STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
J. T. BARNES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1241
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above-captioned matter, after due notice, at Milton, Florida, on June 29, 1987, before the undersigned Hearing Officer.
APPEARANCES
For Petitioner: J. T. Barnes, pro se
For Respondent: William A. Frieder, Esquire
Assistant Division Attorney Division of Retirement
Petitioner appeared at the hearing unaccompanied by legal counsel or other representative, and after being advised of his rights and the procedures to be followed in the administrative hearing, acknowledged that he understood the same and elected to represent himself.
Petitioner seeks to purchase retirement credit for the period 1939-1941 on the basis of alleged employment with the Santa Rosa County School Board during that period. Respondent denied that request on the grounds that Petitioner had failed to establish that he was entitled to prior service credit since he was a temporary student employee during the period in question, and because he had not held a "regularly established position," as defined by Florida Retirement System rules.
At the hearing, Petitioner testified in his own behalf, and submitted two exhibits in evidence, including his deposition and exhibits attached thereto. Petitioner's request that the deposition of Mrs. A. L. Gillman be received in evidence was objected to and the exhibit rejected (Hearing Officer's Exhibit 1) due to Petitioner's failure to establish grounds for its admission. Respondent presented the testimony of Gertrude E. Wolfe and Ruth Sansom. In addition, the denial of Petitioner's request by the Department of Administration, as set forth in a letter dated February 27, 1987, was received in evidence as Hearing Officer's Exhibit 2.
The parties were advised that they would have ten days from the date of the hearing in which to submit any Proposed Findings of Fact. Respondent filed a timely submission, but Petitioner did not. Petitioner's response to
Respondent's Proposed Findings of Fact and Conclusions of Law has not been considered since it was not authorized. Rulings on Respondent's Proposed Findings of Fact have been made in the Appendix to this Recommended Order.
FINDINGS OF FACT
Petitioner John T. Barnes is currently employed by Santa Rosa County in the capacity of Veterans Service Officer. At some undisclosed date, apparently in 1985, Petitioner submitted a request to Respondent that he be permitted to "purchase" a period of employment with the Santa Rosa County School Board from 1939-1941 as creditable service under the Florida Retirement System (testimony of Petitioner, Hearing Officer Exhibit 2).
In his petition, Petitioner claims that he worked as a full time employee as a janitor at the Chumuckla High School from July 1, 1939 to June 30, 1941. He was a student at the school during this period, but would have been unable to return in the fall of 1939 since his father died and it was necessary for him to work to support the family. With the janitorial job, Petitioner was able to attend school while performing his janitorial duties before and after regular school hours, plus weekends. He testified that his salary was $30 per month, which was paid by check that he received from the Superintendent each month. Petitioner performed his duties under the supervision of the school principal. Petitioner is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and Principal at that time are now deceased. Petitioner was the first janitor to be employed at the Chumuckla High School (testimony of Petitioner, Petitioner's Exhibit 1).
In order to establish his claim of prior service, Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939-1941. Pursuant to this request, the School Board Personnel Officer, Gertrude E. Wolfe, searched the School Board records for the period in question, but was unable to find any mention of Petitioner. However, subsequent to that search, a copy of the minutes of a regular meeting of the Board of Public Instruction of Santa Rosa County on June 3, 1941 was discovered. It stated that the sum of $7.50 was paid to Petitioner for an unstated purpose and was simply characterized as a "bill." Petitioner submitted the affidavits of his sister, Clara B. Lloyd, who had been a teacher at the Chumuckla School during the period of June 1, 1939 to May 31, 1941 and therein certified that Petitioner had served as a janitor at the school during that period and had received a salary of $30 per month from the Santa Rosa County, Florida school system. Another affidavit to like effect was submitted by a "student and co-worker," Jack D. Jernigan, to the same effect, except that it showed the period as July 1, 1939 to June 30, 1941. Another affidavit from Mrs.
A. L. Gillman, who was a teacher and assistant principal at the school during the time in question, certified also that Petitioner had been employed by the School Board during that period at a salary of $30 a month (testimony of Barnes, Wolfe, Petitioner's Exhibits 1- 2).
