Judges: LARRY J. SARTIN
Agency: Department of Management Services
Latest Update: Jun. 30, 1988
Summary: Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?Petitioner failed to prove entitlement to special risk equivalent credit for employment at a road prison.
87-3823STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES K. SHEPHERD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3823
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 27, 1988, in Holly Hill, Florida.
The Petitioner, James K. Shepherd, was represented by Charles Tindell, Esquire. The Respondent, the Department of Administration, Division of Retirement (hereinafter referred to as the "Department"), was represented by William Frieder, Senior Attorney.
INTRODUCTION
Mr. Shepherd filed an Application for special Risk Equivalent Credit with the Department on or about May 5, 1987. On July 10, 1987, the Department denied Mr. Shepherd's Application. On July 30, 1987, Mr. Shepherd served a Petition for Administrative Hearing on the Department contesting the Department's denial. By Notice of Election to Request Assignment of Hearing Officer, the Department assigned the dispute to the Division of Administrative Hearings.
At the formal hearing of this case Mr. Shepherd testified on his own behalf and offered seven exhibits. Petitioner's exhibits 1-4 were accepted into evidence. A ruling was reserved on Petitioner's exhibits 5-6. Those exhibits are hereby rejected as irrelevant. Petitioner's exhibit 7 was rejected at the formal hearing.
The Department presented the testimony of Ira Gaines and offered eight exhibits. All eight exhibits were accepted into evidence.
Finally, the parties offered four exhibits which were marked as Joint exhibits 1, 2, 3A and 3B and accepted into evidence. Joint exhibits 1, 2 and 3A consist of the deposition testimony of James A. Ball, Herman S. Ewin and Talbert
Melton, respectively.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
ISSUE
Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?
FINDINGS OF FACT
Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation.
Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960.
Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960.
Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison.
During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools.
On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison:
I am an equipment operator I.
The duties of this job consist of:
90% A. Drive Dump truck.
5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck.
On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison.
Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew.
In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison:
Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons;
Carrying weapons issued by the prison;
Maintaining the safety of prisoners in and outside the prison;
Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon.
Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison.
During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department.
There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck.
Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison.
From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System.
In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison.
While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison
guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners.
While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners.
During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison.
In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida.
In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida.
Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison.
Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections.
Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972.
Mr. Shepherd remained with the Department of Corrections until his retirement.
Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System.
On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976.
By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied.
The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Mr. Shepherd is seeking special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through
June, 1972, and from December, 1973, through October, 1976. Mr. Shepherd's entitlement to special risk equivalent credit is governed by the provisions of Section 121.0515, Florida Statutes.
Eligibility for special risk equivalent credit pursuant to Section 121.0515, Florida Statutes, depends upon whether an employee seeking special risk equivalent credit was covered at the time of his employment by the State and County Officers and Employees' Retirement System (hereinafter referred to as "SCOERS") of Chapter 122, Florida Statutes, or the Florida Retirement System of Chapter 121, Florida Statutes.
An employee covered by the Florida Retirement System of Chapter 121, Florida Statutes, is eligible for special risk equivalent credit if the following criterion of Section 121.0515(2), Florida Statutes (1987), was met during his employment:
(c) The member must be employed as a correctional officer and be certified, or required to be certified, in compliance with s. 943.1395. In addition, the member's primary duties and responsibilities must be the custody, and physical restraint when necessary of prisoners or inmates
within a prison, jail, or other criminal detention facility, or while on work detail outside the facility, or while being transported; or the member must be the supervisor or command officer of a member or members who have such responsibilities; ...
An employee covered by SCOERS under Chapter 122, Florida Statutes, is eligible for special risk equivalent credit if the employee's service meets the following pertinent part of Section 121.0515(6), Florida Statutes (1987):
(6) CREDIT FOR PRIOR SERVICE. -- A special risk member who has creditable service with an employer under chapter 122, in a position which satisfies the criteria provided for in subsection (2) for special risk membership except the requirement for a certificate or waiver of certificate, shall have those years of service counted towards the attainment of the normal retirement date as a special risk member under this chapter...
Employees of the Florida State Road Department during part of the period of time at issue in this proceeding were covered by SCOERS until December 1, 1970. As of December 1, 1970, and thereafter, employees of the Florida State Road Department or the Department of Transportation were covered by the Florida Retirement System. Section 121.051(1)(a), Florida Statutes; and Rule 22B-1.004, Florida Administrative Code.
The evidence in this case proved that Mr. Shepherd was covered by SCOERS during the portion of the his employment at the Bartow Road Prison from September 16, 1960, through November 30, 1970. Therefore, Mr. Shepherd is entitled to special risk credit for this portion of his employment if his employment satisfies the requirements of Section 121.0515(6), Florida Statutes (1987).
