, Petitioner is not entitled to service credit for any of his months of employment with the university on or after July 1, 1961.

    
    

22. Petitioner asserts that the principle of estoppel prevents the Division from reversing its prior memorandum that the service in question is creditable, and receding from its retirement date of December 1, 1987. Petitioner's assertion is not persuasive.

    
    

23. Estoppel is established by proving (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) 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 (Fla. 1981). Against a state agency, however, equitable estoppel will be applied only under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla. 1959).

    
    

24. In this case, Petitioner has failed to demonstrate a detrimental change of position. By his own admission, he may stay in his present office as a circuit judge until 1992, a date well past the date by which he would have accrued 30 years of creditable service. See e.g.: Kuge v. Department of Administra- tion, Division of Retirement, 449 So.2d 389 (Fla. 3d DCA 1984), and Salz v. Department of Administration, Division of Retirement, 432 So.2d 1376 (Fla. 3d DCA 1983). The mere fact that he will enter his new profession as a

mediator somewhat later than he anticipated or desired, was not shown to establish the element of detrimental reliance necessary to estop the Division in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Administration, Division of Retirement, enter a Final Order granting the petition of Frank A. Orlando for creditable service under the Florida Retirement System for the months of April and May 1961, but denying any credit for any other months during the period of February 1961 through June 1983.

DONE AND ORDERED this 15th day of April, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1987.

ENDNOTES

1/ At hearing, Petitioner also averred that he secured employment so that he could continue his membership in the Teachers' Retirement System (TRS). The proof establishes, however, that employment was not necessary to retain his membership in the TRS. Such membership is only lost if the member withdraws or is out of the teaching profession for 5 years. The proof further established that for Petitioner to have received retirement credit in the TRS during his employment at the university, he would have to enroll through the university and contribute to the system. Petitioner did not enroll or contribute to the TRS during his employment at the university. Further, there was no proof offered at hearing that Petitioner's employment as a resident assistant was creditable under the TRS.

2/ The Division's remittance of $177.07, instead of the $179.82 paid, reflects its agreement that Petitioner is entitled to credit for May 1961. At hearing, it was established that Petitioner had received two payments in May 1961, one on May 10, 1961 for $18.90 and one on May 24, 1961 for $12.60, and that one of those payments, the payment of May 10, 1961, was for services rendered in April 1961. Accordingly, the Division agreed to grant Petitioner retirement credit for April 1961.

3/ Petitioner's supervisor was the resident counselor for Hume Hall, and occupied a full-time regular Position.

4/ The Comptroller's quarterly check tapes reflect all state warrants paid to an individual, and designate whether those payments were for salary, other personal services (OPS), or expenses.

5/ As part of his compensation, Petitioner was provided with an apartment in Hume Hall. Petitioner maintained that apartment throughout his employment; however during the summer months he was not in residence or paid by the university.

6/ At hearing, the suggestion was made that "maybe" the university maintained a separate account for the payment of salaries during other periods. There was, however, no competent or persuasive proof offered to establish such fact.

Accordingly, such suggestion is rejected.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraphs 2 and 7.

3. Addressed in paragraph 2, and footnote 1.

4. Addressed in paragraph 7.

5. Addressed in paragraph 2.

6. Addressed in paragraphs 6, and 8-11. 7-8. Addressed in paragraphs 3 and 6.

1. Addressed in paragraph 4.

2. Addressed in paragraph 5.

11-12. Addressed in paragraphs 12-15. Petitioner's proposed finding of fact in paragraph 11 that he expended considerable personal funds is rejected as no supported by the proof.

1. Addressed in paragraph 6.

2. Rejected as not a finding of fact.

Respondent's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1 and 2, and footnote 1.

5. Addressed in footnote 5.

6-9. Addressed in paragraphs 7-11.

1. No proposed finding of fact numbered 10.

2. Addressed in footnote 3.

3. Addressed in paragraph 11.

4. Addressed in paragraphs 9-10, and footnote 5. 14-15. Addressed in paragraph 3.

1. Addressed in paragraph 3 and 5.

2. Addressed in paragraphs 13-15.

3. Addressed in paragraph 12. 19-20. Addressed in paragraph 6.

COPIES FURNISHED:

Roland Gomez, Esquire

Ress, Gomez, Rosenberg, Howland & Mintz, P.A.

1700 Sans Sonci Boulevard North Miami, Florida 33181

Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, General Counsel Department of Administration

530 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 86-003652

Orders for Case No: 86-003652