By letter, dated February 27, 1987, the Respondent's State Retirement Director denied Petitioner's request for retirement service credit on the basis that he had been a temporary student employee during 1939-41 and did not therefore meet the definition of a regularly established position, and thus the service was not creditable and could not be purchased under the Florida Retirement System. The letter noted, however, that Respondent had received a letter from the Superintendent of Schools, presumably of Santa Rosa County, which stated "We have researched our records for the employment of John T. Barnes for the school terms of 1939-40 and 1940-41 as janitor for the Chumuckla
High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type. If he were paid in this manner, the County office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2)
Based on the foregoing uncontroverted evidence, it is found that the Petitioner did in fact perform janitorial duties for the Santa Rosa School Board during the period July 1, 1939 to June 30, 1941, at a salary of $30 a month.
CONCLUSIONS OF LAW
Section 121.021(17)(a), Florida Statutes, provides pertinently as follows:
(17)(a) "Creditable service" of any member means the sum of his past service, prior service, . . . and future service allowed within the provisions of this chapter if all required contributions have been paid and all other requirements of this chapter have been met. . . . Service as applied to a . . . nonacademic employee of a school board shall be based on contract years of employment or school term years of employment, as provided in chapters 122 and 238, rather than 12-month periods of employment. . . .
* * *
(19) "Prior service" under this chapter means:
* * *
(b) Service prior to an employee's membership in the Florida Retirement System with an employer, either before or during the employer's participation in an existing
system. The word "service" as used in this paragraph . . . means employment service which, at the time it is claimed as prior service, satisfies the requirements for a regularly established position, as defined by rules of the Florida Retirement System.
A "regularly established position" in a local agency, including a district school board, is defined in Respondent's Rule 22B-1.004(4)(b), Florida Administrative Code, as "an employment position which will be in existence beyond four consecutive months." The evidence presented by Petitioner is sufficient to establish that he held at the time in question what is now termed as a "regularly established position" since his position clearly existed beyond four consecutive calendar months. Respondent maintains that he was a temporary student employee, and therefore did not hold a "regularly established position". Rule 22B-1.004(5)(e)(2), Florida Administrative Code, excludes from membership in the Florida Retirement System:
Student Employees (persons who are bona fide students in an accredited educational or vocational program who perform services for a public employer in a temporary position set aside strictly for students).
Although Petitioner was a student in an accredited educational program at the time in question, he performed his duties during the course of the school year which, as noted above, exceeded four months in duration, and therefore cannot be deemed a temporary position. Also, there was no showing that the position had been set aside strictly for students.
Respondent's Rule 22B-2.002(4)(g) provides as follows:
(g) The Division of Retirement may adjust a member's record of service credit only
upon presentation of evidence sufficient to warrant such adjustment. In the event official records are not available affidavits may be accepted as evidence of proof of employment or salary earned, provided the following conditions are met:
Affidavits are submitted by 2 people who have personal knowledge of the member's employment as supervisor or administrator
of the employee at the time in question. If no former supervisor or administrator can be located, the affidavit of co- workers may be substituted.
The member's employer at the time in, question provides the following:
A statement indicating why records for that period of time are not available.
(If records are available and the employee does not appear on the records, the service credit shall not be creditable);
Copies of additional proof of employment such as the member's personnel file or
some mention of the employee in board minutes, except when all agency records have been destroyed. (If records have been destroyed, compliance with a. and c. shall be sufficient);
The salary of the member on which the retirement contributions shall be based. Since no records are available this shall be the employer's best estimate using salaries of employees filling similar position at that time. Contributions
shall be charged in accordance with Section 22B-3.005(1)(c) or (3) as
applicable for the service to be purchased.
The evidence submitted by Petitioner substantially complies with the requirements of the above rule. Affidavits of the Assistant Principal and that of a co-worker were submitted to establish the fact of Petitioner's employment during the period 1939-41. Although not submitted in evidence, Respondent acknowledges that it received a letter from the current Superintendent of Schools which stated that although no records had been located concerning Petitioner's employment, it is possible that he was paid with School Funds or
General Funds and, in such instance, the County office would have no records to substantiate his salary or employment. The Petitioner did submit the minutes of one School Board meeting which noted the Petitioner had been paid a sum of money in 1941.