The evidence in this case proved that Mr. Shepherd's employment met the first requirement of Section 121.0515(6), Florida Statutes: his service was with an employer "under chapter 122" during this period of employment. The evidence failed to support a finding, however, that Mr. Shepherd's employment prior to December 1, 1970, met the pertinent criteria of "subsection (2)." Section 121.0515(2)(c), Florida Statutes, requires that the employee's "primary duties and responsibilities must be the custody, and physical restraint when necessary, of prisoners or inmates ..." The evidence in this case proved that Mr. Shepherd did have duties and responsibilities involved with the custody and restraint of prisoners or inmates. Those duties and responsibilities were not, however, Mr. Shepherd's primary duties and responsibilities. Mr. Shepherd's primary duties and responsibilities while employed at the Bartow Road Prison prior to December 1, 1970, involved the operation of vehicles.
Based upon the foregoing, it is concluded that Mr. Shepherd's employment as an equipment operator at the Bartow Road Prison from September 16, 1960, through November 30, 1970, is not eligible for special risk equivalent credit treatment.
Effective December 1, 1970, Mr. Shepherd was covered by the Florida Retirement System. Accordingly, Mr. Shepherd is entitled to special risk equivalent credit for the portion of his employment at the Bartow Road Prison, from December 1, 1970, through January, 1971, and for his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976, if this employment satisfies the requirements of Section 121.0515(2)(c), Florida Statutes (1987).
The evidence in this case failed to prove that Mr. Shepherd was a "correctional officer," that he was "certified, or required to be certified, in compliance with s. 943.1395," or that his "primary duties and responsibilities" after November 30, 1970, consisted of the "custody, and physical restraint when necessary, of prisoners." At no time while Mr. Shepherd was employed at the Bartow Road Prison or the LaBelle Road Prison was Mr. Shepherd employed as a correctional officer certified in compliance with Section 943.1395, Florida Statutes. Instead, Mr. Shepherd was employed as an Equipment Operator I (Prison) and as a Road Foreman after November 30, 1970. Additionally, Mr. Shepherd's primary duties and responsibilities while at the Bartow Road Prison after November 30, 1970, were the same as they had been before December 1, 1970: Mr. Shepherd's primary duty was the operation of vehicles. While employed at the LaBelle Road Prison, Mr. Shepherd had even less involvement with the custody and restraint of prisoners. The evidence proved that his primary duties and responsibilities while at the LaBelle Road Prison involved the supervision of the road work of the prisoner road crews. See Rule 22B-1.0053(2), Florida Administrative Code.
Based upon the foregoing, it is concluded that Mr. Shepherd's employment as an equipment operator at the Bartow Road Prison from December 1, 1970, through January, 1971, and his employment as a road foreman at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976, are not eligible for special risk equivalent credit.
The Petitioner has included findings of fact, conclusions of law and a recommendation in his proposed recommended order concerning special risk equivalent credit for his employment from October 1, 1976, through October 1, 1978. The Department has not taken any action to deny this treatment, however. Therefore, this period of time was not at issue in this proceeding.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk
Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED.
DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
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 30th day of June, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 | 2 & 4. |
2 | 5. |
3 | 8 & 9. |
4 | 10. |
5 | 15. |
6 | 11. |
7 | 12. |
8 | 15. |
9 | 16 & 17. |
10 | 19. See also 1-18. |
11 | 20 & 21. |
12 | 22 & 24. |
13 Hereby accepted.
14 26.
15 Not relevant to this proceeding.
The Department's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987.
2-3 2 & 4.
4 1.
5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3.
6-7 Irrelevant to this proceeding.
8 6.
9 5.
10 Not supported by the weight of the evidence. See 17.
11 9.
12 10.
13-14 8.
15 14.
16 Hereby accepted.
17 13.
18-21 Hereby accepted.
22 13.
23-25 Hereby accepted.
26-28 Taken into account in the weight given to the evidence.
29 8.
30 5.
31 8.
32 9.
33 8.
34 17 & 18.
35 8.
36 8 & 9.
37 28.
38 Hearsay.
COPIES FURNISHED:
Adis Vila Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
William A. Frieder Senior Attorney
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666
406 North Wild Olive Avenue Daytona Beach, Florida 32018
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
JAMES K. SHEPHERD,
Petitioner,
v. DOR CASE NO. DR87-13
DOAH CASE NO. 87-3823
STATE OF FLORIDA,
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
By Petition dated July 30, 1987, Shepherd challenges the Division's decision to deny him special risk equivalent credit pursuant to Section 121.0515, Florida Statutes, for service rendered during various time periods from September 16, 1960 forward. Pursuant to written notice a formal hearing was held pursuant to Section 120.57(1), Florida Statutes, on April 27, 1983 in Holly Hill, Florida. The Petitioner was represented by Charles Tindell, Esquire, and the Department of Administration, Division of Retirement, was represented by William A. Frieder, Esquire, Senior Attorney. A Recommended Order from the Division of Administrative Hearings resulted. The Division hereby adapts the Findings of Fact made in that order as the Findings of Fact of this agency as if fully set out herein.
Portions of the Conclusions of Law made by the Hearing Officer, however, depart from this agency's understanding and interpretation of the applicable law. The Conclusions of Law made by the Hearing Officer which are in conflict with the discussion which follows are therefore either modified or rejected as necessary to conform with this Order.