In view of all of the above, it is concluded that Petitioner has sustained his burden of proof by the preponderance of the evidence, and that no countervailing proof was offered by the Respondent. Although the evidence is fragmentary, it is recognized that the Petitioner's employment occurred many years ago, at a time when school records were sketchy or nonexistent, thus making it difficult to reconstruct in precise detail the fact and circumstances surrounding an employment status. It is obviously for this reason that Respondent's Rule 22B-2.002(4)(g) was promulgated. It is, therefore
That Petitioner's request to purchase prior service credit for the period of his employment by the Santa Rosa County School Board during the period July 1, 1939 to June 30, 1941 be approved, and that he be permitted to purchase such prior service credit based on a monthly salary of $30 per month.
DONE and ENTERED this 22nd day of July, 1987, in Tallahassee, Florida.
THOMAS C. OLDHAM, 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 22nd day of July, 1987.
APPENDIX TO RECOMMENDED ORDER CASE NO. 87-1241
The following are rulings on the Proposed Findings of Fact submitted by Respondent:
Paragraphs 1-4 Accepted.
Paragraph 5 Rejected as unsupported by the evidence. Paragraph 6 Accepted, except for the last sentence thereof. Paragraphs 7-11 Rejected as unsupported by the evidence.
COPIES FURNISHED:
J. T. Barnes 904 Angie Lane
Pace, Florida 32571
William A. Frieder, Esquire Assistant Division Attorney Division of Retirement Building C, Suite 207
2639 North Monroe Street Tallahassee, Florida 32399-1560
A. J. McMullian, III, Director Division of Retirement Building C
2639 North Monroe Street Tallahassee, Florida 32399-1560
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
=================================================================
AGENCY FINAL ORDER
=================================================================
J. T. BARNES,
Petitioner,
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
vs. CASE NO. 87-1241
STATE OF FLORIDA
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT.
Respondent.
/
FINAL ORDER
A final hearing was held in this cause on June 29, 1987, before a hearing Officer of the Division of Administrative Hearings which resulted in a Recommended Order rendered July 22, 1987. That Order recommended that Petitioner be permitted to purchase approximately two years of creditable service between 1939 and 1940 on the basis of alleged employment with the Santa Rosa County School Board during that period. I have carefully reviewed the Recommended Order, the evidence presented at the hearing together with the transcript of that hearing and must reject that recommendation.
Although I have rejected the recommendation made by the Hearing Officer much of the Findings Of Fact and Conclusions Of Law found in that Order are accurate, are based upon substantial evidence, and therefore are acceptable. I
have, therefore, wherever possible simply adopted the language used by the Hearing Officer departing from it only where necessary.
At the hearing on June 29, 1987, Petitioner, J.T. Barnes represented himself and the Division of Retirement was represented by William A. Frieder, Esquire, Assistant Division Attorney. Petitioner seeks to purchase retirement credit for the period 1939-40 on the basis of alleged employment with the Santa Rosa County School Board during that period. The Division of Retirement denied the request for lack of authentication through appropriate records from the employer and because Petitioner was not employed in a regularly established position as defined by Chapter 22-B of the Florida Administrative Code.
At the hearing Petitioner testified on his own behalf and submitted two exhibits in evidence including his own deposition and exhibits attained thereto. The opposition of Mrs. A.L. Gillman was objected to and rejected by the hearing officer. Respondent presented the testimony of Gertrude E. Wolfe and Ruth Sansom. Respondent's final agency action letter dated February 27, 1987, was received in evidence as Hearing Officer's Exhibit 2.
Respondent filed proposed Findings Of Fact and the Hearing Officer's rulings upon each will be discussed as appropriate.
FINDINGS OF FACT
Petitioner, John T. Barnes is currently employed by Santa Rosa County as a veterans' Service Officer. In 1985 Petitioner submitted a request to the Division that he be permitted to purchase a period of employment with the Santa Rosa County School Board from 1939 to 1940 as creditable service under the Florida Retirement System (FRS) (Testimony of Petitioner, Hearing Officer Exhibit 2.)
Petitioner claims that he worked as a full-time employee as a janitor at Chumuckla High School during this period but would have been unable to return to school in the fall of 1939 to June 30, 1941. He was a student at the Chumuckla High School during this period but would have been unable to return to school in the fall of 1939 without working since his father had died and it was necessary for him to work to help support the family. With the janitorial job Petitioner was able to attend school while performing his duties before school, after school, and upon occasion during school hours. (Deposition of Barnes)
Petitioners testified that his salary was $30.00 per month which was paid by check which he received from the Superintendent each month. The Petitioner performed his duties under the supervision of the school Principal put is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and the Principal under whom Petitioner worked are deceased. Petitioner was the first, and during his tenure the only janitor to be employed at the Chumuckla High School. If he was paid monthly as he alleges, his checks should have been for $30.00 each. (Testimony of Petitioner)
In order to establish his claim of prior service Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939 to 1941. Pursuant to this request the School Board Personnel Officer, Gertrude E. Wolfe searched the School Board records for the period in question, but she was unable to find any mention of Petitioner save for a single entry in the minutes of a single regular board meeting of the board of Public Instruction of Santa Rosa County on June 3, 1941.
(Testimony of Gertrude Wolfe) Petitioner himself had access to the records to the extend he cared to search them and presented no other evidence of payment to him from the School Board. (Testimony of Petitioner)
That entry stated that Petitioner was paid the sum of $7.50 but was for an unstated purpose. The payments made to Petitioner and others were characterized simply as a "bill." No mention was made of salary. (Testimony of Wolfe)
Pursuant to Rule 22B-2.002(4)(g)(1), Petitioner submitted affidavits from L. L. Gillman, Jack D. Jernigan, and Clara B. Lloyd, Petitioner's sister, a student, a teacher and assistant principal, and a teacher respectively which stated Petitioner had received a salary of $30.00 per month from the Santa Rosa County School System during the periods in question. (Deposition of Petitioner- attachment)
By letter dated February 27, 1987, the State Retirement Director denied Petitioner's request for retirement service credit on the grounds that he had been a temporary employee during 1939-1943 and his employment did not therefore meet the definition of a regularly established position. Because the service was not rendered in a regularly established position, it was not creditable and could not be purchased as such under FRS. Included within Respondents letter of denial was a quote from a letter of the Superintendent of Schools, presumably from Santa Rosa County which stated "We have researched our records for the employment of John T. Barnes for the school year 1939-40 and 1940-42 as janitor for the Chumuckla High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type (sic).
If he were paid in this manner, the county office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2)
Based upon the foregoing the hearing Officer found that Petitioner did in fact perform janitorial services for the School Board of Santa Rosa County during the period of July 1, 1939 to June 30, 1940 at a salary of $30.00 per month. The inclusion of the word "salary" in this finding carries with it the assumption that the work performed by Petitioner was performed in a regularly established position and was therefore creditable service. This finding must be rejected as unsupported by the evidence.
The Division of Retirement submitted proposed Findings of Fact and Conclusions of Law a copy of which is attached. The Hearing Officer rejected findings numbered 7 through 11 and simply stated that each was unsupported by the evidence. Those findings were rejected in error. Proposed finding No. 7 reads:
Records for the period of service claimed are available however the Petitioner's name does not appear on those records as having
salary or as having received payment for work performed in a regularly established position.
Gertrude Wolfe, Personnel Officer for the County, testified that "at no degree did I find at any time his name showing that he was employed as a custodian for Chumuckla High School for the term 1935-40 1940-41 I believe." Transcript page
16 line 23 et. sec. Mrs. Wolfe further testified as to the existence of the board minutes for that period of time. She testifies... "Well board minutes? Yes, they do. We have them from way back there to the present." Transcript
page 17 line 6, 7. Surely when the proposed finding which indicates that the records are extant and that Petitioner's name does not appear on them is indeed supported by the evidence and the rejection of that proposed finding by the Hearing Officer was incorrect.
The Hearing Officer also rejected proposed finding Number 8 that Petitioner did not produce his personnel file showing the employment claimed. Yet the Hearing Officer recites in his order that Petitioner offered only two exhibits into evidence, neither one of which was the personnel file. Proposed finding number 8 is therefore supported by the evidence (or lack thereof). I therefore specifically find that Petitioner failed to submit proof of employment such as his personnel file showing that the employment existed and that it was in a regularly established position.
Perhaps most important of the proposed findings rejected by the Hearing Officer is No. 22:
Petitioner's testimony without further corroboration is insufficient to sustain Petitioner's burden of proof in this case.
It is difficult to conceive how such a finding would be unsupported by the evidence since it is a conclusion of law. However, it must be concluded from the Hearing Officer's rejection that he believes it to be sufficient for petitioner to sustain his burden of proof by his own testimony alone without anything further. In this he is wrong.