CONCLUSIONS OF LAW
The issue in this dispute is whether or not Petitioner is entitled to special risk equivalent credit for his employment from September 16, 1960 and thereafter. It must be clearly stated at the outset that credit for special risk service is not the same as special risk equivalent credit. Special risk membership is a classification of membership in the Florida Retirement System (Chapter 121, F.S., the criteria for which are listed in Section 121.0515(2),
F.S. Membership in the special risk class of membership of FRS entitles the member to certain enhanced benefits.
Since the Florida Retirement System began accepting members on December 1, 1970, special risk membership in FRS is impossible before then. It is therefore legally and logically impossible for Petitioner to have earned special risk membership in the Florida Retirement System before that date.
Chapter 81, 153, Laws of Florida, amended section 121.0515, F.S., by adding a new subsection - subsection (5) which provides:
RETIREMENT CREDIT FOR PRIOR SERVICE--A special risk member who has creditable service with an employer under chapter 122, in a
position which can satisfies the criteria provided for in subsection (2) for special risk
membership, except the requirement for a certificate or waiver of certificate, shall have those years of service counted towards the attainment of the normal retirement date as a special risk member under this chapter. The percentage value of each such year of creditable service under chapter 122 shall not change as a result of the application of this subsection. A special risk member who has taken a refund of contributions for such creditable service under chapter 122 and has reclaimed it as prior service credit under chapter 121 shall be permitted to have such creditable service counted towards the attainment of the normal retirement date for the special risk class of membership under chapter 121.
This section became known as the special risk equivalent credit section, and is that provision of the law under which Petitioner claims enhanced benefits here.
Certain things are clear from that section. First, the service claimed as special risk equivalent service, must have been with an employer under Chapter 122, and the service must have been creditable service under Chapter 122. Since Petitioner transferred to the Florida Retirement System on December 1, 1970, he could not have had creditable service beyond that date under Chapter 122. This section therefore does not apply to any of his creditable service after December 1, 1970.
With regard to Petitioner's creditable service under Chapter 122 before December 1, 1970, for that service to be entitled to upgrading under Chapter 81- 153, it must meet the criteria used today for determining special risk
membership under FRS. The Hearing Officer, in his Recommended Order, discussed those criteria and recommended denial of special risk equivalent credit for those periods before December 1, 1970, because Petitioner's primary duty was not the custody and physical restraint when necessary of prisoners, nor was Petitioner the command officer or supervisor of such members as is required by Section 121.0515(2)(c), F.S. The Division of Retirement concurs with this conclusion and insofar as the Recommended Order is consistent with this conclusion, that order is adopted as the Final Order of this agency, insofar as the Recommended Order is inconsistent with this opinion and this conclusion it is rejected as contrary to the law.
In view of the foregoing it is ORDERED that the application of Petitioner, James K. Shepherd, for special risk equivalent credit from the period of September 16, 19960, forward be and the same is hereby denied.
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. THE PARTIES ARE NOTIFIED THAT THEY MAY APPEAL THIS ORDER BY FILING A NOTICE OF APPEAL IN II. DISTRICT COURT OF APPEAL IN THE FIRST OR FIFTH APPELLATE DISTRICT OF FLORIDA. SUCH NOTICE MUST BE FILED WITH THE CLERK OF THIS DIVISION AND WITH THE DISTRICT COURT OF APPEAL TOGETHER WITH THE FILING FEE OF $100 WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE THIS ORDER IS FILED IN THE OFFICIAL RECORDS OF THE DIVISION OF RETIREMENT AS INDICATED IN THE CLERK'S CERTIFICATE BELOW OR FURTHER REVIEW OF THIS ACTION WILL BE BARRED.
It is further ORDERED that insofar as it is not inconsistent with this Order, the Conclusions of Law in the Recommended Order are adopted as the Conclusions of Law of this Agency.
DONE AND ORDERED at Tallahassee, Leon County, Florida this 23rd day of September, 1988.
J. MCMULLIAN, III State Retirement Director
CLERK'S CERTIFICATE
I HEREBY CERTIFY that this Final Order was filed with the Clerk of the Department of Administration, Division of Retirement on this 26th day of September, 1988.
Deputy Clerk
Department of Administration Division of Retirement
440 Carlton Building Tallahassee, Florida 32399-1550 (904) 487-1230
COPIES FURNISHED TO:
James K. Shepherd, Petitioner c/o Charles Tindell, Esquire
406 N. Wild Olive Avenue Post Office Box 5666
Daytona Beach, Florida 32018
William A. Frieder, Esquire Department of Administration
Office of General Counsel-Retirement
440 Carlton Building Tallahassee, Florida 32399-1550
Larry Sartin, Esquire
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Division of Administrative Hearings Clerk of Court
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Docket for Case No: 87-003823
Orders for Case No: 87-003823
| Issue Date |
Document |
Summary |
|
Sep. 23, 1988 |
Agency Final Order
|
|
|
Jun. 30, 1988 |
Recommended Order
|
Petitioner failed to prove entitlement to special risk equivalent credit for employment at a road prison.
|