As will be discussed more fully below, Rule 22602.002(4)(g)(2.a), Florida Administrative Code, provides that if records, service credit shall not be creditable. The Hearing Officer appears to have completely overlooked this portion of the rule, when rejecting this proposal from the Division. It is clearly not the cases that Petitioner's bare assertion of entitlement is sufficient to sustain his burden of proof. The affidavits provided by Petition are merely the threshold across which he must first come before consideration will be given to awarding creditable service.. They are not however the only proof required of Petitioner unless the records are not available. In this case they are available.
Based upon the testimony of Gertrude E. Wolfe, I specifically find that the records of the Santa Rosa County School Board are presently extant, and that they have thoroughly been searched by Ms. Wolfe as well as Mr. Barnes to the extent that he cared to do so. (Transcript page 15 line 11 et. seq./ and transcript page 33, line 17 et. sec.) Petitioner had approximately two to three years to find records of his employment and payment to him if they existed, however, the only record that he found was introduced into evidence at this hearing and is described above as a "bill" for $7.50 payable to John T. Barnes. This is not sufficient to satisfy Petitioner's burden of proving by a preponderance of the evidence that he received $30.00 per month for two years as salary.
While the Hearing Officer found in paragraph five of his findings of fact that Petitioner did perform services for the school board between 1939 and 1943, his characterization of the payments to Petitioner as "salary" in the retirement sense is unsupported by competent, and substantial evidence.
CONCLUSIONS OF LAW
Section 121.023(17)(a), Florida Statutes, provides in pertinent part as follows:
(17)(a) "Creditable service" of any member means the sum of his past service, prior service,... and future service allowed within the provision of this chapter if
all requires contributions have been paid and all other requirements of this chapter have been met...
(19)"Prior service" under this chapter means:
(b) Service prior to an employee's member- ship in the Florida Retirement System
with an employer, either before or during the employer's participation in an existing system. The word "service" as used in this paragraph...means employment service which at the time
it is claimed as prior service, satisfies the requirements for a regularly established position, as defined by rules of the Florida Retirement System.
A regularly established position in a local agency including a District School Board is defined in Rule 22B-1.004(4)(b), F.A.C. as "An employment position which will be in existence beyond four consecutive months." The Hearing Officer's Recommended Order omitted the balance of that rule which provides:
...a local agency, when establishing an employment position, except for positions identified in Rule 22B-1.004(c) of Rule 22 B-1.00 should determine if a position
will exist beyond four consecutive calendar months. If it will, then it is for retirement purposes a regularly established position.
Rule 22B-1.004(5)(e), F.A.C. contains a list of employment positions which regardless of their duration will never become regularly established position because they are classified as "temporary positions" i.e. positions never eligible for membership in the Florida Retirement System and the opposite of regularly established position.
In his Recommended Order the Hearing Officer finds as a matter of law that:
Although Petitioner was a student in an accredited educational program at the time in question, he performed his duties during the course of the school year which as noted above exceeded four months in duration and therefore cannot be deemed a
temporary position. (Recommended Order page 5 paragraph 3)
The Hearing Officer obviously failed to consider the exception to the four month rule since a temporary position may never become a regularly established position and therefore make the incumbent eligible for Florida Retirement System membership or make that service eligible for purchase at a later time should the incumbent later become a member.
At page five paragraph four of the Recommended Order the following is found.
Respondent's Rule 226-2.002(4)(g) provides as follows:
The Division of Retirement may adjust
a member's record of service credit only upon presentation of evidence sufficient to warrant such adjustment. In the event official records are not available affidavits may be accepted as evidence of proof of employment of salary earned, provided the following conditions are met:
Affidavits are submitted by 2 people who have personal knowledge of member's
employment as supervisor or administrator of the employee at the time in question. If no former supervisor or administrator can be located, the affidavit of
co-workers may be substituted.
The member's employer at the time in question provides the following:
A statement indicating why records for that period of time are not available
(If records are available and the employee does not appear on the records, the service credit shall not be received.
That Rule accurately prescribes what must be accomplished in this case if Petitioner is to prevail. That is, if records are not available from the employer showing sufficient evidence to warrant the adjustment in the member's service credit, then affidavit's may be accepted as long as certain conditions are met. It is the lack of those conditions which require that the Hearing Officer's Recommendation be rejected. Rule 22B-2D02(4)(g)(2.A) clearly provides that if records for the period during which service is sought are available and the employee does not appear on the records the service shall not be creditable. In this case Mrs. Wolfe testified that the records were available and that the employees name did not appear on the records save for one instance during the two years sought, and that one entry does not indicate employment by the School Board nor does it indicate that the amount paid ($7.50) was for salary. In fact the amount is in conflict with the $30.00 per month claimed by Petitioner.
Applying this Rule to this case, since the records were available and since the employee did not appear in the School Board records as receiving salary, when the service credit may not be granted to him.
Thereafter follows an extraordinary conclusion off Law by the Hearing Officer. It is reprinted here:
The evidence submitted by Petitioner substantially complies with the requirements
of the above rule. Affidavits of the Assistant Principal and that of a co-worker were submitted to establish the fact of Petitioner's employment during the period 1939-41. Although not submitted in evidence,
Respondent acknowledges that it received
a letter from the current Superintendent of Schools which stated that although no records had been located concerning Petitioner's employment, it is possible that he was paid with School Funds or General Funds and, in such instance, the county office would have no records to substantiate his salary or employment. The meeting which noted the
Petitioner had been paid a sum of only in 1941.
The Hearing Officer apparently believes that "substantial compliance" with the requirements of the rule is sufficient. We are aware of no rule of law which would allow "substantial" compliance in place of simply compliance with the rule. In suggesting that Petitioner has "substantially complied" with the requirements of he rule, the Hearing Officer had invented a new and different standard of proof than has been recognized heretofore. The Division of retirement does not choose to adopt that standard.
Additionally the hearing Officer refers at length to a document which as not submitted into evidence. It is not possible for an order to be foundationed upon documents or testimony which is not submitted in evidence. In doing so the Hearing Officer clearly erred. The payment of money does not mean that salary was paid. As indicated by Ms. Sansom in her testimony, there is no way for the Division to accurately determine that the money paid to Petitioner on one occasion in 1940 was for services rendered in a regularly established position. The Division is not free to speculate on such matters and must have proof according to its rules before such service credit may be granted. It is insufficient for the Hearing Officer to state that "It is possible" that Petitioner was paid with School Funds or General Funds. Nor is it permissible to speculate even further that if paid with such funds that the county would have no records to substantiate his salary or employment. Records did exist.
The records were thoroughly searched and no record was found of a contract of employment for Petitioner.. No one could find payment to him of salary, or any other payment with the one exception noted above. The granting or denial of service credit cannot be based on mere speculation and certainly cannot be based upon unadmitted "evidence."
In view of the above it is concluded that Petitioner has failed to sustain his burden of proof by a preponderance of evidence. It is recognized that Petitioner's employment occurred many years ago at a time when school records may have been sketchy, but in this case, the employment records exist and Petitioner was not mentioned in them. It is unfortunate that is is difficult to reconstruct in precise details the facts and circumstances surrounding the work done by Petitioner from the records of the employer, but it is for this reason that Rule 22B02.002(4)(g)(2.A) was promulgated.
It is therefore ordered that Petitioner's request to purchase prior service credit for the period of his employment by the Santa Rosa County School Board during the period from July 1, 1939 to June 30, 1940 be and the same is hereby denied.
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68 FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
DONE AND ORDERED this 12th day of October, 1987, at Tallahassee, Leon County, Florida.
Director of the Division of Retirement
Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, FL 32399-1550
(904) 487-1230
I HEREBY CERTIFY that this Final Order was filed with the Clerk of the Division of Retirement on this 12th day of October, 1987.
Karen M. Robertson CLERK
Division of Retirement Cedars Executive Center
Tallahassee, Florida 32399-3550
(904) 487-1230
Copies furnished to:
Mr. J. T. Barnes 904 Angie Lane
Pace, Florida 32571
Thomas C. Oldham Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32395-1550
Clerk
Division of Administrative Hearings, The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32395-3550
William A. Friden, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Bulding D
Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Jul. 22, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 12, 1987 | Agency Final Order | |
| Jul. 22, 1987 | Recommended Order | Evidence establishes that petitioner held a regular position in a local agency and therefore should receive prior service credit. |
RICHARD W. COONEY vs. DIVISION OF RETIREMENT, 87-001241 (1987)
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs DAVID J. WILLIAMS, 87-001241 (1987)
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs ROBERT THOR NEGEDLY, 87-001241 (1987)
BROWARD COUNTY SCHOOL BOARD vs HECTOR A. ACOSTA MATOS, 87-001241 (1987)
